Health Ombudsman v Hammond[2024] QCAT 429

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The applicant Director referred this disciplinary proceeding to the Tribunal on 28 June 2023.  An amended referral was filed on 4 October 2023 and the respondent filed his response to that amended referral the next day admitting the matters in the referral.  An amended statement of agreed facts (ASOF) was filed on 31 May 2024.
2. [2]
   The respondent was, at all times material to the referred allegation, a registered medical practitioner. He holds general and specialist registration with the Medical Board of Australia (Board) as a general practitioner (GP).  He was 48 to 49 years old at the time of the conduct giving rise to the referral and is presently 51.
3. [3]
   Between December 2021 and April 2022 the respondent breached professional boundaries by engaging in an inappropriate personal and sexual relationship with his former patient (Patient K).  Patient K was 30 years old at the time of the impugned conduct.
4. [4]
   The parties sought by email to my associate on 10 October 2024 that the Tribunal deal with the matter on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  I am satisfied that it is appropriate to do, having regard to the absence of any factual dispute and the parties’ agreement as to characterisation and sanction.
5. [5]
   Whilst the parties have reached agreement as to characterisation and sanction, the Tribunal is to determine whether these are the appropriate consequences for this case.  However, the Tribunal would rarely depart from an agreed position as to sanction unless it falls outside the “permissible range”.^[1]

What are the relevant facts?

6. [6]
   The respondent was engaged as a fly-in/fly-out medical practitioner by a rural hospital service (RHS), first at one rural town (Town A) between 2017 and 31 July 2021 and then at another rural town (Town B) from early January 2022 until May 2022.  The respondent would do two weeks “on” and then return to his home in Kempsey, New South Wales for two weeks “off” (where he would work in Kempsey as a medical practitioner).
7. [7]
   Patient K first consulted the respondent in March 2019, after suffering a miscarriage.  He performed a dilation and curettage procedure.  Thereafter, Patient K saw the respondent as her regular GP, attending upon him approximately once a month until 31 July 2021.  Patient K suffers from depression and anxiety.  She has experienced two miscarriages and one stillbirth and received a provisional diagnosis of post-traumatic stress disorder (PTSD) following a miscarriage in 2018. The respondent provided her with general medical treatment, obstetric care, prescribed her medication including anti-anxiety medication and referred her for clinical investigations and to two psychologists. The first referral in late 2020 was consequent upon concerns that Patient K had autism spectrum disorder (ASD) and the second, in June 2021 was in relation to concerns that Patient K had ASD and Attention Deficit/Hyperactivity Disorder (ADHD).
8. [8]
   In addition to being Patient K’s regular GP, the respondent treated her husband and children during this period.
9. [9]
   Over the course of the treating relationship, Patient K and the respondent developed an online connection through playing Pokémon and Animal Crossing.  These games can be played as a single player or co-operatively in a multiplayer mode (co-op).  The games do not have any form of in-game communication with other players and it is necessary to communicate through a third-party application such as text message in order for players engaged in co-op to play effectively. The respondent offered to connect with Patient K and her children, so they could play collaboratively and he and Patient K exchanged telephone numbers. Patient K sent the respondent a text message shortly after and thereafter the respondent and Patient K exchanged text messages and shared TikTok videos.  The respondent and Patient K developed a friendship.
10. [10]
    In September 2021, Patient K attempted to book an appointment with the respondent and was told he would not be returning to work in Town A. Patient K was upset.
11. [11]
    In October 2021, approximately three months after the treating relationship had ceased, Patient K sent a text message to the respondent, noting her surprise that she could not book an appointment with him. The respondent told her he was not returning to Town A and Patient K then said she wanted to meet with the respondent privately when he was next in Town A.
12. [12]
    Between October and December 2021 the parties had minimal text communication.
13. [13]
    On 15 December 2021, the respondent sent a text message to Patient K asking whether she was still interested in meeting with him.  Patient K indicated that she was and they made arrangements to meet at the respondent’s unit on 16 December 2021.  The respondent gave Patient K his address to facilitate this. 
14. [14]
    Patient K’s husband drove her to the respondent’s unit (Patient K and her husband have an open relationship). She arrived at approximately 6:00pm.  The respondent and Patient K then engaged in consensual sexual activity including kissing, touching, mutual masturbation and fellatio. The respondent drove Patient K home. 
15. [15]
    After this event, the respondent and Patient K communicated for a brief period by text message before moving to WhatsApp from 20 December 2021 until April 2022.  The respondent, when they were text messaging, asked Patient K not to tell anyone what had happened on this occasion.  The respondent and Patient K also exchanged messages via TikTok.  Their written electronic communication was frequent, extensive and often of a personal and sexual nature. They also discussed their daily lives, popular culture such as movies and music and engaged in general conversation, discussion of their respective marriages and their futures. They began ‘sexting’ and exchanging sexually explicit photographs and video recordings of themselves.
16. [16]
    In the evening on 11 January 2022, the respondent sent Patient K two images, being photographs of the leg of another patient who had suffered a large gash wound.
17. [17]
    Patient K and the respondent arranged to meet in Town A on 31 January 2022 where they exchanged gifts and engaged in consensual sexual activity.  They attempted to engage in sexual intercourse but this attempt was unsuccessful.  This occurred at a hangar leased by the respondent at Town A’s airport; the respondent was flying to Town B for work but made a stop at Town A to see Patient K. 
18. [18]
    Patient K disclosed the sexual encounters between herself and the respondent to her psychologist who made a mandatory notification to the Office of the Health Ombudsman (OHO) on 14 February 2022.  On or about 8 April 2022, the respondent was stood down by Queensland Health before resigning from RHS on 11 May 2022.
19. [19]
    On 13 April 2022 the OHO commenced an investigation pursuant to s 80 of the Health Ombudsman Act 2013 (Qld) (HO Act) into the notification.
20. [20]
    In an exchange of messages on 29 April 2022 the respondent said to Patient K, amongst other things, that he was not going to pressure Patient K or her husband into anything, he had been told he had to stop talking to her, he was sorry for everything and that if she gave evidence he would not contradict her.  In a pretext call the next day, the respondent, amongst other things, apologised to Patient K, expressed feelings of regret and remorse and, when told by Patient K that she had spoken to the OHO, said he would admit to the relationship, acknowledging he would lose his job and have his medical registration suspended.
21. [21]
    In an interview with OHO investigators on 3 August 2022, the respondent admitted that Patient K had been his patient, that she suffered from anxiety and depression, that he had a relationship with Patient K, commencing approximately five months after the treating relationship concluded, and to engaging in sexual activity and “sexting” with her.  He acknowledged sending the images of the gash wound to another patient’s leg, and that it was inappropriate but said he did it because of having a very close relationship with Patient K and was just showing off some work he had done. 

What are the respondent’s personal circumstances?

22. [22]
    The respondent obtained the qualifications of Bachelor of Medicine/Bachelor of Surgery from the University of Queensland in 2011.  He first obtained registration as a medical practitioner on 3 January 2012.  He became a fellow of the Australian College of Rural and Remote Medicine in 2017.  He has held specialist registration in rural and remote medicine since 5 July 2017.
23. [23]
    Prior to the conduct the subject of the present referral, the respondent had not previously been the subject of disciplinary proceedings and had no notifications made against him.
24. [24]
    On 15 June 2022, the Health Ombudsman (HO) imposed conditions on the respondent’s registration by way of immediate registration action, prohibiting him from treating female patients.
25. [25]
    The respondent has filed an affidavit in the proceeding, in which he has, in summary:

    1. Acknowledged the inappropriateness of his conduct and that it has had an impact on Patient K, who was a vulnerable person and his former patient;
    2. recorded his shame at his behaviour and his remorse that he allowed it to occur;
    3. stated his regret for the affect his actions have had on Patient K, his other patients, his family and the wider community;
    4. set out his work commitments and aspects of his work environment in the lead up to the events the subject of the referral which contributed to his poor judgment; 
    5. set out steps he has taken in psychological counselling of various types and further education to understand and reflect on his actions, which coupled with medication for a previously undiagnosed mental health condition have allowed him to address why he did not have emotional skills and insight to maintain professional boundaries with Patient K; and
    6. set out changes he has made to achieve greater personal work/life balance, as a part of maintaining his professionalism on an ongoing and sustainable basis.

Discussion and Sanction

26. [26]
    The Tribunal notes that when medical practitioners engage in personal and sexual relationships with former patients, it is commonly found that this constitutes professional misconduct. Further, the applicable code of conduct which set out the appropriate standards of conduct, states, amongst other things, that medical practitioners must recognise there is a power imbalance in the doctor-patient relationship and not exploit patients in any way, including physically, emotionally, sexually or financially.^[2] 
27. [27]
    In this case, the treating relationship had been on foot for some time and had encompassed a wide range of matters, the respondent was aware that Patient K suffered from mental health conditions, they had developed a friendship and the respondent knew that Patient K had been upset to learn that he was no longer working in Town A.  These matters all occurred prior to the encounter in December 2021.
28. [28]
    The Tribunal finds the respondent’s conduct contained in the agreed facts is conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience and constitutes professional misconduct as defined by s 5(a) of the National Law.
29. [29]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive.^[3]  The Tribunal must regard the health and safety of the public as paramount.^[4]
30. [30]
    The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public.  The sanction in a particular case must be considered based on the peculiar facts and something crafted which best achieves those purposes.
31. [31]
    Relevant factors for the Tribunal to consider when determining what sanction is appropriate include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence, insight and remorse of the practitioner and the fitness of the practitioner to practice at the time of the hearing.^[5]
32. [32]
    Other considerations may include a practitioner’s disciplinary history before or after the conduct, delay from the time the investigation started to finalisation in the Tribunal and any other mitigating matters specific to the particular circumstances.^[6] 
33. [33]
    General deterrence is always an important aspect of disciplinary proceedings such as this because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in what is properly to be considered a noble and essential profession.
34. [34]
    The respondent fully cooperated with the OHO during the investigation and during the disciplinary referral process, allowing the matter to proceed relatively expeditiously through the Tribunal.
35. [35]
    Having reviewed his affidavit, the Tribunal considers that the respondent has fully acknowledged the inappropriateness of his conduct and displayed insight and remorse and is unlikely to engage in the same or similar conduct in future, given his satisfactory completion of education on professional boundaries.
36. [36]
    In addition to having no previous disciplinary history, the respondent also has been compliant with conditions on his registration for more than two years.
37. [37]
    These matters are to be balanced against the fact that:

    1. the respondent’s conduct was objectively serious, involving as it did, a personal and sexual relationship which endured for some months with a former patient with significant vulnerabilities who had been treated by the practitioner for a wide range of conditions over some time. Given the geographical complexity, there was some planning and effort which went into the respondent and Patient K meeting up; 
    2. There is a disparity in age and experience between the respondent and Patient K;
    3. The respondent’s knowledge of aspects of the relationship between Patient K and her husband was gained from the personal relationship with Patient K which developed out of the therapeutic relationship and demonstrates the exploitative aspects of what occurred between them;
    4. the impropriety of sharing photographs of another patient with Patient K;
    5. Arising from the contents of some of the electronic communications between them, both early on and after the relationship had come to the attention of the regulator, it is apparent that the respondent was not unaware of the impropriety and seriousness of his actions. 
38. [38]
    The authorities indicate there is a significant need for general deterrence in matters of sexual misconduct.^[7]

Comparatives

39. [39]
    By way of assisting the Tribunal as to what may be an appropriate range in sanction, the applicant has referred the Tribunal to comparative cases. The Tribunal must  determine the appropriate sanction in the particular facts of the matter.  The parties submit the cases of most assistance to the Tribunal are:

    1. Medical Board of Australia v Haifi (Review and Regulation);^[8]
    2. Medical Board of Australia v Rathnayake (Review and Regulation);^[9] and
    3. Medical Board of Australia v Holten (Review and Regulation).^[10]
40. [40]
    Haifi involved a general practitioner who treated a patient at a clinic in Victoria on 16 occasions over 17 months.  The patient was a vulnerable person.  The practitioner and the patient had developed a friendship which then morphed into a romantic relationship in which they exchanged electronic messages for several months.  The patient and the practitioner engaged in sexual activity on two occasions during the relationship.  The romantic relationship post-dated the treating relationship and the interval between the cessation of one and the commencement of the other was similar to the present case.  The practitioner made a self-notification to the Board after discovering that the patient had advised a colleague of his at the clinic of the relationship and was fully co-operative in the process. Dr Haifi remained registered and continued to work as a medical practitioner for almost two years (between notification and hearing), with no other notification made about him. The Tribunal accepted that:

    1. the patient had initiated the romantic relationship and had done so notwithstanding the practitioner’s initial resistance;
    2. the practitioner had not received any training or education in respect of inappropriate relationships with patients during his degree in a foreign country;
    3. the practitioner was likely suffering from uncontrolled depression at the time of the conduct, having ceased taking his antidepressant medication;
    4. the risk of the practitioner engaging in the same or similar conduct again, if any, was remote, meaning specific deterrence was of very limited importance;
    5. the practitioner’s error fell towards the lower end of the scale and he was clearly remorseful; and
    6. the objective seriousness of a doctor engaging in a personal and sexual relationship with a former patient made denunciation and general deterrence primary considerations in sanction.
41. [41]
    The Tribunal found the practitioner’s conduct to constitute professional misconduct and:

    1. imposed a reprimand;
    2. suspended his registration for two months, which it said was in the cause of general deterrence and upholding of the reputation of the profession and was sufficient and proportionate as the minimum period of suspension required to achieve these objectives; and
    3. imposed conditions on his registration restricting his non-clinical contact with patients and requiring him to undertake one-on-one education as to the power imbalance inherent in the doctor-patient relationship and ethical decision-making, for at least six hours.
42. [42]
    In Rathnayake, the practitioner engaged in a personal relationship with a former patient for a period of two months.  The practitioner had treated the patient on seven occasions over seven months.  In the last consultation, he gave the patient his personal telephone number.  The treating relationship had ceased shortly prior to the commencement of the personal relationship and the patient in question was not a vulnerable person.  In this case, the practitioner and the patient engaged in hugging and kissing and stayed overnight in a hotel room together on one occasion.  The Tribunal accepted that the practitioner did not fully appreciate the meaning of the Guidelines regarding relationships with former patients and had gained some insight into the effects of his conduct on the patient and the profession.
43. [43]
    The Tribunal ultimately found that the practitioner’s conduct constituted professional misconduct and imposed a reprimand, mentoring conditions and a suspension of his registration for three months.  The Tribunal considered specific deterrence was not a significant factor but nonetheless imposed a suspension for reasons of the seriousness of the conduct, the context in which it occurred and the need to uphold the standards and reputation of the profession.
44. [44]
    Holten involved a plastic surgeon who had met the patient on numerous occasions and they were in a friendship circle that revolved around common interests prior to the practitioner providing professional services.  The patient suffered from depression and anxiety, which was treated with anti-depressant medication.  The practitioner did not have or ask for any specific information about the patient’s mental health but was aware that she was taking antidepressant medication.  The practitioner provided treatment to the patient on 10 occasions over approximately two and a half years.   During the professional relationship, the practitioner and the patient contacted each other regularly through telephone calls and text messages, met for coffee, and sat in his car together and discussed their personal lives and the patient’s marital difficulties.  Immediately following the cessation of the treating relationship, the practitioner and patient had sexual intercourse.  The contact during the clinical relationship and the instance of sexual intercourse after it were two separate grounds put before the Tribunal.  The Tribunal accepted that:

    1. the practitioner was experiencing difficult personal circumstances at the time of the conduct;
    2. the practitioner was remorseful and had sought out education and counselling on his own initiative; and
    3. there was a delay between notification and the hearing, being more than four years, which weighed heavily on the practitioner’s mental health.
45. [45]
    The Tribunal found that the practitioner’s conduct constituted:

    1. professional misconduct in respect of engaging in sexual intercourse with the patient; and
    2. unprofessional conduct in respect of the contact without a clinical purpose during the treating relationship.
46. [46]
    The Tribunal reprimanded the practitioner and suspended his registration for three months “in the interests of general deterrence”.  The practitioner was also required to attend a consultant psychiatrist for further assessment at the conclusion of the suspension period.
47. [47]
    These cases reinforce that typically periods of preclusion from practice are necessary to satisfy the objectives of denunciation and general deterrence, which are important to maintain the high standards which are required in the medical profession and protect the public’s confidence in the services provided by medical professionals.
48. [48]
    Considering the factors articulated in the comparator cases and balancing all the considerations in the respondent’s particular case which I have already outlined, the Tribunal determines that the sanction proposed by the parties is within the permissible range of sanction appropriate for this case.
49. [49]
    The Tribunal thanks the assessors for their thoughtful engagement and assistance.

Orders

50. [50]
    The Tribunal makes the following orders:

1. 1. The respondent has behaved in a way that constitutes professional misconduct.
2. 2. The respondent is reprimanded.
3. 3. Conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.
4. 4. Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
5. 5. The review period for the purpose of applying Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) is six (6) months.
6. 6. The respondent’s registration is suspended from 1 December 2024 until 1 March 2025, being a period of three (3) months.
7. 7. The immediate registration action imposed on the respondent’s registration by the Health Ombudsman on 15 June 2022 is set aside.
8. 8. No order as to costs.
9. 9. The interim non-publication order made 4 July 2024 remains in force as a final order.

Annexure A — Schedule of Conditions

Mentoring

1. 1.The practitioner must be mentored by another registered medical practitioner. The mentoring is to focus on managing appropriate professional boundaries with female patients.

 For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. 2.The mentoring must commence within 28 days of the Medical Board of Australia (the Board) approving a mentor, and thereafter on a monthly basis for a period of six months.
2. 3.The mentoring must comprise a minimum of 6 sessions with each session being of one hour’s duration occurring over a six-month period;
3. 4.The mentoring sessions may be conducted online or in person;
4. 5.The practitioner must provide a copy of the QCAT decision to the mentor, so that he or she is aware of the issues that led to the imposition of these conditions.

Reporting to Ahpra

1. 6.Within 21 days of resuming practice, the Practitioner must provide to Ahpra:
   1. a nomination, on the approved form (HPN16), of a mentor(s) to be approved by the Medical Board of Australia;
   2. the Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
2. 7.Within 21 days of resuming practice, the Practitioner must provide to Ahpra, on the approved form (HP16), acknowledgement that Ahpra may seek reports from the approved mentor on any or all of the following occasions:
   1. Every month;
   2. At the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
   3. Whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance, and
   4. When otherwise requested by Ahpra.
3. 8.In the event that an approved mentor is no longer willing or able to provide the mentoring required, the Practitioner is to provide a new nomination in the same terms as the previous nomination. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
4. 9.Within 28 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the QCAT proceedings and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.
5. 10.The review period for these conditions is six (6) months.

Other requirements

1. 11.Within 21 days’ notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:

1. within seven days of the commencement of practice at each subsequent place of practice, and
2. within seven days of each and every notice of any subsequent alteration of these conditions.

1. 12.All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Review of conditions

Subdivision 2, Division 11, Part 7 of the National Law applies to these conditions.