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Health Ombudsman v TAQ (No. 2)[2024] QCAT 338

Health Ombudsman v TAQ (No. 2)[2024] QCAT 338

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v TAQ (No. 2) [2024] QCAT 338

PARTIES:

Director of Proceedings on behalf of the Health Ombudsman

(applicant)

v

TAQ

(respondent)

APPLICATION NO/S:

OCR 293 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Ms R Geddes, Psychologist Panel Member

Dr T Lowry, Psychologist Panel Member

Mr P Glazebrook, Public Panel Member

ORDERS:

  1. Pursuant to section 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 section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
  4. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of ten (10) years from the date of this order.
  5. Pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service, paid or otherwise, involving the provision of mental health, psychological or counselling services, until such time as he obtains registration as a health practitioner.
  6. Each party bears its own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a registered psychologist who engaged in boundary violations with and failed to keep adequate records in relation to three patients – where the boundary violations involved personal and sexual relationships – where the respondent provided prescription and illicit drugs to the patients – where the respondent has not engaged in the proceedings – whether the evidence presented satisfies the Tribunal of the truth of the allegations before it – whether the conduct is professional misconduct – whether the respondent is a fit and proper person to hold registration

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Health Ombudsman v TAQ [2024] QCAT 309

Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

Psychology Board of Australia v Asher (No 2) [2019] VCAT 957

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    These disciplinary proceedings were referred to the Tribunal by the applicant Director on 30 November 2023.
  2. [2]
    By a letter dated 23 February 2024 solicitors for the respondent informed the Tribunal that the respondent would not file a response in the proceeding or to participate in the proceedings in any way, shape or form. In those circumstances, the Tribunal has proceeded to deal with the matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [3]
    As the respondent has not participated in the proceedings the information available for the Tribunal’s consideration is that obtained by the Health Ombudsman.
  4. [4]
    The Tribunal must determine pursuant to s 107 of the Health Ombudsman Act 2013 (Qld) (HO Act):
    1. whether the respondent’s conduct constituted either ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’; and
    2. the appropriate disciplinary sanction.
  5. [5]
    The Health Ombudsman bears the onus of establishing that the respondent has engaged in conduct that constitutes professional misconduct or unprofessional conduct. The standard of proof required is the civil standard, on the balance of probabilities, with the degree of satisfaction varying according to the gravity of the facts to be proven (the Briginshaw standard).[1]

The respondent’s history

  1. [6]
    The respondent is currently 28 years old. He completed a Bachelor of Science (Honours) (Psychology) at the University of Sothern Queensland in 2018 and a Master of Psychology (Clinical) at the University of South Australia. At all times relevant to these events the respondent practised as a registered psychologist at a practice in a regional town. He is no longer registered, his registration having been suspended on 7 April 2022 by the Health Ombudsman pursuant to s 58(1)(a) of the HO Act.[2] The Psychology Board has determined that on any ending of the suspension, conditions will take effect, including that he undergo an independent health assessment prior to any return to practice.
  2. [7]
    The respondent’s solicitors also informed the Tribunal that the respondent does not intend to ever attempt to return to practise and that he suffers serious mental health conditions. As they foreshadowed, he applied for a non-publication order on the grounds that publication of his identity would endanger his mental health. The Tribunal determined that application on 15 August 2024.[3] The Tribunal granted a non-publication order. Material filed in support of that application established that the respondent suffers from moderate to severe mixed anxiety and depression, autism spectrum disorder (ASD), attention-deficit/hyperactivity disorder (ADHD) and an adjustment disorder and lives with significant disability due to ASD, which can cause him difficulty in processing his thoughts and emotions.  

The conduct the subject of the referral 

  1. [8]
    The referral contains allegations involving three patients.
  2. [9]
    The matters came to the attention of the Health Ombudsman when initially, on 15 February 2022, Patient A made a complaint about the respondent. Then on 8 March 2022, the Health Ombudsman received a mandatory notification from Patient B’s general practitioner about an alleged sexual relationship between the respondent and Patient B. It was also alleged that the respondent had provided Patient B with drugs. Then, in December 2022, the HO received a mandatory notification from a psychologist that the respondent had had a sexual relationship with Patient C.  

Patient A

  1. [10]
    Allegations one and two in the referral relate to Patient A. Allegation one is that the respondent failed to maintain professional boundaries with Patient A in the period between 8 September 2021 and early February 2022, during and following a therapeutic relationship. The particulars of that allegation, in broad terms are:
    1. there was a therapeutic relationship for approximately 7 months from February to September 2021, during which Patient A attended 25 psychology sessions with the respondent;
    2. during, but towards the end of the therapeutic relationship, the respondent exchanged personal messages and shared personal information with Patient A, including suggesting Patient A use an encrypted messaging application and discussing aspects of Patient A’s relationship with and breakup with her boyfriend;
    3. during and immediately after the ending of the therapeutic relationship that the respondent supplied Patient A with drugs (prescription and illicit) and commenced and maintained a sexual relationship with her for some months; and
    4. at the end of the personal and sexual relationship sent her belittling messages.
  2. [11]
    Patient A has not provided an affidavit in the proceeding, however she made a notification to the Health Ombudsman and provided a signed statement. Patient A has signed each page of her statement. At the end of that statement there is an acknowledgment that the statement is true to the best of her knowledge and belief and that she may be required to give this evidence in proceedings before a Court or a Tribunal. At the time she gave the interview from which her statement was based, Patient A was advised by the investigator that it was an offence to provide false or misleading information. The Ombudsman confirms the statement was based on information Patient A provided during that interview with her investigators. There are a number of attachments to that statement, which include screen shots of SMS messages between herself and the respondent, Patient A’s diary notes and bank transfer records from Patient A to the respondent and his girlfriend. 
  3. [12]
    The Tribunal has a wide discretion in relation to the admission of evidence and the manner in which it may inform itself about maters before it, with the rules of natural justice and procedural fairness to be applied.[4]
  4. [13]
    There is information in the hearing bundle which sets out that Patient A is a vulnerable person who has experienced significant trauma in her life and has experienced ongoing mental health issues.
  5. [14]
    The respondent has been provided with Patient A’s statement and does not seek to contest any of that material.
  6. [15]
    In the circumstances, the Tribunal proceeds in its consideration on the basis of Patient A’s signed statement, notwithstanding it is unsworn. 
  7. [16]
    The material filed by the applicant amply satisfies the Tribunal of Allegations one and two.
  8. [17]
    Relevantly:
    1. Patient A’s referral to the practice is in the documents and there are practice records that establish the existence and duration of the therapeutic relationship;
    2. text messages in the hearing bundle together with Patient A’s statement establish that she and the respondent exchanged personal messages and shared personal information towards the end of and after the therapeutic relationship ended. There are text messages from the respondent referring to the use of Signal and messages from the respondent commenting about Patient A breaking up with her then boyfriend;
    3. Patient A’s statement sets out at length the respondent providing her with drugs in her final session and frequently thereafter, including illicit drugs (cocaine, MDMA, speed and THC) as well as various prescription drugs. Bank records for amounts that Patient A transferred to the respondent in October and December 2021 and January 2022 are in evidence, which provide some support for her statement that she was paying for some of the drugs which the respondent was obtaining for her. Text messages Patient A sent to the respondent’s then girlfriend about doing drugs also provide some support for her evidence. The Tribunal accepts this evidence, which is unchallenged. Text messages in evidence provide support for Patient A’s evidence that she and the respondent exchanged nude photographs with each other over social messaging apps. Patient A also refers to meeting Patient C at the respondent’s home one morning after she woke up with the respondent. By inference, the Tribunal accepts that a sexual relationship existed between Patient A and the respondent;
    4. text messages in the hearing brief support that the respondent sent Patient A messages belittling her include one where he tells her he hates her and not to ever come back and another where he calls her toxic. The Tribunal infers from these messages that there had been a personal relationship between patient A and the respondent as Patient A states.
  9. [18]
    Allegation two relates to a failure to keep adequate records for the patient. There are only session notes for 15 of the 25 sessions contained in the database of the practice where the respondent worked. The Tribunal finds that a complete absence of notes for a series of 10 treatment sessions constitutes a failure to keep adequate records.

Patient B

  1. [19]
    Allegations three and four in the referral relate to Patient B. 
  2. [20]
    Allegation three is that during and following a therapeutic relationship, the respondent failed to maintain proper professional boundaries with Patient B. Allegation four is that the respondent failed to keep adequate records of the therapeutic relationship with Patient B. 
  3. [21]
    Particulars of allegation three are:
    1. that there was a therapeutic relationship between Patient B and the respondent between 28 July 2021 and 15 December 2021, during which Patient B attended 18 sessions;
    2. in consultation sessions with Patient B, the respondent made personal disclosures about smoking cannabis, his personal relationships and sent text messages containing inappropriate information and personal disclosures;
    3. in the final consultation in the therapeutic relationship on 15 December 2021, the respondent supplied Patient B with a dexamphetamine tablet, which she took;
    4. on 21 December 2021 the respondent went to Patient B’s house for dinner and stayed until the early morning;
    5. on 3 January 2022 the respondent and Patient B had sexual intercourse at patient B’s house;
    6. on 4 occasions in December 2021 and January 2022 at Patient B’s house, she and the respondent smoked marijuana together and consumed other drugs, including opiates, dexamphetamine and Ritalin, which he had brought to Patient B’s house;
    7. the personal relationship ended in mid-February 2022.
  4. [22]
    The respondent has been provided with Patient B’s affidavit sworn on 10 May 2024 and does not seek to contest any of that material. In the circumstances, the Tribunal proceeds in its consideration on the basis of Patient B’s affidavit and supporting documentation. 
  5. [23]
    The applicant’s material amply satisfies the Tribunal that allegations three and four are established.
  6. [24]
    Relevantly:
    1. the notification involving Patient B was made by her general practitioner following a consultation she had with Patient B on 8 March 2022. That notification was of disclosures by Patient B that Patient B and the respondent had had a sexual relationship and had taken drugs together. That notification is consistent with Patient B’s affidavit;
    2. there is a Mental Health Care Plan for Patient B dated 29 June 2021, prepared by her general practitioner which lists diagnoses of eating disorder, PTSD, ADHD and borderline personality disorder. The detailed personal history sets out that Patient B has had many mental health issues, including admission previously to hospital for depression and suicidality and a history of sexual abuse.[5] It is the history of a vulnerable person.] There is also a report from the respondent to her general practitioner dated 29 September 2021 and a further referral from the general practitioner for additional sessions dated 29 September 2021. The practice records contain a listing of 18 sessions between 28 July 2021 and 15 December 2021;
    3. Patient B’s affidavit sets out the course of the therapeutic relationship, including that the respondent’s personal disclosures largely commenced towards the end of it. Copies of SMS messages passing between the respondent and Patient B indicate that he was speaking to her in those messages about his relationship with his mother, and other matters about himself. A screen shot attached to the affidavit supports her evidence that the respondent sent her a link to a Libra and Sagittarius sexual and intimacy compatibility webpage, when read with the SMS messages of them exchanging star signs at his instigation and him sending her a message with the evident link to the webpage. Screenshots of a series of message exchanges refer to the respondent, on 4 December 2021, disclosing his drug use to Patient B and responding to a message from Patient B which uses his first name. A screen shot of a link to a Facebook page entitled “Down~n~Dirty” corroborates her evidence that the respondent sent her a link to this page;
    4. Patient B details in her affidavit taking a dexamphetamine tablet in her final consultation with the respondent. She sets out where it was located in the consultation room (by prearrangement with the respondent) and that he was in the room with her when she took the tablet.[6] There are significant consistencies between Patient A’s account and Patient B’s account about the manner in which the tablet was made available to each of them. Patient B also describes the respondent inhaling several lines of white powder during this consultation;[7]
    5. after the therapeutic relationship ended, Patient B sets out in her affidavit the occasions on which the respondent came to dinner at her home and their relationship, including taking drugs (which she specifies as marijuana, opiates, dexamphetamine and Ritalin) on a number of occasions and having sexual intercourse on a single occasion. Patient B sets out that she did not recall much of this occasion, being in and out of consciousness and it happening after it taking many drugs.  Patient B also recounts an occasion of a discussion in which, when she raised concerns about what might happen to him professionally because of their relationship, the respondent talked about a possible six-month suspension. I will return to this later, as it is significant to issues on sanction. Patient B states she blocked the respondent and their relationship ended in February 2022. Finally, Patient B also sets out in her affidavit how she found the respondent’s conduct had had a lasting impact on her personal and professional relationships, at least initially amplifying her presenting issues. At the time of making her affidavit, she expresses ongoing difficulties consequent upon the drug taking she engaged in with the respondent and at his suggestion. Patient B describes the respondent as opportunistic and unethical.
  7. [25]
    Allegation 4 is that the respondent failed to keep adequate records during the therapeutic relationship with Patient B. Practice records in the Hearing Brief indicate that the respondent only recorded 6 out of the 18 consultation sessions with Patient B on the practice’s recording database. As with Patient A, the Tribunal finds that a complete absence of notes for 12 treatment sessions constitutes a failure to keep adequate records.

Patient C

  1. [26]
    Allegation five relates to Patient C. The allegation is that between August 2021 and May 2022 the respondent failed to maintain proper professional boundaries with Patient C and to appropriately exercise the power and trust placed in a psychologist.
  2. [27]
    The particulars the Health Ombudsman relies on are:  
    1. that in August 2021, Patient C was part of a Facebook ASD group and was seeking guidance on how to engage with a psychologist and be assessed;
    2. between 6 and 19 August 2021, the respondent communicated with Patient C using private message telling her he was a psychologist employed at the practice, offering to help her and telling Patient C they could have a professional or a personal relationship. Patient C chose a professional relationship;
    3. Patient C’s general practitioner referred her to the practice on 19 August 2021 for management of anxiety and possible autism or ADHD;
    4. Patient C’s initial consultation with the respondent occurred on 30 August 2021 and he took her general background and history. He again offered her either a professional or a more personal relationship. He told her he could help her with more personal things (sexual and drug exploration) through a friendship;
    5. Patient C agreed to a personal friendship thinking that if they could be friends and the respondent could continue to help her, this would be the best of both worlds for her;
    6. Patient C advised the practice she had met the respondent outside of practice and would like to see another therapist;
    7. by on or about 30 September 2021, the respondent and Patient C commenced a personal and sexual relationship. Between then and May 2022, during this personal and sexual relationship:
      1. the respondent gave Patient C advice about her mental health;
      2. the respondent gave Patient C Ritalin and dexamphetamine, telling her it might help with her possible ADHD;
      3. the respondent gave Patient C oxycontin, telling her it might help with her chronic pain and anxiety;
      4. the respondent gave Patient C ‘THC oil’;
      5. the respondent and Patient C went on a weekend camping trip on the weekend of 20–21 November 2021;
      6. the respondent and Patient C met up and stayed in hotels including a specific hotel on 27 and 28 November 2021;
      7. Patient C moved in with the respondent and his girlfriend between December 2021 and May 2022. There was a sexual relationship amongst the three of them;
      8. in May 2022 Patient C bought a home and the respondent and Ms G moved in with her. At that time the sexual relationship between the respondent and Patient C ceased.
  3. [28]
    The Health Ombudsman was notified of the respondent’s conduct towards Patient C by a psychologist who made the mandatory notification after a psychologist she employed disclosed that her client had reported a sexual relationship with the respondent. That notification was made on 11 December 2022 and it records that, at that time, the respondent continued to reside as a boarder in Patient C’s home.
  4. [29]
    The respondent has been provided with Patient C’s affidavit affirmed on 10 May 2024 and does not seek to contest any of that material. In the circumstances, the Tribunal proceeds in its consideration on the basis of Patient C’s affidavit and supporting documentation.
  5. [30]
    The Tribunal is satisfied by the evidence the applicant has filed that Allegation 5 is made out.
  6. [31]
    The hearing brief contains the referral dated 19 August 2021 of Patient C from her general practitioner to the respondent for “opinion and management for her anxiety and possible autism or ADHD/ADD under her mental health care plan, for six sessions and then review”.[8] It noted Patient C required a full assessment for autism and associated conditions. The accompanying mental health care plan dated 19 August 2021 recorded Patient C’s reasons for presenting as anxiety and depression. 
  7. [32]
    The practice records contain an intake type record for Patient C, a DASS 21 questionnaire dated 30 August 2021 for Patient C and a tax invoice for a consultation provided to Patient C by the respondent for that date.  This establishes that there was, all be it briefly, a therapeutic relationship.
  8. [33]
    There is an email dated 9 September 2021 from Patient C to the practice requesting referral to a different psychologist, given Patient C and the respondent had “met outside of psychology (in autism group) [sic]”.[9] A copy of a Facebook post attached to Patient C’s affidavit supports Patient C’s evidence that she was looking for assistance via the support group, whilst screenshots of messages passing between the two of them confirm they were speaking prior to the initial consultation and after it about matters beyond professional considerations.
  9. [34]
    Patient C has filed an affidavit in the proceeding. She sets out in her evidence information which establishes all the particulars in the referral. Documents annexed to the affidavit include a screenshot of a booking confirmation for a hotel for 27 and 28 November 2021, a social media message from the respondent to Patient C which refers to drug taking and potential sexual activity and a photograph of Patient C and the respondent dated 20 November 2021, which Patient C deposes was taken on the weekend camping trip. All these matters support her account of events.
  10. [35]
    Patient C deposes to meeting Patient A at Patient A’s birthday party at her (that is, Patient A’s) house, through the respondent. Patient C deposes to speaking with the respondent’s girlfriend about her (that is, Patient C’s) sexual relationship with the respondent and of learning that Patient A had had a ‘threesome’ with the respondent and his girlfriend. Patient C deposes that she, the respondent and his girlfriend had a “friends with benefits relationship, all three of us”. Patient C deposes to taking drugs every weekend pretty much, after she moved in with the respondent and his girlfriend, with the drugs being supplied by the respondent, as well as participating in three-way sexual activity.
  11. [36]
    Patient C deposes that she bought her home in May 2022 and the respondent and his girlfriend moved in with her there. At that time, the sexual relationship and drug taking stopped. Her relationship with the respondent was up and down, he was largely not working and at times would be nice to her and at other times very unpleasant. Copies of text messages attached to Patient C’s affidavit from the time she was asking the respondent to move out of her home show the respondent oscillating between being compliant and being extremely nasty in his approach to Patient C.
  12. [37]
    Patient C articulates the harm she has suffered, including, amongst other things, having flashbacks and dreams about the situation, adverse effects on her ability to trust people and struggling with feelings of uncertainty and guilt.

Some commonalities of conduct

  1. [38]
    Patient A refers to the respondent having a little red plastic straw that they would use to snort drugs. Patient B annexes to her affidavit a photograph of a little red plastic straw and deposes that the respondent used it to assist him to take drugs and that the respondent took it everywhere with him.
  2. [39]
    Patient A deposes to having a threesome with the respondent and his girlfriend. Patient C deposes to the respondent’s girlfriend telling her this had occurred with Patient A. She also deposes to meeting Patient C, who she describes as the respondent’s “new room mate”. This is consistent with the time when Patient C had moved in with the respondent and his girlfriend. Patient A also states that Patient C met the respondent online and saw him once professionally, then they decided they wanted to be friends, which is consistent with Patient C’s account of how she came to meet and be involved with the respondent.
  3. [40]
    There is no suggestion of collusion raised on the material. These points of commonality are significant as they demonstrate support in one patient’s account for aspects in another patient’s account.  They fortify the Tribunal in its conclusion that the conduct the Health Ombudsman alleges is established.

Characterisation of the conduct

  1. [41]
    It is plain, as the applicant submits that:
    1. as a registered psychologist, the respondent was bound at all times by the Australian Psychological Society (APS) Code of  Ethics, which is admissible as evidence of what constitutes appropriate professional conduct or practice for psychologists Additionally, ethical guidelines for managing professional boundaries and multiple relationships and record keeping, which accompany the Code of Ethics, articulate expectations of professional conduct and behaviour. Articulated principles include, in brief brush, providing psychological services responsibly, acting with integrity and that the psychologist, not the client, is responsible for maintaining professional boundaries;
    2. the obligation upon psychologists to maintain professional boundaries with clients is a fundamental one. It is of particular significance given the special treating relationship and inherent client vulnerability which exists in the relationship, a dynamic often commented upon by disciplinary tribunals;
    3. intimate and sexual relationships between psychologists and their patients constitute fundamental breaches of professional and ethical responsibilities;
    4. all three patients suffered from complex mental health issues;
    5. Patients A and B had extended periods of treatment by the respondent, during which their respective vulnerabilities would or should have been evident and discussed. Notwithstanding this, it was only after this professional relationship had neared conclusion, in each case, that the respondent initiated and then increased more personal disclosures and interactions, progressing to sexual relationships. The Tribunal observes that the sexual relationship with Patient A was significantly more protracted than that with Patient B. Additionally, in respect of each patient, he supplied them with various kinds of drugs, suggesting therapeutic benefit, before moving to the sexual relationships and further drug use;
    6. the respondent identified Patient C on a Facebook group as a person seeking psychological help, then approached her offering, initially, professional help but thereafter professional or personal assistance. The brief professional relationship ended with Patient C, after he offered her the alternative of personal therapeutic assistance, which the involved a sexual relationship, drug use and cohabitation. That behaviour is exploitative and Patient C entered that relationship on an unequal footing;
    7. the respondent proceeded simultaneously with the personal and sexual relationships with all three patients: for patients A and B during September 2021 to February 2022 and Patient C, November 2021 to May 2022;
    8. he was belittling to Patient A when the relationship ended, describing to her her vulnerabilities and contrasting his apparent strengths;
    9. all three patients were adversely affected by their association with him;
  2. [42]
    The Tribunal has no hesitation in finding that the above conduct constitutes professional misconduct within the meaning of limbs (a) and (c) of the definition of ‘professional misconduct’ in section 5 of the National Law as conduct which fell substantially below the conduct expected of a practitioner with similar experience and that the conduct was totally incompatible with the practitioner being a fit and proper person to hold registration in the profession.

Discussion and Sanction

  1. [43]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.[10]
  2. [44]
    Maintenance of professional standards and public confidence in the profession are relevant considerations. The sanction in a particular case must be considered based on the peculiar facts and to craft something which best achieves those purposes.
  3. [45]
    The factors for the Tribunal to consider when determining what sanction is appropriate include[11]:
    1. the nature and seriousness of the conduct;
    2. whether the practitioner acknowledges culpability and evidences contrition or remorse;
    3. what needs for specific or general deterrence arise;
    4. whether there have been other disciplinary findings before or after the conduct in question;
    5. evidence of character and rehabilitation;
    6. whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
    7. any other mitigating factors.
  4. [46]
    The conduct is objectively serious, indeed, it is egregious in its approach to each patient. It is predatory conduct. It is right to say the respondent exploited the therapeutic relationships, his knowledge of his patients, their trust in him and the power he had as a psychologist and their vulnerability for his own gain. He pursued his own personal and sexual gratification at their expense. Each of them has suffered significantly.
  5. [47]
    On the material before the Tribunal, the respondent’s behaviour is entirely inconsistent with him being fit and proper to hold registration at the time of this decision.
  6. [48]
    A reprimand, which is not a trivial sanction, is appropriate.
  7. [49]
    As the respondent has not participated in the proceeding, or the preceding investigation, there is no evidence that he has any insight into his conduct, has made any acknowledgment of the gravity of his misconduct or has any remorse for his actions.
  8. [50]
    General and specific deterrence are issues for consideration in this referral. General deterrence is a consideration given the egregious nature of the misconduct. Some measure of specific deterrence is relevant where there is no evidence the respondent has any insight into his conduct or remorse for it.
  9. [51]
    The Tribunal has earlier made a non-publication order in respect of the respondent, on the basis of medical evidence which confirmed the respondent himself suffers with a number of diagnosed mental health conditions as set out earlier in these reasons.
  10. [52]
    The reason I aver to this here is this. In so far as the respondent may have been suffering from those conditions at the time of these events, which contributed in some way to his behaviour (which is alluded to in the medical material filed by his solicitors but not expressly stated out), principles of general and specific deterrence may assume slightly lesser significance. I note that the Board on 14 March 2024 determined that once any immediate action suspension is ended, it would impose conditions on the respondent’s registration requiring him to undertake a health assessment in order to seek approval for a place of practice and would endorse that as a relevant consideration on any application for re-registration post the serving of any disqualification period.
  11. [53]
    However, of course, in so far as general and specific deterrence may be mitigated by factors personal to the respondent, the importance of acting to maintain professional standards and to protect the community assumes even greater weight.
  12. [54]
    In any case, the respondent’s apparent medical afflictions on the information presently available to the Tribunal, do not fully account for aspects of his behaviour towards his patients. For example, patient B deposes that “[He] told me he thought modern ethics were too formal and “by the book” and not in the best interests of the client, they are too impersonal.  He often rushed it off and thought there was more than one way to do treatment. He told me he believed there should be more of a  connection between an individual and a treating clinician.”  There is nothing about his presently articulated medical conditions which would explain holding such a belief system. He also expressed to Patient B that he would expect a sanction if he was caught, as I have referred to at paragraph [24](e) above. This exchange Patient B recounts suggests he had insight that what he was doing was wrong, but that he perceived any consequence was of nuisance value. These matters are very concerning because observing ethical parameters is foundational to proper and principled practice as a psychologist.
  13. [55]
    Cancellation of registration sends a clear message of unsuitability to practice, as it requires the applicant to reapply, after the expiry of a cancellation period, and to satisfy the professional body of fitness to practice at the time of his application. There is no guarantee of re-registration. Cancellation of the respondent’s registration is the appropriate sanction in this case, given the respondent’s egregious conduct, failure to engage in any way in the substantive proceeding and in circumstances where there may be real issues about his fitness to practice as a result of medical conditions.
  14. [56]
    In recognition of the absence of any indication from the respondent that he has any insight, coupled with the material filed for him suggesting he has long term health issues, that may have a significant impact on his ability to practice, there should also be a lengthy disqualification period before the respondent might be able to apply for registration. The Health Ombudsman submits for a period of 6–8 years.
  15. [57]
    Relevant considerations in one of the comparable decision proffered by the Ombudsman[12] to weigh up include the absence of any further complaints of sexualised transgressions, the fact he had had a limited time in practice, personal and financial impacts upon the practitioner, character references and the importance of specific deterrence. In Asher, there was a single patient, the therapeutic relationship was on foot for 4 months and involved 15 occasions, there were inappropriate massages during consultations, a single instance of sexual intercourse following one of these massage, numerous breaches of professional boundaries, including making inappropriate comments about the patient’s relationships, appearance and personality, communicating with the patient outside of sessions and making inappropriate and unnecessary disclosures to the patient, as well as a failure to keep records. In Asher the period of disqualification was 5 years.
  16. [58]
    The Ombudsman submits and the Tribunal accepts that the respondent’s conduct in this case is more serious, involving as it does, multiple patients who were very vulnerable, and known by the respondent to be so. The sexual exploitation of them is extremely serious. Involving of them in taking non-prescribed prescription medication, when not qualified to do so and without knowledge or understanding of what interactions that may have on their wellbeing, as well as suggesting and supplying them with illicit drugs, adds a further layer of seriousness to the conduct. There is also no information as to the respondent’s insight into his offending, or when he might become a fit and proper person for registration.
  17. [59]
    Taking into account all these considerations and to express its grave concerns about the seriousness of the respondent’s conduct, the Tribunal determines that a disqualification period of ten (10) years from the date of this decision is the appropriate disqualification period.
  18. [60]
    Consistent with the need to protect the public, the Tribunal will also make an order prohibiting the respondent from providing any mental health, psychological or counselling service until he obtains registration as a health practitioner.
  19. [61]
     The Tribunal thanks the assessors for their thoughtful engagement and assistance.

Orders

  1. [62]
    The Tribunal makes the following order(s):
  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
  1. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  2. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
  3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of ten (10) years from the date of this order.
  4. Pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service, paid or otherwise, involving the provision of mental health, psychological or counselling services, until such time as he obtains registration as a health practitioner.
  5. Each party bears its own costs of the proceedings.

Footnotes

[1]Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.

[2]Hearing Brief (HB), p 57.

[3]Health Ombudsman v TAQ [2024] QCAT 309.

[4]QCAT Act s 28.

[5]HB, p 168.

[6]Affidavit of Patient B affirmed 10 May 2024, [53]–[54].

[7]Affidavit of Patient B, [57].

[8]HB, p 194.

[9]HB, p 201.

[10]HO Act s 4(2)(c).

[11]Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].

[12]Psychology Board of Australia v Asher (No 2) [2019] VCAT 957 (‘Asher’).

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v TAQ (No. 2)

  • Shortened Case Name:

    Health Ombudsman v TAQ (No. 2)

  • MNC:

    [2024] QCAT 338

  • Court:

    QCAT

  • Judge(s):

    Judge Dann

  • Date:

    17 Sep 2024

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) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Health Ombudsman v TAQ [2024] QCAT 309
2 citations
Jump To
Cite 1 - [2024] QCAT 309
Cite 2 - [2024] QCAT 309
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
Psychology Board of Australia v Asher (No 2) [2019] VCAT 957
2 citations
Jump To
Cite 1 - [2019] VCAT 957
Cite 2 - [2019] VCAT 957

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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