Health Ombudsman v Jonsson[2023] QCAT 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Clara Isabella Johanna Jonsson (respondent) pursuant to sections 103(a) and 104 of the Health Ombudsman Act 2013 (Qld) (‘the HO Act’) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).

2. [2]
   This referral relates to the respondent’s treatment of three individuals, Patient A (her husband) and Patients B and C (close family members). The applicant alleges the following:

   1. (a)
      that the respondent failed to maintain professional boundaries with Patient A, (allegation 1);
   2. (b)
      that the respondent treated and prescribed to persons with whom she had a close personal relationship, namely Patients A, B and C (allegation 2); and
   3. (c)
      that the respondent failed to keep adequate medical records in relation to her treatment of, and prescribing to, Patients A, B and C (allegation 3).

3. [3]
   The respondent admits all three allegations, except for allegation 3 to the extent that it relates to Patient A. In written submissions dated 10 June 2021, the applicant accepted the respondent’s submission that the particulars of allegation 3 relating to Patient A are insufficient to establish the allegation. Accordingly, the Tribunal does not need to make a decision on this particular. As such, there are no factual issues in dispute.

Background

4. [4]
   The respondent obtained a Bachelor of Medicine/Bachelor of Surgery degree from the University of Stellenbosch, South Africa in 1977. She moved to Australia from South Africa in 1999 and was first registered as a medical practitioner in Australia on 20 May 1999.

5. [5]
   The respondent currently works as a general practitioner at Haly Health and Skin Medical Centre in Kingaroy, which she has owned since 2012.

6. [6]
   The respondent has been subject to previous disciplinary proceedings before this Tribunal.^[1]

Conduct

Patient A

7. [7]
   The respondent was Patient A’s general practitioner from around June 2000 to February 2010, when he moved away from Kingaroy.

8. [8]
   A few days after Christmas Day in 2016, Patient A had an accident, injuring his hip and shoulder. He saw the respondent on around 2 January 2017 for pain relief in connection with those injuries and also for heart medication.

9. [9]
   Over the period from 2 January 2017 to 10 October 2017, Patient A consulted with the respondent on 25 occasions, including consultations and after-hours’ attendances in January, February, March, April, June and October 2017. Patient A also consulted the respondent in April 2018 and May 2019. These consultations were in relation to matters including the injuries referred to above at [8], heart arrhythmia, shingles and skin cancer treatment.

10. [10]
    Over the period from 2 January 2017 to 13 October 2017, the respondent prescribed medications to Patient A on 13 occasions, including in January, February, March, April, June, July and October 2017. Over the period from June to May 2018, the respondent prescribed Schedule 8 drugs to Patient A on 4 occasions as follows: Oxycodone and Naloxone (June 2017) and Flunitrazepam (June 2017, December 2017 and March/May 2018).

11. [11]
    In the months following from the consultation on 2 January 2017, the respondent and Patient A met socially on several occasions. Commencing from at least as early as April 2017, the respondent and Patient A commenced a personal and romantic relationship. On 4 June 2017, the respondent and Patient A signed a Notice of Intended Marriage stating that they intended to marry on 1 July 2017. At or about the end of June 2017, Patient A moved in with the respondent at her residence. On 1 July 2017, the respondent and Patient A were married. They remained married at the time of hearing.

Patients B and C

12. [12]
    Patients B and C are both close family members of the respondent.

13. [13]
    Patient B consulted the respondent on 32 occasions between January 2015 and April 2018. The consultations were in relation to a range of matters including nausea and digestive disturbances, physical injuries (elbow, foot), shingles, tiredness and fatigue, dizziness, general cold and flu symptoms, pap smear screening checks, contraception, diet and weight loss and skin checks.

14. [14]
    The respondent prescribed to Patient B on 23 occasions between January 2015 and February 2018. The respondent prescribed a Schedule 8 drug to Patient B, being 20 tablets of Oxycodone HCL 5mg, on 28 March 2017.

15. [15]
    Patient C consulted the respondent on 28 occasions between January 2015 and April 2018. The consultations were in relation to a range of matters including migraines, nausea and digestive disturbances, contraception, haemorrhoids, abdominal pain and general cold and flu symptoms.

16. [16]
    The respondent prescribed to Patient C on 24 occasions between January 2015 and February 2018. The respondent prescribed a Schedule 8 drug to Patient C, being 20 tablets of Oxycodone HCL 5mg, on 22 March 2017 and 17 April 2018.

Characterisation of conduct

17. [17]
    The parties agree that the conduct relating to allegations 1 and 2 should be characterised as professional misconduct, and that the conduct relating to allegation 3 should be characterised as unprofessional conduct.

18. [18]
    The Tribunal accepts this characterisation of the conduct.

19. [19]
    From 17 March 2014 to 30 September 2020, the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ (‘the Code’), published by the Medical Board of Australia (‘the Board’), provided the relevant code of conduct for medical practitioners.

Allegation 1 – Failure to maintain professional boundaries

20. [20]
    The Code provides, amongst other things, that:

1. (a)
   doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy;^[2]and
2. (b)
   professional boundaries are ‘integral to a good doctor – patient relationship. They promote good care for patients and protect both parties.’^[3]

21. [21]
    ‘Sexual Boundaries: Guidelines for doctors’, also published by the Board, provides specific guidance in complement to the Code. Clause 4 of these guidelines provide that:

A breach of sexual boundaries is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients (and the community) have in their doctors and may cause profound psychological harm to patients and compromise their medical care.

22. [22]
    The respondent has deposed that her relationship with Patient A is not a sexual relationship.^[4] An intimate or sexual relationship is not essential to a finding of professional misconduct for failing to maintain professional boundaries.^[5]
23. [23]
    The respondent’s conduct in relation to Patient A was in clear breach of the terms of the Code and applicable guidelines. Whilst it is not suggested that Patient A suffered any harm as a consequence of the conduct, the respondent’s conduct fell substantially below the standard reasonably expected of a practitioner of an equivalent of training or experience.

24. [24]
    Pursuant to s 107(2)(b)(iii) of the HO Act, as regards allegation 1, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Allegation 2 – Treating and prescribing to family members

25. [25]
    Clause 3.14 of the Code provides that:

3.14 Personal relationships

Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues.

26. [26]
    The Victorian Civil and Administrative Tribunal considered the meaning of clause3.14 in XDH v Medical Board of Australia [2019] VCAT 377, explaining that:

Clause 3.14 should be read as a whole and given its natural and ordinary meaning. …While the words, “wherever possible” and “unavoidable” clearly contemplate that there will be circumstances where it is proper for a medical practitioner to treat a family member, that is not the general rule. The rule is written in such a way, that a medical practitioner should avoid treating family members except when it is “unavoidable”. In our view, the contemplation is, that a medical practitioner should only treat a family member when it is unavoidable.^[6]

27. [27]
    The respondent admits to providing treatment to Patients A, B and C on a number of occasions as detailed above. The respondent has deposed that she provided treatment to Patients A, B and C mainly in circumstances where they each could not attend on their own general practitioner in a “sufficiently timely manner”.^[7] When giving evidence, the respondent accepted that at the time of her treatment of Patients A, B and C, there would have been about 7 or 8 other general practitioners or registrars in Kingaroy, in addition to those at the local hospital.

28. [28]
    The respondent’s treatment of Patients A, B and C, is clearly in breach of the Code. The respondent provided treatment to all three patients over an extended period of time, in relation to a wide variety of general medical needs, in circumstances where each patient had their own primary general practitioner within Kingaroy. Therespondent has clearly provided treatment in circumstances which were not unavoidable.

29. [29]
    Pursuant to s 107(2)(b)(iii) of the HO Act, as regards allegation 2, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Allegation 3 – Failure to keep adequate medical records

30. [30]
    Clause 8.4 of the Code provides:

8.4 Medical records

Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:

8.4.1Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management.

…

8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care.

8.4.5 Making records at the time of events or as soon as possible after.

31. [31]
    In relation to Patients B and C, the respondent’s records did not, on numerous occasions, adequately record the reasons for visits, treatment provided, prescriptions written and follow up arrangements, or these details were only partially recorded. There were many entries where a script was printed with no other notes, or with scant notes.^[8]
32. [32]
    The respondent admits that she failed to maintain adequate medical records with respect to Patients B and C.

33. [33]
    Pursuant to s 107(2)(b)(ii) of the HO Act, as regards allegation 3, the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.

Sanction

34. [34]
    The purpose of sanction is to protect the public, not punish the practitioner. In determining sanction, the main consideration for the Tribunal is the health and safety of the public.^[9]
35. [35]
    As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[10] the imposition of sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;

2. (b)
   securing maintenance of professional standards;

3. (c)
   assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
4. (d)
   bringing home to the practitioner the seriousness of their conduct;

5. (e)
   deterring the practitioner from any future departures from appropriate standards;
6. (f)
   deterring other members of the profession that might be minded to act in a similar way; and
7. (g)
   imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.

36. [36]
    Both parties agree on the following orders by way of sanction:

1. (a)
   that the respondent be reprimanded; and

2. (b)
   that a condition is imposed on the respondent’s registration requiring the respondent to submit to 6 quarterly audits of her practice over a period of 2 years in the terms set out in the conditions annexed to the applicant’s submissions.

37. [37]
    The applicant submits that the respondent’s registration ought to be suspended for a period of 6 months. The applicant also submits that the appropriate review period, pursuant to s 109(2) of the HO Act, should be 2 years.

38. [38]
    The respondent submits that instead of suspension, the respondent ought to be fined$15,000. In the alternative, the respondent submits that, if the Tribunal is minded to impose a period of suspension, the respondent’s registration ought to be suspended for a period of one to 3 months. The respondent also submits that the appropriate review period, pursuant to s 109(2) of the HO Act, should be 12 months.

39. [39]
    In determining the appropriate orders by way of sanction, the Tribunal considered the level of insight demonstrated by the respondent in relation to her conduct.

40. [40]
    In her affidavit sworn 15 March 2021, the respondent deposes that:

42. At the outset, I wish to acknowledge that my conduct in treating those with whom I was in close personal relationships with was not in line with the recommendation and guidelines provided by the Medical Board’s Code of Conduct.

43. I made a mistake by thinking that the recommendation not to treat those with whom you are in a close personal relationship was exactly what it said, merely a recommendation, leaving it up to my assessment of a situation and my judgement as to whether I consulted with them. I did not at any time feel that I was managing my family outside of my comfort zone and expertise as outlined above.

…

45. I did not think I was doing anything wrong in Australia by providing care for my family when required…

…

55. As a result of my further education, I have made the following reflections and changes to my practice:

1. I have recognised in myself a tendency to be too compassionate and caring and to try to “walk the extra mile”. I have always found it difficult to refuse help to anyone who needs it, and that includes my family, particularly when I know that I have the knowledge base and expertise to assist them;

2. My family members have been brought to the reluctant understanding that, as much as I might want to assist them, except in circumstances of emergency, or where they cannot within a reasonable timeframe gain access to their primary carers, I am not permitted in Australia to do so, not even if it would be more convenient or beneficial to them due to my knowledge base;

3. My family members will have to change their mindset and understand that I am not allowed to always be available to extend car to them when needed. It is a difficult concept for them as they have witnessed for many years how I work and they have great trust in me and my capabilities. They view this decision as greatly unjust and prejudicial to them;

…

5. I have reflected on and understand the reasoning behind the recommendation of not treating those with whom you are in a close personal relationship with, as it may have the potential to compromise their continuity of care and may have the potential to blue the objectivity of the care they receive;

6. I would never put any of my family members at risk, nor my patients for that matter. I have recommended to my family that that [sic] they attend as far as possible on their own regular treating general practitioners as they have done in the past. I cannot force them not to ask for my advice as they have their rights as sovereign human beings that I do not control;

…

61. If I am no longer able to practise then these patients will be forced to travel to metropolitan areas (the closest being Toowoomba, which is 150km away) to access this care. This is what my husband will have to do in the future as I am not permitted by this system to assist him with his ongoing skin care problems, both melanoma and squamous cell cancers. Instead, he will have to travel the 500km round trip to Brisbane to attend the melanoma clinic, when this very melanoma clinic sends their patients back to me for ongoing monitoring and care in my rural practice.

41. [41]
    During the hearing, the respondent was cross-examined on her understanding of the Code, and in particular, on the above statements in her affidavit sworn 15 March 2021:

So do you still maintain that that was your thinking, that you were not doing anything wrong in this country despite all the education and mentoring you have had prior to that?--- Yes. At that stage I didn’t.. You know, it’s really – I come from Africa, and I don’t know if you’ve ever lived there. If you don’t treat people that are around you and people – your family, your friends, who’s going to treat them? …I would not have done anything to my family that required more than mundane medical GP skills. …

So are you saying there that you still believe that you providing care to your family members may, at least in some circumstances, be more beneficial to them that if they were to see other doctors?--- No, that is not what I am saying there. What I am saying there is that my children have got a problem with it, my family has got a problem with it, that they feel that they have all the years entrusted me with questions. …

Do you – it seems that you are upset by the proposition that you shouldn’t be treating your family; is that fair?--- No. I can accept that the proposition is that I shouldn’t treat my family. I can understand the concept behind it. …

Okay. Could you have a look at paragraph 55(e) of your affidavit, please?--- Yes. …

So at that paragraph you seem to describe that notion again as a recommendation. Would you accept that?--- Yes. Because I – I said that I seem to be in error to think what they say it – it is advisable, that I thought that’s a recommendation. That must be my error.

…Do you still think it’s just a recommendation? That seems to be what you’re saying in paragraph 55(e), isn’t it?--- Yes. That is what I’m saying there.

Yeah, But didn’t you – I mean, weren’t you saying – wasn’t the mistake that you were seeing to point out at paragraph 43 was the fact that you viewed this merely as a recommendation?--- That is correct. It’s the word “recommendation” that seems to be a problem here, and my understanding of what I thought that that is what it is, a recommendation, and that’s a mistake that I now need to rectify, isn’t it ---

So why – I just – why is that you’ve only come to the understanding now after having some several years of reviewing that document or similar versions of it?--- Because the word “recommendation” has now become an issue.

But the word “recommendation” is not actually in that paragraph?--- No.

So what does that have to do with it?--- My interpretation.

Then just moving to paragraph 61. …What do you mean by: not permitted by this system to assist him.?--- Well, the system is the recommendation that I can’t see family. Not – sorry – the suggestion or the – the advice. I need to get off this word “recommendation”. All right. So if I cannot see my husband, or I cannot examine them, and they’ve got – where is the nearest metropolitan area that can provide the care that I’m providing there? I am providing definitive management which is not under normal circumstances available in rural towns.

How many – are there five other general practices in Kingaroy?--- There are indeed.

Yeah. And it’s correct to say, isn’t it, that they also provide services for care of skin cancer and skin screening?--- That is quite correct. …

Right. So I’m not seeking in any way to diminish the skill that you have in that area but it’s correct to say that those services are available at several other practices in Kingaroy?--- That is correct. What is not available at those practices is the fact that I hold four fellowships and a master’s degree in skin cancer care. What is not available is the fact that they send patients for definitive management away from the town. …

42. [42]
    It is concerning that, instead of demonstrating an appropriate level of insight, the respondent appears to reluctantly acquiesce as to the appropriate professional standards required of her, the necessity of at least some of which she appears to question, and which she suggests in some regards are in fact detrimental to the care of her family.

43. [43]
    As mentioned above, the respondent was subject to previous disciplinary proceedings before this Tribunal.^[11] The respondent’s conduct relating to these previous proceedings involved essentially:

    1. (a)
       failing to maintain professional boundaries with one patient;

2. (b)
   inappropriately prescribing the drug Hypnodorm (Flunitrazepam) to her then- husband; and

3. (c)
   inappropriately prescribing the drug Hypnodorm (Flunitrazepam) to other patients with the intention of using the drug for her own benefit.

44. [44]
    In sanctioning the respondent, the Tribunal ordered, inter alia, that the respondent engage with a mentor on a monthly basis for 2 years, and that this mentor was to focus on professional boundary management, strategies to ameliorate risks arising from the vulnerability of patients or the respondent and appropriate prescribing practice. As early as June 2015, the respondent had begun engaging with a mentor for the purposes of education about issues relevant to the previous proceedings. The respondent elected to continue engaging with the same mentor, after the Tribunal handed down its decision.

45. [45]
    When giving evidence, the respondent testified that in these sessions with her mentor, as early as June 2015, she had discussed the issue of professional boundaries at length, and that these sessions included discussions about avoiding forming relationships with current and former patients.

46. [46]
    In light of this, the respondent’s conduct is concerning, particularly her continued treatment of Patients A, B and C. Even after the Tribunal handed down its decision on 21 September 2017, the respondent continued to treat Patient A until May 2018, Patient B until April 2018 and Patient C until April 2018.

47. [47]
    Various references were tendered on the respondent’s behalf. These referees include colleagues, other medical practitioners, community leaders, local politicians, and many patients of the respondent. All of these references speak highly of the respondent, particularly with regard to her competency in treating skin cancer. Many of the references also speak to the scarce availability of medical services to rural communities such as in Kingaroy. The Tribunal acknowledges that any suspension of the respondent’s registration will have an adverse effect on the availability of medical services in Kingaroy. However, such a factor does not mitigate the seriousness of the respondent’s conduct.

48. [48]
    The applicant has referred to a number of comparative cases in support of their submissions as to an appropriate sanction.^[12] Whilst considerations of consistency require consideration of all those decisions, there is limited utility in seeking to compare and contrast the facts of each case with that of the respondent. However, the decision of Medical Board of Australia v Sevdalis,^[13] could be regarded as the most comparable. In Sevdalis, the Victorian Civil and Administrative Tribunal, in addition to other orders, suspended the doctor’s registration for a period of 6 months. In their decision, the Tribunal noted in particular that:

…the practitioner’s conduct represented a repetition of conduct for which he had been previously sanctioned, including that the treatment of family members commenced within months of a reflective report on what he had learned from the counselling ordered by the Panel who head the previous allegations. It appeared that Dr Sevdalis had learned nothing from the previous education, and that the previous sanctions had little or no impact on his understanding of an compliance with his professional responsibilities in relation to the administration of intravenous antibiotics and treating family members.^[14]

49. [49]
    The respondent’s conduct is very similar to that of Dr Sevdalis, however, it is less serious given that it is not alleged that Patients A, B or C suffered any harm or detriment as a consequence of their treatment by the respondent.

50. [50]
    The respondent’s professional misconduct with respect to allegations 1 and 2, are a serious breach of professional boundaries. The respondent’s departure from acceptable professional standards deserves the denunciation of the Tribunal.

51. [51]
    Pursuant to s 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.

52. [52]
    Given the respondent’s previous disciplinary proceedings and the similar nature of the conduct in question, albeit of a less serious nature in this instance, there is an evident need for specific deterrence in addition to any general deterrence brought by the Tribunal’s orders. The Tribunal does not accept the submission of the respondent that a substantial fine would be an appropriate penalty. The evidence given by the respondent calls into question whether she has an appropriate level of insight. In these circumstances, the Tribunal is of the view that a period of actual suspension is warranted, in order to bring home to the respondent and other practitioners the seriousness of her conduct.

53. [53]
    The length of that period of suspension will be mitigated to an extent because of the unfortunate delay between the hearing and the delivery of these reasons.

54. [54]
    Pursuant to s 107(3)(d) of the HO Act, the Tribunal suspends the registration of the respondent for a period of 3 months. This suspension is to take effect one month from the date of this decision.

55. [55]
    Pursuant to s 107(3)(b) of the HO Act, the Tribunal imposes a condition on the respondent’s registration, requiring the respondent, on her return to practice, to submit to audits of her practice in the following terms:

1. The respondent must submit to an audit of their practice (‘the audit’), including any supporting records, within 2 months of returning to practice and thereafter on a quarterly basis for a period of 2 years, by permitting an auditor (‘the auditor’) approved by the Medical Board of Australia (‘the Board’) to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on treatment of family members.

2. Within one month of returning to practice, the respondent must provide to the Australian Health Practitioners Regulation Authority (APHRA):

1. nomination, on the approved form, of an auditor(s) to be approved by the Board;

2. acknowledgement, on the approved form, that APHRA will seek reports from the approved auditor at the conclusion of each audit; and

3. acknowledgement, on the approved form, from the nominated auditor.

3. Within 7 days of the notice of the approval of the nominated auditor, the respondent is to provide a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the areas of concern for the Board will be address. The audit(s) will take the form determined by the auditor.

4. In the event an approved auditor is no longer willing or able to provide the audit required, the respondent must notify APHRA within 14 days of becoming aware of this and provide a new nomination of a proposed auditor(s) to the Board in the same terms as the previous nomination of auditor(s).

5. All costs associated with compliance with this condition are to be borne by the respondent.

56. [56]
    As stated in her evidence, the respondent has trained and supervised medical students and registrars for most of her career. Given the deficiencies in her understanding of, and commitment to, ethical obligations as outlined in the Code, the Tribunal is of the view that the respondent should be prohibited from supervising medical students and registrars. The risk of her ethical misguidance outweighs any benefit her expertise would bring.

57. [57]
    Pursuant to s 107(3)(b) of the HO Act, the Tribunal imposes a condition on the respondent’s registration, prohibiting her from supervising medical students and registrars.

58. [58]
    Pursuant to s 109(2) of the HO Act, the Tribunal decides that the National Law, part 7, division 11, subdivision 2 applies to the above conditions.

59. [59]
    Pursuant to s 109(3) of the HO Act, the Tribunal decides that the review period for these conditions is 2 years.

60. [60]
    A non-publication order will be made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) with respect to the identities of the respondent’s patients.

61. [61]
    Each party must bear their own costs of the proceedings.