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Health Ombudsman v Kovan-Boss[2023] QCAT 550

Health Ombudsman v Kovan-Boss[2023] QCAT 550

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kovan-Boss [2023] QCAT 550

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

JASON KOVAN-BOSS

(respondent)

APPLICATION NO/S:

OCR038-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 May 2023 (ex tempore)

HEARING DATE:

30 May 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Dr J Cavanagh, Medical Practitioner Panel Member

Mr K Murphy, Public Panel Member

Dr J Quinn, Medical Practitioner Panel Member

ORDERS:

  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (HO Act), regarding the conduct of the respondent set out in allegations 1 and 2, the Tribunal finds that 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(3)(d) of the HO Act, the respondent’s registration is suspended for a period of six months from the date of these orders.
  4. Pursuant to section 62(2)(a)(ii) of the HO Act, that the immediate registration action dated 2 April 2020 is set aside.
  1. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a general practitioner – where the respondent engages in boundary violations involving sexual activity with two vulnerable patients – where the respondent developed insight into his conduct – appropriate sanction – reprimand and six-month registration suspension

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Craig v the Medical Board of South Australia [2001] SASC 169; 79 SASR 545

Health Ombudsman v Stephens [2020] QCAT 510

Health Ombudsman v Veltmeyer [2021] QCAT 77

Medical Board of Australia v Holten (Review and Regulation) [2019] VCAT 837

Medical Board of Australia v Karim (Review and Regulation) [2023] VCAT 171 (21 February 2023)

Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439

APPEARANCES & REPRESENTATION:

Applicant:

C Lloyd, Legal Officer of the Office of the Health Ombudsman

Respondent:

Roland McGrath Lawyers

REASONS FOR DECISION

  1. [1]
    These disciplinary proceedings proceed on the basis of an amended referral filed by the Director of Proceedings on behalf of the Health Ombudsman on 2 July 2022, and an amended response filed by the respondent on 2 August 2022. The amended referral contains two allegations of boundary violations involving sexual activity with two vulnerable patients. There are no factual disputes between the parties, and they have filed a statement of agreed facts.

Background

  1. [2]
    The respondent is 49 years old and was about 46 at the time of the alleged conduct. He completed a Bachelor of Medicine and a Bachelor of Surgery at the University of Western Sydney in 2013. He went on to complete his general practitioner (‘GP’) registrar training in 2018.
  2. [3]
    He is a registered medical practitioner, being first registered on 6 January 2014 before being granted full registration on 16 February 2015.
  3. [4]
    He commenced working at Stonewall Medical Centre (‘Stonewall’) in Windsor, Brisbane, as a GP in September 2019.
  4. [5]
    Stonewall has been servicing general and sexual health of members of Brisbane’s LGBTIQ+ community as well as sex workers and the heterosexual community since opening in 1995.
  5. [6]
    Prior to commencing practice at Stonewall, the respondent attended Dr Wendell Rosevear, the owner and principal of Stonewall, as a patient from May 2019.
  6. [7]
    The respondent’s practice at Stonewall was predominantly focused on sexual health issues for the LGBTQI+ community. At the relevant time, he states that he was also practising at Go2 Health, a veterans practice and with a bariatric surgeon, Dr Phil Lockie, doing post-surgical bariatric medicine reviews.
  7. [8]
    He has no prior or subsequent disciplinary history.
  8. [9]
    On 24 December 2019, Dr Rosevear made a mandatory notification to the Office of the Health Ombudsman (‘OHO’), advising that he had a reasonable belief that the respondent engaged in inappropriate sexual misconduct with two patients. Dr Rosevear indicated that he had spoken to the respondent, who intended to self-notify once he returned from an overseas vacation.
  9. [10]
    When the respondent returned to Australia, he notified the OHO of the conduct on 14 January 2020.
  10. [11]
    On 2 April 2020, the Health Ombudsman took immediate registration action and imposed conditions on the respondent’s registration. In summary, the conditions limit his scope of practice, requiring him to only practice in employment approved by the Health Ombudsman and prohibiting him from having contact with male patients, except when the respondent practices as a surgical assistant under the direct supervision of a registered practitioner who is physically present at all times. The conditions also require the respondent to continue to engage with a treating psychiatrist at a frequency determined by the psychiatrist. The conditions remain on the respondent’s registration.
  11. [12]
    On 12 June 2020, the OHO referred the respondent’s health to the Australian Health Practitioner Regulation Agency (‘Ahpra’) arising from the respondent’s references to his own mental state in his self-notification and submission in response to a proposed immediate registration action. He was not required to undergo a health assessment. The Board received reports from his treating psychiatrist, Dr Jim Rodney. On 24 February 2021, the Medical Board of Australia decided to take no further action, on the basis the respondent has appropriate strategies in place to maintain his health and it is not necessary to take regulatory intervention.
  12. [13]
    On 13 October 2021, the Health Ombudsman referred the matter to the Director of Proceedings.

The relevant conduct

  1. [14]
    By his amended response, the respondent admits the factual details of both allegations set out in the amended referral. They are fairly summarised in the applicant’s written submission which was filed on 7 March 2023. That summary is accepted as being accurate by Mr Bonasia, counsel for the respondent, in his submission filed on 24 April 2023.
  2. [15]
    The misconduct the subject of allegations 1 and 2 occurred at the same time between the respondent, Patient A and Patient B.
  3. [16]
    In summary, the respondent had been providing care and treatment to Patient A at Stonewall, where the respondent was employed. During one of Patient A’s consultations, Patient B was invited to attend, at which point he came under the care of the respondent. Patient B subsequently attended consultations with the respondent and Patient A simultaneously leading up to the offending conduct.
  4. [17]
    The first incident occurred during a consultation with patients A and B. The respondent exposed his genitals and invited the patients to fondle his genitalia, which they did. The second incident occurred later that day when the respondent phoned Patient A on his personal mobile telephone. He met Patients A and B outside WET Sauna & Spa. He remained in his vehicle and exposed and fondled his own genitalia in front of the patients.
  5. [18]
    The respondent invited the patients to his residential apartment, to which Patients A and B agreed. It is agreed that the respondent engaged in sexual activities with Patients A and B whilst in the respondent’s apartment.
  6. [19]
    The respondent was aware that Patient B suffered from depression and anxiety following his divorce from his wife and his involvement in a motor vehicle accident resulting in the death of a pedestrian. The respondent was aware that Patient B was receiving treatment from a psychiatrist. He was also aware that Patient A was receiving psychiatric treatment for bipolar affective disorder.
  7. [20]
    The boundary violations were reported by Patients A and B to their treating psychiatrist. Their treating psychiatrist, in turn, reported the incidents to Dr Rosevear on 17 December 2019, who made the mandatory notification to the regulator.

Characterisation of conduct

  1. [21]
    The parties agree that the admitted conduct satisfies the definition of “professional misconduct” set out in section 5(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The cases referred to by the applicant in their submission supports the joint submission of the parties.
  2. [22]
    In Medical Board of Australia v Holten (Review and Regulation) (‘Holten’),[1] the Victorian Tribunal considered the medical practitioner’s sexual misconduct with a patient, saying:

No doctor should be in any doubt that they must not have sexual intercourse with a patient, whether or not the patient consents. It is a simple, fundamental and long-standing principle of medical ethics and conduct.

  1. [23]
    In Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) (‘Wilks’),[2]  the Victorian Tribunal discussed why doctors must not engage in sexual misconduct, saying:

Sexual relationships between patients and doctors are always inappropriate. Medical practitioners are placed within a position of trust within the community, and have available to them intimate knowledge of their patient’s 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 parties, nor that their relationship with a 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.

  1. [24]
    The admitted conduct by the respondent breaches various provisions in the Board’s Good medical practice: a code of conduct for doctors in Australia (‘Code of Conduct’) and sexual boundaries: guidelines for doctors (‘Guideline’). The respondent admits to contravening the Code of Conduct with respect to allegation 1, by failing to maintain professional boundaries and using his professional position to engage in a sexual relationship with a patient under his care.
  2. [25]
    The Guideline addresses the power imbalance between doctors and their patients, saying:

there is no place for sex in the doctor-patient relationship, either in the guise of a “consensual” sexual relationship, or in the form of sexualised comments in behaviour, or indecent or sexual assault.[3]

  1. [26]
    The respondent admits to contravening the guideline by acting unethically, exploiting the doctor-patient power imbalance and breaching the trust that his patients placed in him as their doctor and breaching sexual boundaries with Patients A and B.
  2. [27]
    The Code of Conduct and the Guideline promulgated by the Medical Board of Australia, are by virtue of section 41 of the National Law, admissible in evidence in proceedings such as this as a guide as to what involves ethical, professional and good practice by a health practitioner.
  3. [28]
    The Tribunal is satisfied to the requisite standard that the admitted conduct amounts to professional misconduct as defined in section 5(a) of the National Law.

Sanction

  1. [29]
    The parties agree that a reprimand is appropriate, however disagree as to (a) whether a suspension is called for, particularly to meet the requirements of general deterrence, and to enhance the reputation of the profession, and (b) if the Tribunal decides some period of suspension is called for in the exercise of discretion the duration of that suspension.
  2. [30]
    The principles relating to the exercise of the disciplinary power by a Tribunal such as this are well established.
  3. [31]
    The purpose of any sanction is protective and not punitive. This purpose is recognised in the paramount principle set out in section 4(1) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), and is one of two guiding principles set out in section 3(a)(1) of the National Law.
  4. [32]
    In the particular circumstances of the case, the Tribunal may consider:
    1. the nature and seriousness of the practitioners conduct;
    2. insight and remorse shown by him;
    3. principles of specific and general deterrence;
    4. any steps taken by the practitioner to address the underlying causes of the conduct and to mitigate against any ongoing risk;
    5. factors that may explain the conduct such as a health condition;
    6. other matters including any past or subsequent disciplinary hearing, character evidence, periods of preclusion from practice or non-practice;
    7. delay and/or the effluxion of time; and
    8. cooperation in the disciplinary process.
  5. [33]
    It is not suggested by the respondent through his counsel that the conduct here was not very serious.
  6. [34]
    His conduct should be viewed as serious in that his actions involved:
    1. compromising a treating relationship with two vulnerable patients for short-term sexual gratification;
    2. sexual misconduct in circumstances where the patients had attended a medical practice focused on providing health services for the LGBTQI+ community, and where those patients were entitled to feel safe;
    3. sexual misconduct which took place, at the first instance, in the respondent’s own medical consulting rooms, where patients are entitled to expect that their physical and mental health will be the doctor’s highest priority;
    4. a failure to maintain professional boundaries with two patients who had vulnerabilities, known to the respondent, beyond the vulnerability inherent in the power imbalance in every doctor-patient relationship; and
    5. conduct which caused some harm to the respondent’s patients.
  7. [35]
    As against that, the respondent has shown significant insight and remorse into his misconduct over the subsequent years. He has provided a report by Davaar Consultancy, on his completion of an education plan about 15 professional boundaries dated January 2020. In that report, Dr Wendy McIntosh states:

At all times during this plan with me, Jason has been fully accepting of his actions. He was keen to understand the potential motivating factors that influenced the decision he made and actions he took. Several times during the process with me, Jason has verbalised his remorse, shame and guilt about his actions.

  1. [36]
    Annexed to one of the affidavits is a report of his treating psychiatrist, Dr Jim Rodney, dated 11 April 2022, where Dr Rodney states:

The other element of his psychotherapy is that in my opinion, he has not only developed insight into the incident, but also is quite remorseful and regretful at a genuine level. This should never have occurred, and it is my belief structure that this will not occur again.

  1. [37]
    As at April 2022, the respondent had had nearly 50 sessions of psychotherapy with Dr Rodney, and I am told today by his counsel that that therapy continues.
  2. [38]
    His initial response to the allegations by Patients A and B in deflecting some blame to the patients for what happened between them and in instructing his then lawyers, who were criminal lawyers, to dispute aspects of the conduct consistent between the accounts of Patients A and B, demonstrates that he did not then fully understand his ethical responsibilities that he had as a doctor, nor did he seem to understand the critical power imbalance  between patients and doctors as referred to in the Guidelines.
  3. [39]
    The applicant submits that the respondent is still not demonstrating full insight, despite having some time ago effectively accepted the facts now contained in the agreed statement of facts because he makes only one mention, as described in the submission as a “fleeting” mention, to the effect on the patients of his misconduct and the unethical and professionally inappropriate nature of his part in events of 29 November 2019.
  4. [40]
    The material before the Tribunal, including the reports from Dr Rodney and Dr McIntosh, indicates that at the time of the incident, the respondent was under considerable pressures relating to his work at Stonewall, his past history as a child and his sexual orientation. However, as against that, in his notification to the OHO at a time when he was saying to the regulator in relation to Patient A that “he was unable to engage in a personal relationship of any description if I were to remain their general practitioner,” he subsequently engaged in the events of 29 November 2019 which are set out in some detail in the statement of agreed facts.
  5. [41]
    The passage of time and the psychotherapy he has received, together with the courses he has undertaken, suggest to me that despite an initial lack of insight, he has now developed considerable insight into his misconduct and is now a fit and proper person to practice medicine and presents no ongoing risk to patients.
  6. [42]
    He now accepts, as he has done for some time, that Patients A and B were vulnerable at the time of his misconduct. He did not seem to accept that in his self-notification to the OHO in January 2020. His own notes as recorded and set out in the agreed statement of facts indicate that he knew that both patients had vulnerabilities, particularly as regard their mental health, prior to the misconduct.
  7. [43]
    The applicant submits that despite the gender-specific conditions imposed on his registration, nonetheless throughout the whole period since notification in December 2019, he has not been suspended from practice. That is correct, but from April 2020, his registration was subject to quite strict conditions relating to gender issues which has substantially affected his ability to work as a general practitioner. Mr Lloyd very fairly conceded that in oral submissions this morning.
  8. [44]
    The uncontested evidence of the respondent, particularly in his addendum affidavit sworn on 24 April 2023, is that at the time of notification, he was working as a GP in three capacities that is at Stonewall, at GO2 and as a surgical assistant with a bariatric surgeon and was under a great deal of emotional and personal stress.
  9. [45]
    The gender-based conditions imposed as part of the immediate action in April 2020 meant that he could not work for GO2 or the surgeon because their patients were predominantly male, and the conditions effectively made it impossible for those employers to continue his employment. His employment with Stonewall ceased upon notification in late 2019.
  10. [46]
    From January 2020 to May 2021, he was unemployed. During that period, he undertook psychotherapy and did various courses relevant to addressing the causes of his misconduct and the relevant ethical principles contained in the Code of Conduct and the Guidelines. At this time, there was a concurrent police investigation which ended with the withdrawal of any complaint in May 2021.
  11. [47]
    The respondent then obtained part-time employment in a cannabis clinic for a year until March 2022 to May 2022, when he was unemployed for another five months.
  12. [48]
    By a letter dated 30 November 2022, the Health Ombudsman varied the immediate action taken in April 2020 to impose the conditions set out at pages 376 to 382 of the hearing brief. The Health Ombudsman acknowledged that the respondent had at all times been compliant with what were very strict conditions. At their heart, the new conditions involve a removal of full male patient restrictions, to conditions that prohibit the respondent from having any contact with male patients without the presence of a practise monitor.
  13. [49]
    The respondent has not sought to review those conditions and they will remain in place until varied or removed by the regulator.
  14. [50]
    Although the applicant describes these as less onerous, the reality is that since then the respondent has had some employment with a clinic specialising in platelet-rich musculoskeletal issues, but as at the date of his addendum affidavit, he was again unemployed and remains unemployed today.
  15. [51]
    His counsel relies on these uncontested factual matters and the delay in filing the disciplinary referral, a period from January 2020 to Mach 2022, as indicating that his client no longer represents any risks to patients, including male patients. The delay is unfortunate; however, it was necessary for the Health Ombudsman to await the finalisation of the police investigation, and it is not part of the role of this Tribunal in these proceedings to determine whether the conditions imposed are disproportionate to any ongoing risk. In these proceedings, what is relevant is that the respondent has adhered to the conditions and has not departed from professional standards in those times he has been in practice during that three-year period.
  16. [52]
    The observations of Doyle CJ in Craig v the Medical Board of South Australia (‘Craig’) [4] are often quoted on the relevance of delay in proceedings of this nature:

When the purpose of the order is the protection of the public, the main relevance of delay is that the absence of any complaint during the period of the delay might indicate that the public does not require protection from the practitioner. The delay, and the fact that the practitioner may have had the matter hanging over the practitioner’s head for some time has no real weight in deciding what the public interest requires.

  1. [53]
    Those comments were quoted with approval by the then Deputy President of the Tribunal, his Honour Judge Allen KC in Health Ombudsman v Veltmeyer.[5]
  2. [54]
    Given these matters, I do not think specific deterrence has an important role in the circumstances here in determining an appropriate disciplinary response. As I have noted, I accept Dr Rodney’s opinion that given what has happened to the respondent since the notification, and his developed insight and remorse into and for his conduct now, he does not present as an ongoing risk to patients at the present time.
  3. [55]
    General deterrence is always important in cases like this. The quotes from Holten and Wilks cited earlier in these reasons indicates why conduct like this is to be strongly denounced and discouraged. This is important for the dual purpose of upholding the highest principles and ethical standards expected of doctors as reflected in the code and the guideline, and of deterring other medical practitioners from engaging in sexual conduct with patients.
  4. [56]
    I have had careful regard to the cases cited by the parties in their submissions. I regard Medical Board of Australia v Karim (Review and Regulation),[6] as a more serious case, as although the sexualised conduct there was less serious than here, Dr Karim had been convicted of a criminal offence in relation to the conduct, the patient was a young woman who did not consent to his assault; and nine years earlier, he had engaged in similar conduct, but the patient did not make a complaint to police and the Board gave him an opportunity to reform. There had been a delay in VCAT due to COVID-19 restrictions which the Tribunal regarded as a mitigating factor, but it did not refer to the general principle as stated in Craig and the many authorities on that issue since.  A reprimand and nine-month suspension of his registration and education conditions were imposed by the Tribunal.
  5. [57]
    Holten, I think, is a much more comparable case. Dr Holten was a specialist plastic surgeon. While in a doctor-patient relationship with a psychologically vulnerable patient, Dr Holten engaged in an inappropriate social relationship with her, and on one occasion they had sexual intercourse. I do not accept that because the respondent had sexual relationships with two patients, per se, makes this case more serious. Dr Holten was reprimanded, and his registration was suspended for three months.
  6. [58]
    Health Ombudsman v Stephens,[7] involved professional misconduct with a sanction of one months’ suspension and a reprimand. The practitioner in that case had engaged in a sexual relationship with a patient comprising two occasions of sexual intercourse at the clinic, one occasion at his beach house, and once in a hotel during a conference. His professional misconduct also involved the postdating of a prescription for schedule 8 controlled drugs for the same patient and failure to give the chief executive a written report regarding the prescribing of oxycodone to the patient.
  7. [59]
    The patient was vulnerable, having been treated for depression at the clinic including four occasions being prescribed antidepressants by the practitioner. However, the practitioner was equated with the patient outside the bounds of clinical practice and had dealings and engagement with her prior to the professional relationship. The registrant expressed remorse when notified of the complaint and there had been a delay of nearly five and a-half years until the matter reached final hearing. Like the respondent here, that practitioner had no prior notification history.
  8. [60]
    Taking into account the factors referred to in the reasons, the Tribunal makes the following orders:
  1. Pursuant to section 107(2)(b)(iii) of the HO Act, regarding the conduct of the respondent set out in allegations 1 and 2, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
  1. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
  2. Pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of six months from the date of these orders.
  3. Pursuant to section 62(2)(a)(ii) of the HO Act, that the immediate registration action dated 2 April 2020 is set aside.
  4. No order as to costs.

Footnotes

[1]  [2019] VCAT 837 (‘Holten’).

[2]  [2007] VCAT 2439 (‘Wilks’).

[3]  Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (12 December 2018), guideline 4.

[4]  [2001] SASC 169; 79 SASR 545.

[5]   [2021] QCAT 77.

[6]  [2023] VCAT 171 (21 February 2023).

[7]  [2020] QCAT 510.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Kovan-Boss

  • Shortened Case Name:

    Health Ombudsman v Kovan-Boss

  • MNC:

    [2023] QCAT 550

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Robertson

  • Date:

    30 May 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
Craig v Medical Board of South Australia [2001] SASC 169
2 citations
Jump To
Cite 1 - [2001] SASC 169
Cite 2 - [2001] SASC 169
Health Ombudsman v Stephens [2020] QCAT 510
2 citations
Jump To
Cite 1 - [2020] QCAT 510
Cite 2 - [2020] QCAT 510
Health Ombudsman v Veltmeyer [2021] QCAT 77
2 citations
Jump To
Cite 1 - [2021] QCAT 77
Cite 2 - [2021] QCAT 77
Medical Board of Australia v Holten (Review and Regulation) [2019] VCAT 837
2 citations
Jump To
Cite 1 - [2019] VCAT 837
Cite 2 - [2019] VCAT 837
Medical Board of Australia v Karim (Review and Regulation) [2023] VCAT 171
2 citations
Jump To
Cite 1 - [2023] VCAT 171
Cite 2 - [2023] VCAT 171
Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439
2 citations
Jump To
Cite 1 - [2007] VCAT 2439
Cite 2 - [2007] VCAT 2439

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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