Health Ombudsman v Orth[2023] QCAT 491

1. [1]
   JUDICIAL MEMBER: Between August 2012 and July 2016, Dr Orth saw a patient, A, on 38 occasions at a suburban general practice. A was vulnerable. The consultations included mental health assessments concerning anxiety, depression, drug abuse, and childhood, family, and relationship issues.
2. [2]
   During that same four-year time frame, a social relationship developed between the two men. Dr Orth and A met every few months sharing coffee and meals both alone and with other people.
3. [3]
   In the latter half of 2016, their relationship became intimate. It continued as such for about three years until December 2019. They cohabited for about the last nine months of that time. Nine further doctor/patient consultations occurred during that time, each apparently involving the giving of various prescriptions.
4. [4]
   The social and intimate relationship founded a notification to the Health Ombudsman by A’s treating psychologist on 21 December 2021. That notification has led, ultimately, to a referral resulting in these proceedings.
5. [5]
   The Tribunal must determine two issues: does the Tribunal agree with the parties’ joint position that Dr Orth’s conduct constitutes professional misconduct? If so, what sanction should be imposed?

Does the conduct constitute professional misconduct?

6. [6]
   The definition of professional misconduct, “conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience” is contained within section 5 of the National Law.^[1]
7. [7]
   It can also be established by more than one instance of unprofessional conduct, which when considered together, amount to conduct of that description. Both the Code of Conduct for medical practitioners and a published guideline dealing specifically with sexual boundaries between doctor and patient emphasise the trust that patients and the community more broadly place in the medical profession and emphasise the power imbalance inherent in the doctor/patient relationship.
8. [8]
   Those Codes recognise that conduct which fails to adhere to those ethical standards has the potential to undermine community trust and to cause profound psychological harm to patients and compromise their medical care. Plainly, that is all the more so in the case of patients presenting as already vulnerable by reason of mental and/or physical conditions. ^[2]
9. [9]
   Those principles underpin both the requirement for professional boundaries to be maintained at all times, and the dictate that doctors should “never use [their] professional position to establish or pursue a sexual exploitative or inappropriate relationship with anybody under [their] care”^[3]. The same dictate extends to those close to the patient.
10. [10]
    Equally, it is always unethical and unprofessional to breach the doctor/patient trust by entering into a sexual relationship, regardless of whether the patient has consented to the relationship.
11. [11]
    The prohibition is underscored by the Code contemplating its application, for example, to former patients. Unsurprisingly, it is recognised that social interaction often precedes a sexual relationship and should be treated as a warning sign for practitioners and a signal that appropriate action should be taken.
12. [12]
    A corollary of those clear ethical guidelines and the principles underpinning them is that a doctor beginning and maintaining a social, and subsequently sexual, relationship with a patient frequently has a clear consequence in disciplinary tribunals. The great majority of previously decided cases where a doctor had entered into a sexual relationship with a patient, or former patient, find professional misconduct occurred.
13. [13]
    In reaching the conclusion that Dr Orth’s conduct is “professional misconduct” as defined, the Tribunal has taken into account that the social relationship continued over a lengthy period of time and he practised at a suburban Brisbane general practice where, as he accepts, the patient could have and should have seen a different doctor in the same practice.
14. [14]
    The patient was psychologically vulnerable. That fact was well known to Dr Orth. The social relationship became a longstanding sexual relationship. Despite the number of consultations between the doctor and patient reducing significantly during that period, they nevertheless continued and involved the prescribing of medications. The doctor was an experienced general practitioner, having practised for approximately 40 years. He well knew his ethical obligations.
15. [15]
    The ethical obligations laid down in the relevant published Codes of Conduct are clear and unequivocal. Serious potential consequences for both the patient and the public standing of the medical profession are referred to in the Codes of Conduct and well-understood.
16. [16]
    The nature and length of the relationship between doctor and patient, albeit consensual, involved a serious violation of the appropriate boundaries between a doctor and a patient known to the doctor to be psychologically vulnerable.
17. [17]
    The Tribunal is satisfied that Dr Orth’s conduct is a large or considerable departure^[4] from the standard required of medical practitioners and thus, falls substantially below the standard reasonably expected of a registered health practitioner of Dr Orth’s level of training or experience.
18. [18]
    Professional misconduct is established.

Sanction

19. [19]
    The Tribunal is cognisant that the purpose of sanctions is protective and not punitive. Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect.^[5] The health and safety of the public is the paramount consideration in imposing sanctions.^[6]
20. [20]
    Protecting the health and safety of the public includes preventing the same or similar conduct being perpetrated by the particular practitioner in the future. A number of factors can be seen as relevant to that consideration. They include:

    1. the past referral history and general character of the doctor;
    2. whether there is genuine insight into the inappropriateness of the conduct and an appreciation of the importance of relevant ethical standards;
    3. whether there is genuine remorse, evidenced, for example, by acceptance of the conduct and cooperation with the inquiry; and
    4. personal circumstances including health or psychological issues.

The health and safety of the public is also protected by making it clear that certain conduct is not acceptable.

21. [21]
    The Act’s primary consideration also embraces upholding public confidence in the standards of the profession. Denouncing misconduct operates both as a deterrent to the individual concerned as well as the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice.^[7]
22. [22]
    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 the protective sanctions imposed in similar circumstances and as an attempt to maintain a measure of consistency in the maintenance of proper professional standards.
23. [23]
    Submissions on behalf of Dr Orth acknowledge both that his conduct amounts to professional misconduct and concedes the seriousness of the conduct. Dr Orth also concedes that the patient was vulnerable. It is contended there is no evidence of actual harm to the patient, but it is acknowledged that there is the potential for harm in the circumstances under consideration.
24. [24]
    Full admissions were made by the doctor during the course of the Health Ombudsman’s investigation, and he otherwise fully cooperated with it. Full admissions were made in his formal response to the disciplinary referral. No previous notifications were made to the Ombudsman or its predecessors in over 40 years of Dr Orth’s medical practice.
25. [25]
    In February 2023, the doctor completed an education plan under the guidance of his indemnity insurer. The Ombudsman accepts the doctor has insight into his unprofessional behaviour and exhibits genuine remorse.
26. [26]
    On 31 March, the doctor wrote to AHPRA giving notice under section 137 of the Health Practitioner Regulation National Law that he intended to retire from medical practice and surrender his registration as a medical practitioner effective 30 June 2023. It is accepted that retirement and surrender of registration has been effected. The doctor swears that he has no intention of ever reapplying for registration.
27. [27]
    The Ombudsman accepts that the order originally sought suspending the doctor from practice can no longer be pursued in light of his non-registration. It is submitted, however, that he should be disqualified from re-applying for registration for a period of six months. Dr Orth contends that any such disqualifying period is not needed.
28. [28]
    The seriousness of the conduct and the denunciation by the medical profession and the community at large are submitted as particular factors warranting a disqualification period.
29. [29]
    Both parties made reference to a decision of the Tribunal in Health Ombudsman v Mainwaring^[8]. The facts founding the unprofessional conduct in that case are not analogous. However, similar to the present case, the doctor had surrendered his registration but had not practised for three years prior to the Tribunal hearing. But for that fact, the serious circumstances (involving inappropriate treatment resulting in premature death) would have seen the doctor disqualified from practice for a lengthy period to send an appropriate message of denunciation to the medical profession and the community at large. The Health Ombudsman contends that those same factors pertain here and submits that taking account of the accepted insight and remorse, a period of six months’ disqualification is appropriate.
30. [30]
    This morning, counsel for Dr Orth made the Tribunal aware of a decision of Judicial Member Robertson handed down on 25 May 2023. The Tribunal was provided with a copy of the Orders of the Tribunal in that matter, but the reasons for those Orders are not currently available.
31. [31]
    The decision referred to, with the consent of counsel who appears for the Health Ombudsman, again, involves facts that are not analogous to the current set of circumstances. However, the decision is referred to so as to make the Tribunal aware that in that particular case, Judicial Member Robertson and the Tribunal did not follow an earlier decision where it was held that a disqualification period was not necessary.
32. [32]
    The Tribunal has taken account of a number of comparable cases referred to by the parties^[9]. In all of the circumstances, the Tribunal is of the view that a disqualification period is called for and that that disqualification period should be six months.
33. [33]
    The Orders of the Tribunal will be:

Orders

1. Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
3. Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for six (6) months from the date of this order; and
4. Each party must bear their own costs of the proceedings.