Health Ombudsman v JRK[2023] QCAT 545

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   On 23 December 2022, the applicant Director on behalf of the Health Ombudsman filed a referral to the Tribunal seeking disciplinary findings and orders against the respondent on the basis of one allegation: failure to maintain professional boundaries with a patient (‘Patient A’) during 2021. The respondent is a registered medical practitioner. She was first registered by the Medical Board of Australia (‘Board’) in 2014. Prior to that she was a registered nurse. She is a specialist general practitioner (‘GP’) and she is currently 55 years old.

Conduct subject of the referral

2. [2]
   The parties have filed a statement of agreed facts. The nature and extent of the relationship the subject of the allegation was not in dispute. Patient A first consulted the respondent on 7 May 2021. Patient A was suffering post-traumatic stress disorder due to an accident at his workplace and he had an extant WorkCover claim with NT WorkSafe. The respondent initially prescribed antipsychotic medication for him and referred him to a psychiatrist. She accepts that Patient A was vulnerable. But there is no suggestion that her subsequent unethical behaviour was predatory. The respondent provided medical services to Patient A during May and June of 2021 and on three occasions until 11 July 2021.
3. [3]
   In May and June, the respondent had provided Patient A’s wife with an unfit for work certificate. On 11 July 2021, the respondent and Patient A went on a bike ride together, then walked on the beach and had coffee. Patient A told the respondent that he had separated from his wife.

4. [4]
   On 14 July 2021, Patient A and the respondent commenced a consensual sexual relationship. She told him that she would not be able to continue with him as his doctor due to the development of the personal relationship. She clearly then recognised that she had crossed a boundary into unprofessional conduct. After this she continued to provide health services in relation to Patient A’s WorkCover consultation including attending as his support person in telephone consultations with two psychiatrists in August 2021.
5. [5]
   Patient A and the respondent began living together as a couple in mid-August 2021. On 31 August 2021, she provided medical services by way of prescribing medication and completing a WorkSafe medical certificate. The last time the respondent provided health services to Patient A was on 3 September 2021. In September 2021, the respondent and Patient A pooled their finances to purchase a block of land and building materials with the intention of building a house together.
6. [6]
   Their personal relationship ended amicably in March 2023.

Discussion and Sanction

7. [7]
   On 10 November 2021, after discussion with the general practitioner who owned the practice where the respondent was working, the manager of the practice made a mandatory notification to the Office of the Health Ombudsman (‘OHO’). On the same day the respondent made a self-notification and the following day Patient A’s treating psychologist made a mandatory notification to the OHO.
8. [8]
   After the OHO commenced an investigation, the respondent was interviewed by investigators on behalf of the Health Ombudsman. During the interview, the respondent made full admissions and acknowledged that she behaved or acted in a way that was unethical.
9. [9]
   The respondent recognises that her conduct was unprofessional and that it amounts to unprofessional conduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland). In her affidavit filed in these proceedings on 24 July 2023, the respondent affirms as follows:^[1]

…I unreservedly acknowledge that I failed to appropriately maintain professional boundaries in my relationship with [Patient A] and that this was a serious breach of my professional obligations involving a sexual boundary violation.

I also acknowledge that this failure was in spite of my knowledge that relationships between medical practitioners and their patients are prohibited, that I allowed the strength of feelings to overcome my sense of professional responsibility. I am deeply remorseful and ashamed of my conduct.

Since making my self-report to the Office of the Health Ombudsman, I have realised just how significantly I breached my professional obligations and have also come to accept that my actions (in allowing the relationship between [Patient A] and I to occur) significantly risked [his] health and wellbeing, irrespective of whether or not that risk eventuated, and that he was particularly vulnerable as a result of his mental health issues and marriage breakdown.

In November 2021, I engaged with psychologist John Maybanks to assist me with feelings of shame and anxiety that I have felt since these events, and he has since diagnosed me with depression and anxiety. I continue to attend on Mr Maybanks and I believe these sessions have helped me to develop a greater understanding about the personal factors which led to my conduct and the ways that I can appropriately address these personal factors.

10. [10]
    She also appropriately concedes that she has breached several relevant provisions of the Good Medical Practice: the Code of Conduct for Doctors (‘Code of Conduct’) effective from 1 October 2020, and Guidelines: Sexual Boundaries in the Doctor Patient Relationship (‘Guidelines’) effective from 12 December 2018. These instruments are promulgated by the Board and are admissible in proceedings of this nature as evidence of what constitutes appropriate professional conduct for the medical profession.
11. [11]
    The cases referred to by the parties in their submissions clearly establish that the conduct here is serious and is properly characterised as professional misconduct. In Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation),^[2] the Victorian Civil and Administrative Tribunal (‘VCAT’) explained why doctors must not engage in sexual misconduct with patients:^[3]

Sexual relationships between patients and doctors are always inappropriate. Medical practitioners are placed in a position of trust in the community and have available to them intimate knowledge of their patients’ physical and psychological wellbeing. This places the practitioner in a position to exploit the trust that has been given to them. The community expects that when they attend a medical practitioner, they will not be regarded as potential sexual partners, nor that their relationship the doctor will be sexualised. Likewise, the profession expects its members to refrain from using the consulting room as a means of establishing sexual relationships with patients. To do otherwise brings the profession into disrepute by reducing the trust that the community has in the profession.

12. [12]
    Although the descriptors used in that case by the VCAT are not directly applicable to the circumstances here, indeed the circumstances here are quite different, the principle holds as the respondent concedes. As noted earlier, the respondent clearly realised that commencing a personal sexual relationship with Patient A was professionally inappropriate and unethical.
13. [13]
    The principles in relation to the imposition of sanction by a tribunal in relation to a healthcare provider who has behaved unethically or unprofessionally are well-known and need not be repeated. The parties have agreed that a reprimand and short period of suspension is appropriate to reflect a general deterrent. The applicant seeks a period of three months’ suspension of the respondent’s registration, whereas the respondent’s counsel contends that a one-month suspension is an appropriate disciplinary response in the circumstances of this case.
14. [14]
    The respondent, by her conduct since her self-notification, has demonstrated significant insight into the causes of her unprofessional conduct and remorse for it. She has no other disciplinary history, she’s cooperated fully with the regulator and in these proceedings. It’s not suggested that the relationship involved any predatory behaviour on her part. As she affirms in her affidavit, the development of an intimate personal relationship between these two middle-aged people was a surprise to both of them, based in part on a common background history of service in the armed services.

15. [15]
    Patient A does not suggest that he has suffered any actual harm, although as noted earlier, the respondent acknowledges that there was a risk that he could, given his vulnerability, and the necessarily unequal power relationship inherent in the doctor- patient relationship.
16. [16]
    As noted, the respondent has demonstrated very significant insight and remorse. She presents no risk to any patient. She’s taken significant steps to address the causes of her misconduct and to prevent it ever occurring again. It follows that specific deterrence as a principle has very little weight in relation to the Tribunal’s exercise of discretion in this case. In addition to the sessions with her psychologist, the respondent has undertaken regular mentoring sessions with an experienced GP which she has found very helpful, and which she intends to continue.
17. [17]
    Clearly, general deterrence is the most relevant principle here, but the Tribunal should always be scrupulously careful not to slip into notions of punishment in framing its response. The principle is important in cases like this to deter other doctors, and in particular, GPs, who are more likely to overstep in the context of a close relationship with vulnerable patients and to uphold the fundamental importance of the profession’s reputation in the mind of the public.
18. [18]
    The comparable cases referred to by the parties provide guidance, however, it is axiomatic that no truly comparable case can ever be found. The importance of having regard to comparable cases as guidance is to ensure a general level of consistency in outcomes in the tribunal and equivalent tribunals in other states. The cases of Health Ombudsman v Stephens^[4] and Health Ombudsman v Veltmeyer^[5] are of some assistance. However, in both of those cases, the orders by way of sanction were affected by what was acknowledged to be unacceptable delay in prosecuting the disciplinary proceedings before the tribunal.
19. [19]
    In Medical Board of Australia v Dr Haifi,^[6] the VCAT considered the conduct of a GP. The GP had commenced a personal, then sexual, relationship with a patient after an 18-month treating relationship. Immediately after the treating relationship, the GP and patient began a friendship which turned into a sexual relationship within about five months. After the relationship ended, the GP again became involved in the patient’s treatment for a very short time. In that case, the practitioner was reprimanded and his registration suspended for a period of two months. Education conditions were imposed on his registration along with a restriction on non-clinical communication with patients.
20. [20]
    I agree with the respondent that Medical Board of Australia v Todd,^[7] represents a more serious example of boundary violations, significantly aggravated by the respondent initially making false and misleading statements to the regulator when his conduct was initially investigated.

21. [21]
    In this case, as well as the other factors in mitigation to which reference has been made, I accept that a longer period of suspension beyond one month might have an impact on the broader community of the region in which the respondent is presently practising. In that respect, she has the support of a reference from another general practitioner which refers to the fact that the respondent is one of only three practitioners in the regional area in which she practises, particularly focused on veteran-specific care and support. I agree that the potential effect on the broader community may also be inferred from the other supporting references that have been filed. These references indicate that she is well-regarded and respected by her patients and the local community.
22. [22]
    I agree with the respondent’s written submissions that, in the circumstances of this case, and the very clear, well-established insight and remorse shown by the respondent — who, I agree, could have done no more than she has done to reflect on her conduct and take steps to ensure that it never happens again — that a one-month suspension by way of additional sanction to a reprimand is appropriate to reflect the principle of general deterrence.^[8] As I have noted, anything greater runs the real risk of being punitive in the specifics and the circumstances of this case.

Non-publication Order

23. [23]
    The final matter relates to the non-publication order made by the Deputy President of the Tribunal on 30 April 2023. That order prohibits the publication of any material that could identify the respondent or any of her patients. That order was made so that it continues “until further order”. The original order was made on the basis of a report from the respondent’s treating psychologist. The respondent’s treating psychologist has provided an updated report dated 12 July 2023.
24. [24]
    The Tribunal is satisfied that the order, as made by the Deputy President, should be continued pursuant to section 62(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Orders

25. [25]
    It is the decision of the Tribunal that:

1. 1.
   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘the HO Act’), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
2. 2.
   Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded;
3. 3.
   Pursuant to s 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of one (1) month to commence on 18 December 2023; and
4. 4.
   No orders as to costs.