Health Ombudsman v RCM[2022] QCAT 59

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

The Referral

1. [1]
   By referral dated 25 June 2020 the applicant referred to the Tribunal disciplinary proceedings against the respondent psychiatrist pursuant to section 103(1)(a) of the Health Ombudsman Act 2013 (the HO Act).
2. [2]
   The referral^[1] contained allegations that the respondent had:

   1. (a)
      Breached professional boundaries by engaging in a personal and sexual relationship with Patient A in the period between 5 March 2015 and in or around September 2017;
   2. (b)
      Failed to act with honesty and integrity during the investigation of the allegation at sub paragraph (a);
   3. (c)
      Breached professional boundaries by engaging in a personal and sexual relationship with Patient B in the period between 1996/1997 and October 2005 and September 2019;
   4. (d)
      Failed to maintain professional boundaries with Patient C during the course of the treating relationship between approximately 2014/2015 and approximately December 2018.  
3. [3]
   In his response, the respondent admitted each of the allegations in the referral and admitted that he engaged in professional misconduct within the meaning of that term in s 5 of the Health Practitioner Regulation National Law (Qld) (National Law). In his initial response he advanced a different position on some aspects of the particulars that supported some of the allegations. 
4. [4]
   The matter has, however, proceeded before the Tribunal with a statement of agreed facts and an agreed position as to sanction.
5. [5]
   On 14 February 2022 the Tribunal acceded to the respondent’s application, which the applicant did not oppose, that by reason of medical conditions which he suffers, he not be required to be personally present at the hearing. He is represented by lawyers.
6. [6]
   The respondent also sought the extension of an interim non-publication order to be made permanently. The applicant did not oppose the making of such an order.

Background

7. [7]
   At all times which are material to the referral, the respondent was registered with the Medical Board of Australia (“the Board”) holding general and specialist registrations in psychiatry as a medical practitioner pursuant to the Health Practitioner Regulation National Law (Qld) (“the National Law”).
8. [8]
   As such, at the times relevant to this proceeding, the Respondent was required to practice medicine in accordance with:

   1. (a)
      The Board’s “Good Medical Practice: A code of Conduct for Doctors in Australia”: 17 March 2014 (“the Code of Conduct”);
   2. (b)
      The Board’s “Sexual Boundaries: Guidelines for doctors” (“the Sexual Boundaries Guidelines”) 28 October 2011 (to 12 December 2018); and
   3. (c)
      The Royal Australian and New Zealand College of Psychiatrists’ (“College”) “Code of Ethics”; 5^th edition, 2018 (“the RANZCP Code of Ethics”).
9. [9]
   The respondent obtained his fellowship from the College in or around 1992 and practised as a psychiatrist from rooms in suburban Brisbane from 1994. The respondent surrendered his registration with the Board on 3 April 2020.

The conduct

Patient A and Allegation 1: Boundary Violation of a Sexual Nature 

10. [10]
    Patient A, a 44 year old woman, with a history of depression and anxiety and a period of being acutely suicidal was referred to the respondent for psychiatric treatment and management.
11. [11]
    For almost 9 months in 2015 the respondent treated Patient A (“the treating relationship”), which involved a total of 20 occasions of consultation.  Between July and August of 2015, Patient A consulted the respondent on a number of occasions. During these consultations the respondent and Patient A developed mutual feelings for each other.  They had sexual intercourse in the consultation room at the end of the appointment on 6 August 2015. 
12. [12]
    In mid-September 2015, Patient A went overseas with her former husband and daughter.  She became stranded overseas when her former husband took their daughter and returned to Australia without her and cancelled her return flight home.  She got in touch with the respondent for support on her return to Australia and he visited her at the hotel where she was staying to provide her with support.  They had sexual intercourse.  Prior to leaving, he gave Patient A a small amount of money which was all he had in his wallet.  This was because she reported having little money. 
13. [13]
    On two or three occasions after the hotel visit, he visited her at her family home, providing her with emotional support and engaging in sexual intercourse during those visits. 
14. [14]
    By September 2015 the respondent and Patient A had developed or were developing a genuine personal relationship which included frequent telephone and text contact, regular dates together as a couple, visits to each other’s residence and a sexual relationship.
15. [15]
    In late September 2015, the respondent and Patient A, at the respondent’s suggestion, had a weekend together in Melbourne. They flew there on the same plane, spent the weekend time together as a couple and stayed in the same hotel room in Melbourne.  They did things such as taking a drive to the Great Ocean Road and they engaged in sexual intercourse.
16. [16]
    In early October 2015, the respondent told Patient A a complaint had been made to the Australian Health Practitioner Regulatory Agency about him. 
17. [17]
    After the treating relationship ended in September 2015, the respondent transferred Patient A’s care to another psychiatrist.  He and Patient A commenced a personal and sexual relationship for approximately two years.  They saw each other every day.  He would sometimes stay overnight at her home.  They took holidays together including to the Gold Coast, road trips and to Tasmania.
18. [18]
    Their personal relationship gradually ended in around September 2017.  After the break-up they remained on good terms with each other and kept in touch^[2].
19. [19]
    As part of the investigation into the complaint, Patient A attended the office for an interview and denied having a sexual relationship with the respondent.  Some three years later, when she received an email from the office with an update about the complaint, she voluntarily attended the office for an interview and admitted she had had a personal and sexual relationship with the respondent as earlier outlined in these reasons.  She said she had not been truthful during the interview on 9 August 2016.  She did this after she told the respondent that she intended to tell the truth about their relationship.
20. [20]
    During and after the treating relationship, the respondent was aware that Patient A was a vulnerable patient because she was referred to him for psychiatric treatment, he knew of her medical history and her marital problems and he was aware she was taking medication and further prescribed her other medication.

Allegation 2: Failure to act with honesty and/or integrity

21. [21]
    The respondent made initial written submissions to the investigation in October 2015 concerning Patient A. In them, he denied, amongst other things, having any personal or sexual relationship with Patient A, including meeting her outside the practice. He gave a version of events about the weekend in Melbourne which indicated he was there alone and stayed with friends. He was aware that Patient A’s relationship with her husband had broken down and admitted to telephone and message contact with her outside the rooms, because of her having a difficult period in her personal life. 
22. [22]
    About 18 months later in an interview in the investigation, the respondent, in summary, gave another version of the Melbourne trip. Again, that version did not acknowledge the true position with Patient A.
23. [23]
    In February 2020, the respondent made admissions to having had an inappropriate sexual relationship with Patient A and to providing false and misleading information about that throughout the investigation.

Patient B and Allegation 3: Boundary violation of a sexual nature

24. [24]
    The third allegation relates to Patient B.  Patient B had known the respondent for approximately 20 years as her psychiatrist and friend.  Patient B suffered from long-term and chronic psychiatric disorders and had, on occasion, reported suicidal thoughts.
25. [25]
    The treating relationship occurred in two tranches: the respondent first treated Patient B in 1996-1997 for depression.  Patient B consulted the respondent again in 2005, up until March 2017. 
26. [26]
    Between October 2005 and March 2017, the respondent treated Patient B on approximately 161 occasions: sometimes weekly, sometimes fortnightly and sometimes monthly throughout this period.  During these consultations Patient B discussed with the respondent ending her marriage with her husband, the fact that marriage counselling had commenced and that she had anxiety.
27. [27]
    In the second tranche of the treating relationship at different times:

    1. (a)
       Patient B was admitted to Toowong Private Hospital for ECT therapy recommended by the respondent; 
    2. (b)
       the respondent had referred Patient B to another psychiatrist for a second opinion for aspects of management;
    3. (c)
       the respondent also referred Patient B to a psychologist.
28. [28]
    In March 2016, during a consultation, Patient B told the respondent she had feelings for him and he told her he had similar feelings.  At a consultation about a month later, the respondent apologised for expressing his feelings to her.  After the respondent’s expression of feelings Patient B did not wish to continue the doctor/patient relationship and decided to end it.  She requested an appointment with the respondent and during that consultation she said to him she wished they had met under different circumstances. The respondent offered to refer Patient B to another treating psychiatrist.
29. [29]
    Between May and September 2016 the respondent saw Patient B on four occasions.  They also exchanged pictures and texts messages of a non-sexual nature during this time. In September 2016, Patient B and the respondent met outside the medical practice.  They went for a walk at Mt Coot-Tha after which the respondent gave Patient B a long hug and kissed her.  This act was consistent with the genuine support of a friend and did not have sexual undertones. 
30. [30]
    After the treating relationship had concluded in March 2017, the respondent and Patient B commenced a sexual relationship.  The relationship which existed between them was genuine and reciprocal.  It included trips away interstate and within Queensland.  At a point in time, they lived together and Patient B met the respondent’s children, siblings and parents.  They celebrated Christmas together in 2018 with family members of both families.  They attended social gatherings together.  Each of them considered and introduced themselves as a couple.
31. [31]
    The relationship broke down in September 2019 and Patient B moved out of their shared address.  Patient B has continued to seek the respondent’s support since their break-up and he has provided that support^[3].
32. [32]
    The respondent accepts that during and post the treating relationship, he was aware Patient B was a vulnerable patient because she had been a long-term patient for over 20 years, he knew of her medical history, he had referred her for opinions of other professionals and he knew of her marital problems and marital counselling.  He also knew she was receiving anti-depressant therapy, psychological therapy and taking multiple anti-depressant medications which he or others prescribed.

Patient C and Allegation 4: Failure to maintain professional boundaries

33. [33]
    Patient C is a returned serviceman, who was diagnosed with post-traumatic stress disorder and major depressive disorder from war service in the Australian Army, having served as a rifleman between 2001 and 2008. From 2009 to 2014 he suffered numerous major depressive episodes and had to take time off work and he sought medical advice without success.
34. [34]
    He had an extreme depressive episode in 2014.  The respondent treated him from around 2014 or 2015 until the end of 2018 and this is the “the treating relationship”.
35. [35]
    The respondent treated Patient C for numerous conditions.  Patient C consulted the respondent weekly, with consultations typically an hour or so in length.  Consequent upon discussions in those consultations the respondent considered Patient C would benefit significantly if he could return to employment.  Much time was spent in consultations discussing the benefits of employment to Patient C including the reduction in depression, the development of a sense of purpose, the reduction in financial strain and the positive effect on his marital relationship.
36. [36]
    In 2015 and 2016 Patient C professed to have experience with automotive air-conditioning.  They discussed his ability to return to work in that field.  As part of this discussion, the respondent discussed the fitting of custom air-conditioning for his Jaguar.  In or around August 2016, Patient C told the respondent he was planning to honeymoon in Tasmania.  The respondent offered Patient C his home in Tasmania, for free use to Patient C and his family, given Patient C’s challenging financial situation.  The respondent told Patient C he had a difficult neighbour who had caused some difficulties with previous visitors and that he had assaulted the respondent with a garden hoe. In response, Patient C offered to review the property to determine whether or not it would possible to install CCTV and the respondent accepted the offer.
37. [37]
    In August 2016, Patient C and his family stayed at the respondent’s property for a week.  On his return from Tasmania, Patient C discussed with the respondent his views about the pros and cons of the installation of the securities cameras.
38. [38]
    In January 2017, Patient C saw the respondent again for regular sessions.  During 2018 and the first part of 2019, Patient C was severely depressed, he failed to attend approximately 19 scheduled appointments and he relapsed to drug use.
39. [39]
    During and after the treating relationship, the respondent was aware that Patient C was a vulnerable patient due to him treating him for psychiatric treatment and knowledge of his medical history.

The respondent’s personal mental health position

40. [40]
    Since 2011 the respondent has been receiving psychiatric treatment from Dr Murray Walters, consultant psychiatrist. Dr Walters has advised:

    1. (a)
       He first saw the respondent in 2011 in the aftermath of a serious assault by his neighbour in Tasmania;
    2. (b)
       He diagnosed the respondent with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder;
    3. (c)
       He prescribes the respondent anti-depressant and other medications;
    4. (d)
       He describes the respondent’s prognosis as a chronic relapsing illness;
    5. (e)
       He met the respondent and Patient B at a social function but was not aware that Patient B was a former patient. 
41. [41]
    In January 2020 Dr Walters admitted the respondent to hospital because he was acutely unwell and had suicidal thinking. Dr Walters said the respondent was unable to work. I will deal further with the evidence about the respondent’s current health position when I turn to the non publication order.

Characterisation of the conduct

42. [42]
    The parties are agreed that it is appropriate that the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct within the meaning of that term in sections 5(a) and (c) of the National Law in respect of each of the four allegations^[4].
43. [43]
    It is, however, for the Tribunal to determine whether the admitted conduct constitutes professional misconduct or some other species of unsatisfactory conduct within the meaning of the National Law^[5].  
44. [44]
    Section 5 of the National Law defines ‘professional misconduct’, relevantly, in the following terms:

(a) 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; and

(b) …; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

45. [45]
    A doctor maintaining a sexual relationship with a patient is contrary to the express requirements of the Board’s “Sexual Boundaries Guidelines for Doctors” and contrary to Principles 2 and 3 of the Code of Ethics of the Royal Australian and New Zealand College of Psychiatrists which provide, respectively, that psychiatrists will not exploit patients and will provide the best attainable care for their patients.
46. [46]
    Accepting in respect of Patient B, that the relationship was mutual and the sexual aspects of it commenced shortly after the treating relationship concluded^[6], the Tribunal is nonetheless satisfied, on the basis of the agreed facts, that the conduct in respect of each of Patients A and B was professional misconduct as defined in section 5 of the National Law.
47. [47]
    As to the falsehoods he told to the investigators concerning his relationship with Patient A, on two occasions, the Tribunal is comfortably satisfied this is conduct which comes within section 5(a) and (c) of the definition of professional misconduct.
48. [48]
    The conduct involving Patient C, if it stood alone as an isolated incident would, on the basis of the agreed facts probably come within some other level of the definition of the relevant terminology in the National Law. However, noting a significant part of that conduct was occurring at or about the time the respondent was having an inappropriate relationship with Patient A and at the commencement of the investigation into the respondent’s conduct with Patient A, the Tribunal concludes that it is conduct which also comes within the definition in professional misconduct in s 5 (a) because the respondent’s conduct at this time is that of someone who was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience not a fit and proper person to hold registration.

Sanction

49. [49]
    The Tribunal is therefore comfortably satisfied that the respondent’s conduct in respect of each of the four allegations is professional misconduct within the meaning of that term in the National Law. 
50. [50]
    The parties have made joint submission about the appropriate orders to be made by the Tribunal, being a finding that the allegations constituted professional misconduct, a disqualification of the respondent for applying for registration as a registered health practitioner for six years from the date of the order and a prohibition on him providing health services until he is registered.  Neither party seeks an order for costs.
51. [51]
    It is the Tribunal’s role to determine sanction, even where the parties are agreed on sanction. However, where there is an agreed position between the parties, that agreement should only be disturbed if it “falls outside the permissible range of sanction for the conduct”^[7]. 
52. [52]
    The guiding principle in administering the HO Act is that the health and safety of the public is paramount.
53. [53]
    Disciplinary proceedings are protective, not punitive in nature^[8].  The rationale for such proceedings is to maintain professional standards, to maintain public confidence in the profession and to protect the public^[9]. 
54. [54]
    Issues relevant to sanction include the seriousness of the conduct, whether the practitioner presents any ongoing risk to the public of similar misconduct and the degree of insight which the respondent has shown. Other factors, which may be aggravating or mitigating, may be relevant in a particular case.

Seriousness of the conduct

55. [55]
    As already set out above, Patient A was a vulnerable person and known by the respondent to be so^[10].  The personal and intimate relationship commenced whilst the treatment relationship was on foot. Indeed, the respondent’s provision of false written information to the investigators in October 2015 in respect of Patient A indicates some awareness on his part of the inappropriateness of his conduct.  Further, whilst he was treating Patient A at various points he knew her to be in parlous personal circumstances as is set out in [11] – [13] and [18] – [19] of the Statement of Agreed Facts.   Of itself the course the respondent took in respect of Patient A is serious.
56. [56]
    In disciplinary proceedings involving a breach of professional boundaries, deception of the regulator is treated as a serious aggravation of the overall misconduct^[11]. Where the initially misleading information was contained in written submissions^[12] and further misleading information was provided in interview some 16 months later and after he had been provided with documents, the conduct suggests a sustained and determined effort to mislead the authorities about his conduct. The Tribunal accepts the applicant’s submission that the lack of candour and deception is an aggravating feature of his conduct.  
57. [57]
    As already set out above, Patient B was a vulnerable person and known by the respondent to be so^[13].
58. [58]
    The relationship with Patient B commenced hot on the heels of the treating relationship ceasing. That was a treating relationship which had been on foot, in total for more than 20 years and in respect of the second tranche of it, for about 12 years. In that second tranche it was a relationship where the respondent had treated Patient B about 161 times for a range of conditions, referred her to others and prescribed her medications. Whilst it may be accepted that the respondent understood the relationship was a genuine one, he was in a position of trust and power in respect of Patient B and it represents serious shortcomings in his professional judgment to have taken the steps that he did.
59. [59]
    That the respondent engaged in personal and sexual relationships with two patients, is, as the applicant submits, a serious breach of professional boundaries and shows a significant lack of judgment, care, ethical and moral behaviour in how he practiced his profession. It shows repeated offending of a serious nature.
60. [60]
    This is compounded by his failure to maintain professional boundaries with the third patient. That patient was a highly vulnerable person also.
61. [61]
    In oral submissions, counsel for the respondent accepted that the respondent acknowledges that each patient has been affected by his failures.  That is a proper concession on the material before the Tribunal.

Insight and remorse

62. [62]
    The applicant accepts the respondent has demonstrated some insight into his conduct by:

    1. (a)
       Making admissions that the allegations constitute professional misconduct and agreeing to expedite the matter through agreeing to Agreed Facts;
    2. (b)
       Making agreement as to the proposed sanction; and
    3. (c)
       Admitting to the inappropriate relationship with Patient C.
63. [63]
    This needs to be balanced against, the applicant submits:

    1. (a)
       The protracted nature of the respondent’s deceptive conduct by continuing to provide false and misleading information in the investigation for nearly 5 years;
    2. (b)
       The respondent’s asserted willingness to cast aspersions on others and to shift blame;
64. [64]
    The applicant makes that submission specifically in respect of matters set out by the respondent in the interview concerning the circumstances in which he and Patient A had the weekend in Melbourne. 
65. [65]
    The respondent submits that the fact he disclosed the relationship with Patient B to the regulator is very relevant to the issue of insight, particularly where the relationship commenced after the treating relationship concluded and despite the acknowledgment being belated.  The letter from his solicitors dated 21 February 2020^[14] records, inter alia that relationship as commencing some 9 – 10 months after the conclusion of the treating relationship and that it was a genuine relationship. His psychiatrist had admitted him to hospital in early January 2020, in the aftermath of the breakdown of that relationship^[15]
66. [66]
    Unbeknowns to the respondent, Patient B had made an initial verbal notification on 26 September 2019, apparently in the course of the relationship breaking down^[16].  The regulator’s interview with Patient B did not occur until after the respondent had made the disclosure.
67. [67]
    The matter has resolved on the factual basis that the relationship with Patient B was a genuine and reciprocal one^[17], consistent with the letter from his solicitors. However, it has resolved also on the basis that the treating relationship ceased in March 2017 and shortly thereafter the sexual relationship commenced^[18] which is inconsistent with the contents of the respondent’s solicitor’s letter.
68. [68]
    Of course, had the respondent been candid in the initial investigation in respect of Patient A in his written response of October 2015^[19], it is probable that steps would have been taken concerning his ability to practice such that he could not have been in the position to commence the relationship with Patient B. This rather tells against any great acceptance of insight, until a much later point in time. It is also worth noting that, in his interview with the regulator in February of 2017, which was after he had commenced the relationship with Patient B, he was still being untruthful about the circumstances of the visit to Melbourne with Patient A.
69. [69]
    In the circumstances the Tribunal accepts there is some limited insight demonstrated by the respondent.

Deterrence and the Respondent’s mental health

70. [70]
    General deterrence is always an important aspect of disciplinary proceedings such as this because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in what is properly to be considered a noble and essential profession. The applicant’s reference in its written submissions to the observations made in the Psychology Board of Australia v Wakelin^[20] are appropriate.
71. [71]
    The applicant submits that whilst the respondent’s mental health may be relevant to sanction, little weight should be placed upon it because of the respondent’s sustained dishonest conduct.  This is after identifying matters in the evidence which demonstrate the dishonesty in his relationships with each of Patients A and B.
72. [72]
    The respondent submits that his mental health is relevant to personal deterrence because:

    1. (a)
       He has been unable to work as a psychiatrist since surrendering his registration;
    2. (b)
       He remains under the care of a psychiatrist and remains unable to work;
    3. (c)
       He had a lengthy period as an inpatient in a psychiatric facility.
73. [73]
    Whilst the Tribunal is prepared to take these factors into account in some general way, it is noted that the respondent’s condition is described as a chronic, relapsing illness. It appears he has had bouts of difficulty in the past, punctuated with times when he could work.  As such, a measure of personal deterrence remains relevant where there is some prospect, however, slight, that the respondent may seek to work in the future.

Comparatives

74. [74]
    The Tribunal has had regard to the authorities of Health Ombudsman v Bricknell^[21], Psychology Board of Australia v Popovski (Review and Regulation)^[22] and Medical Board of Australia v Blomeley (and v Blomeley No 2)^[23], the relevant details of which are contained in the applicant’s submissions.
75. [75]
    In discussions with the assessors which were most thoughtful and insightful, the Tribunal identified the following factors as relevant:

    1. (a)
       Firstly, this is an objectively serious set of failings. 
    2. (b)
       Secondly, inherent in the relationship between a psychiatrist and a patient is a relationship of trust where the patient is extremely vulnerable and is known by the psychiatrist to be so. 
    3. (c)
       Thirdly, that sexual relationships with patients are unacceptable and to be deprecated whether they occur during or after the treating relationship has ceased, or at least, shortly after the treating relationship has ceased; 
    4. (d)
       Fourthly, that the repeated dishonesty to the regulator does not assist a respondent as has already been identified in these reasons. 
76. [76]
    Having carefully considered the material and after discussion with the assessors who have been of great assistance, the Tribunal determines that the sanction proposed by the parties jointly is an appropriate one.

Non publication order

77. [77]
    The respondent seeks the continuation of the interim non publication order as a final order. The respondent’s submission is that the order is necessary to avoid endangering the physical or mental health or safety of a person and is otherwise in the interests of justice pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The interim non publication order made on 17 July 2020 applies to protect the identification of the respondent, any of his patients and their family members. The respondent seeks the continuation of this order on a permanent basis to avoid engendering his own physical and mental health and safety.  
78. [78]
    Dr Walters, the respondent’s treating psychiatrist, has stated:

    1. (a)
       In his report of 10 January 2020 that the respondent’s then serious suicidality is likely to be made very much worse if information, particularly public information, is not handled with great sensitivity;
    2. (b)
       In a further report dated 6 October 2021 that the respondent, on review on 21 September 2021 was depressed, tearful and experiencing a return of his suicidal ideation and that he should continue to receive communication about legal matters through his solicitor to reduce the chance of a severe deterioration in his mental state. He expressed the opinion that publication about the details of the respondent and his conduct increases his risk of a catastrophic decline in his mood and the risk of suicide;
    3. (c)
       On 11 February 2022 he admitted the respondent to hospital again.
79. [79]
    The evidence is that this most recent admission occurred in response to the respondent reporting to his lawyers in this proceeding that he was feeling suicidal.
80. [80]
    Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of:

    1. (a)
       The contents of a document or other things produced to the Tribunal;
    2. (b)
       Evidence given before the Tribunal;
    3. (c)
       Information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
81. [81]
    Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so, relevantly, in subsection (b): “… to avoid endangering the physical or mental health or safety of a person”.
82. [82]
    It has been observed that this provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction^[24]. Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice^[25] .
83. [83]
    The party seeking the non-publication order must satisfy the Tribunal it is necessary.
84. [84]
    In this case it is apparent from the evidence filed by the respondent:

    1. (a)
       The respondent had, prior to the conduct giving rise to the referral, significant mental health conditions, for which he had been under the care of the same psychiatrist on a continuing basis;
    2. (b)
       His illness is described as a chronic, relapsing illness;
    3. (c)
       The evidence is that at various times since 2020 his pre existing condition has been triggered again by the fact of the proceedings potentially becoming public;
    4. (d)
       Publication of information about the proceeding in the public domain, in a way that directly identifies him, has the potential for catastrophic consequences for the respondent;
    5. (e)
       He was admitted to hospital as recently as 11 February 2022.
85. [85]
    The applicant does not oppose the making of an order in the circumstances.
86. [86]
    The Tribunal is satisfied, on the evidence in this particular case, that an order is necessary in the terms contemplated by s 66(2)(b) of the QCAT Act and it is in the interests of justice to extend the non publication order as the respondent seeks.

Orders

87. [87]
    In that regard, then, the formal orders which the Tribunal makes are:

1. 1.Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) in respect of Allegations 1, 2, 3 and 4, the Respondent has behaved in a way that constitutes professional misconduct;

1. 2.Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld) the Respondent is disqualified from applying for registration as a registered health practitioner for a period of six (6) years from the date of this order.

1. 3.Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld) the Respondent is prohibited from providing any health service, whether provided as a public or private service, including the following health services, until such time as the Respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of a State or Territory of Australia:

1. (a)
   Counselling;

2. (b)
   Therapy

3. (c)
   Psychotherapy;

4. (d)
   Any other mental health service

1. 4.No order as to costs.

1. 5.Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:

1. (a)
   the contents of a document or thing filed in or produced to the Tribunal;

1. (b)
   evidence given before the Tribunal; and

1. (c)
   any order made or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the respondent, any patient of the respondent or their family, save as provided for in the terms of this order and save as is necessary for the parties to engage in and progress these proceedings.

1. 6.Any material affected by the nonpublication order shall not be copied or inspected without an order of the Tribunal except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to this proceeding.

1. 7.If the medical records of the respondent, any patient of the respondent or any family member of such patient are included in the material, such records shall be provided to the Tribunal in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is not to be copied or inspected without an order of the Tribunal except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to this proceeding.

1. 8.The hearing brief shall be placed in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is not to be copied or inspected without an order of the Tribunal except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to this proceeding.