Medical Board of Australia v TXA (No 2)
[2023] QCAT 115
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- Medical Board of Australia v TXA (No 2)[2023] QCAT 115
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Medical Board of Australia v TXA (No 2)[2023] QCAT 115
Medical Board of Australia v TXA (No 2)[2023] QCAT 115
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v TXA (No 2) [2023] QCAT 115 |
PARTIES: | medical board of australia (applicant) v txa (respondent) |
APPLICATION NO/S: | OCR346-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 31 March 2023 |
HEARING DATE: | 20 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, assisted by: Professor J Searle, Dr G Kelly, Ms C Ashcroft |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – UNPROFESSIONAL CONDUCT – practitioner accepted as patient husband of close friend of practitioner’s wife, friend of practitioner – breach of Code of Conduct – found to be unprofessional conduct – patient treated for medical condition involving erectile dysfunction – apparently treated successfully – patient stranded overseas during pandemic – practitioner offers sexual relationship to patient’s wife, but rejected – whether knowledge of medical condition prompted offer – whether misuse of professional relationship for private benefit whether breach of Code of Conduct or Guidelines – no evidence to support allegations ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PRACTICE AND PROCEUDURE – where the parties were to file a hearing brief – whether the hearing brief was satisfactory Health Practitioner Regulation National Law (Qld) s 193B(2) Medical Board of Australia v Petrovic [2011] VCAT 795 Nursing and Midwifery Board of Australia v Barnes [2017] SAHPT 11 TXA v Medical Board of Australia [2021] QCAT 279 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Wilson, instructed by King & Wood Mallesons, solicitors |
Respondent: | S Robb, instructed by Meridian Lawyers |
REASONS FOR DECISION
- [1]This is a referral by the applicant of a disciplinary matter against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). Under s 126 of the Health Ombudsman Act 2013 (Qld) (“the Act”), I constitute the Tribunal, and am acting with assessors Professor J Searle, Dr G Kelly and Ms C Ashcroft in accordance with the Act.[1]
- [2]The respondent was and remains a registered medical practitioner, and hence a registered health practitioner for the purposes of the National Law. The applicant alleges that the respondent engaged in professional misconduct, or in unprofessional conduct, in that he sought to initiate a sexual relationship with the wife of a patient, having had a personal relational with the patient before he became a patient, and that he used personal information about the patient, obtained in treating him, to do this.
- [3]The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is legally represented, and has provided submissions in writing and two affidavits by the respondent, and an affidavit of his solicitor. The parties have provided a statement of agreed and disputed facts for the proceeding. The Tribunal has also been provided with a large volume of material in a hearing brief, almost none of which was referred to in submissions, much of which was clearly irrelevant, and which contained many duplicated documents.
Background
- [4]The respondent was born in about 1961 and obtained his medical qualification overseas. He came to Australian in 2011 and was then registered in Australia as a medical practitioner. He has practiced in a Brisbane suburb, with many of his patients coming from the small ethnic community to which he belongs. He is married to a woman of the same ethnic community; the relevant patient and the patient’s wife also belong to that community, and to the same segment of that community as do the respondent and his wife.
- [5]The relevant facts are set out in detail in the reasons for decision of Allen DCJ, the then Deputy President of the Tribunal, in TXA v Medical Board of Australia [2021] QCAT 279. The accuracy of that account was not challenged in this proceeding, and I adopt it. Briefly, the respondent had a patient P whose wife, Mrs P, was a friend of the respondent’s wife. Mrs P was not a patient of the respondent. P often travelled overseas in the course of his work as a ship’s mate, and in 2020 was as a result trapped in New Zealand because of COVID travel restrictions.
- [6]On one evening in December 2020, after the respondent, his wife and Mrs P had attended a social event, he telephoned Mrs P, and visited her home. While there, he proposed that they enter into a sexual relationship. She rejected this, he apologised, and left. He did not attempt to press the matter, or to force himself on her. There was no sexual history between them, and he had not previously suggested such a thing to her.
- [7]The following day the respondent and his wife met Mrs P and a friend of hers, by arrangement, and the respondent again apologised. Mrs P subsequently complained to the Office of the Health Ombudsman, which referred the complaint to the applicant. On 15 March 2021 the applicant suspended the registration of the respondent. That decision was challenged in the Tribunal, and on 24 August 2021 the Deputy President, in the decision referred to earlier, set aside the suspension. No alternative restriction was placed on the registration of the respondent by that decision. His registration had been suspended for over five months. Since returning to practise he has reduced his workload, and has undertaken further education on professional ethics and boundaries.[2] This matter was referred to the Tribunal on 24 December 2021. On 2 February 2023, a non-publication order for this proceeding was made by the Deputy President of the Tribunal.[3]
Whether information used improperly
- [8]Most of the factual issues in this matter are agreed between the parties. The issues in dispute were identified in the statement of agreed and disputed facts as the number of times the patient discussed erectile dysfunction during a consultation with the respondent, the extent to which the respondent’s knowledge of this influenced his behaviour and whether the respondent told Mrs P when he telephoned her that his wife would accompany him when he came to her house. The former point is significant, because one of the bases of the referral was that the respondent had used his knowledge of this in proposing the sexual relationship to Mrs P.
- [9]As to the former, the respondent in evidence said that this was not a conscious factor in his deciding to propose the sexual relationship, although he conceded that it may have been a factor which subconsciously influenced his decision.[4] I do not characterise this as an admission that it was a factor influencing his actions in that way; rather it was no more than an acknowledgment that such a thing was possible. The applicant has no evidence to support a finding against the respondent in any stronger terms than this.
- [10]It follows in my opinion that the applicant has no case on this point.[5] The notion that his behaviour was to some extent caused by his awareness of the patient’s erectile dysfunction was entirely speculation on the part of the applicant. It is true that the patient had another medical condition, involving difficulty with urination, which was associated with erectile dysfunction, but the respondent had sought to treat this, and referred him to specialist practitioners. In May 2019 P saw a men’s health specialist, who prescribed Cialis,[6] which was not very effective.[7] He was seen on 20 December 2019 at a hospital urology clinic, and referred for injections of prostaglandin “as he is keen for this.”[8]
- [11]A letter after a further visit to the urology clinic on 12 April 2020 advised that one of his medications may have been contributing to erectile dysfunction, and was changed; he was said to be using Caverject which he was not having any problems with.[9] It appears from the practice records that P’s last consultation with the respondent was on 28 May 2020, when there was discussion about continuing difficulty in urination in the notes, but the only reference there to erectile dysfunction is that Viagra was given in place of Cialis as it was cheaper.[10] That at this stage the erectile dysfunction was under control is confirmed by another letter from the hospital urology department of 10 March 2021, recording that P had a TURP in October 2020,[11] presumably in New Zealand, and that since then caverject was not working, implying that it had been working until then.[12] There is no evidence that the respondent knew of this development before March 2021,[13] so that as at December 2020 his latest information was that the erectile dysfunction was being successfully treated.
- [12]There was no evidence from the patient as to the effect of the erectile dysfunction on his sex life, and whether or not this treatment had helped, or what about this was discussed with the respondent.[14] There is only sketchy and incidental evidence about the attitude of Mrs P. A note of a telephone call to her in January 2021 records her saying that because of “ED” her husband could not have a sexual relationship with her, but no indication of the time at which this applied.[15] In the transcript of the meeting on 29 December 2020 Mrs P said at one point that “Sex is no part of my life”, and later, “I never … need it.”[16] There was nothing about this in her statement of evidence.[17] There was no evidence that the patient’s wife was not happy with whatever the state of her sex life was before her husband was stranded overseas. There was no medical evidence that the erectile dysfunction associated with the medical condition of the patient was not able to be treated successfully in this way, and the letters from the hospital suggest that it was satisfactorily treated, at least until the procedure in October 2020.
- [13]The theory that knowledge of the patient’s erectile dysfunction contributed to the respondent’s action must have been based on the proposition that it would have been interfering with the sex life of the patient and his wife, so as to leave her sexually frustrated, and hence perhaps susceptible to an offer of extra-marital sex. That depends on a number of factual propositions which need to be established to justify the inference the applicant seeks to have the Tribunal draw. Those propositions are not supported by any evidence, and there is evidence to the contrary. I therefore regard this part of the applicant’s case as no more than speculation, founded on an insecure factual premise, and I reject it. It follows that the number of times that erectile dysfunction was discussed during consultations is irrelevant.
- [14]One other factual issue raised by the applicant was whether the respondent, when he telephoned the patient’s wife to arrange to come to her home after the lunch, spoke of their both coming. Clearly she assumed that they would, but what matters is whether he actually said that, and again the applicant has no evidence to that effect.[18] The position was the same with this point (which was of marginal significance at best), the applicant really had no case but wanted to cross-examine the respondent in the hope of building one. I do not regard that as a proper approach for the applicant to take in disciplinary proceedings, and would not allow cross-examination for that purpose. There are thus no factual issues which need to be resolved.
Applicant’s case
- [15]The applicant submitted that the respondent engaged in professional misconduct, or in unprofessional conduct, by seeking to enter into a sexual relationship with a wife of a patient, by accepting as a patient a person with whom he had a personal relationship, and by misusing personal information obtained as part of this treating relationship to seek the sexual relationship with the patient’s wife. The third part depended on my accepting the proposition that the knowledge of the patient’s erectile dysfunction was in some way involved in motivating the action of the respondent. That proposition lacks any evidentiary support, and has not been proved, so this part of the applicant’s case falls away.
- [16]That leaves the other two factors. As to the former, the Code of Conduct for doctors in Australia[19] clause 10.2 speaks of professional boundaries, and provides that “Good Medical practice involves … never using your professional position to establish or pursue a sexual … relationship with anyone under your care. This includes those close to the patient, such as their … spouse … .” This formulation is based on the misuse of the professional relationship for private advantage, and in the written submissions this aspect of the case appeared to rely heavily on the use of the information about the patient’s health. But the evidence strongly suggests that it was the obvious factors which prompted the approach to Mrs P, that she was known socially to the respondent, largely through his wife, that he had seen her that day and that he was aware, as a result of the conversation at the social event, and I expect also through his wife, that P had been stranded overseas, and was likely to remain so for some time. These were not matters which arose out of his professional relationship with P.
- [17]In the circumstances, I cannot see that this provision of the Code has been breached. This matter is also mentioned in Guidelines dealing with sexual boundaries issued by the applicant.[20] At section 3.2 the Guidelines say: “Other behaviours that may breach sexual boundaries include … engaging in a sexual relationship with an individual who is close to a patient … such as the patient’s … spouse… .” The use of the word “may” is significant here, showing that it depends on the circumstances. Further, section 1.1 speaks of the importance of trust in the doctor-patient relationship, and that exploitation of that relationship undermines the trust in that relationship, and the trust of the community. Again, the focus is on taking advantage of the professional relationship for the personal interest of the doctor.
- [18]That is shown as well by section 6 of the Guidelines, dealing specifically with sexual boundaries with individuals close to the patient. It says that “a sexual relationship between a doctor and the individual close to a patient … may be unethical if the doctor has used any power imbalance, knowledge or influence obtained as the patient’s doctor.” I do not consider that that occurred here, so the condition in the Guidelines was not satisfied. Significantly, the Guidelines do not say that any sexual relationship with a spouse of a patient is unethical.
- [19]For that reason, I do not agree with the concession in the respondent’s written submissions that to propose the sexual relationship with Mrs P was a boundary violation because of his professional relationship with P. I expect that concession was prompted more by the respondent’s contrition and remorse for having proposed the relationship, which in other ways was inappropriate, rather than by a careful analysis of the situation. The Tribunal is not bound by that concession.
- [20]The significance of the fact that a sexual relationship arose out of the professional relationship is illustrated by the only decision cited by the applicant in submissions involving the spouse of a patient, Nursing and Midwifery Board of Australia v Barnes [2017] SAHPT 11. The patient was in a rehabilitation centre to which he had been transferred from hospital, following treatment for a severe injury which left him a paraplegic. The practitioner was one of the nurses caring for him there, over a period of about fourteen months. Towards the end of that period, he began a sexual relationship with the patient’s wife, which continued after the patient returned home until, a little over a year later, the wife left the patient and moved in with the practitioner. He aggravated his misconduct by initially claiming that the relationship did not start until about eighteen months after the patient left his care, which by the hearing he accepted was false: [44]. The reasons make it clear that the relationship with the patient’s wife arose out of the professional relationship between the practitioner and the patient.[21] That this amounted to professional misconduct was conceded. The Tribunal deregistered the practitioner, and imposed a preclusion period of two years.[22]
- [21]This may be contrasted with the comments in Medical Board of Australia v Petrovic [2011] VCAT 795 at [27], in a different context, where a sexual relationship occurred between a practitioner and a former patient two months after the patient had been last treated, but where the parties had not met through the professional relationship. There was no allegation there of use of information obtained from that relationship, but there was knowledge that the patient was a vulnerable person. The behaviour was characterised as unprofessional conduct, not professional misconduct.
- [22]Consider a case where a practitioner meets a person socially who happens to be the spouse of a patient, but does not know this, and a sexual relationship develops. I cannot see how that could be a breach of the code or the guidelines, or involve any professional wrongdoing on the part of the practitioner. If the sexual relationship continues and the practitioner then discovers that the other person’s spouse is a patient, I do not consider that the position changes, because it remains the case that the practitioner has not used his or her professional position to establish or pursue the sexual relationship. Depending on the circumstances, however, the practitioner may choose to terminate one or other relationship, if there is a risk of a conflict of interest developing.[23]
- [23]I consider that the same applies here. The respondent was not using his professional position to seek to establish a sexual relationship with Mrs P. The social relationship with Mrs P preceded the professional relationship with P, and continued, including through their attendance at the lunch earlier that day, being based on the respondent’s wife. The other thing that prompted the relationship, the indefinite absence of P overseas, came to his knowledge independently of the professional relationship. I consider that the proposition put to Mrs P did not involve the use of the respondent’s professional position. In those circumstances, the first part of the case against the respondent is also not made out.
- [24]I should add that if I am wrong about this, and to seek to establish a sexual relationship with Mrs P was a breach of the guidelines, because it did not involve the use of his professional position, and because the proposal was not accepted by Mrs P, it was a breach of minimal significance.
- [25]I do not consider that the mere fact that the respondent sought to enter into a sexual relationship with Mrs P, viewed in isolation, amounted to a breach of professional standards on his part. The Tribunal, acting under the National Law, is not a court of morals. No doubt the community expects medical practitioners to behave themselves in a general sense, but I do not consider that community attitudes today are necessarily hostile to adultery. They would not be the same as community attitudes one hundred, or even seventy years ago, when Christian standards of morality had much greater influence in the community. I doubt if many in the community would be much troubled by the idea of a married medical practitioner, in private life, making a pass at a married person. No doubt there is conduct which is so morally reprehensible that it is inconsistent with community expectations of a medical practitioner,[24] but I consider that this falls a long way short of that.
- [26]The third part of the applicant’s case, accepting as a patient someone with whom he had a personal relationship, was also conceded by the respondent in submissions, and in his affidavit.[25] I am prepared to accept this concession. The Code provides in section 4.15 that a practitioner should avoid, whenever possible, providing care to anyone with whom the practitioner has a close personal relationship.[26] There is a risk in such a situation that the personal relationship could interfere with the professional duty to provide appropriate medical advice and treatment to a patient, and could lead to a conflict of interest.
- [27]The friendship was not however particularly close, since the close friendship was between the wives. There are also the considerations that both were born in the same country, both were members of the same small ethnic community, and the same segment of that community, so that there was a practical advantage in P becoming a patient of a practitioner who would understand his cultural background. The respondent has many patients from that ethnic community,[27] although he does not socialise with the others.
- [28]During the hearing I raised the situation of a practitioner who was the only doctor in a country town. If a town which has not had a doctor, or not had a doctor who would be staying indefinitely, acquires one, the locals are likely to be welcoming to the practitioner, and as a result he or she will be likely to get to know some of them personally before they are seen as patients. It would be quite unrealistic to expect that in such circumstances the doctor should then be obliged to refuse to treat them (except in an emergency). That is covered by the element of flexibility built in to this section of the Code.
- [29]In the present case, there was no evidence that alternative suitable medical services were not available to P. Evidently Mrs P used a different practitioner. That reduces the significance of this factor, and I accept that the respondent should not have taken on P as a patient. It then becomes a question of characterising this conduct. In the circumstances I consider that it constituted unprofessional conduct. Given the considerations I have mentioned it was insufficiently serious to amount to professional misconduct, and the definition of unsatisfactory professional performance suggests that it is concerned with some deficiency in the practice of the respondent’s profession, which was not this case. The term “professional conduct”, used in the definition of unprofessional conduct, is I consider wide enough to cover the decision to accept P as a patient. I accept that the conduct is properly characterised as unprofessional conduct, although I do not regard it as a serious example of conduct in that category.
- [30]It follows that it is appropriate for the Tribunal to decide that the respondent’s conduct, in accepting as a patient a person with whom he had a personal relationship, amounted to unprofessional conduct. Otherwise, the Tribunal will take no action on the referral. At the hearing the applicant sought the opportunity to make further submissions as to sanction in the light of the findings. I will allow that, but it seems to me that, in deciding on a sanction. it would be appropriate to take into account that the respondent’s registration has already been suspended for over five months.
- [31]I acknowledge the assistance of the assessors in this matter. The decision of the Tribunal is:
- The Tribunal decides that the respondent’s conduct, in accepting as a patient a person with whom he had a personal relationship, amounted to unprofessional conduct.
- The Tribunal otherwise decides that the practitioner has no case to answer, and no further action is to be taken in relation to the matter in the referral.
- The further hearing of the referral is adjourned to a date to be fixed.
- The applicant is directed to file and serve any further written submissions as to sanction within fourteen days of this decision.
- The respondent may file and serve any further written submissions in reply within fourteen days of being served with the further submissions of the applicant.
- Unless the associate to the Deputy President of the Tribunal is advised, within thirty-five days of this decision, by either party that a further oral hearing is required, the question of sanction will be decided by the Tribunal on the papers under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, on a date not before then.
State of the Hearing Book
- [32]I cannot conclude these reasons without saying more about the unsatisfactory state of the Hearing Book for this matter. This contained an exceptional amount of duplication. The nine pages of the referral to the Tribunal appeared at p 9, then a further five copies appeared from p 30, for no apparent reason. But most of pages 28 to 464 were also duplicated in the Hearing Book, and a further five copies appeared in the second version of pages 30 – 74. In the first set of pages 28 – 464 pages 305 – 404 were omitted, but most of that was itself a duplicate of documents which appeared elsewhere, earlier. In the first 304 pages some 115 were duplicated, so that in the whole book there were at least four copies of these. Further, the Hearing Book is supposed to contain relevant documents only, yet it included many, such as standard machinery letters from the Tribunal, and letters from AHPRA to Mrs P, which were obviously irrelevant. And in case it was not bulky enough as it was, where light card dividers were used to separate documents, two of them were used together.
- [33]The practical effect of this is that what ought to have been one small folder became two large ones, and much time was wasted by me and by the assessors in working out what was new and what was not. Hearing books should never contain duplicated documents, even if they are repeated in the original documents. For example, if a letter enclosed a copy of a document already in the book, that should be noted in the index, but a second copy of the document should not be included.[28] Material in a Hearing Book should be printed on both sides of the paper – that was done right in this case – and should contain only relevant material, that is, material which affects the case made by at least one of the parties.
- [34]It appears to me that no care whatever was applied to the process of assembling the Hearing Book. I have previously made an order for costs against an applicant, in part because of the defective state of the Hearing Book,[29] but this one was much worse. I am prepared to do so again. This might be regarded as an acceptable standard in Canberra; it is not a standard acceptable to me.
Footnotes
[1] The Act s 126. For their function, see s 127.
[2] Hearing Book p 502.
[3] Medical Board of Australia v TXA (No 1) [2023] QCAT 28. The order continues until further order.
[4] By evidence I include the evidence, both by affidavit and orally, in the 2021 proceeding, in which the respondent was cross-examined: Hearing Book p 573 +. .
[5] Compare Lavercombe v Legal Services Commission [2023] QCAT 58 at [21].
[6] See Hearing Book p 176. This was for erectile dysfunction.
[7] Letter of Urologist 9 August 2019 to respondent, Hearing Book P 376; respondent’s referral letter 22 August 2019, Hearing Book p 237.
[8] Letter hospital to respondent, Hearing Book p 388. On 24 January 2020 P received instruction on this process, which as described was usually quite effective: Hearing Book p 390.
[9] Hearing Book p 392. Letter received at the respondent’s practice 7 May 2020.
[10] Hearing Book p 270. Presumably they would not have been prescribed if they were a waste of time and money on the part of the patient. Under cross-examination in 2021 the respondent said that this change was P’s choice: Hearing Book p 585.n
[11] A surgical procedure on the prostate.
[12] Hearing Book p 396, received 30 March 2021.
[13] Under cross-examination in 2021 the respondent said that Mrs P mentioned surgery on P in October 2020 at the lunch on 28 December, but gave him no details: Hearing Book p 589.
[14] Under cross-examination in 2021 the respondent said that P had never said to him that the erectile dysfunction was affecting his relationship with Mrs P: Hearing Book p 587.
[15] Hearing Book p 77.
[16] Hearing Book p 534, 535. From the transcript it appears that she was angry and aggressive to the respondent during the meeting, and just what she meant is not clear. She was vigorously defending her honour and loyalty to her husband. Little significance should be attributed to what she said in the heat of the moment.
[17] Hearing Book p 178.
[18] Besides, the case sought to be pursued in this way was inconsistent with the Statement of Agreed Facts, that the respondent told Mrs P that he wished to visit her residence: Hearing Book p 21, para 14 (emphasis added). That was consistent with her versions at Hearing Book p 77, p 80.
[19] The version in the Hearing Book starting at p 430.
[20] The version in the Hearing Book starting at p 457.
[21] See [2017] SAHPT 11 at [36], [37]. There was no factual dispute before the Tribunal, and the facts relied on are concise, but presumably they met and became friendly while she was visiting her husband in the rehabilitation centre.
[22] This may be contrasted with the outcome in Health Ombudsman v Bothwell [2020] QCAT 393, where the registration of a nurse who had a sexual relationship with a patient over a couple of years was not even suspended, in the circumstances of that matter.
[23] That situation would not have arisen in the present case because the proposal was rebuffed, and in any case not until P returned and again sought to consult the respondent.
[24] See Code, section 2.2; Health Ombudsman v CJA [2022] QCAT 161 at [13].
[25] Hearing Book p 503.
[26] Hearing Book p 442. The code recognizes that sometimes it is unavoidable.
[27] Hearing Book p 506.
[28] This is a practice now followed by the Office of the Health Ombudsman.
[29] LCK v Health Ombudsman (No 2) [2020] QCAT 460 at [12] – [18].