Health Ombudsman v Nixon (No 2)
[2022] QCAT 348
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- Unreported Judgment
- Health Ombudsman v Nixon (No 2)[2022] QCAT 348
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Health Ombudsman v Nixon (No 2)[2022] QCAT 348
Health Ombudsman v Nixon (No 2)[2022] QCAT 348
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Nixon (No 2) [2022] QCAT 348 |
PARTIES: | DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH oMBUDSMAN (applicant) v DAVID BRUCE NIXON (respondent) |
APPLICATION NO/S: | OCR231-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 November 2022 |
HEARING DATE: | 1 December 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by; Dr Jennifer Cavanagh Dr Bavahuna Manoharan Ms Claire Elliot |
ORDERS: |
|
CATCHWORDS: | SANCTION – where after a contested hearing the Tribunal determined that the respondent had engaged in professional misconduct by engaging in a limited inappropriate relationship with a vulnerable former patient – where directions were made as to the filing of submissions in relation to sanction – where after the applicant had filed his submissions the parties reached agreement as to sanction – whether proposed orders fall within the appropriate range for the proved conduct COSTS – where parties are in agreement that a costs order should be made – whether such an agreement is in the interests of justice Health Ombudsman Act 2013 (Qld) ss 4, 107 Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 Board of Australia v Jansz [2011] VCAT 1026 Health Ombudsman v Nixon [2022] QCAT 299 Health Ombudsman v Stibbard [2022] QCAT 93 Medical Board of Australia v Anthony Todd [2018] SAHPT 12 Medical Board of Australia v Blomeley [2014] QCAT 160 Medical Board of Australia v Chiappalone [2014] QCAT 170 Medical Board of Australia v DEL [2019] QCAT 63 Medical Board of Australia v Haifi [2018] VCAT 1788 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Wong [2017] QCA 42 Psychology Board of Australia v Garcia [2015] VCAT 128 Psychology Board of Australia v Garcia [2015] VCAT 128 |
APPEARANCES & | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
Sanction
- [1]On the 19th August 2022, the Tribunal delivered judgment[1] in relation to a contested hearing held from 6-8th December 2021, (the first stage decision), in which both the former patient the subject of the referral and the respondent gave evidence and were extensively cross-examined. The hearing time allocated was not sufficient for submissions to be made, so the parties were given leave to make written submissions. The real issue was whether the applicant had proved professional misconduct. Because of the intervening holiday period submissions were not received until the new year and the last submission received was on the 16th June 2022. The parties had had prior access to the draft reasons to enable them to make submissions on both characterisation (in light of the Tribunal’s findings of fact) and sanction, and a directions order was made on 18th May to facilitate the finalisation of the proceedings.
- [2]The applicant’s submissions on sanction were filed on 5th September, and for the reasons set out therein, the applicant sought a reprimand, a period of suspension of 12 months, conditions and costs. The parties then negotiated, and, on the 20th October 2022, filed joint agreed submissions as to sanction and costs. The Tribunal is satisfied that the proposed sanction agreement falls within the permissible range[2] so these reasons will not be as fulsome as if the parties were still in dispute about the appropriate response to the proved conduct.
- [3]
- [4]These considerations include: the purpose of disciplinary proceedings is to protect the public; determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public; determinations should in no way be punitive; the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; and by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner. The likelihood of recidivism; that is, an assessment of the ongoing risk posed by the practitioner should be central to the imposition of sanction; and personal matters such as shame, personal ordeal, and financial difficulty likely to be occasioned by a determination are of little relevance except insofar as they contribute to the specific deterrence of the practitioner. The degree to which the practitioner has acquired insight into his or her conduct such as the understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risks factors and to do that which is necessary to avoid further transgressions, can all be relevant factors in a particular case.
- [5]Sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration.
The Conduct
- [6]The treating relationship commenced in January 2013 in the most distressing circumstances, which left the patient highly vulnerable, particularly in the early stages of the relationship.[5] That vulnerability persisted over the next two years. The patient remained vulnerable and dependent upon the respondent throughout the relevant period. 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. Following the end of the romantic relationship with the respondent in 2016, the patient 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. It is evident from those records that her depression persisted for many months. These circumstances indicate that while the patient’s emotional state did likely improve in 2015, she remained susceptible to emotional shock, and given her tenuous financial position, sole responsibility for children and minimal support network, she remained vulnerable throughout the relevant period.
- [7]The formal relationship of doctor/patient was brought to an end largely at the behest of the respondent. However, the dependence continued as evidenced in the extraordinary volume of emails and other messages sent by the patient to the respondent at his medical practice address. 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.
- [8]The shoots of the affair between the respondent and the patient had clearly begun to arise by the time of the trip to Japan in November 2015. 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 the patient.
- [9]Throughout December 2015, the respondent and the patient exchanged Facebook messages in their private chat on a daily basis. On a day shortly after Australia Day, the patient 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.
- [10]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 the patient’s doctor. Soon after they took up the romantic affair. That romantic affair was a limited 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.[6]
- [11]The doctor/patient relationship of the longevity in nature of that between the respondent and the patient 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 the patient’s obvious and intense dependency to subside, thus permitting any personal relationship to exist on equal footing. The onus was on the respondent 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. The Tribunal concluded that the respondent took advantage of the patient’s dependency created during the course of the treating relationship.
- [12]There are numerous features of this case which are aggravating in the context of a boundary violation case. These are:
- (a)the patient was vulnerable from her first consultation with the respondent, and that vulnerability persisted throughout all of the interactions between the parties;
- (b)there was a high degree of intimacy and trust in the doctor / patient relationship;
- (c)as a consequence, the patient was highly dependent on the respondent in a professional sense, and also an emotional sense;
- (d)the respondent fostered and encouraged the intimacy and trust;
- (e)the respondent was the main instigator of the romantic affair, commencing with his comments to the patient made in Japan;
- (f)although the relationship did not involve sexual intercourse, it was a romantic affair which had some physical aspect and in which sex was contemplated by both parties;
- (g)regardless of the physical engagement between the parties, the real significance of the relationship was its emotional intensity;
- (h)the respondent was an experienced general practitioner at the time this conduct occurred, having obtained his qualifications in 1992 and been registered in Victoria in 1994;
- (i)the issue of professional boundaries must have been in the respondent’s contemplation during the material period given his discussion with Dr MA about the ‘propriety’ of purchasing land from the patient;[7] and
- (j)the respondent’s conduct had serious adverse consequences for the patient in terms of her mental health.
- (a)
- [13]However, as the first stage decision concludes, the respondent’s conduct was not predatory; the relationship was consensual; although there was a duality of relationships (doctor / personal) in the period from about May 2015 (the last in-person consultation) to October 2015, the romantic relationship did not commence or exist at a time when the respondent was formally treating the patient; and the romantic affair only lasted for about 4 months.
Discussion
- [14]The respondent’s insight and remorse are relevant considerations for the Tribunal when considering the appropriate orders. Insight might be reflected in a variety of ways, such as: an understanding of the nature of the conduct; an acceptance that the conduct was wrong; an appreciation of why the practitioner engaged in that conduct, empathy with the consequences; and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
- [15]It is accepted now by the respondent[8] that he has demonstrated limited insight into his conduct in that he consistently failed to understand or accept the gravity of the relationship between he and the patient, and the significance of the boundary violation despite being a medical practitioner of considerable experience in general practice. The first stage decision refers in some detail to the course of the trial, which was unusual, in that the respondent made significant concessions after hearing the patient cross examined for hours (an experience which was obviously difficult for her);[9] and made further even more significant concessions during his evidence and cross-examination. Despite this, he still instructed his lawyers to argue that the conduct proved did not amount to professional misconduct, a submission rejected by the Tribunal in the first stage decision.
- [16]The respondent’s previous and subsequent exemplary disciplinary record are relevant, and his enduring lack of insight can be addressed by the conditions to be imposed by agreement. Some concession also should now be given to him for agreeing to orders by way of sanction albeit at a late stage.
- [17]In the original submission the applicant sought an order (inter alia), that the respondent be suspended for a period of 12 months, particularly as a reflection of principles of specific and general deterrence, and maintenance of proper professional boundaries and the protection of the reputation of the profession. The parties now agree that in addition to a reprimand, a period of 9 months suspension is appropriate, along with conditions imposed on his registration which will require him to undertake education in professional boundaries, and, upon resuming practice be subject to quite limited mentoring involving 12 sessions of one hour over a 12 month period.
- [18]The joint submissions (understandably) do not refer to any comparable decisions, but the original submission filed by the applicant on 5th September do, and, in my opinion provide clear justification for the joint orders proposed.
- [19]Medical Board of Australia v Chiappalone[10] is an example of a general practitioner engaging in a sexual relationship with a former patient. The facts are set out at para [179] of the Tribunal’s first stage decision and need not be repeated. Dr Chiappalone had contested the allegations, but they were found proven after a trial. He did not hold registration at the time of the decision. He was reprimanded and disqualified from applying for 12 months. In that case, the patient was vulnerable (as here), but, unlike the present case, could not be regarded as having developed a dependency on the practitioner because she attended on him on only three occasions. It was the former patient who initiated the intimacy and it only lasted for about two months. Dr Chiappalone’s conduct was not found to be predatory, but he demonstrated a complete lack of insight.
- [20]In Medical Board of Australia v Blomeley,[11] the practitioner engaged in a sexual relationship with a patient between November 2010 and July 2012. Dr Blomeley promptly admitted the relationship, acknowledged its inappropriateness, confessed his shame and offered an apology. The patient had consulted the practitioner for various complaints including marriage difficulties and the efforts she was making to restore sexual intimacy into the marriage. The doctor / patient relationship continued through the sexual affair. The patient was vulnerable, and the affair had an adverse effect on her mental health. Dr Blomeley’s conduct was mitigated by his early admissions, professional counselling he had undertaken about boundaries, and the embarrassment he had suffered through publicity in the newspaper. Dr Blomeley was reprimanded and his registration suspended for 15 months. There was no utility in imposing further education and mentoring conditions given the steps he had already taken.
- [21]In Psychology Board of Australia v Garcia[12] the practitioner engaged in a sexual relationship with a patient within two years after terminating the professional relationship. She had readily admitted the conduct, which was not predatory, although the Tribunal said that the patient was vulnerable. She was reprimanded, her registration was suspended for six months, and conditions for boundary education and mentoring were imposed.
- [22]In Medical Board of Australia v DEL[13] a general practitioner engaged in a sexual relationship with a patient over about four months, with some continuing inappropriate contact with the patient after the relationship ended, regarded as an aggravating feature. The Tribunal accepted a joint submission that the appropriate sanction was a reprimand, a suspension for six months and conditions for education and mentoring on return to practice. There was a reference in the reasons to the practitioner having vulnerabilities, having developed insight into them, and that there was little risk of reoffending, and that she had made full and frank admissions at an early stage. In discussion about a non-publication order, it emerged that she suffered from a form of bipolar affective disorder, which was proving difficult to manage and susceptible to stress; presumably this was the vulnerability referred to, although there was no particular discussion of the mitigating effect of mental health issues. In the present case, the joint submission does not refer at all to the respondent’s neurological disorder,[14] and it is not suggested in any way that it contributed to the respondent’s conduct.
- [23]In Medical Board of Australia v Anthony Todd,[15] the practitioner and the patient had been acquainted prior to the treating relationship. The patient was being treated by other doctors at the practitioner’s clinic. However, in September 2010, a professional relationship commenced in which the patient and her child consulted the practitioner. Thereafter, the patient consulted the practitioner on 19 occasions for issues including counselling, depression and gynaecological matters. It was agreed that the practitioner ought to have known that the patient was vulnerable. Later in 2010, the practitioner began to have inappropriate telephone contact with the patient on many occasions. The inappropriate communication continued into 2011 and escalated into a sexual relationship by March 2011. The practitioner initially denied the written communications. He later admitted those but continued to deny the sexual relationship. However, he did ultimately admit the sexual relationship in a statement of agreed facts. The practitioner gave evidence and said he was overwhelmingly sorry for his conduct. The Tribunal found that he had demonstrated insight. The practitioner was reprimanded, his registration was suspended for 9 months, and conditions were imposed requiring education and mentoring.
- [24]In Medical Board of Australia v Haifi,[16] in late January 2014, the patient saw Dr Haifi for a ‘mole check’ and from then to about 23 June 2015 saw Dr Haifi 16 times at the Clinic. In late June 2015, they became friends on Facebook. In early October 2015, the patient sent Dr Haifi a Facebook message saying she had feelings for him. She suggested coffee, and they subsequently met up. Between October and November 2015, Dr Haifi and the patient exchanged text messages, met in person and sat together in Dr Haifi’s car. In mid-November, Dr Haifi collected the patient and drove to a motel where they engaged in sexual activity. In early December 2015, they returned to the motel and engaged in sexual activity. From late January to mid-September 2016, they continued to contact each other through the Facebook messenger service and via text messages. The Tribunal seemed to accept that the relationship had been initiated by the patient, and that Dr Haifi had initially resisted. On learning of the patient informing another doctor about the relationship, Dr Haifi self-notified. The matter proceeded by way of a statement of agreed facts. He was reprimanded, his registration was suspended for two months, and a condition imposed requiring him to undertake education.
Costs
- [25]The usual order is that the parties bear their own costs.[17] However, the Tribunal may order one party to pay costs of another party “if the tribunal considers the interests of justice require it to make the order”.[18] Here the parties agree that the respondent pay the applicant’s costs fixed in the amount of $50,000 by 31 December 2022. As the Court of Appeal noted in Medical Board of Australia v Wong,[19] there must be a basis for departing from the default position, and in Health Ombudsman v Stibbard,[20] Judicial Member McGill SC noted that where the costs order is an integral part of the overall agreement between the parties as to the orders to be made (see the discussion as to the significance of the agreement in Martin (supra)), an order for costs as part of that overall agreement is “in the interests of justice”.
Orders
- [26]For the reasons set out above, the orders of the Tribunal are as follows:
- (a)pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
- (b)pursuant to section 107(3)(b) of the HO Act, conditions are imposed on the respondent’s registration in terms of the attached order;
- (c)pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of nine (9) months from the date of this order; and
- (d)the respondent to pay the applicant’s costs fixed in the amount of $50,000 by 31 December 2022.
- (a)
Footnotes
[1] Health Ombudsman v Nixon [2022] QCAT 299.
[2] Medical Board of Australia v Martin [2013] QCAT 376 at [92]-[93].
[3] The Act s. 4(1).
[4] [2011] VCAT 1026.
[5] See first stage decision paras 167-175.
[6] Para 121 of the first stage decision.
[7] Para 45 ibid.
[8] Joint submission filed 20th October para 7.
[9] Ibid where the parties refer to what she said in her affidavit affirmed 10 August 108: that it had been “traumatizing and embarrassing to be constantly thinking about everything that happened, let alone providing my private thoughts and detailed evidence to OHO and the lawyer representing me in these proceedings.”
[10] [2014] QCAT 170.
[11] [2014] QCAT 160.
[12] [2015] VCAT 128.
[13] [2019] QCAT 63.
[14] See discussion at 139-144 of the first stage decision.
[15] [2018] SAHPT 12.
[16] [2018] VCAT 1788.
[17] QCAT Act s 100.
[18] QCAT Act s 102(1).
[19] [2017] QCA 42.
[20] [2022] QCAT 93 at [14].