Health Ombudsman v Hatten[2023] QCAT 321

REASONS FOR DECISION

1. [1]
   Mr Hatten has been registered as a psychologist for over 40 years. In December 2019, he commenced seeing Ms James^[1] as a patient in his practice run from a medical centre south of Brisbane on referral from her general practitioner. She had one session a week with Mr Hatten for four weeks. Restrictions associated with the COVID pandemic curtailed further sessions. Subsequently, telehealth sessions commenced in October 2020. The sessions centred on dealing with issues associated with the breakdown of Ms James’ domestic relationship. She recalls the sessions between October and December 2020 as being helpful.
2. [2]
   In January 2021, a course of behaviour by Mr Hatten occurred which initiated a complaint to the Health Ombudsman, and ultimately, the current proceedings. An immediate action decision imposed on 17 March 2021 prohibited Mr Hatten from having contact with female patients. The Health Ombudsman alleges that between 21 January 2021 and 2 February 2021, a course of conduct by Mr Hatten toward Ms James amounts to professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
3. [3]
   The particulars of the single allegation are as follows.

3. 1.
   Between 24 January 2021 and 2 February 2021, the Respondent breached professional boundaries by engaging in inappropriate communications and personal interactions with [Rebecca James].

3. Particulars

3. 1.1
   Between 1 October 2020 and 2 February 2021, [Rebecca James] was a patient of the Respondent.

3. 1.2
   The Respondent provided health services to Ms [James].

3. 1.3
   The Respondent was aware that Ms [James] was a vulnerable person

3. 1.4
   Between 24 January 2021 and 2 February 2021, the Respondent engaged in inappropriate communications and personal interactions with [Rebecca James] by:

1.4.1.Sending text messages to Ms [James] that:

1.4.2.1.were not for a therapeutic purpose; and

1.4.2.2.demonstrated a sexual interest in Ms [James]; and/or

1.4.2.3.sought to elicit disclosures or comments of a sexual nature from Ms [James] and/or

1.4.2.4.sought to persuade Ms [James] to engage in sexual activities; and

1.4.2.Engaging in conversations with Ms [James] that:

1.4.2.1.were not for a therapeutic purpose; and

1.4.2.2.demonstrated a sexual interest in Ms [James]; and/or

1.4.2.3.sought to elicit disclosures or comments of a sexual nature from Ms [James] and/or

1.4.2.4.sought to persuade Ms [James] to engage in sexual activities; and

1.4.3.Attending at Ms [James]’s residence without a therapeutic purpose;

1.4.4.Offering Ms [James] and subsequently providing her with a computer.

3. 1.5.
   On 1 February 2021, Ms [James] ceased communicating with the Respondent and ended her therapeutic relationship with him.

4. [4]
   An affidavit of personal service by Mr Williams deposes to service being affected upon Mr Hatten on 6 April. He was served with the one volume hearing brief, a letter from the Health Ombudsman, and a formal notice of this hearing. The Tribunal has had no communication with Mr Hatten or anyone representing him. His name was called three times at the commencement of the hearing.

What conduct founds the allegation

5. [5]
   The relevant conduct is founded in text messages and conversations occurring over four days from 27 January 2021 until 30 January 2021. In addition, a gift of a computer delivered to Ms James’ apartment occurred on 31 January 2021. The conduct should be outlined briefly.

Twenty-seven January 2021

6. [6]
   Mr Hatten initiated telephone contact on 27 January that ultimately led to a conversation lasting just short of an hour and a-half. During that conversation, Mr Hatten suggested that Ms James needed to discover who she was and what she was like sexually. He recommended self-love and self-pleasure and suggested she should start watching pornography. Ms James says that Mr Hatten offered to put her in touch with a client who was into bondage and was a dominatrix. Subsequent to the telephone call, Mr Hatten texted Ms James, “For self-pleasuring purposes grapeseed oil has the right Ph (sic) value which ensures a nice slide.”.

28 January 2021 – text messages and phone calls

7. [7]
   On 28January 2021, Mr Hatten texted Ms James extolling the virtues of grapeseed oil, including that:

“…[it] can be used for as a cooking massage… oil. Also it is a lubricant for shaving [razor emoji] purposes. I will contact later sending an appt diary today.”

8. [8]
   Later that morning, Mr Hatten called Ms James to discuss the grapeseed oil and said he might call again later. After lunch that day, Mr Hatten called the patient again from his mobile. They discussed fears and anxieties that she had around her past and family situation. Ms James deposes that Mr Hatten also, “provided advice about relationships and how to engage with people sexually”, saying there was nothing wrong with “having a couple of partners for sexual purposes only, since the patient was not ready for a relationship, and so long as everybody was consenting”.
9. [9]
   Later that afternoon, Mr Hatten again called Ms James. During that conversation, Mr Hatten asked the patient whether she was, “a clitoris type of lady or penetration”, when pleasuring herself. He also told her about the clitoris, the hood and all its nerve endings and asked her again if she had viewed the porn sites yet.

29 January 2021 – phone call

10. [10]
    On 29 January at about 5:00 in the evening, Mr Hatten again called Ms James and discussed Ms James’ studies in aged care and her concerns that she would not secure placement work. Mr Hatten offered to help her and explained that his wife looked after her elderly mother who suffers from dementia. He offered to ask his wife whether Ms James could provide some respite care.

30 January 2021 – phone call and text messages

11. [11]
    On 30 January, Mr Hatten called Ms James, and they spoke for approximately an hour and 22 minutes. During that call, he said his wife had refused the idea of her being a respite carer for her mother and asked Ms James whether she had viewed the pornography yet. Ms James gave reasons for not having done so, including that she had an old laptop. Mr Hatten offered to give Ms James an old laptop which she could use instead of the mobile phone.
12. [12]
    A few hours later, Mr Hatten sent a text to Ms James asking if he could call. When she did not reply, he texted again. A text exchange followed in which Ms James explained that she did not want to talk when she had a house full of teenagers. Mr Hatten suggested they move to text messages. Ms James agreed. There was then a series of text messages regarding Ms James and Mr Hatten’s personal sexual experiences.
13. [13]
    The text messages are exhibited in Ms James’ affidavit. They included Mr Hatten sharing that his first experience of sexual intercourse was when he was 13, and the details of it. He also said, “I am happy that you are not into older males as I am off the hook [emoji]”. He later said, “[i]f you want to play text then I will wait until M goes to sleep and I have a plan to get the computer to you tomorrow. I promise to text you shortly and maybe you can get yourself in the mood.”
14. [14]
    Significantly, Ms James says in her affidavit that she initially thought these messages were part of the therapy, but as they became increasingly explicit, they made her feel uncomfortable. She deposes that she went to bed feeling, “extremely uneasy and anxious”, about what she and Mr Hatten had discussed.

31 January 2021 – computer

15. [15]
    At about 7:00 in the morning, she sent a text message to Mr Hatten in which she invented a lie to avoid Mr Hatten coming over to her place. However, later that morning, she received a text message from Mr Hatten indicating that he would ring shortly, and that telephone conversation occurred shortly thereafter. He said he was five minutes away from her place. At about 10:00 in the morning, Mr Hatten arrived at Ms James’ apartment and gave her an old computer.
16. [16]
    Again, Ms James deposes in her affidavit as to the feelings generated by this visit. Mr Hatten had left a voicemail asking if she was okay, to which she did not respond. Ms James deposes that at that time she felt, “extremely confused, anxious and lost”, and did not know what to do. She says that she did not feel comfortable with the text, the computer or being asked to view pornography, but did not know if she was being a prude, as she had not had sexual trauma counselling before.

How should the conduct be classified

17. [17]
    Submissions filed by lawyers who were then acting for Mr Hatten admit the conduct was the subject of the allegation. Three crucial concessions are also properly made:

    1. the conduct that is subject of the allegation is serious;
    2. the conduct would present a risk to female patients if left unaddressed; and
    3. the conduct constitutes professional misconduct.
18. [18]
    The Tribunal finds that the conduct particularised in the allegation is professional misconduct.

What sanction should be imposed

19. [19]
    Consistent with the overriding purpose underlying the National Law and earlier decisions of both tribunals and appellate courts, the Tribunal is cognisant that the purpose of disciplinary proceedings and sanctions which might flow are protective and not punitive. The language of specific and general “deterrence” is frequently used. However, that language, familiar to criminal sentencing, can be understood as respectively preventing a particular practitioner from inflicting harm unless or until particular behaviours are properly and adequately addressed, and reassuring the public that they are protected by the standards of the health profession which can be relied upon and enforced by the Tribunal.
20. [20]
    Within those broad principles, each case falls to be considered by reference to its own facts and circumstances. Regard can be had to comparative cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in similar circumstances, and as an attempt to maintain a measure of consistency in the maintenance of proper professional standards. The Ombudsman and Mr Hatten are agreed on the considerations relevant to determining sanction.
21. [21]
    They are summarised, by reference to authority, at paragraph [48] of the Ombudsman’s written submissions:

3. The Tribunal may consider factors including:

3. (a)
   the nature and seriousness of the practitioner’s conduct,

3. (b)
   insight and remorse shown by the practitioner,

3. (c)
   the need for specific or general deterrence,

3. (d)
   any evidence of steps taken by the practitioner to mitigate the risk of recurrence of the conduct – which is relevant to both insight and the Tribunal’s assessment of future risk,

3. (e)
   mitigating factors such as evidence of matters which may give context to the conduct, for example, mental health issues,

3. (f)
   other matters, including: past disciplinary history; police history; character evidence; periods of preclusions/non-practice; and cooperation with disciplinary proceedings.

22. [22]
    The ambit of the parties’ respective written submissions as to the broad categorisation of Mr Hatten’s conduct is relatively narrow. The Ombudsman submits that the conduct “falls within the middle range of conduct of this type”. It is submitted on behalf of Mr Hatten that the conduct is in the “lower to middle range”.
23. [23]
    Those descriptions sound in the Ombudsman contending ultimately that Mr Hatten be reprimanded and that he be disqualified from applying for registration for six months from the date of the Tribunal’s order. That proposed sanction reflects the evidence before the Tribunal that Mr Hatten is no longer registered as a practitioner.
24. [24]
    The sanction ultimately proposed by the Ombudsman is made by reference to what are described as “serious features of Mr Hatten’s conduct”. It is submitted:

3. In short, the respondent’s conduct falls in the middle range of conduct of this type because it:

3. (a)
   was relatively short in duration but cannot be described as fleeting,

3. (b)
   had a decree of intensity borne of the frequency of communications during the relevant period,

3. (c)
   was sexual in nature but did not involve any physical sexual misconduct,

3. (d)
   had an element of grooming but was not predatory,

3. (e)
   was committed under the cloak of legitimate psychological treatment, and

3. (f)
   involved a vulnerable patient.

25. [25]
    It is submitted on behalf of Mr Hatten that the conduct falls in the lower to middle range because:

The lack of any physical sexual conduct (nor the suggestion that any would occur), the short period over which the communications occurred (a period of approximately one week), and (as the applicant properly accepts) the respondent’s conduct was not predatory.

26. [26]
    It is contended to be important that when the nature of the conduct is considered against the future risk it might present, it was a “an isolated incident relating to one patient over a short period of time”.
27. [27]
    The submissions emphasise that there was, “No ongoing contact after the patient ceased contact with [Mr Hatten], nor were there any attempts by [Mr Hatten] to continue a relationship of any form with the patient”.
28. [28]
    It is admitted that the conduct clearly falls short of what is required of a psychologist and amounts to professional misconduct, but it is said that it was an isolated incident which has no precedent in 40 years of practice. An expert opinion as to the nature of the treatment given by Mr Hatten is provided by a psychologist, Dr Madsen. He opines there was, “no evidence to suggest that sensate-focussed treatment or indeed sex therapy, has been requested by the patient or indeed would be appropriate given her presentation”.
29. [29]
    It went on to say that there were no clinically appropriate reasons for Mr Hatten’s suggestions regarding masturbation, pornography, or recommendation for trialling lubrication. The written submissions on Mr Hattens’ behalf contend that he now appreciates his initial response was “improper” and did not demonstrate the degree of insight one would expect from a psychologist. It is said he “no longer holds” the views expressed in his initial response.
30. [30]
    It is earlier conceded that the initial response to the allegations by Mr Hatten did not demonstrate the level of insight one would expect from a psychologist. Mr Hatten’s initial responses to the allegation denied Ms James was a patient.  He said he was assessing her suitability for the sensate focus program used to address issues with painful intercourse.
31. [31]
    It is also contended that Mr Hatten’s insight and remorse are “a powerful protective factor” against similar conduct occurring in the future. It is pointed out that Mr Hatten has undertaken “targeted education addressing his ethical obligations and appropriate boundaries in practice”.  That is a reference to sessions and an ensuing plan undertaken with Davaar Consultancy completed in August 2022.
32. [32]
    The most recent telephone contact with Mr Hatten by the Ombudsman, occurred subsequent to his previous solicitors discontinuing their representation of him.  The Ombudsman enquired as to his intentions with respect to the hearing. A contemporaneous note records, among other things:

He said that he has now read the Hearing Brief, which alleged there were boundary violations and sexual misconduct. [He] said he didn’t “agree with the situation”. He never saw her, never touched her; he never ‘suggested’ that.”

…

It was only when he read the hearing brief that he understood what he did wrong. It would have been better for him if he had slept with her [Ms James] because then it would have been clear-cut.

33. [33]
    There is cause to doubt the degree of insight possessed by Mr Hatten and whether he continues to hold his previously expressed views despite denying them.
34. [34]
    The evidence reveals that Mr Hatten is no longer registered as a psychologist. He told Mr Price in the telephone conversation earlier referred to that he “had no intention of working again.” The period contended for by the Ombudsman during which Mr Hatten should be disqualified from applying for registration has utility despite Mr Hatten’s expressed current intentions so as to provide a point of comparison with other cases of a similar type.
35. [35]
    A number are cited, particular reference is placed upon, for example, Psychology Board of Australia v Duangpatra [2012] QCAT 514. There, the practitioner expressed some remorse for intimate telephone conversations and letters which commenced only after the therapeutic relationship ended. The practitioner had some insight. She was suspended for six months suspended after three months for 18 months. It is submitted on behalf of Mr Hatten that he should receive a reprimand, a gender restriction, and a mentoring condition. Those conditions can no longer be applied because Mr Hatten is no longer registered. Notwithstanding that fact, it is said that the sanction contended for provides “... a holistic response to the Respondent’s conduct”.
36. [36]
    Those written submissions were filed prior to the Tribunal having the information before it that Mr Hatten’s registration is no longer current. They are taken in Mr Hatten’s absence as being submissions that he should receive a reprimand only.
37. [37]
    The written submissions on behalf of Mr Hatten contend that as he had already undertaken a course with respect to professional boundaries and had offered to be subject to a gender restriction, a period of suspension would not serve a protective purpose. That is now taken to be a submission on his behalf that a period restricting him from applying for registration would similarly serve no protective purpose. It is said that a reprimand is appropriate without further sanction because a reprimand is not a trivial penalty, it is:

A public denouncement of the Respondent’s misconduct. It functions to protect the reputation of the profession and deter others to engage in boundary violations with patients.

38. [38]
    It was recognised in Health Ombudsman v Hardy [2018] QCAT 416 at [41]; citing Medical Board of Australia v Grant [2012] QCAT 285 at [49] that a reprimand is not a trivial penalty. That much is accepted. However, in this case, the nature of the conduct as described above is regarded by the Tribunal as serious.
39. [39]
    Notwithstanding Mr Hatten’s expressed position that he no longer wishes to work whether as a psychologist (or it is inferred at all) the Tribunal considers that a prohibition on applying for registration should nevertheless apply.  Doing so provides a message to the community, and, importantly, to Ms James, that the conduct is regarded as a serious matter.  It also permits consistency with sanctions in cases with relatively similar circumstances. 
40. [40]
    For those reasons, the orders that will be made by the Tribunal are as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013, the respondent is disqualified for applying for registration as a registered health practitioner for six months from the date of this order.
4. There is no order as to cost.
5. The non-publication order made on 20 February 2023 is set aside.
6. Pursuant to section 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
   1. The contents of a document or thing filed in or produced to the Tribunal;
   2. evidence given before the Tribunal; and
   3. 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 patient, or any family member of the patient, save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

7. Any material affected by the non-publication 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.
8. It is directed that the name of the patient contained in the Tribunal’s reasons be anonymised by pseudonym and the pseudonym be used in any publication of the Tribunal’s reasons, save publication to the applicant, the respondent, and the patient.