Health Ombudsman v Adebanjo[2024] QCAT 245

[2024] QCAT 245

1. [1]
   Judicial Member: This is a referral to the Tribunal, number OCR323-22, by the Director of Proceedings on behalf of the Health Ombudsman against Adefolarin Babafemi Adebanjo, referred to as the Respondent. The Tribunal is constituted by Dr Jennifer Cavanagh, Ms Jennifer Felton and Dr John Quinn, and myself, Judicial Member Rinaudo, as chairperson.
2. [2]
   The allegation made against the Respondent is that between 1 May 2013 and 25 September 2019, he failed to maintain professional boundaries by engaging in a personal sexual relationship with a patient during and after the treating relationship.
3. [3]
   The parties have agreed on the appropriate sanction, and it falls to the Tribunal to consider it is satisfied that the proposed sanction is appropriate in all the circumstances.
4. [4]
   The relevant jurisdiction is contained in section 9(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which gives effect to the enabling act, which is the Health Ombudsman Act 2013 (Qld) (HO Act).
5. [5]
   The Tribunal, under section 4(2)(c) of the HO Act, can decide, in the proceedings set out in section 107 of the HO Act, that the practitioner has no case to answer and no further actions to be taken in relation to the matter,^[1] or one of the matters referred to; that is:

1. the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
2. the practitioner behaved in a way that constitutes unprofessional conduct;
3. the practitioner has behaved in a way that constitutes professional misconduct;
4. the practitioner has an impairment; and
5. the registration was improperly obtained because the practitioner or someone else gave the relevant National Board information or a document that was false or misleading in the material particular.^[2]

6. [6]
   The onus of proof is borne by the Applicant, who has the responsibility to establish the Respondent’s conduct amounts to professional misconduct, as defined by the Health Practitioner National Law (Queensland) (National Law), and the Tribunal must be satisfied of the relevant facts on the balance of probabilities, having regard to the requirements identified in Briginshaw v Briginshaw.^[3]
7. [7]
   The purpose of the proceedings is protective, not punitive, in nature. Protection of the public is paramount,^[4] and the disciplinary action imposed by the Tribunal must serve one or more of the following purposes:

1. preventing practitioners who are unfit to practice from practicing;

2. securing maintenance of professional standards;
3. assuring members of the public and the profession that the appropriate standards are being maintained and that professional misconduct (or unprofessional conduct) will not be tolerated;
4. bringing home to the practitioner the seriousness of their conduct;
5. deterring the practitioner from any future departures from appropriate standards;
6. deterring other members of the profession who might be minded to act in a similar way; and
7. imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.^[5]

8. [8]
   On 10 September 2019, the Applicant received a complaint from the complainant (Patient A). A notice of proposed immediate action was sent to the Respondent on 14 November 2019, which, after negotiations, was varied on 21 November 2022. After submissions made in consultation, the variations currently in place are known as the 2022 variation conditions.
9. [9]
   The Respondent practiced as a medical practitioner in Maryborough. He is 44 years of age, and received a Bachelor of Medicine, Bachelor of Science from the Ogun State University in Nigeria in 2002. He was made a fellow of the Australian College of Rural and Remote Medicine in 2016. He was registered as a medical practitioner in Australia on 29 August 2012.
10. [10]
    A statement of agreed facts has been provided to the Tribunal, and it should be noted that the allegations referred to therein are accepted. That is that between 1 May 2013 and 25 September 2019, the Respondent failed to maintain professional boundaries by engaging in a personal sexual relationship with Patient A.
11. [11]
    It should be noted that there are some disputed facts. Those disputed facts are contained in paragraph 32 of the statement of agreed and disputed facts. It is noted that:

From about May 2013, the respondent failed to maintain professional boundaries by engaging in a personal sexual relationship with patient A, which included sexual intercourse at (a) the Monsour Clinic, on at least two, up to four occasions, during consultations.

It is noted that those facts are disputed.

12. [12]
    The Tribunal has been notified that, for the purposes of consideration of the matter today, the Applicant takes no further issue with that allegation. It should also be noted that Patient A has an extensive reported medical history, including depression, psychotic depression, borderline personality disorder, bipolar, schizoaffective disorder, trauma counselling through local sexual assault services, and suicide attempts in August 2007, August 2008, November 2011, October 2014 and April 2018
13. [13]
    Patient A was seen by the medical attendant at the Monsour Clinic for medical care on 211 consultations, approximately 27 follow-ups, and approximately 7 visits to Patient A’s residence. During the treating period, Patient A suffered from depression, psychotic depression, borderline personality disorder, bipolar, and schizoaffective disorder.
14. [14]
    The Tribunal is satisfied, and it is not disputed, that the Respondent’s conduct was a serious departure from that expected of a medical practitioner, as it is:

1. contrary to the expressed requirements of the board’s good medical practice: a Code of Conduct for Doctors in Australia; and

2. it is contrary to the expressed requirements of the board’s guidelines: Sexual Boundaries Guidelines for Doctors, and Guidelines: Sexual Boundaries in the Doctor-Patient Relationship.

15. [15]
    In respect of the sanction to be imposed, the Tribunal has regard to the seriousness of the conduct, and there is no doubt that the Tribunal regards the conduct as most serious.
16. [16]
    It’s noted, as set out in the submissions, that the boundary violations consisted of sexual intercourse occurring in Patient A’s home, giving Patient A money, suggesting and referring Patient A to undergo bilateral tubal ligation, and extensive communications via text messages which were of a personal, sexual and or overfamiliar and inappropriate in nature.
17. [17]
    An aggravating feature was the prolonged conduct lasting over six years. As has already been noted, Patient A has an extensive medical history, including depression, psychotic depression, borderline personality disorder, bipolar, and schizoaffective disorder and suicide attempts.
18. [18]
    In respect of insight and remorse and future risk, the submission is made that the Respondent has demonstrated a level of insight and remorse in the following ways:

1. the Respondent’s agreement to the statement of agreed and disputed facts in respect of the substantial underlying facts, assisted in expediting the Tribunal proceedings;

2. the Respondent’s agreement to the proposed sanction allows for the resolution of these proceedings in a timely manner; and
3. the Respondent has taken steps to rehabilitate in respect of professional development, including mentorship by Dr Glynn Kelly, and support of psychiatric psychotherapy, provided by Dr John Steinberg, psychiatrist.

19. [19]
    The Tribunal has taken into account issues of specific and general deterrence. Clearly, specific deterrence is most important in noting that the behaviour will not be tolerated and severe sanctions will apply if the conduct is repeated, and also in giving others clear warning that the type of conduct will not be tolerated and significant sanctions will be imposed where appropriate. 
20. [20]
    The Tribunal has taken into account the comparable decisions that have been set out in the submission in coming to the view that the sanction that has been put forward, and is not opposed by the Respondent, is appropriate in all the circumstances.
21. [21]
    First of all, the Tribunal notes that the Respondent’s conduct requires a suspension period of 21 months. The period of suspension, together with a reprimand, will provide specific and general deterrence to the Respondent. It should also be noted that Dr Glynn Kelly opined that the Respondent should be permitted to attend female patients, but always with a chaperone present for an intimate examination and during a home visit with a female patient. 
22. [22]
    Having regard to those matters, the Tribunal is satisfied that the orders set out in the material should be imposed on the Respondent.

Orders

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of 21 months, commencing 14 days from the date of this decision.
4. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in terms of ‘Annexure A’ to this decision, to commence after the period of suspension.
5. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by order 3 above.
6. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is two (2) years.
7. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action (as varied) by the Health Ombudsman dated 21 November 2022 is set aside.
8. Each party bear their own costs of the proceedings.

Annexure A

Schedule of Conditions

Practice Monitor