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Medical Board of Australia v Dodds[2024] QCAT 68

Medical Board of Australia v Dodds[2024] QCAT 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Dodds [2024] QCAT 68

PARTIES:

medical board of australa

(applicant)

v

james dodds

(respondent)

APPLICATION NO/S:

OCR 167-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 February 2024

HEARING DATE:

On-papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Dr Katherine Hames

Dr John Quinn

Ms Margaret Ridley

ORDERS:

  1. 1.The Applicant has leave to amend the referral in the terms of the Amended Form 22 Application or Referral Part C filed as an annexure to the Statement of Agreed Facts and is to file an Amended Referral in that form by 13 February 2024.
  2. 2.Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) the respondent has behaved in a way that constitutes professional misconduct.
  3. 3.Pursuant to section 196(2)(a) of the National Law the respondent is reprimanded.
  4. 4.Pursuant to section 196(2)(b) and 196(3) of the National Law, that conditions as set out in Schedule A be imposed on the respondent’s registration with a review period of 9 months from the date of this order.
  5. 5.Pursuant to section 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
  1. (a)
    The contents of a document or thing filed in or produced to the Tribunal;
  2. (b)
    evidence given before the Tribunal; and
  3. (c)
    any order made or reasons given by the tribunal, is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent, or any family member of any patient of the respondent, save as is necessary for the parties to engage in and progress these proceedings, and for the Medical Board of Australia and Australian Health Practitioner Regulation Agency to otherwise undertake their functions under the Health Practitioner Regulation National Law (Queensland).
  1. 6.Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
  2. 7.There be no order as to costs of the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – disciplinary proceedings referred under s 34 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

HEALTH LAW – ADMINISTRATION OF THE PUBLIC HEALTH SYSTEM – LEGAL PROCEEDINGS BY AND AGAINST AUTHORITIES – where the respondent was a registered psychiatrist – where the respondent’s conduct involved a failure to maintain professional boundaries – where the patient’s condition was complex

Health Ombudsman Act 2013 (Qld)

Health Practitioner National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Health Ombudsman v Jonsson [2023] QCAT 142

Health Ombudsman v Upadhyay [2020] QCAT 163

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

Medical Board of Australia v Jonsson [2017] QCAT 336

Medical Board of Australia v Leggett [2015] QCAT 240

Medical Board of Australia v Martin [2013] QCAT 376

Medical Board of Australia v Meyers (Review and Regulation) [2013] VCAT 1806

Nursing and Midwifery Board of Australia v Ballarto (Review and Regulation) [2020] VCAT 248

Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35

Psychology Board of Australia v van Megchelen (Review and Regulation) [2013] VCAT 395

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]
    At issue in this proceeding are the findings and sanction to be imposed on a psychiatrist for four separate grounds of conduct. In broad terms the grounds are:
  1. Failing to maintain proper therapeutic boundaries with a long term, complex patient over a lengthy period of time. I will refer to the patient as Patient A;
  2. Issuing medical certificates or medical clearances on Patient A’s behalf to Patient A’s employer when he had not clinically assessed Patient A. There are 27 such documents;
  3. In 2015 and for the period from March 2016 to November 2020:
  1. failing to maintain clinically adequate patient records in respect of Patient A; 
  2. in initially ceasing treatment of Patient A in 2015, failing to make any (or any appropriate) arrangements to transfer Patient A for ongoing care to another appropriate medical practitioner;
  3. more generally failing to prepare an adequate treatment or management plan for Patient A; and
  1. from April 2016 to July 2020, providing Patient A with scripts for (and paying for) medications where he did not properly assess, consult or discuss with Patient A the use or clinical need for them. 
  1. [2]
    The Medical Board of Australia (Board) referred this disciplinary proceeding to the Tribunal on 30 June 2023. The parties have reached an agreed position on the facts and sanction and make submissions to the Tribunal on that basis. In reaching that agreement, the Board has filed a statement of agreed facts, which contains an amended referral in Part C, which the respondent had admitted the contents of. The Tribunal formally grants leave to the Board to rely on the amended referral. To regularise the Tribunal’s file, the Board is to file an Amended Referral reflecting those amendments.
  2. [3]
    The parties asked the Tribunal to deal with this matter on the papers and the Tribunal has done so.

The context for the referral 

  1. [4]
    The respondent treated Patient A over many years, but essentially in two periods. The first was between approximately 1998 and 2013. In 2011 - 2012 a Professional Services Review (PSR) of the respondent’s practice occurred. The respondent ceased providing Patient A with treatment as a result of receiving notice of this investigation.[1] The PSR identified that the respondent was the highest renderer of a particular Medicare item (338) in Australia and that, in 2011, he had attended Patient A’s home 296 times. In addition to taking action, in November 2012 the Director of the PSR notified the Board about this conduct. This notification was resolved in April 2015 by way of a caution of the respondent under s 178 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The Board told the respondent it formed a reasonable belief that the respondent’s clinical care of two patients, one being Patient A, was unsatisfactory. In the letter advising of its decision, the Board “noted the practitioner’s submission that he is no longer accepting cases of this severity.”[2]  
  2. [5]
    Whilst the respondent says he intended not to be involved in Patient A’s future psychiatric care, in March 2016, he says that after being contacted by telephone by a colleague, he reluctantly agreed to provide Patient A with more psychotherapy. The respondent describes it as “effectively a continuation of Patient A’s previous treatment”.[3] This continued, predominately by telephone consultation, until on or about 25 November 2020. On three occasions the respondent saw Patient A in person, on occasion the respondent received an SMS from Patient A for a repeat of her prescription, and, throughout this period, the respondent also communicated with Patient A’s employer, providing medical clearances or medical certificates relating to Patient A’s ability to work. His medical records show he communicated with other treating professionals about aspects of Patient A’s treatment, particularly in the context of potential admissions to or discharges from hospital. The Board’s expert witness described this latter period of the clinical relationship between the Respondent and Patient A as “very loose and unclear” in his report.[4]
  3. [6]
    Patient A was an extremely vulnerable patient, by reason of diagnoses including dissociative identity disorder and severe post-traumatic stress disorder, with a significant trauma history.
  4. [7]
    As such, Patient A was a person who required stringently maintained therapeutic boundaries. By reason of the respondent’s position and Patient A’s vulnerability, there was a significant inherent power imbalance between the respondent and Patient A.
  5. [8]
    Ultimately, the Board suspended the respondent’s registration on 27 April 2021 and, as at the time of this decision, the respondent’s registration remains suspended.[5]

The grounds of the referral

  1. [9]
    The first ground of the referral involves the respondent admitting that he failed to maintain proper therapeutic boundaries in his treatment of Patient A.
  2. [10]
    The factual matters which give rise to that admission include:
  1. From 2001 and continuing through the period of treatment, the respondent would hug Patient A at the completion of some treatment sessions;
  2. In 2007, the respondent attended Patient A in hospital after the birth of her third child;
  3. In 2010 and 2011, on various dates, the respondent collected Patient A from her home, drove her to his clinic for consultations, then drove her home after the consultations. During these drives the respondent held Patient A’s hand in the car or patted her hand for part of the drive and, on four or 5 occasions, on the way home after the consultation, he stopped at a bottle shop and purchased alcohol for Patient A, which he gave her to drink;
  4. From some time in late 2011 or early 2012, the respondent visited Patient A at her home, most days (including weekend days) for two to three years.[6] These visits frequently were twice a day and often at night time. On some night time visits, the respondent would come at about 8pm and stay until about 2am the following morning. The respondent would often engage in Eye Movement Desensitization and Reprocessing (EMDR) treatment with Patient A; 
  5. During 2010 – 2011, the respondent failed to impose an appropriate therapeutic limit on the number of treatment sessions with Patient A;
  6. Also in 2010 or 2011, the respondent allowed Patient A to perform Reiki on him on two occasions and said, in response to Patient A asking him whether others would find her attractive, said words to the effect that “there’s no reason why other people would not find you attractive”;
  7. On dates during 2012, the respondent drove Patient A in his car to where her childhood abuse occurred and to Mt Cootha;
  8. From 7 December 2018 to 27 November 2020, the respondent spoke with Patient A by telephone almost daily, and often multiple times a day, often late at night and for extended periods of up to two hours at a time;
  9. The respondent did not, at any time during his treatment of Patient A, engage individually with a peer supervisor about Patient A’s case in particular;
  10. Even though the respondent notionally ceased his therapeutic relationship with Patient A in about late 2013, he continued to visit Patient A at home and in late 2013 visited her in hospital following an operation and otherwise sat with her to talk on various occasions;
  11. In 2018, he sought out her lawyer and offered to provide the report as her treating psychiatrist for free; 
  12. The respondent advocated for Patient A with her then employer in the period between 2018 and 2020, including attending meetings in person with Patient A, and representatives of her employer at least twice and sending email communications to her employer advocating for her in industrial issues;
  13. The respondent gave Patient A small amounts of money (ranging between $50 and $100) about five times in the first quarter of 2020;
  14. Writing for Patient A various prescriptions (and paying for the dispensing of those medications) between April 2016 to July 2020 when he had not consulted with or discussed with her the use or clinical need for the medications, including Diazepam (Valium), Antabuse and Baclofen.
  1. [11]
    The second ground of the referral involves the respondent admitting that he issued medical certificates or medical clearances on Patient A’s behalf to her employer, when he had not clinically assessed Patient A for the conditions indicated in those certificates or clearances and maintained no (or no clinically sufficient) record to independently support the diagnoses expressed in those certificates and clearances. There are 13 such documents for 2018, 10 such documents for 2019 and 4 such documents for 2020.
  2. [12]
    The third ground of the referral involves the respondent admitting that in 2015 and between March 2016 and on or about 25 November 2020 he failed to:
  1. maintain clinically adequate patient records (including as would facilitate continuity of patient care);
  2. as part of his initial cessation of treatment of Patient A in or about 2015, make any (or any appropriate) arrangements for Patient A’s ongoing care to be transferred to another appropriate medical practitioner; and
  3. prepare an adequate treatment/management plan in respect of Patient A more generally.
  1. [13]
    The final ground of the referral before the Tribunal today involves the respondent admitting that in the period from at least April 2016 to July 2020, in circumstances where he did not properly assess, consult, or discuss with Patient A the use or clinical need for medications, that he provided Patient A with scripts and paid for Diazepam (Valium), Antabuse and Baclofen, which Patient A then collected from the pharmacy and he provided her with samples of Valdoxan (which he says he also prescribed Patient A).

The respondent’s professional and disciplinary history

  1. [14]
    The respondent obtained the qualifications of Bachelor of Medicine and Bachelor of Surgery from the University of Glasgow in 1977 and was first registered as a medical practitioner in Australia on 28 October 1978.  He was a registered psychiatrist under the National Law throughout the period giving rise to the referral.
  2. [15]
    Prior to the conduct the subject of the present referral, the respondent has no disciplinary history before the Tribunal.
  3. [16]
    As already noted, the respondent has relevant antecedents, namely a notification made by the Director of PSR on 20 November 2012. This resolved by way of the Board cautioning the respondent under s 178 of the National Law on the basis that it formed a reasonable belief that his clinical care of two patients (one of whom was Patient A) was unsatisfactory.[7]

Discussion and Sanction

  1. [17]
    Whilst the parties have agreed that the admitted conduct constitutes professional misconduct, it is necessary for the Tribunal to determine, pursuant to s 196 of the National Law:
  1. How to characterise the respondent’s conduct; and
  2. The appropriate disciplinary sanction.
  1. [18]
    Whilst the conduct the subject of the referral has some physical components to ground 1, the Board does not allege the respondent’s conduct was predatory or sexual. That makes this case somewhat atypical in the context of what the Tribunal is often dealing with in a case about serious boundary violations. However, an intimate or sexual relationship is not essential to a finding of professional misconduct for failing to maintain professional boundaries.[8] 
  2. [19]
    The Tribunal is satisfied that the respondent’s conduct contained in the agreed facts constitutes professional misconduct. Whilst the respondent’s conduct was not predatory, the Tribunal accepts the Board’s submission that the respondent allowed an almost complete collapse of appropriate therapeutic boundaries between himself and Patient A. The extent of that collapse, and its duration, as evidenced in the agreed facts, including in circumstances where the respondent had recognised that he should not continue to treat Patient A, but he continued to do so, support the Tribunal’s determination that the conduct in the referral constitutes professional misconduct.
  3. [20]
    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 the paramount consideration.[9]
  4. [21]
    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 depends on the facts of the matter with the aim to craft something which best achieves those purposes. This can mean that, on occasion, an order may be made which has a greater adverse effect on a practitioner than may be warranted if punishment alone is the relevant consideration.[10]
  5. [22]
    Further to the overarching purpose of public protection and maintenance of public confidence in upholding professional standards, a sanction in disciplinary proceedings serves one or more of the following purposes:[11]
  1. preventing practitioners who are unfit to practise from practising;
  2. bringing home to the practitioner the seriousness of their conduct;
  3. deterring the practitioner from future departure from appropriate standards;
  4. deterring other practitioners who might be minded to act in a similar way; and
  5. imposing restrictions on the practitioner’s right to practise to ensure public protection.
  1. [23]
    The factors for the Tribunal to consider when determining what sanction is appropriate include:[12]
  1. the nature and seriousness of the conduct;
  2. whether the practitioner acknowledges culpability and whether there is evidence of insight, 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;
  6. evidence of rehabilitation;
  7. whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
  8. any other mitigating factors.
  1. [24]
    Where the parties have agreed on a sanction, the Tribunal ought not depart from that agreement unless the agreed sanction falls outside the permissible range of sanction for the conduct.[13]
  2. [25]
    As to the comparators provided by the Board:
  1. In Myers,[14] an experienced physician and geriatrician, with a history of three earlier disciplinary findings, had a lengthy personal relationship with a patient, which involved transgression of professional boundaries with that patient and her family over a long period of time and in a number of ways. The Tribunal found at the time of sanction, that he had a serious lack of insight into the distress and impact his actions had on a vulnerable patient, he appeared not to have been deterred by earlier disciplinary findings and not to have learnt from counselling. They determined that they did not have confidence in his future ability to practice safely at the end of any term of suspension and determined to cancel his registration. The different circumstances of the respondent here, in terms of remorse, insight and risk of repetition (which we address below further) indicate that cancellation is not called for in this case;
  2. The Tribunal does not find much assistance in a factual sense from Ballarto,[15] who was an enrolled nurse in her first professional role, where the conduct occurred over a three month period and involved personal and sexual communications with a patient and breaches of patient confidentiality in respect of a number of patients. Relevantly, however, the fact that Ms Ballarto’s registration had been suspended for over two and a half years after immediate action was taken was a relevant factor on sanction;[16] 
  3. Leggett[17] is of some assistance. It involved a psychiatrist who accepted he had committed a boundary violation in forming a personal, and then sexual relationship with a patient who he had ceased to treat some 5 years before the relationship commenced. The aspect of relevance is that the Tribunal noted at [12] that there were no characteristics of predatory behaviour or of the practitioner having groomed the patient in an exploitative way to take advantage of the imbalance of power between doctor and patient. The Tribunal would have imposed a suspension of 12 months, but for a number of matters in the particular circumstances. They were that the practitioner had been subject to an immediate action order which limited his practice for approximately 6 months, followed by the practitioner voluntarily removing himself from practice for about 15 months, and then returning to practice in a part time capacity seeing only male patients. The Tribunal accepted at [9] that the practitioner had great insight into the inappropriateness of his conduct and great remorse for it. The practitioner had also undergone counselling.[18] There was also substantial delay between the practitioner’s admission of the essential facts which gave rise to the sanction and the finalisation of the disciplinary proceeding — in the order of approximately 2.5 years. The Tribunal imposed a reprimand and conditions with a twelve month review period; 
  4. Jonsson [2017][19] has some relevance in one respect. The Tribunal at [23] observed that the nature and extent of the boundary violation, the circumstances in which it occurred, the nature and extent of any vulnerabilities on the part of the patient and the likely or actual effects upon the patient of the particular violation will all be matters to be considered. Otherwise, the factual circumstances in this case are too far removed to be of significant assistance;
  5. Jonsson [2023] is too different in the factual circumstances giving rise to the allegations, taken in the context of the disciplinary history of the practitioner, and the specific observation by the Tribunal at [52] of the need in that case for specific deterrence, to assist the Tribunal in this case;
  6. Van Megchelen[20] involved a sexual relationship of some years between a psychologist and her former patient, which commenced when the patient had just turned 18 and continued for about 6 years. The former patient was vulnerable and there was an age disparity of about 12 years between them. At the disciplinary hearing the Tribunal found the respondent lacked any demonstrable insight into the transgressions and denied or minimised consequences to the patient. In that case, the Tribunal was unable to assess the respondent’s risk to the community or the likelihood of future misconduct. It suspended her registration for 18 months, required her to undertake further education, training and counselling and imposed conditions on any future practice.  The Board accepts that in the matter before the Tribunal today the respondent has demonstrated insight and remorse, which is factually more favourable to the respondent, who has already had his registration suspended for more than 2 years and 9 months; 
  7. In IVX,[21] the male psychologist and his former client became involved in an intimate personal relationship, which continued at the time of determining the referral. It was professional misconduct, in that the relationship commenced at some point whilst the patient was vulnerable and had not been referred to another psychologist. The Tribunal accepted that the conduct was non predatory, the practitioner had developed some insight and the risk of repetition of this conduct was low. The Tribunal suspended the psychologist for 9 months and imposed a reprimand, with conditions for further education, mentoring and a period of supervision when he resumed practice.
  1. [26]
    The features of this case that are properly to be considered are as follows.

Aggravating Factors

  1. [27]
    The respondent was a very experienced psychiatrist at the time of these events. Patient A was a highly vulnerable patient and, by that fact, there was a significant power imbalance between the respondent and Patient A.
  2. [28]
    The shortcomings of the respondent’s conduct evolved over time. Significantly, from at least 2012 or 2013 the respondent knew (or ought to have known) of the shortcomings in his approach to Patient A’s management, but he nonetheless continued to be involved despite indicating to the Board that he would not continue to be involved in Patient A’s care. The Tribunal accepts that this is, as the Board submits, objectively very serious.
  3. [29]
    The expert’s report obtained by the Board has assisted the Tribunal significantly. Relevant aspects include:
  1. That EMDR, as a treatment, is an appropriate treatment for a patient with the conditions Patient A had but it needs to be properly delivered. For that a good therapeutic relationship needs to be established initially and delivery needs to be carefully calibrated relying on a number of different considerations;
  2. Very clear boundaries need to be set and maintained and this appeared not to have occurred, particularly in the context of conducting therapy at a patient’s home, or late at night and into the early hours of the morning;
  3. EMDR should not be administered on an intoxicated patient;
  4. Any physical contact between a male practitioner and a female patient who has had significant sexual trauma should be avoided, that even an innocent hug can be easily misconstrued and he considers all such contacts to be boundary violations in these circumstances; 
  5. That a psychiatrist should conduct regular reviews of a patient in terms of treatment and prescribing, based on the clinical scenario of the patient;
  6. The termination of Patient A’s treatment in approximately 2013 and the provision of alcohol to Patient A were substantially below the standard reasonably to be expected of a psychiatrist with the respondent’s training and experience;
  7. That the record keeping is at least below the standard expected of a psychiatrist with the respondent’s training and experience; and
  8. Finally, that his overall impression was that the respondent became overinvolved with Patient A, who was clearly a complex and challenging patient for him to deal with. At times she put significant pressure on him to respond to demands and this is reflected in the clinical records. A clinician who is dealing with his kind of complex and challenging case needs to be able to set and hold to firm professional boundaries and this seems to have failed to happen. There was a blurring of boundaries which eventually led to various boundary violations. He had the opinion that this was a situation where concern for the patient led to a gradual blurring and violation of various boundaries which were not therapeutic.
  1. [30]
    The Tribunal observes that from the material before it, whilst the respondent was obviously committed to Patient A’s welfare, he lost his way in how to objectively achieve the best care and management of her undoubtedly complex situation. For quite a lengthy period, in 2011 and 2012, and from March 2016 until November 2020, had the respondent been able to be professionally objective about the treatment of Patient A, he should have been able to discern that he had substantially blurred the boundaries between doctor and patient which should be maintained, he should have been questioning himself whether he was practising effectively in his treatment of Patient A, he should have been raising the complexities associated with Patient A’s management in an appropriate manner with colleagues and he should have been formulating, implementing and reformulating management plans for Patient A. These professional obligations existed in the relevant codes of practice as particularised in the referral throughout the period of the referral. He did none of these things. 
  2. [31]
    He should have adhered to his submission to the Board prior to April 2015 that he would not accept cases of the severity of Patient A’s needs. Self-evidently, that should have included Patient A. In managing a particularly complex patient, that ability to remain objective at all times in the care which is offered, is essential to fulfilling professional obligations. Upon the respondent resuming practice, he should bear this firmly in mind.  
  3. [32]
    The respondent’s failure to properly handover treatment arrangements for Patient A in the 2013 – 2015 period, his failures in relation to keeping medical records and his failures in relation to the provision of medical certificates and clearances and prescriptions all stem from this underlying failure to maintain appropriate therapeutic boundaries. The Tribunal observes that his records provided for its review are wholly inadequate to understand treatment plans or to enable handover to another treating practitioner.
  4. [33]
    Patient A’s statement sets out her views and concerns about how her treatment unfolded. Patient A’s then husband does likewise. It is apparent that Patient A held the view at the time of her interview in 2020 that the all-consuming nature of the treatment the respondent was providing to Patient A overwhelmed many other aspects of her life, which has caused her much pain. Had proper professional boundaries been maintained, there would be little likelihood that Patient A may have experienced such feelings. 

Mitigating Factors

  1. [34]
    The first point is to consider the length of the respondent’s period of suspension consequent upon the imposition of immediate action suspending his registration pursuant to s 156 of the National Law. His registration was suspended on 27 April 2021 and remains suspended. That is a period of more than 2 years and 9 months.
  2. [35]
    Prior to the immediate action being imposed, in April 2021 the respondent had already completed a number of professional learning modules offered by Avant, focused on managing boundary issues with patients with mental health issues, maintaining professionalism in medicine, other aspects of boundary management and the completion of a reflective writing piece.[22] Also in 2021 he had undertaken a series of appointments with another psychiatrist, Dr Frank New, directed to discussing professional boundaries. Dr New reported in June 2021 that the respondent was a willing participant and contributed to discussions in a meaningful, sophisticated and educated manner. Dr New expressed a view at that time, that his opinion was that there were good grounds for confidence that he did not represent an unusual risk to his patients or to the public.[23]
  3. [36]
    The respondent completed further professional education by November 2023 directed to maintaining safe professional boundaries, communication strategies for challenging patient behaviours and practice peer review (amongst other topics), again with a reflective writing segment.[24] In that reflective journal, the respondent writes, amongst other things, that he can identify the point at which he let the professional boundaries start to lapse with this particular patient, how that situation evolved and, critically, that when he most needed to involve colleagues, he tended to isolate himself and felt he needed to sort this out himself, which he writes was “a huge error”. He writes that the insights he has gained have been painful but very necessary. 
  4. [37]
    The respondent has also proposed to and got agreement from the Board to a series of conditions which establish a formal structure of supervision and mentoring for him when he returns to practice.
  5. [38]
    On the basis of this material, the Tribunal accepts the respondent has demonstrated insight into his failings with Patient A’s care, that he took steps to gain assistance very shortly after being advised that the Board had commenced an investigation and that he has continued to reflect on these circumstances and develop an understanding of proper responses to them during the suspension of his registration.
  6. [39]
    A number of the respondent’s colleagues have provided written materials about him.
  7. [40]
    The letter from Dr David Storor in the agreed documents provides, in part, an explanation of how the respondent came to continue treating Patient A in 2016 and onwards. Relevantly, he states that Patient A was referred to him in January 2016 for management of alcohol dependence. When he first consulted Patient A, she told him she had previously seen the respondent for psychotherapy. Dr Storor assessed Patient A as a clinically complex patient when he first saw her. Given the complexity of her clinical presentation, he referred Patient A to the respondent for further treatment, in conjunction with his management of her alcohol dependence. Contained in the respondent’s files is a letter from Dr Storor to him dated 15 March 2016 which confirms that the respondent would see Patient A for psychotherapy for her childhood trauma, whilst he would continue to see her for management of her alcohol dependence.[25]
  8. [41]
    Dr Jennifer Gunn, consultant psychiatrist, who is a complex trauma trained senior psychiatrist, has provided a lengthy written statement dated 20 April 2021 dealing with treating complex psychiatric patients and her knowledge of the respondent and his practices. Relevantly, Dr Gunn states that if a complex trauma patient (like Patient A) is not taken up by a complex trauma-trained senior psychiatrist, there is inevitable deterioration and suicide or death by misadventure. As a type, complex trauma patients require intensive, long term therapy and are an accepted chronic suicide risk, in particular, with any perceived rejection by the therapist, including discharge from hospital. As a type, they are unambiguously a difficult to treat patient. Treatment of complex trauma patients takes many years, usually decades, a minimum of 90 minutes weekly in sessions, a holistic approach and significant consistency and dedication from the practitioner, as this type of patient is acutely hypervigilant for danger and attuned to the most miniscule alteration in therapy and therapist. Dr Gunn has known the respondent for more than twenty years and had been involved with him in monthly maintenance of professional standards group meetings for that time. She speaks to the respondent as having, to her knowledge, been highly successful in treating a large number of patients who were chronic inpatients, chronic suicide risk, chronically self-harmed, who had failed to benefit from multiple modes of therapy and had attended a significant number of well-regarded therapists. She writes that the respondent has successfully treated the perceived untreatable patients, providing effective therapy for patients so severe that they were unacceptable to the public health system, many private hospitals, non-government agencies and other psychiatrists and psychologists. Dr Gunn states that she is aware that the respondent, through his style of intensive therapy has for many years, transformed the lives of many perceived untreatable patients to worthy lives, value of self, supportive relationships and for many, successful parenting. Dr Gunn concludes (the statement having been written at the time the respondent was responding to the proposed immediate action), that her opinion is that the respondent does not represent a danger to his patients or the public. This opinion about his management of other patients lends support to a conclusion that whilst the respondent failed in respect of Patient A, that failure is not one which is endemic to his practice.  
  9. [42]
    Dr Andrew Christensen, a psychiatrist with over 20 years history treating patients with conditions similar to Patient A, also provided a letter dated 20 April 2021. He too writes that the treatment of patients with these types of trauma require prolonged treatment, which is emotionally draining for both patient and therapist and requires a high level of training and skill for the therapist. Having known the respondent since 1995, Dr Christensen states that the respondent is an ethical, caring and effective clinician, with a reputation of accepting and treating difficult patients suffering from a range of trauma related conditions and a practitioner who has consistently shown a high degree of concern towards his patients and a genuine desire to provide his patients with the best possible treatment. He too writes that the respondent has taken on patients which no other psychiatrist would accept because of the complexity of their condition and severity of their symptoms. In his opinion, the respondent was not a doctor who presented a risk to patients or the public. 
  10. [43]
    Dr Steve Prowacki provided correspondence dated 21 April 2021. He too is a psychiatrist with over 30 years in practice, and someone who has known the respondent and worked with him for about 30 years as at that time. He speaks to he and the respondent each relying on the advice of the other in relation to the diagnosis and management of difficult cases and states that he has always found the respondent to be a caring and responsible practitioner who persists even in the most difficult clinical situations.
  11. [44]
    Given the opinions of these practitioners, coupled with the subsequent further education which the respondent has undertaken in 2023, the Tribunal is satisfied that at this time the protection of the public does not require that the respondent spend any further time on suspension of his registration.
  12. [45]
    As to other relevant matters:
  1. When the Board indicated it was considering taking immediate action, the respondent provided a written response in April 2021 in which he explained that Patient A’s case was the most complex he had ever been involved with, he admitted certain conduct which he stated he regretted, much of which forms the basis of ground 1 of the agreed facts on the referral and he denied several matters which the Board has not, or not ultimately, proceeded with;
  2. When this proceeding was commenced, the respondent co-operated in assisting the Board to reach an agreed resolution, which the Board submits is to his credit in expressing insight and remorse. The Tribunal accepts this.
  1. [46]
    The respondent’s admissions of the conduct, coupled with the insight and remorse the Board submits for, satisfy the Tribunal that specific deterrence is not a significant consideration in this referral.
  2. [47]
    As to delay, it took the Board more than 12 months from when the expert’s report was obtained to the institute proceedings in the Tribunal. Consistent with authority, that is something which the Tribunal infers has imposed a burden of uncertainty on the respondent and is properly a mitigating factor on sanction.  
  3. [48]
    Balancing all these features, the Tribunal determines that the comparator authorities provide support that the sanction agreed by the parties is within the permissible range of sanction for the conduct.
  4. [49]
    The Tribunal finds that the respondent has behaved in a way that constitutes processional misconduct.
  5. [50]
    The Tribunal reprimands the respondent, noting that a reprimand is a serious matter for a professional person and should not be considered as a trivial matter. 
  6. [51]
    The parties agreed that a suspension until 27 January 2024, conferring a total period of 2 years and nine months was appropriate. However, the matter did not proceed before the Tribunal until after that date.
  7. [52]
    Given both the parties’ agreement and the short further time of suspension since that date which the respondent has experienced, in the particular circumstances the Tribunal determines no order for suspension is required in this case. Accordingly, pursuant to s 159(2) of the National Law, it is now for the Board to revoke the suspension imposed on the respondent’s registration by virtue of the immediate action taken on 27 April 2021. 
  8. [53]
    The Tribunal imposes the conditions proposed by the parties on the respondent contained at pages 96 – 98 of the Hearing Brief on the respondent (which have been set out in Annexure A to these reasons) and sets a review period for those conditions of 9 months from the date of this order. In so far as those conditions require finalisation, for example by specifying a workplace, the Tribunal anticipates the Board will make the necessary inclusions expeditiously.

Non-publication order

  1. [54]
    The Board seeks an order for non-publication of information that could identify patients of the respondent or their family members. That is appropriate in the circumstances of this referral and the respondent does not oppose such an order.
  2. [55]
    Finally, the Tribunal records it has derived significant assistance from the assessors on questions of fact and thanks all the assessors for their thoughtful engagement in dealing with this referral.

SCHEDULE A - CONDITIONS

Schedule of conditions – Dr James Dodds (MED0001346189)

Limitations on practice

  1. 1.The Practitioner may practise only in place(s) of practice approved by the Board.

For the purposes of this condition, ‘practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical industry.

For the purposes of this condition, the following practice locations have been approved:

#approved workplaces/no work places approved#.

  1. 2.The Practitioner must only practise between the hours of 8am and 5pm.
  2. 3.The Practitioner must not conduct any home visits.
  3. 4.The Practitioner must not treat the patient the subject of notification 00452747.
  4. 5.Within 21 days of the notice of imposition of these conditions, the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
  1. a.Seek reports from the #Director of Medical Services/Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/other as appropriate# (the senior person) at each place of practice on at least a monthly basis or as otherwise required.
  2. b.Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
  3. c.Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
  1. 6.Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware Ahpra will seek reports from them.

Supervised practice

  1. 7.The Practitioner must be supervised by another registered medical practitioner (the supervisor) when practising as a medical practitioner.

For the purposes of this condition, ‘supervised’ is defined as:

The Practitioner must consult the supervisor, who is accessible by telephone or other means of telecommunication about the management of patients and/or performance of the Practitioner, when necessary and at monthly intervals.

  1. 8.Prior to returning to practice, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board.
  2. 9.The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
  3. 10.If no approved supervisor is willing or able to provide the supervision required, the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
  4. 11.Within 21 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HP10) acknowledgement that Ahpra may:
  1. a.obtain information from relevant authorities (such as but not limited to Medicare)
  2. b.obtain information and/or a report from the senior person at each place of practice on a monthly basis, and
  3. c.obtain a report from the approved supervisor on a monthly basis.
  1. 12.Within 21 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that Ahpra may seek reports from them.

Attend for mentoring

  1. 13.The Practitioner must be mentored by another registered health practitioner in relation to:
  • Maintaining professional boundaries;
  • Boundary transgressions and violations; and
  • Managing challenging 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. 14.The mentoring must comprise a minimum of 8 sessions with each session being of 1 hour duration occurring over an 8-month period.
  2. 15.Within 21 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
  3. 16.Within 21 days of the notice of the imposition of these conditions 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. a.every 3 months
  2. b.at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring
  3. c.whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance, and
  4. d.when otherwise requested by Ahpra.
  1. 17.In the event 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 previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
  2. 18.Within 21 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 condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practise.

Undertake an audit of practice

  1. 19.The Practitioner must submit to an audit of their practice (the audit), including any supporting records, within 3 months of returning to practice and thereafter on a three monthly basis, by permitting an auditor (the auditor) approved by the Medical Board of Australia (the Board) to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on maintaining professional boundaries, record-keeping, and compliance with the practice limitations, and must include, at a minimum, a random selection of 15 patient clinical records (including pathology results, prescribing records, patient billing and appointment records).
  2. 20.Prior to returning to practice, the Practitioner must:
  1. a.Contact a Board approved auditor and establish an audit plan outlining the form the audit(s) will take and how the areas of concern for the Board will be addressed. The audit(s) will take the form determined by the auditor.
  2. b.Provide the Board approved auditor with a copy of the conditions on their registration.
  3. c.Provide to Ahpra, on the approved form (HP8), acknowledgement that Ahpra will seek reports from the auditor.
  4.  
  5. d.Provide to Ahpra a copy of the audit plan, together with written acknowledgement, on the approved form (HPNA8), from the approved auditor.
  1. 21.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. a.within seven days of the commencement of practice at each subsequent place of practice, and
  2. b.within seven days of each and every notice of any subsequent alteration of these conditions.
  1. 22.All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Review period: 9 months from 6 February 2024

Text on public register: as above

Footnotes

[1] Hearing Brief (‘HB’) p 444.

[2] HB p 487.

[3] HB p 444.

[4] HB p 431.

[5] HB p 420.

[6] In 2011 the respondent attended Patient A’s home on 296 occasions.

[7] HB pp 486 – 487.

[8] Health Ombudsman v Jonsson [2023] QCAT 142 (‘Jonsson 2023’) at [22] and the authorities referred to in that paragraph.

[9] National Law s 3A.

[10] Craig v Medical Board of South Australia (2001) 79 SASR 545 at 554 [43]. 

[11] Health Ombudsman v Jonsson [2023] QCAT 142 at [35] referring to Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553 – 555.

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

[13] Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93].

[14] Medical Board of Victoria v Myers (Review and Regulation) [2013] VCAT 1806.

[15] Nursing and Midwifery Board of Australia v Ballarto (Review and Regulation) [2020] VCAT 248.

[16] Ibid, [19] – [20].

[17] Medical Board of Australia v Leggett [2015] QCAT 240.

[18] Ibid, [23].

[19] Medical Board of Australia v Jonsson [2017] QCAT 336.

[20] Psychology Board of Australia v van Megchelen (Review and Regulation) [2013] VCAT 395.

[21] Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35.

[22] HB pp 488 – 495.

[23] HB p 496.

[24] HB p 509 – 510.

[25] HB p 276.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Dodds

  • Shortened Case Name:

    Medical Board of Australia v Dodds

  • MNC:

    [2024] QCAT 68

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    06 Feb 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
Craig v Medical Board of South Australia (2001) 79 SASR 545
3 citations
Jump To
Cite 1 - (2001) 79 SASR 545
Cite 2 - (2001) 79 SASR 545
Cite 3 - (2001) 79 SASR 545
Craig v Medical Board of South Australia [2001] SASC 169
1 citation
Jump To
Cite 1 - [2001] SASC 169
Health Ombudsman v Jonsson [2023] QCAT 142
3 citations
Jump To
Cite 1 - [2023] QCAT 142
Cite 2 - [2023] QCAT 142
Cite 3 - [2023] QCAT 142
Health Ombudsman v Upadhyay [2020] QCAT 163
1 citation
Jump To
Cite 1 - [2020] QCAT 163
Medical Board of Australia v Griffiths [2017] VCAT 822
2 citations
Jump To
Cite 1 - [2017] VCAT 822
Cite 2 - [2017] VCAT 822
Medical Board of Australia v Jonsson [2017] QCAT 336
2 citations
Jump To
Cite 1 - [2017] QCAT 336
Cite 2 - [2017] QCAT 336
Medical Board of Australia v Leggett [2015] QCAT 240
2 citations
Jump To
Cite 1 - [2015] QCAT 240
Cite 2 - [2015] QCAT 240
Medical Board of Australia v Martin [2013] QCAT 376
2 citations
Jump To
Cite 1 - [2013] QCAT 376
Cite 2 - [2013] QCAT 376
Medical Board of Australia v Meyers (Review and Regulation) [2013] VCAT 1806
1 citation
Jump To
Cite 1 - [2013] VCAT 1806
Nursing and Midwifery Board of Australia v Bellato (Review and Regulations) [2020] VCAT 248
2 citations
Jump To
Cite 1 - [2020] VCAT 248
Cite 2 - [2020] VCAT 248
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161
1 citation
Jump To
Cite 1 - [2014] QCAT 161
Psychology Board of Australia v IVX [2016] VCAT 35
2 citations
Jump To
Cite 1 - [2016] VCAT 35
Cite 2 - [2016] VCAT 35
Psychology Board of Australia v van Megchelen (Review and Regulation) [2013] VCAT 395
2 citations
Jump To
Cite 1 - [2013] VCAT 395
Cite 2 - [2013] VCAT 395

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Heath [2024] QCAT 5312 citations
Nursing and Midwifery Board of Australia v BCD (No 2) [2025] QCAT 82 citations
1

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