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  4. Medical Board of Australia v Grajn - [2023] QCAT 433

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Medical Board of Australia v Grajn[2023] QCAT 433

Medical Board of Australia v Grajn[2023] QCAT 433

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Grajn [2023] QCAT 433

PARTIES:

medical board of australia

(applicant)

v

dr andrej grajn

(respondent)

APPLICATION NO/S:

OCR153-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 November 2023

HEARING DATE:

13 September 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Prof P Baker, Medical Practitioner Panel Member

Dr J Cavanagh, Medical Practitioner Panel Member

Ms M Ridley, Public Panel Member

ORDERS:

  1. 1.Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
  2. 2.Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.
  3. 3.Pursuant to section 196(4)(a), the respondent is disqualified for applying for registration as a registered health practitioner for a period of 2 years from 13 September 2023.
  4. 4.No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDCUT AND UNPROFESSIONAL CONDUCT – where the respondent was a registered medical practitioner at the time of the misconduct – where respondent is no longer registered in Australia but is registered with the General Medical Council of the United Kingdom – where the respondent engaged in an inappropriate personal and/or sexual relationship with a patient and/or former patient – where the respondent denies an inappropriate relationship – where the patient and/or former patient died by suicide – whether the respondent’s behaviour constitutes professional misconduct – where general deterrence is particularly important to demonstrate the seriousness of consequences that can follow for a vulnerable patient and/or former patient through boundary violations by a trusted health practitioner

Health Practitioner Regulation National Law (Queensland) ss 3A, 5, 41, 193B, 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v The Medical Board of South Australia [2001] SASC 169

Health Ombudsman v Kimpton [2018] QCAT 405

Marin v Chiropractic Board of Australia [2020] SASCFC 74

Medical Board of Australia v Alkazali [2017] VCAT 286

Medical Board of Australia v Chiappalone [2014] QCAT 170

Medical Board of Australia v Dolar [2021] QCAT 271

Medical Board of Australia v Janz [2011] VCAT 1026

Medical Board of Australia v Singh [2017] WASAT 33

Optometry Board of Australia v Bhoola [2011] SASC 51

Psychology Board of Australia v Popovski [2019] VCAT155

Psychology Board of Australia v Roychowdhury [2019] ACAT 50

Psychology Board of Queensland v Sweeny [2019] QCAT 134

Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES & REPRESENTATION:

Applicant:

R M de Luchi, instructed by Clayton Utz

Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    On 20 June 2022, the Medical Board of Australia (‘the Board’) referred a disciplinary matter to the Tribunal which contained one allegation against the respondent, a registered medical practitioner at all relevant times; namely, that he engaged in professional misconduct in that between February 2016 and on or about 2 September 2017, he failed to maintain appropriate professional boundaries with a patient and/or former patient, HBM, by engaging in an inappropriate personal and/or sexual relationship with her.
  2. [2]
    The respondent is an overseas trained medical practitioner, having obtained his medical qualifications in Slovenia in 2005. At all relevant times, he held limited registration with the Board and was practicing as a transplant surgical fellow in the renal transplant team at Princess Alexander Hospital (‘PAH’). He was a member of the surgical transplant team when HBM underwent renal transplant surgery at the PAH on 10th February 2016, when she received a donor kidney from her then partner GW.
  3. [3]
    As at the date of the hearing on 13th September 2023, the respondent was unregistered in Australia, but registered as a specialist urologist with the General Medical Council in the United Kingdom.
  4. [4]
    The respondent left Australia in February 2017.
  5. [5]
    On 12 October 2017, HBM died by suicide in the most horrific of circumstances. A number of the Boards’ witnesses draw a link in their statements between the relationship with the respondent and HBM’s death. It is clear that on the evidence, the tragic death of this very capable and much-loved woman was as a result of severe mental distress in the last months of her life. It is clear that this distress was in some way connected with her relationship with the respondent. The Board submits that the “effect the relationship had on HBM’s mental state and [her] tragic end are testament to why professional boundaries between medical practitioners and patients and former patients must be maintained.” That submission will be considered later in these reasons.
  6. [6]
    In October and November 2017, the Office of the Health Ombudsman (OHO) received notifications concerning the alleged boundary violation from the respondent’s former employer and GW.
  7. [7]
    On or about 23 March 2018, the Australian Health Practitioner Regulation Agency (Ahpra) received from the respondent, an application for limited registration for postgraduate training or supervised practice. The respondent intended to practise at the Royal Darwin Hospital.
  8. [8]
    On or about 19 June 2018, the OHO informed the respondent of its decision to investigate both notifications, and, on 18 September 2018, the respondent withdrew his application for registration and has not reapplied for registration since. The respondent is contactable by email, but it is not known where he is presently residing and/or practicing apart from the GMC registration details.
  9. [9]
    On or about 24 December 2018, the OHO informed the respondent that the matter had been referred to Ahpra for management by the Board.
  10. [10]
    Following an investigation into the notifications, on or about 28 March 2022, the Board decided to refer the matter to the Tribunal under section 193B(2) of the National Law[1], having formed a reasonable belief that the practitioner had behaved in a way that constitutes professional misconduct.
  11. [11]
    The respondent has not been legally represented during the investigation and since the filing of the referral. He denies any inappropriate relationship with HBM. He admits that he and HBM became friends after the surgery but asserts[2] that the friendship was “as two private adult consenting individuals”, and (in effect) disputes the right of the Board to take disciplinary action against him.

Assessment of the evidence of the Board

  1. [12]
    The Board has the onus of proving the facts that it alleges underpin the allegation in the referral.[3]
  2. [13]
    The respondent was given the opportunity to test the evidence of the Board at the hearing. He declined to do so, asserting in an email dated 11 September 2023 that he denied any misconduct and accused the Board of conducting its investigation with “punitive zeal and bias”.[4]
  3. [14]
    The Board describes its evidence as “largely circumstantial”.[5] Insofar as this suggests an inherent weakness in the evidence – a common misconception – that suggestion should be rejected. In proceedings such as these, where the Tribunal is not bound by the rules of evidence and “may inform itself in any way it considers appropriate”[6],the  drawing of inferences from proved facts may render a “largely circumstantial” case very strong.
  4. [15]
    As noted above, the respondent denies that he has behaved inappropriately or otherwise acted in a way that constitutes professional misconduct, however, he has made numerous concessions regarding the extent of his relationship with HBM, including that:
    1. His treating relationship with HBM was brief (in his responses during the investigation and to the Notice of Allegations, the respondent has variously submitted the treating relationship lasted between 1 and 3 weeks including any post-operative care);
    2. He did not hear from HBM until she initiated contact with him approximately 2-3 months post-surgery, having obtained his telephone number from a roster sheet located in the hospital ward, at which point the respondent accepted an invitation to dinner with HBM and GW;
    3. They became “good friends” and had telephone contact;
    4. HBM was present at the airport when he departed Australia in February 2017;
    5. He gave HBM his hospital identification card from PAH when he departed Australia;
    6. HBM assisted him with the preparation of curriculum vitae(s) and encouraged him to seek a position within Australia;19
    7. He drove HBM and GW around former Yugoslavia in June 2017;[7]
    8. HBM “wanted to be the additional person for the storage unit”;[8] and
    9. HBM offered to be listed as the respondent’s next of kin when he moved overseas to practice medicine in active conflict zones in Africa and the Middle East.[9]
  5. [16]
    In the email,[10] the respondent noted that “details of [his] private life are not relevant…and [that he would] keep them private and [could not] possibly comment on them.” This type of response is typical of many of the communications from the respondent to regulators, and I agree with the Board’s submission that his description of his relationship with HBM is vague and lacks transparency.
  6. [17]
    In my opinion, a fair analysis of the Board’s evidence overwhelmingly establishes to the relevant standard, that the admitted relationship with HBM was inappropriate from soon after the surgery and developed into a sexually intimate relationship during the relevant period.
  7. [18]
    A summary of the relevant evidence is as follows:
    1. The respondent and HBM travelled together: Between 7 and 9 February 2017, the respondent and HBM travelled from Brisbane to Canberra together,[11] where HBM had booked a single room at the Hyatt Hotel.[12] Invoices for in-room charges indicate that meals for two people were purchased.[13]
    2. Consultation records made by Ms Cathy Bone from Forensic Psychology Centre,[14] on 5 October 2017 and 12 October 2017, summarise appointments attended by HBM. HBM disclosed to the psychologist on 5 October 2017 that she had a sexual relationship with someone that she met through her kidney transplant process in 2016. In a separate section, the notes for that same appointment disclose that HBM had commenced a “new relationship”, who she would meet up with at the “P.A. cafe.” The notes proceed to describe intimate details of this new relationship. The notes unmistakably reference an ‘Andre’ and a PH (the respondent’s partner at the time who was overseas) and, relevant to the respondent’s concessions referred to above, note that a “physical relationship happened. She met his partner. He went back overseas. Formed a relationship w/ her. They came to her for dinner to their house.” Whilst the notes lower on that page do record HBM stating that she “Never approached him for sex”, on the subsequent line they record her disclosure that they were “friends w/ benefits.” The notes on the following page record both that she “loved him” and “R U [sic] a psychopath.” Later, the notes state that HBM travelled with the person as a foursome in 2017, during which time GW became jealous.
    3. HBM reported to multiple witnesses that her personal relationship with the respondent was intimate. Though independent of each other, HBM’s disclosures to the relevant witnesses are factually consistent.
      1. GW: In his signed statement, GW discusses HBM disclosing to him that during her repeated trips to the hospital following the procedure, her relationship with the respondent was “starting to grow stronger.”[15] GW states that HBM disclosed to him in September 2018 that she had an affair with the respondent and that she was concerned he was going to harm her. GW also states that HBM informed him that she had travelled to Canberra with the respondent, and that her relationship with him was sexual during the trip they took to Europe.
      2. SD: In her signed statement,[16] SD, who was HBM’s sister, states that HBM started discussing the respondent with her immediately following her procedure in February 2016. HBM’s disclosures to SD were contemporaneous with the events. SD states that HBM had told her that the respondent held her hand when she woke up (from the renal transplant surgery) and immediately started to tell her romantic things, such as how he was the only person who had their hands on her organs and that nobody knew her like he did. SD states that the respondent started contacting HBM under the guise of being an extra support person for her while she recovered, and that HBM had told her she believed the respondent was trying to seduce her. SD believes the respondent took advantage of HBM’s vulnerability and trust. HBM disclosed to SD that her relationship with the respondent became sexual several months after her procedure. SD states that HBM would shower or brush her teeth at her residence after seeing the respondent. SD compares the respondent’s conduct with grooming and states that she thinks HBM was still having an affair with him when they holidayed in Europe. She believes that HBM and the respondent were “pretty sexually active”, that the affair lasted for months but that, ultimately, “the relationship between [HBM] and Dr Grajn didn’t really end”.
      3. In her statement,[17] ML states that she was a work colleague of HBM. ML states that when she attended an Australian Institute of Company Directors Course with HBM in January 2017, HBM disclosed to her that she was having a sexual relationship with her transplant surgeon (the respondent). ML recalls that HBM was in “constant contact” with him during the week. ML states that she travelled to Canberra in February 2017 for her employment with HBM, who advised her that she had brought the respondent with her. Furthermore, ML, states that HBM told her about his storage locker, which she had a key to and was the “custodian” of whilst he was abroad. ML believes that the respondent’s relationship with HBM was inappropriate and that he groomed and manipulated her whilst she was emotionally vulnerable. In a subsequent statement signed on 15 July 2020,[18] ML recalls that in January 2017 she attended a 5-day course in Melbourne with HBM, during which HBM revealed that her relationship with the respondent was sexual. ML states that HBM spent a lot of time on the phone with the respondent. ML further recalls that when HBM travelled to Canberra with the Australian Industry Group, she stayed at the Hyatt Hotel (a different hotel to other staff, who stayed at the Kurrajong Hotel) and that she said she was doing so because the respondent was with her. ML states that in the weeks prior to her passing, HBM frequently spoke of her sexual encounters with the respondent and advised that it was “an extremely sexual relationship”. ML states that she recalls a telephone conversation she had with HBM where HBM read text messages that she had received from the respondent.
      4. JOC states that he was a work colleague with HBM when employed by the Australian Industry Group, and that she considered him to be a work mentor.[19] JOC recalls that on the weekend prior to HBM’s death, she visited him and his wife at their apartment in Canberra. He describes her as having been in a distressed state, and discussed her relationship with her medical practitioner, who she did not name.
      5. In her signed statement,[20] KT states that she was HBM’s best friend. KT states that HBM first told her about the respondent after her procedure and that he had sat beside her bed holding her hand (consistent with the account of SD). KT recalls attending a dinner at HBM’s house several months after the procedure with HBM, GW, the respondent, and his partner (she cannot recall the name of Dr Grajn’s partner). She states that HBM was excited when she found out that the respondent was attending.56 She recalls HBM telling her about his storage locker. She accompanied HBM when she went to Canberra to see an old trusted friend. KT states that during that particular weekend, HBM spoke in graphic detail of her sexual relationship with the respondent. KT recalls HBM telling her that whilst holidaying with the respondent in Europe, they had sexual intercourse once and that she was disappointed when their relationship was not rekindled. KT states that she understood HBM to have believed that her relationship with the respondent began when he held her hand in hospital after her surgery. KT states that HBM told her she travelled to Canberra with the respondent.
      6. Dr Francis Ross (FR): In his file note, which is attached to the Notification made by Dr Anthony Falconer,[21]  FR, who was HBM’s nephrologist after her procedure, describes a call he had with her on the 9th October 2017. FR called HBM after being in contact with GW, who disclosed that she had told him she had an affair with the respondent. FR states that HBM told him she had recently disclosed an affair with a surgical team member to GW. FR states that she did not specifically name the individual but that she circumstantially suggested it could be the respondent by stating that the individual was no longer working in Australia.[22]
    4. Emails dated February 2017 between HBM and the respondent form independent evidence supporting GW’s notification. Notably, in an email to HBM, the respondent states, “We love each other profoundly. And we had great moments of bliss together...We will have many more stolen moments [HBM].”[23]. In that same email the respondent commences with the words “My dear (HBM) the cutie”.
    5. Entries in HBM’s diary disclose the intimate relationship with the respondent.  Diary entries of HBM reveal numerous intimate conversations with another party.[24] It can be inferred that she is referring to the respondent by reference to the surgery and comments he made in emails and comments she made to others some of which are summarised above.
  8. [19]
    I am satisfied that the Board has proved these facts to the relevant standard. I reject the respondent’s many contentions to the effect that the relationship between he and HBM was not sexually intimate. I reject his recent contention that their “friendship” happened a year after the surgery. Not only is that inconsistent with the evidence I do accept, but it is also inconsistent with the concessions made by the respondent in earlier communications with regulators.
  9. [20]
    The evidence summarized above establishes that the respondent permitted an inappropriate relationship to develop very soon after the surgery. I am satisfied that by the time of the trip to Canberra in February 2017, a sexually intimate relationship was established. I am satisfied that almost immediately after the surgery, the respondent behaved in a way that indicated a clear sexual interest in HBM. It is probable that he acted on that interest well before the Canberra trip and during 2016.

Characterisation of the conduct

  1. [21]
    At all relevant times, the respondent was subject to the provisions of the Board’s Code of Conduct[25] (“the Code”) and the Board’s Sexual Boundaries Guidelines[26] (“the Guidelines”). These instruments as approved registration standards for medical practitioners, are admissible in these proceedings “as evidence of what constitutes appropriate professional conduct… for the health profession”.[27]
  2. [22]
    The respondent’s proved conduct was inconsistent with the Code[28], including the following provisions:
  1. (a)
    Principle 1.4 (professional values and qualities of doctors):

“Patients trust their doctors because they believe that... their doctor will not take advantage of them...”

  1. (b)
    Principle 3.2 (Doctor-patient partnership):

“A good doctor-patient partnership requires high standards of professional conduct. This involves ... Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially.”

  1. (c)
    Principle 8.2 (Professional boundaries):

“Good medical practice involves:

8.2.1 Maintaining professional boundaries...

8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care... "

  1. [23]
    The respondent’s conduct was inconsistent with the Guidelines[29], including but not limited to the following provisions:
  1. (a)
    Guideline 4:

“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.

It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient

…

It is a breach of trust for a doctor to enter into a sexual relationship with a patient...

A sexual relationship, even if the patient is a consenting adult, may impair the doctor’s judgement and compromise the patient’s care.”

  1. (b)
    Guideline 5:

“It may be unprofessional for a doctor to enter into a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor.”

  1. (c)
    Guideline 6:

“Doctors are responsible for establishing and maintaining boundaries with patients. A doctor should not:

enter into a sexual relationship with a patient even with the patient's consent

discuss his or her own sexual problems or fantasies

make unnecessary comments about a patient's body or clothing or make other sexually suggestive comments

ask questions about a patient's sexual history or preferences unless this is relevant to the patient's problem and the doctor has explained why it is necessary to discuss the matter."

  1. (d)
    Guideline 9:

“The beginning of a sexual relationship between a doctor and a patient may not always be immediately obvious to either doctor or patient…”

  1. [24]
    For the purposes of the National Law, the definition of “professional misconduct” includes, relevantly:
    1. Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
    2. More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
    3. Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.[30]
  2. [25]
    I am satisfied that the respondent’s breach of professional boundaries is both substantially below the standard expected of a registered health practitioner of an equivalent level of training or experience[31] and conduct that is inconsistent with being a fit and proper person to hold registration[32]. Such characterisation is appropriate noting that:
    1. The commencement of an intimate relationship with HBM was clearly inappropriate;
    2. There was a power imbalance between the respondent and HBM particularly noting the lifesaving quality of the renal transplant surgery in which he assisted;
    3. HBM had a long-term partner at all relevant times which was known to the respondent and who was directly involved in the procedure as a kidney donor;
    4. While HBM was not a typically vulnerable person (HBM was a professionally accomplished woman who held senior roles in Queensland’s public service)[33], the significance of the surgery in improving HBM’s quality of life denoted an inherent vulnerability of HBM and resultant power imbalance between herself and the respondent;
    5. The effect the relationship had on HBM’s mental state and HBM’s tragic death are testament to why professional boundaries between medical practitioners and patients must be maintained. I accept the Board’s submission to that effect.
  3. [26]
    As noted above, the Tribunal is satisfied that an inappropriate relationship was initiated by the respondent while HBM was still recovering from the surgery in hospital. The evidence establishes that she trusted him and held him in high regard at that time. Not only did he not appreciate the unethical and unprofessional nature of his conduct from the outset, throughout the investigation, he revealed a complete lack of understanding of the importance of not exploiting a patient, and then a former patient, leading to a sexual relationship which clearly had a profound effect on her, but which he regarded as unimportant.

Sanction

  1. [27]
    It is well established that disciplinary proceedings are protective, not punitive in nature.[34]
  2. [28]
    The Tribunal’s discretionary jurisdiction to make orders by way of sanction in relation to health practitioners who have been found to have engaged in professional misconduct is informed by the need to protect the public and to maintain the professional standards in the eyes of the public.[35]
  3. [29]
    Here, as the respondent is no longer registered, the Tribunal may make an order to:
    1. Caution or reprimand the respondent;
    2. Impose a fine of not more than $30,000 payable to the Board; and/or
    3. Disqualify the respondent from applying for registration for a specified period; and/or prohibit the respondent, either permanently or for a stated period, from providing any health service or a specified health service or using any title or a specified title.
  4. [30]
    In determining whether a proposed sanction will protect the public, the Tribunal will need to consider the following principles to the extent to which they arise in the circumstances of the particular case:
    1. General deterrence;
    2. Specific deterrence;
    3. Maintenance of professional standards; and
    4. Protection of the reputation of the profession.
  5. [31]
    As written by the Full Court in Craig v The Medical Board of South Australia[36]:

“A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practicing, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession...

“In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure.

The public may be protected by preventing a person from practicing a profession, by limiting the right to practice, or by making it clear that certain conduct is not acceptable.”[37]

  1. [32]
    The Tribunal’s jurisdiction must therefore be exercised bearing in mind the need to protect the public and to maintain the professional standards in the eyes of the public.
  2. [33]
    Protection of the public is achieved through the imposition of sanctions aimed at regulating professional performance of the individual and also by way of general deterrence to the profession as a whole. As stated in Craig v The Medical Board of South Australia:

“…sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration.”[38]

  1. [34]
    In Marin v Chiropractic Board of Australia[39] Kourakis CJ, cited with approval from Optometry Board of Australia v Bhoola[40] :

“In any event, the Tribunal must impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions. Even though that consideration has some analogy with general deterrence, its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed.”[41]

  1. [35]
    The Tribunal should make an assessment of any ongoing risk posed by the practitioner, and the degree to which the practitioner has acquired insight into his or her conduct is relevant to the determination in that it goes to the continuing risk posed by the practitioner.[42]
  2. [36]
    In Medical Board v Singh,[43] the Tribunal highlighted various matters that may require consideration when determining an appropriate sanction in disciplinary proceedings, including, relevantly:
    1. Any need to protect the public against further misconduct by the practitioner and other practitioners who may engage in similar conduct, and the need to maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions, even where there may be no need to deter a practitioner from repeating the conduct;
    2. Whether the practitioner has breached any Act, Regulations, Guidelines, or Code of Conduct, and whether the practitioner has done so knowingly;
    3. Whether or not the incident was isolated, such that the Tribunal can be satisfied of the practitioner’s worthiness or reliability for the future;
    4. The practitioner’s disciplinary history; whether the practitioner understands the error of their ways, including an assessment of any remorse or insight (or lack thereof); and
    5. Any other matters relevant to the practitioner’s fitness to practise, or which may be regarded as aggravating their conduct or mitigating its seriousness.
  3. [37]
    The Tribunal noted these matters are interrelated and this is by no means an exhaustive list of the considerations that may be taken into account.
  4. [38]
    In my opinion, principles of specific deterrence, and in particular, general deterrence, maintenance of professional standards, and protection of the reputation of the profession are each relevant to these proceedings.
  5. [39]
    As to general deterrence, I accept the submission of the Board that, in the circumstances of this particular case, it is important to convey a message to the public and to registered health practitioners that the respondent’s proved misconduct in this case, is inconsistent with the appropriate practice of medicine and membership of the profession and will not be tolerated. In addition, the determination should send that same message to patients and their families, and to the public at large. By sending such a message, the need to ensure public confidence in the integrity and professionalism of medical practitioners and the profession as a whole will be served.
  6. [40]
    It is also a matter of public interest to impose a sanction which reflects and reinforces high standards of the profession and denounces the respondent’s conduct. His proved conduct has the capacity to undermine the regard in which the profession is held by members of the public. The determination imposed should therefore assure the public that appropriate standards are being maintained within the profession and uphold the public’s confidence in the profession and the regulation of health practitioners.
  7. [41]
    As to specific deterrence, although the respondent has allowed his registration (in Australia) to lapse, I accept the Board’s submission that the Tribunal can have no confidence that he understands and accepts his failures and intends to comply with the obligations in the Code and the Guidelines in the future. There is no evidence that the respondent has made any attempt to educate himself as to his obligations under the Code and the Guidelines. In these circumstances, there remains a need to impose a sanction which emphasises to him the seriousness of his departure from professional standards and deter him from any future departures.
  8. [42]
    As to whether the respondent’s conduct was isolated, his relationship with HBM continued over a protracted period of time, in excess of one year, which involved a lengthy intimate relationship.
  9. [43]
    The evidence establishes that the respondent exhibits a distinct lack of remorse or insight. He has consistently insisted that his “relationship” with HBM began after their therapeutic relationship concluded and that his private life is irrelevant and beyond the jurisdiction of the regulators and the Tribunal. In response to the Board’s investigation, he disparaged GW (HBM’s widower and one of the notifiers) for instigating the investigation as some form of baseless personal revenge’.[44] In every interaction with the Board, Dr Grajn has demonstrated a complete lack of insight.
  10. [44]
    The respondent has no relevant prior notification history.
  11. [45]
    There is no evidence of the respondent seeking further training or education in relation to the practice of medicine (and particularly the need to maintain professional boundaries) or the importance of compliance with the Code and the Guidelines. Combined with the lack of insight, it is reasonable to conclude that if the respondent were to seek and obtain re-registration, he would be likely to again abuse the inherent power imbalance between doctors and their patients.
  12. [46]
    A period of disqualification is necessary to bring home to the respondent the significance of his departures from the professional standards, in addition to the reprimand sought by the Board.

Comparable cases

  1. [47]
    Care should be taken when comparing sanctions in similar cases, as such cases should provide guidance only. Such guidance can be helpful to the Board in determining what sanction should be sought from the Tribunal and it is generally accepted that whilst comparable cases can be useful, the Tribunal should not be distracted by determinations in other cases and should focus on the factual matrix in the case before it, the relevant considerations in the case, and what is necessary to achieve the objectives of a determination. The Tribunal must approach each case afresh and consider the circumstances before it when determining the appropriate sanction.
  2. [48]
    Looking to past cases for guidance can also be a useful guide to proportionality; to ensure that the sanction imposed is not outside the range of sanction imposed in the relevant jurisdiction, and to promote consistency in decision making. The following relevant and comparable cases may be of assistance to the Tribunal.

Health Ombudsman v Kimpton [2018] QCAT 405

  1. The Tribunal considered a disciplinary referral involving an enrolled nurse accused of boundary violations. The nurse met the patient when they were transferred from a correctional centre to a secure mental health treatment centre under an Involuntary Treatment Order on 7 December 2011. The nurse was 54 and the patient was 27. The patient was subject to constant observation and the nurse was assigned to observe her from time to time. The patient was sent back to the correctional centre on 3 July 2012, but returned to the mental health treatment centre on 11 July 2012. Upon her return, she changed her file to record that the nurse was her primary contact.
  2. In the period between 12 July 2012 and 16 November 2015, 1,137 phone calls were made by the patient to the nurse (averaging just under one call per day). The patient and nurse often wrote letters to one another, in addition to telephone contact.
  3. The Tribunal held that the nurse’s conduct amounted to professional misconduct, reprimanded the nurse, and ordered that each party bear their own costs. 
  4. The Tribunal noted that whilst the relationship never became physically intimate, given the vulnerability of the patient, there remained a power imbalance. The Tribunal noted that the conduct was on the “lower end” of the spectrum of professional misconduct.

Psychology Board of Australia v Wakelin [2014] QCAT 516

  1. A psychologist commenced a sexual relationship with a former patient. The practitioner denied the existence of the relationship to investigators and made false statements.
  2. The Tribunal held that a suspension of 6 to 12 months may have been suitable, but that the additional deceptive conduct justified a suspension in the vicinity of 18 months, and an order was made in those terms.

Medical Board of Australia v Chiappalone [2014] QCAT 170

  1. A doctor consulted a patient on 3 occasions, being 10 November 2010, 24 November 2010 and 15 December 2010. In May 2011, the patient sent the doctor a text message which asked whether he wanted to meet a friend of hers because they appeared to have common interests. The doctor met the patient’s friend, although that relationship did not continue.
  2. On 17 July 2011, the former patient sent a text message to the doctor which invited him to lunch and a concert. Following lunch, they both went back to the doctor’s house.
  3. The Tribunal accepted the former patient’s evidence that she and the doctor were exchanging text messages regularly, and that a sexual encounter occurred at the doctor’s house on 17 July 2011. On 23 August 2011, a final sexual encounter occurred.
  4. The Tribunal observed that “there is clearly no absolute prohibition against a medical practitioner commencing an intimate relationship with a former patient.” The Tribunal also took into account the fact that the treating relationship was of a short duration (consisting of only 3 appointments). 
  5. Notwithstanding these points, the Tribunal noted that there was obviously a power imbalance between the former patient and the doctor, and that the patient suffered depression and had problems with alcohol, which were well known to the doctor. The Tribunal therefore made a finding of professional misconduct and imposed a disqualification period of 12 months, as well as a reprimand.

Psychology Board of Australia v Popovski [2019] VCAT 155

  1. The practitioner consulted with the patient over a six-month period and commenced a sexual relationship with the patient a few months later.
  2. The practitioner denied ever having a relationship with the patient and provided misleading information about the relationship in her responses to the Board. The relationship had a detrimental impact on the patient.
  3. The practitioner was not registered at the time of the hearing and had not practised for 3 years. In finding that the practitioner had engaged in professional misconduct, the Tribunal reprimanded the practitioner and ordered a disqualification period of 3 years. In so doing the Tribunal noted,

“If we accept that the sexual relationship did not commence until six weeks after the final consultation, this does not absolve Ms Popovski from the egregiousness which attaches to the conduct of psychologists who commence personal relationships with the clients arising during treatment. That she maintained and repeated her denials shifting blame and casting aspersions on others including the Patient demonstrates her lack of insight and disregard for both her former patient and the profession.”

Psychology Board of Australia v Roychowdhury [2019] ACAT 50

  1. The practitioner consulted with the patient for one month and shortly after, a sexual relationship commenced. During the relationship, the practitioner engaged in violent behaviour and emotional intimidation of the patient. The practitioner made false statements to the Board.
  2. Noting concerns regarding the practitioner’s insight, the Tribunal found the practitioner to have engaged in professional misconduct, cancelled the practitioner’s registration, reprimanded him, and disqualified the practitioner from applying for registration for three years.

Medical Board of Australia v Alkazali [2017] VCAT 286

  1. A finding of professional misconduct was made regarding a practitioner’s breach of professional boundaries with a patient by sending inappropriate, sexualised text messages and advising her how to dishonestly obtain a disability pension. The practitioner also misled the Board.
  2. The Tribunal reprimanded the practitioner, cancelled the practitioner’s registration and disqualified him from applying for registration for 18 months.
  1. In making those orders, the Tribunal specially noted the practitioner’s lack of insight, particularly in regard to how his actions affected the patient. The Tribunal has been unable to discern any genuine insight into the nature or gravity of the respondent’s misconduct. Such remorse as has been expressed has focused almost entirely upon the consequences for the respondent without any meaningful expression of understanding, empathy or acceptance of the serious adverse impact upon the complainant.
  1. [49]
    Taking into account the evidence in this case, on 13 September 2023, the Tribunal made the following findings and orders.

Orders

  1. 1.Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
  2. 2.Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.
  3. 3.Pursuant to section 196(4)(a), the respondent is disqualified for applying for registration as a registered health practitioner for a period of 2 years from 13 September 2023.
  4. 4.No order as to costs.

Footnotes

[1] Health Practitioner Regulation National Law (Queensland) (“National Law”) s 193B(2).

[2] For example, in his response filed 17 October 2022.

[3] Briginshaw v Briginshaw (1938) 60 CLR 336.

[4] See email trail on file commencing with email dated 4 September 2023 from Clayton Utz (Applicant’s solicitor).

[5] ‘Board’s trial submission Hearing Brief’, p 24, [42], (“HB”).

[6] Queensland Civil and Administrative Tribunal Act 2009 s 28, (“QCAT Act”).

[7] HB (n 5), p 140.

[8] HB (n 5), p 140.

[9] Ibid, p 312.

[10] Ibid.

[11] Ibid, p 328. Qantas flight records show that the respondent and HBM travelled on the same flights to and from Canberra and were seated next to each other on both flights.

[12] Ibid, p 342.

[13] Ibid, pp 345-351.

[14] Ibid pp 476-489. All extracts from the psychologist’s notes.

[15] HB (n 5), p 324, [11] (“GW’s statement”).

[16] Ibid, p 361.

[17] Ibid, p 367.

[18] Ibid, p 382.

[19] HB (n 5), p 369.

[20] Ibid, p 373.

[21] Ibid, p 72.

[22] Ibid, p 73.

[23] HB (n 5), p 395.

[24] Ibid, pp 490-500.

[25] ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’, (2014).

[26] ‘Sexual Boundaries: Guidelines for Doctors’, (2011).

[27] National Law (n 1), s 41.

[28] The Code (n 25).

[29] The Guidelines (n 26).

[30] National Law (n 1), s 5.

[31] Ibid, s 5(a).

[32] Ibid, s 5(c).

[33] [redacted].

[34] Medical Board of Australia v Dolar [2021] QCAT 271 at [30].

[35] National Law (n 1), s 3A (1); Medical Board of Australia v Janz [2011] VCAT 1026, [362].

[36] [2001] SASC 169.

[37] Ibid, [41], [47]-[48].

[38] Craig (n 36), [43].

[39] [2020] SASCFC 74.

[40] [2011] SASC 51.

[41] Marin (n 38), [73].

[42] Psychology Board of Queensland v Sweeny [2019] QCAT 134, [48].

[43] [2017] WASAT 33, [30].

[44] HB (n 5), p 410.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Grajn

  • Shortened Case Name:

    Medical Board of Australia v Grajn

  • MNC:

    [2023] QCAT 433

  • Court:

    QCAT

  • Judge(s):

    Judicial Member J Robertson

  • Date:

    17 Nov 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Craig v Medical Board of South Australia [2001] SASC 169
2 citations
Jump To
Cite 1 - [2001] SASC 169
Cite 2 - [2001] SASC 169
DP [2021] QCAT 271
2 citations
Jump To
Cite 1 - [2021] QCAT 271
Cite 2 - [2021] QCAT 271
Health Ombudsman v Kimpton [2018] QCAT 405
2 citations
Jump To
Cite 1 - [2018] QCAT 405
Cite 2 - [2018] QCAT 405
Marin v Chiropractic Board of Australia [2020] SASCFC 74
2 citations
Jump To
Cite 1 - [2020] SASCFC 74
Cite 2 - [2020] SASCFC 74
Medical Board of Australia v Alkazali [2017] VCAT 286
2 citations
Jump To
Cite 1 - [2017] VCAT 286
Cite 2 - [2017] VCAT 286
Medical Board of Australia v Chiappalone [2014] QCAT 170
2 citations
Jump To
Cite 1 - [2014] QCAT 170
Cite 2 - [2014] QCAT 170
Medical Board of Australia v Jansz [2011] VCAT 1026
2 citations
Jump To
Cite 1 - [2011] VCAT 1026
Cite 2 - [2011] VCAT 1026
Medical Board of Australia v Singh [2017] WASAT 33
2 citations
Jump To
Cite 1 - [2017] WASAT 33
Cite 2 - [2017] WASAT 33
Optometry Board of Australia v Bhoola [2011] SASC 51
2 citations
Jump To
Cite 1 - [2011] SASC 51
Cite 2 - [2011] SASC 51
Psychology Board of Australia v Popovski [2019] VCAT 155
2 citations
Jump To
Cite 1 - [2019] VCAT 155
Cite 2 - [2019] VCAT 155
Psychology Board of Australia v Roychowdhury [2019] ACAT 50
2 citations
Jump To
Cite 1 - [2019] ACAT 50
Cite 2 - [2019] ACAT 50
Psychology Board of Australia v Sweeney [2019] QCAT 134
2 citations
Jump To
Cite 1 - [2019] QCAT 134
Cite 2 - [2019] QCAT 134
Psychology Board of Australia v Wakelin [2014] QCAT 516
2 citations
Jump To
Cite 1 - [2014] QCAT 516
Cite 2 - [2014] QCAT 516

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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