Health Ombudsman v North[2022] QCAT 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION 

1. [1]
   These disciplinary proceedings were referred to the Tribunal by the applicant Director on 26 February 2021. There is a statement of agreed facts signed by the legal representative for the applicant and the respondent personally which is dated 1 July 2021.
2. [2]
   The respondent was, at all times material to the allegation the subject of the referral, registered as a medical practitioner. He relinquished his registration on 1 October 2020 following his decision not to renew his registration.
3. [3]
   The respondent, who is representing himself, has, by his response to the referral, admitted the matters the subject of the single allegation contained in the referral. 
4. [4]
   By email dated 9 December 2021, the parties advised the Tribunal they would be content for the matter to proceed on the papers, and it has done so today.  

The conduct the subject of the referral 

5. [5]
   The conduct giving rise to the referral occurred whilst the respondent was in general practice in the suburbs of Brisbane. An elderly female patient had been a patient at the practice, where the respondent practiced, for about two years before the respondent had contact with her. The respondent commenced treating her after her husband had passed away. Whilst the initial treatment was for a physical condition, a few months into the treating relationship the patient sought treatment from the respondent for her sadness and depressive state which she believed was caused by her husband’s recent death.
6. [6]
   After a period of some months (potentially in excess of a year) the respondent and the patient commenced a sexual relationship. Initially the respondent kissed her and hugged her in a consultation. Thereafter he visited her house. At the patient’s residential premises consensual sexual intercourse occurred in late 2017.
7. [7]
   The respondent would attend the patient’s residential premises during his lunch break for the purpose of having sexual intercourse which occurred about half a dozen times during the duration of the relationship.
8. [8]
   Further, the respondent confirmed that on one occasion in late 2019 he and the applicant had sexual intercourse during a consultation at the respondent’s medical practice. He further confirmed that he would often call the patient on Facetime and he and the patient would regularly both masturbate during those calls.
9. [9]
   The sexual relationship ended in early 2020 and the doctor treated the patient on two or three occasions thereafter until the doctor and patient relationship ceased ended in June 2020.
10. [10]
    The patient experienced emotional issues after the relationship ended. The conduct was uncovered when a member of the patient’s family made a complaint.
11. [11]
    The respondent, in interview as a part of the investigation, admitted that he maintained a sexual relationship with his patient. He stated the sexual relationship was consensual.  He acknowledged that the ending of the personal relationship with the patient may have caused her harm and that his conduct was a breach of professional boundaries and inappropriate. He acknowledged the patient was vulnerable.

The respondent’s professional and disciplinary history

12. [12]
    The respondent obtained the degree of Bachelor of Medicine and Bachelor of Surgery from the University of Tasmania in 1989. He was aged between 55 and 58 at the time of the events the subject of the referral.
13. [13]
    Prior to the conduct the subject of the present referral, the respondent had previously been the subject of disciplinary proceedings. That involved him maintaining a three year long sexual relationship with a patient, whom he had treated as her general practitioner for some six years prior to the relationship commencing. The decision in the disciplinary proceeding for that earlier matter records that the Board did not allege any element of predatory conduct, noted the patient had made no complaint about the respondent and that there was no evidence that the patient was particularly vulnerable. The Tribunal continued:

“Nevertheless the relationship constituted a clear violation of professional boundaries, something that Dr North recognised even at the time he engaged in it.”^[1]  

14. [14]
    In that earlier proceeding, the respondent was reprimanded and his registration was suspended for two months. That order was suspended after one month, subject to the respondent completing a boundary violation course and allowing the Board to access his patient and Medicate care records for two years. The penalty imposed on that occasion took into account that the respondent had undertaken counselling concerning boundary violations and that he would continue to receive counselling from his treating general practitioner.

The parties’ written submissions 

15. [15]
    The applicant has filed written submissions dated 7 October 2021. In them, in summary, the applicant submits:

    1. (a)
       The respondent’s conduct constitutes professional misconduct within the meaning of each of s 5(a) and s 5(c) of the articulation of that term in the Health Practitioner Registration National Law (Qld) (National Law) because:

       1. The respondent’s actions in pursuing and maintaining a relationship with the patient whom he knew was vulnerable, was entirely inappropriate;
       2. The respondent had treated the patient for depression;
       3. The relationship was maintained over a period of approximately two years, with sexual intercourse occurring both at the patient’s home and once at the respondent’s practice;
       4. That during the relationship the respondent continued to treat the patient;
       5. The respondent’s conduct was contrary to his professional and ethical responsibilities provided for in the “Good Medical Practice: A Code of Conduct for Doctors in Australia” and in particular not consistent with  8.2.1 and 8.2.2 of that document;
       6. His conduct struck at the very core of the trust inherent in the doctor/patient relationship, as is recognised in the “Sexual Boundaries: Guidelines for Doctors” and, particularly clause 4 of that document. 
    2. (b)
       The applicant submitted the purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public. The sanction in a particular case must be considered based on the peculiar facts and to craft something which best achieves those purposes.
    3. (c)
       The factors for the Tribunal to consider when determining what sanction is appropriate include:

       1. The nature and seriousness of the conduct;
       2. Whether the practitioner acknowledges culpability and whether there is evidence of contrition or remorse;
       3. What needs for specific or general deterrence arise;
       4. Likelihood of recidivism;
       5. Whether there have been other disciplinary findings before or after the conduct in question;
       6. Evidence of character;
       7. Evidence of rehabilitation;
       8. Whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal;
       9. Any other mitigating factors;
    4. (d)
       The applicant points to the seriousness of the conduct and the lack of any proper explanation for the conduct, coupled with the respondent’s disciplinary history, as particularly relevant considerations for the Tribunal^[2];
    5. (e)
       By reference to other decisions, which may serve as assisting with a useful guide, weighing the particular circumstances and given the respondent has surrendered his registration, there should be a disqualification period of 3 – 5 years from the date of the order, in addition to the findings of professional misconduct and the issue of a reprimand.    
16. [16]
    The respondent has provided a short written response to those submissions dated 24 October 2021. In which he expresses his deep regret for his actions and his shame for what he has done, bringing himself and the practice of medicine into disrepute. He does not challenge the applicant’s submissions.
17. [17]
    Again, he seeks to explain his actions in part by reference to issues in his private life which had been a feature of the earlier disciplinary proceedings.^[3]  He acknowledges his 35 years of experience as a general practitioner should have alerted him and prevented it from happening. He sought psychiatric assistance and voluntarily resigned his medical registration on 30 September 2020. He has informed the Tribunal in writing that he does not intend to return to the practice of medicine.
18. [18]
    There is a letter from the respondent’s treating psychiatrist Dr New, to the applicant dated 8 September 2021. In it Dr New states that the respondent’s behaviour is not explained by a major psychiatric or medical disorder and he records he is unaware of any history of substance abuse or cognitive impairment which would explain the respondent’s behaviour. He records that the respondent explained the conduct occurring when the respondent acted with poor judgment in the context of stress of his personal circumstances. He also writes that the respondent has impressed as a person who is committed to conducting himself in an acceptable manner, including by removing himself from medical practice by retiring in 2020. Dr New expresses the understanding that the respondent presents no significant risk to the public, particularly as he has retired from medical practice and that the respondent is deeply remorseful. 

Discussion and Sanction

19. [19]
    The Tribunal is satisfied that the respondent’s conduct contained in the agreed facts constitutes professional misconduct as defined by sections 5(a) and 5(c) of the National Law.
20. [20]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.
21. [21]
    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.
22. [22]
    The Tribunal has considered Nursing and Midwifery Board of Australia v Scott [2018] VCAT 1488. That case involved a respondent who was a nurse. Two of the three allegations against him involved conduct towards a particular patient. One allegation was that he commenced an intimate personal relationship with the patient whilst the other was for a conviction for stalking in respect of that same patient. The third allegation involved professional boundary violations against a further 5 patients.  His disciplinary history had three previous occasions for a range of conduct from professional boundary violations to issues with patient care.  The effective disqualification sanction was 8.5 years. The Tribunal regards the conduct in Scott’s case as more egregious overall than that of this respondent. Scott’s case involved allegations against a number of patients, conviction for a criminal offence and a more significant previous disciplinary history.
23. [23]
    The applicant has also referred the Tribunal to Nursing and Midwifery Board of Australia v Callos [2021] VCAT 7. In that case the respondent nurse faced allegations in respect of two patients. The first involved him having a consensual sexual encounter with a patient at the hospital where he worked (although not a patient he had treated) on a single occasion and thereafter, him making numerous contacts with or attempts to contact that patient by telephone and text message over a three month period. The second allegation involved him texting and attempting to text and contact a different patient, who had not provided him with her contact details. VCAT found the conduct constituted professional misconduct within s 5(c). He gave an undertaking not to practice and had not practiced for some 5 years at the time the matter came before VCAT. There was no disciplinary history and the Tribunal accepted that, in voluntarily undertaking not to practice and in admitting the conduct, Mr Callos had shown insight and remorse, although there were concerns as to whether he had insight and remorse in respect of the patient the subject of the second allegation. He was an experienced nurse, with no disciplinary history. Taking into account the 12 month disqualification imposed by VCAT on top of the time he had already been out of practice, the effective disqualification sanction was 7 years. 
24. [24]
    The Tribunal considered that in some respects, the differing aspects of this case made it one that was less useful as a guide to it than the others it considered. 
25. [25]
    The final case referred to by the applicant in its submissions is Medical Board of Australia v Myers [2014] WASAT 137. In that case a medical practitioner who was a locum at the hospital was found to have indecently assaulted a female patient by fondling her breasts and making sexualised comments to her. The practitioner had denied the alleged conduct. He had a pattern of boundary violations dating back over a decade and was undeterred by a caution, counselling or a fine. His conduct in his offending was regarded as showing an escalating pattern of conduct. The respondent was not registered under the National Law and the Tribunal disqualified him from applying for re registration for 5 years and imposed a fine of $10,000.
26. [26]
    The features of the current case before the Tribunal that are properly to be considered include:

    1. (a)
       That the respondent’s conduct occurred over a two year period;
    2. (b)
       The respondent was aware, as the treating practitioner, that the patient was vulnerable. She had experienced depression following the recent death of her husband. Notwithstanding that he knew this, the respondent involved himself in a sexual relationship with the patient with repeated occasions of consensual sexual intercourse; and
    3. (c)
       Such conduct undermines the public confidence in the entire medical profession, as the applicant submits.
27. [27]
    The Tribunal accepts the respondent articulates now remorse and shame for his actions, and has surrendered his registration and indicated his intention not to return to the practice of medicine. Notwithstanding this, the Tribunal regards personal deterrence as a relevant consideration in the determination of sanction. This is because he has previously been disciplined for having a sexual relationship with a patient and, despite this, the sanctions imposed in this earlier case did not stop him engaging in a repeat of this conduct.
28. [28]
    Further, the explanation for the respondent’s conduct is, by reference to Dr New’s letter, an exercise of poor judgment in the context of stressful personal circumstances.  That is a thin explanation from a practitioner with 35 years’ experience who has, historically, had the benefit of specific boundary violation counselling in the context of the earlier disciplinary proceedings.  The Tribunal accepts the applicant’s submission that the respondent has demonstrated limited insight into his offending conduct and, if he seeks re-registration as a medical practitioner, in future, there is a likelihood of re-engaging in similar conduct based on his past performance.
29. [29]
    Balancing all these features, the Tribunal determines that an appropriate disqualification period of 5 years from today.

Non-Publication Order

30. [30]
    On 16 March 2021, the Tribunal made a non-publication order to protect the identity of the patient and her family; that order will continue. 

Orders

31. [31]
    The Tribunal makes the following orders;

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

2. Pursuant to s 107(3)(a) of the HO Act the respondent is reprimanded.

3. Pursuant to s 107(4)(a) of the HO Act the respondent is disqualified from applying for registration as a registered health practitioner for a period of 5 years from the date of this order.

4. Each party bears its own costs of the proceedings.