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Medical Board of Australia v BJA[2025] QCAT 152

Medical Board of Australia v BJA[2025] QCAT 152

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v BJA [2025] QCAT 152

PARTIES:

MEdical board of australia

(applicant)

v

bja

(respondent)

APPLICATION NO/S:

OCR225-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 May 2025

HEARING DATES:

15 April 2025 (on-papers consideration)

24 April 2025 (oral argument)

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Dr J Cavanagh

Dr J Quinn

Mr P Murdoch

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. Pursuant to s 196(1)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent has no case to answer and no further action is to be taken in relation to the matter.

THE TRIBUNAL ORDERS THAT:

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. the contents of a document or other thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the patient the subject of the referral, the respondent and their child save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).

  1. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC – where the respondent is a registered medical practitioner who engaged in a relationship with a former patient – where the respondent treated the former patient on occasion – where the patient was not vulnerable – where the patient was not dependent on the practitioner – where there was no exploitation of the doctor-patient relationship – where the genesis of the relationship was independent of the treating relationship - where the parties reach an agreed position on sanction and request the Tribunal to hear the matter on the papers – where the Tribunal convened initially on the papers but had misgivings as to the proposed characterisation of the conduct and sanction – where the matter was consequently listed for oral hearing – where the Tribunal departs from the agreed position – whether any further action should be taken

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an interim non-publication order is in place – where the Tribunal finds that the respondent has no case to answer – whether the non-publication order should be extended to protect the respondent and made permanent

Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia effective 1 March 2014

Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia effective October 2020

Guidelines for Sexual Boundaries in the doctor-patient relationship effective 12 December 2018

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

Chiropractic Board of Australia v Allen [2018] VCAT 1772

Health Ombudsman v Masamba [2019] QCAT 227

Health Ombudsman v Moosawi [2020] QCAT 391

Health Ombudsman v RCM [2022] QCAT 59

Medical Board of Australia v Blomeley [2014] QCAT 160

Medical Board of Australia v Chiappalone [2014] QCAT 170

Medical Board of Australia v McGrath (Review and Regulation) [2014] VCAT 641

Nursing and Midwifery Board of Australia v Ball (Review and Regulation) [2021] VCAT 232

Nursing and Midwifery Board of Australia v Ball (Review and Regulation) (No 2) [2021] VCAT 864

APPEARANCES & REPRESENTATION:

Applicant:

S Hurburgh, instructed by MinterEllison on 24 April 2025

Respondent:

C Templeton, instructed by Avant Law on 24 April 2025

REASONS FOR DECISION

What is the referral about?

  1. [1]
    On 19 December 2024 by a further amended referral the Medical Board of Australia (‘Board’) referred a single allegation of conduct involving an alleged boundary violation by the practitioner involving a former patient (‘Patient A’) to the Tribunal.
  2. [2]
    For the reasons which follow the Tribunal has determined pursuant to s 196(1)(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) that the practitioner has no case to answer and no further action is to be taken in the matter.

How has the matter proceeded before the Tribunal?

  1. [3]
    The referral, which initially alleged Patient A was ‘a patient’, was first filed in the Tribunal on 25 September 2023.  It appears the investigation prior to that had taken in the order of three years.[1]  In the Tribunal, the matter had twelve sets of directions made, including a direction on 14 October 2024 that the Board file and serve one copy of its expert evidence by 25 October 2024.  Notwithstanding that direction, the Board has not filed any expert evidence.  There is a report from an expert on behalf of the practitioner contained in the Agreed Hearing Bundle.
  2. [4]
    By an email dated 5 March 2025 the practitioner’s representative, copying in the Board’s representative, advised the Tribunal that the parties had filed a minute of proposed final orders and submissions recording an agreed position on sanction had been reached and the parties were of the view the matter could be determined on the papers. 
  3. [5]
    The Tribunal assisted by the assessors convened initially on the papers[2] but had misgivings as to the appropriateness of the agreed minute of proposed final orders based on the Statement of Agreed Facts, which did not reflect all matters alleged in the further amended referral, the allegation in the further amended referral and the material in the Agreed Hearing Bundle.  Those misgivings were echoed by the professional assessors.
  4. [6]
    Consequently, the Tribunal sent an email to the parties identifying issues it sought submissions on and the matter was listed for oral argument on 24 April 2025.

What facts does the referral proceed on?

  1. [7]
    There is a Statement of Agreed Facts.[3] 
  2. [8]
    The single allegation before the Tribunal is that the practitioner engaged in professional misconduct and unprofessional conduct within the definition of each of those terms in the National Law in that from 12 April 2020 he failed to maintain the boundaries that should and ordinarily do delineate a treating practitioner and patient relationship with respect to his former patient, Patient A, in that he engaged in and maintained an inappropriate personal and/or sexual relationship with Patient A.
  3. [9]
    It is not in dispute that:
    1. In mid-2018 the practitioner started working at the practice, as well as the medical superintendent of the Health Facility for Queensland Health;[4]
    2. The practice was a general practice in a small regional community (of approximately 2,300 permanent residents)[5] where everyone knows everyone or knows of everyone[6] and which became isolated with the outbreak of COVID in early 2020;[7]
    3. Patient A first consulted a doctor (not the respondent practitioner) at the practice in early June 2018;[8]
    4. Patient A saw seven different doctors at the practice, as well as the respondent practitioner, over the course of her attendances there;[9]
    5. Between the consultations with the practitioner of 21 May 2019 and 31 March 2020:
      1. Patient A saw three different doctors;
      2. the presenting conditions on those occasions were, respectively, viral illness, tonsillitis and a skin check;
    6. Between 23 January 2019 and 6 April 2020, the practitioner consulted with Patient A on eight occasions:[10]
      1. 23 January 2019.  The notes record the reason for visit as URTI[11];
      2. 15 February 2019.  The notes record the reason for visit as chronic endometritis and that tramadol and ondansetron were prescribed;[12]
      3. 8 March 2019.  The notes record that a laparoscopy was performed six days ago and no endometriosis; a general examination was performed and the impression was post-operation pain consistent with her recent laparoscopy;[13]
      4. 7 May 2019.  The notes record the reason for visit is epigastric pain, an imaging request for an ultrasound scan is issued and colofac, ondansetron and oxycodone were prescribed;[14]
      5. 14 May 2019.  The notes record the pain was ongoing and oxycodone was prescribed.  Further, at this visit an electrocardiogram was done by a nurse;[15]
      6. 21 May 2019.  The notes record ongoing pelvic bleeding and the pain is poorly controlled with panadol and nurofen.  The actions include that Patient A will return to the specialist for a follow up and likely need to get a second opinion.  Tramadol was prescribed;[16]
      7. 31 March 2020.  The reason for visit was dysmenorrhoea and actions taken included ceasing a number of medications, prescribing panadeine extra and requesting blood tests;[17] and
      8. 6 April 2020 (by telephone).  The reason for visit was a review of results and ferro-max was prescribed.[18]  The notes do not indicate any follow up was required.
  4. [10]
    Patient A was living and working in that community as a support worker, starting approximately September 2017.  The organisation where she worked provided a full spectrum of care services, including disability, aged care, home care and more, and she served as a permanent full-time employee for over three years.[19]
  5. [11]
    Patient A was 22 when she first consulted the practitioner.  Patient A says of those consultations:[20]

although I recall having appointments with [the practitioner], they were in general rather insignificant.  I say this because I genuinely do not remember many of my appointments with him, or any other doctor for that matter, as they weren’t something that dictated my life – they were just something I had to do to resolve my medical issues/concerns at the time. 

  1. [12]
    This evidence is unchallenged.
  2. [13]
    Patient A also deposes to the following matters, which are unchallenged:
    1. She never really considered any GP to be ‘my doctor’ but if she had to name one, it would be Dr [X] (not the respondent practitioner), because she first presented to Dr [X] with her gynaecological issues and they had a few follow-up appointments about the matter.  As Dr [X] was a locum doctor, and she could not continue care under her, Patient A just opted for the next available appointment that would fit with her work schedule;[21]
    2. Her mental health was stable throughout the period she attended the practitioner;[22]
    3. She recalled during appointments the practitioner being professional, she did not once feel intimidated or uncomfortable, there was no flirtatious exchange between them and she did not feel any sense of emotional or other dependence on the practitioner;[23]
    4. She never considered there was any power imbalance between the practitioner and herself, she never viewed the practitioner as someone who was of a different status because he was a medical practitioner and she felt comfortable interacting with the practitioner as they both worked at times in a health related space and she conversed with him professionally on several occasions.[24]  She spoke with the practitioner on several different occasions in her capacity as a support worker regarding his patient who was her client and she could recall exchanging greetings with him at the practice when he was passing by, which were both before and after she had been his patient.[25]  She could recall at the start of 2020, having a specific interaction with the practitioner in the context of care for a particularly unwell patient, who had to be transferred to a larger centre for assessment and treatment.[26]
  3. [14]
    The professional assessors sitting with me to assist me on questions of fact have read the notes of the consultations with Patient A, including the practitioner’s notes.  Their observations, which I accept, are that the notes disclose an unremarkable series of consultations, for a variety of medical complaints, with prescription of medications that were entirely appropriate for the presenting conditions.[27]  They also observe, and I accept, that the practitioner’s performance of a physical examination of Patient A’s abdomen, which Patient A deposes occurred over her clothes,[28] suggests that the practitioner was being careful and professional in his dealings with Patient A.  This gives weight to Patient A’s evidence about the practitioner’s behaviour towards her in the consultations he had with her.
  4. [15]
    The Board made oral submissions, based on the notes, that Patient A suffered from a chronic pain condition.  The professional assessors advise the Tribunal that medical practitioners use the word ‘chronic’ in a longitudinal sense, as in something which persists over time, rather than to describe the seriousness of the condition.  They inform me, and I accept, that the proper way to characterise the conditions presented in the notes is that Patient A suffered from intermittent recurrent pain, which she took pain relief for and which, on occasion, she received short courses of medication for. In support of that opinion, I note that the contents of the consultation notes demonstrate that Patient A did not attend the practice for any consultations for pain between May 2019 and March 2020, a period of 10 months.  The professional assessors’ advice, which I accept, is that the notes do not contain any evidence suggesting that Patient A was physically or emotionally dependent on the respondent practitioner to obtain prescriptions.  Rather, the notes demonstrate that Patient A would attend an available doctor at the practice when she needed to be seen for an issue.
  5. [16]
    On 23 April 2020, Patient A attended the practice and was administered a vaccination by nursing staff.  Patient A did not see the practitioner on that occasion; it was during COVID and the vaccinations were conducted in the practice car park by the nurse.
  6. [17]
    From about 12 April 2020 the practitioner and Patient A became ‘friends’ on the Facebook software platform.  This was after Patient A sent the practitioner a message to thank him because he had lent his kayak to his neighbours, who were her friends on 11 April 2020.  It was Easter, he was fishing from the pontoon on the vacant block next door to his home and he saw two people using a single kayak in the canal.  He said hello, saw they were struggling on the single kayak and offered to lend them his, which they accepted.  He kept fishing and they kept socialising amongst themselves.[29]  At the time, Patient A and her flatmate levied a few houses down the street from the respondent practitioner and were very good friends with his neighbours.[30]
  7. [18]
    Between 12 April 2020 and 3 May 2020, the practitioner and Patient A exchanged messages on the Facebook platform.  The details of some of them are specified in the further amended referral and they are all extracted in the Agreed Hearing Bundle.  The expert’s opinion is that they are light hearted banter.[31]  The Tribunal has read them all.  The Tribunal accepts the expert’s opinion and finds those messages were light hearted banter.  They are redolent with punctuation and capitals for emphasis, emojis, and refer to various subjects of a social nature.  They were exchanged at a time when social contact in the Australian community was the subject of considerable upheaval because of restrictions imposed by COVID, as is evidenced by the exchange about the administration of the vaccination, which was accompanied with an emoji which demonstrates the jocular nature of the exchange.  The exchanges include photographs of their pet dogs, other peoples’ pets, scenery and wildlife.  They do not contain any sexual or sexualised content.  Insofar as Patient A makes an inquiry about the availability of the methadone programme in the small regional community (which she makes clear is an inquiry for someone else) the practitioner’s response is short and factual, I accept the practitioner’s oral submission that this is the kind of inquiry which is made of a friend who is a doctor.  There is no one else of whom such an inquiry could easily have been made in the particular circumstances pertaining here.  I do not accept it demonstrates porosity in professional boundaries. Relevantly, Patient A deposes that during this time they would exchange pleasantries when she visited her friends, who were his neighbours, if he was around outside his house.[32]  They started to speak properly, according to Patient A, on 3 May 2020 when they were both invited to a little gathering at the neighbours.[33] The respondent practitioner also notes that their conversations became more regular after the party to which they were both invited.
  8. [19]
    Each of the practitioner and Patient A describes the evolution of their relationship: Patient A describes it as progressing naturally over time;[34] and the practitioner as arising in a social context outside of the treating relationship.[35]  That evidence is unchallenged, although the Board made submissions about it which I will come to.
  9. [20]
    On or about 10 May 2020 the practitioner and Patient A commenced a sexual relationship.  On or about 18 July 2020 the practitioner commented on Patient A’s Facebook post ‘Love that photo x’ and Patient A responded with a heart emoji.  By this time the practitioner no longer worked at the practice and had left the community where he had been living and working and where Patient A still lived and worked. 
  10. [21]
    Despite submitting in writing that the Tribunal could be ‘comfortably satisfied’ that the Board’s factual allegations against the practitioner had been established,[36] the Board, in oral submissions did not press for any finding as to when the practitioner and Patient A commenced living together in a larger regional town.  That was an appropriate concession where the evidence did not support particular (m) in the further amended referral.[37]  It does not assist the Tribunal to receive ambit submissions of this kind, which are not forensic and prove to be inaccurate, particularly where the Board seeks a determination of a matter on the papers.
  11. [22]
    It is an agreed fact that as at April 2024 the practitioner and Patient A remained living together in a de facto relationship.  As at the date of the determination of the referral, the practitioner and Patient A remain in a committed de facto relationship with each other and they have welcomed their first child together.
  12. [23]
    An expert’s report dated 2 July 2024 obtained on the practitioner’s behalf is unchallenged by other expert evidence.  The expert is a general practitioner who has been a medical practitioner for 37 years, 33 of them in small rural communities and 29 of those years in the town where he grew up and went to school, where his children went to school and where he has delivered more than one generation of babies.  He describes he has firsthand experience in the challenges of doctor-patient boundaries in small community settings.  Having reviewed the Agreed Documents including the consultation notes, additional documents from the Board[38] and affidavit material, he expresses the opinion that the practitioner’s conduct did not breach professional boundaries for the following reasons:[39]
    1. Patient A was a former patient, not a current patient;
    2. Patient A was never a regular patient;
    3. There were no medical appointments after the personal relationship began;
    4. There was no intention of a relationship when Patient A was a patient;
    5. The practitioner did not use the doctor-patient relationship to engage in a sexual relationship with Patient A;
    6. The relationship started outside of any medical interaction, with no imbalance of power and in a way that is common in any small, isolated community;
    7. The relationship was consensual with no evidence of exploitation, vulnerability or dependence;
    8. There was no abuse of power;
    9. There has been no risk of harm to the public.
  13. [24]
    The Board challenged the opinions expressed by the expert, particularly concerning his assessment of Patient A’s vulnerability and dependence.  This challenge was based on what it contended was the expert’s inadequate analysis of the consultation notes.  The Board submitted the notes disclose that, contrary to the expert’s opinion, Patient A suffered from a chronic pain condition.  As noted above, the Tribunal does not accept that submission. In any case, the expert’s analysis was more nuanced than that.  He stated that Patient A did not have any history of complex chronic disease.[40]  That assessment is supported by the consultation notes.
  14. [25]
    The professional assessors advised the Tribunal that their assessment is that the expert’s report presents an appropriate analysis of the medical matters contained in the records and reaches appropriate conclusions, particularly in the context of practising in a small regional centre.  The Tribunal accepts their advice about these factual issues.  It therefore takes the conclusions which the expert has reached into consideration as one part of the evidence relevant to making factual findings and a determination as to the appropriate characterisation of the conduct which is established on the facts as found.
  15. [26]
    Codes or guidelines approved by a National Board are admissible in proceedings under the National Law against a heath practitioner registered in a health profession as evidence of what constitutes appropriate professional conduct or practice for the health profession.[41]
  16. [27]
    The further amended referral alleges that the practitioner’s conduct is contrary to a large number of provisions in the Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia effective 1 March 2014 (‘2014 Code’), the Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia effective 1 October 2020 (which did not operate until some months after the relationship commenced) and Guidelines for Sexual Boundaries in the doctor-patient relationship effective 12 December 2018 (‘2018 Guidelines’), including sections 1.1, 2, 3, 4 and 5.
  17. [28]
    As matters crystallised in oral submissions, both parties accepted clause 5 of the 2018 Guidelines, which is the clause providing guidance for relationships with former patients, sets out the relevant standard.  The Board submitted some assistance may be derived from clause 8 of the 2014 Code and clause 8 of the 2018 Guidelines.

What is relevant about the practitioner?

  1. [29]
    The practitioner holds a Bachelor of Applied Science and a Bachelor of Medicine, Bachelor of Surgery, the latter completed in 2006.  He achieved fellowship of the Australian College of Rural and Remote Medicine in 2024. 
  2. [30]
    He was first registered as a medical practitioner in January 2007.
  3. [31]
    The expert who reviewed his notes for Patient A observed that they suggest he is a thorough, professional and competent doctor with appropriate history, examination and management.[42]  The professional assessors sitting with me agree with that assessment.
  4. [32]
    The practitioner has no disciplinary history.  There is nothing in the material to suggest there has been any further issue with the practitioner’s practice of the profession in the five years since the notification giving rise to the further amended referral was made. 

What law applies to the referral?

  1. [33]
    The referral proceeds before the Tribunal pursuant to sections 193B(2) of the National Law.
  2. [34]
    The Tribunal is exercising original jurisdiction.[43]  It must observe the rules of natural justice,[44] is not bound by the rules of evidence[45] and may inform itself in any way it considers appropriate.[46]
  3. [35]
    The Tribunal may only find that the practitioner engaged in the alleged conduct and that it should be characterised as professional misconduct or unprofessional conduct if it is satisfied of these matters according to the standard of proof articulated in Briginshaw v Briginshaw.[47]  The Board has the onus of proof.[48]

How should the Tribunal characterise the practitioner’s conduct?

  1. [36]
    In written submissions, the parties have agreed the Tribunal should make an order that the conduct the subject of the further amended referral constitutes professional misconduct within the meaning of that term as defined by s 5 of the National Law.  The practitioner submitted orally that notwithstanding the parties agreement to the proposed orders, the Tribunal could act differently, on the basis that the practitioner’s preparedness to enter into the proposed orders reflected the fact he simply wanted the matter concluded after a five year period.
  2. [37]
    The Board submitted and the Tribunal accepts that it is the duty of the Tribunal to determine the level of conduct alleged and the appropriate sanctions to be imposed in respect of that conduct, noting that no agreement between a regulator and the professional person under review can supplant that duty.[49]
  3. [38]
    In oral argument the Board focused its submissions on the following points:
    1. Accepting that Patient A was a former patient, that the practitioner failed to maintain professional boundaries when he engaged in a social relationship with Patient A, by responding to Facebook messages he received from her;
    2. The social relationship occurred very shortly after the conclusion of the doctor-patient relationship;
    3. The sexual relationship occurred very shortly after the social relationship commenced;
    4. It was professional misconduct because of the inherent power imbalance in the relationship of doctor and patient, the trust a patient places in a medical practitioner and the consequent inherent vulnerability on the patient’s part;
    5. The Tribunal does not need to find actual exploitation of the doctor-patient relationship to find the failure to observe professional boundaries, because the focus is on the risk that the exploitation of the relationship occurs.  The patient imparts to the doctor information of a kind which would not be imparted in any other way to third parties.  Dependence on a medical practitioner can exist at a variety of levels and arises where the patient is reliant on the practitioner.  Examples of this said to be present in this treating relationship included the provision of medical certificates;
    6. Whilst accepting that there are much more vulnerable patients than Patient A,  the practitioner’s failure in this case was a failure to recognise the risk that the relationship was developing out of the doctor-patient relationship. The practitioner was not to know the basis on which Patient A was attracted to him and he had a strict obligation not to blur boundaries when he had been so recently involved and not to allow the relationship to develop.
  4. [39]
    Clause 5 provides guidance for medical practitioners on maintaining sexual boundaries with former patients.  It opens with the following statement: “It may be unethical and unprofessional for a doctor to engage in a sexual relationship with a former patient if this breaches the trust the patient placed in the doctor…” (emphasis added).  That is, the guidance which is provided is that this is a discretionary assessment based on the particular circumstances.  It has the patient’s trust in the practitioner as its focus.  It sets out a range of non-exclusive factors for consideration:
    1. The duration, frequency and type of care provided for the doctor, for example, if they had provided long-term emotional or psychological treatment;
    2. The degree of vulnerability of the patient;
    3. The extent of the patient’s dependence on the doctor-patient relationship;
    4. The time elapsed since the end of the professional relationship;
    5. The manner in which and reason why the professional relationship ended or was terminated; and
    6. The context in which the sexual relationship started.
  5. [40]
    The Board accepted whether a medical practitioner’s conduct was consistent with the 2018 Guidelines will depend on the specific circumstances, however it submitted it would be rare that a relationship could develop so quickly and be appropriate.  The Board submitted that all the factors itemised in Clause 5 are to be given weight.
  6. [41]
    As to duration, frequency and type, the Board submits there was a chronic pain problem.  As already addressed, the Tribunal does not accept this to be so.  The practitioner was in a position of trust.  Patient A was a young female and the practitioner was an older male.  He took a history from Patient A which dealt with intimate matters and his prescribing to her included schedule 8 medications.  Whilst accepting this prescribing was not for an improper purpose, the Board submitted that it was indicative that Patient A needed relief provided by the medication and needed a doctor to provide it.  The Tribunal does not accept that duration, frequency or type of treatment militates against the practitioner in this case.  The duration of the treating relationship was not long or complex.  Patient A saw multiple doctors at the practice.  There was a gap of 10 months between the second last and last in-person consultations, in which time Patient A saw three other doctors in the practice.  Patient A was not provided treatment for mental health conditions or other significant health conditions.  There was no long term emotional or psychological treatment.[50]
  7. [42]
    As to vulnerability and dependency, the Board relied on its submissions in respect of duration, frequency and type and also pointed to the age difference of almost twenty years between Patient A and the practitioner, submitting that this can be relevant to vulnerability.  The Tribunal accepts age can be relevant to vulnerability as a general principle but there is no evidence that it was in this particular case.  Patient A’s evince which is unchallenged is that she had and interacted with her parents, siblings, long term friends and a good circle of friends in the community.[51]
  8. [43]
    I find that Patient A was not vulnerable vis a vis the practitioner in the context of this doctor-former patient relationship.[52]  I find that Patient A was not dependent on the doctor-former patient relationship and did not have any particular trust in it[53] vis a vis the practitioner.  This conclusion arises from:
    1. Her evidence about these matters and, particularly, who she regarded as her treating doctor at the practice, which was in a small regional community;
    2. Other facts in this particular set of circumstances, including that there is no evidence of the practitioner using the doctor-patient relationship in any way to take advantage of any trust Patient A may have had in him or to influence Patient A.  There is no evidence:
      1. The practitioner was unprofessional or familiar with Patient A in any way during any aspect of the doctor-patient relationship;
      2. The practitioner tried to have Patient A rebook future appointments with him;
      3. The practitioner sought to see Patient A at times when they might be alone at the practice;
      4. That any personal relationship developed when they were in proximity to each other in the practice or at the Queensland Health premises from time to time, when Patient A was there in her capacity as a support worker.  In this particular case, their friendship had its genesis and development in a factual context which was wholly removed from the doctor- patient relationship; 
    3. The issues raised during the consultations and the preparedness to visit multiple doctors, both matters evidenced by the entirety of the notes of the consultations with this practitioner and others in the practice; and
    4. The expert opinion, supported by the professional assessors in this particular instance, that this is not a scenario of a patient being, or at risk of being, vulnerable or dependant on the practitioner[54].  
  9. [44]
    As to the time elapsed, the Board submitted, and the Tribunal accepts, the time between the last consultations on 31 March and 6 April 2020 and the commencement of the personal relationship through the Facebook messages on 12 April 2020 was extremely short.  The Board’s submission was that, despite Patient A’s evidence, there was a risk that the attraction was being influenced by the doctor-former patient relationship which existed in the background.  For the reasons I have already set out, I find that this risk is not germane in these particular facts. In any case, an issue with the Board’s submissions is that if the criterion of ‘risk absent any harm or actual exploitation’ is adopted as the determinant for a referral involving a former patient, there will be no circumstances in which a doctor-former patient relationship would be possible. However, the 2018 Guidelines clearly mandate that the position is a discretionary one, with the assessment to be made in the particular facts and circumstances. The Tribunal considers that analysis should flow from the matters specifically articulated in Clause 5, which is focused on whether there is a breach of the patient’s trust in the doctor. Here, the evidence leads expressly to the conclusion that there is no breach.
  10. [45]
    As to the ending of the treating relationship, there is no dispute that the last consultation was on 6 April 2020.  The Board submits it was not expressly ended and there should have been something in the notes to record this was expressly raised with Patient A.  The expert’s opinion, which I accept, is that the appointment took ten minutes, was simple and straightforward and about a common problem that would not normally require any follow up appointments.[55]
  11. [46]
    The Tribunal accepts that, being essentially transactional in nature, the doctor-patient relationship ended naturally, when the final consultation was a telephone one for the provision of results.[56]  As to something being formally recorded in Patient A’s notes, the expert’s opinion is that in contemporary general practice it is unusual for there to ever be an official and definite ending of a doctor-patient relationship unless an established doctor is retiring, or a long term patient is moving or it has been decided for a specific reason that a patient should have no further appointments with a particular doctor.[57]  The Tribunal notes that the practitioner in fact left the practice and the community about six weeks after the sexual relationship started.[58]  
  12. [47]
    The Board accepted in submissions that the context for the start of the sexual relationship was least helpful to the Board’s case and did not strongly point to misconduct.  The Board acknowledged that the evidence showed a social relationship developed and from that social relationship the romantic relationship developed.
  13. [48]
    The Tribunal finds the sexual relationship started in the context of activities totally disassociated with the doctor-patient relationship.  This is the evidence of each of the practitioner and Patient A.  It is supported by the tenor of the Facebook messages that passed between them which are in evidence in the Agreed Hearing Bundle.  That position is unchallenged by other witnesses or by documents.  Relevantly, there is no evidence that:
    1. As already noted, anything inappropriate occurred during any of the consultations the practitioner had with Patient A in terms of the practitioner’s behaviour or his professional assessment and treatment of Patient A or his prescribing to Patient A.  The evidence is all to the contrary;
    2. The practitioner used or had in mind any information gleaned from the doctor-patient relationship at any time.
  14. [49]
    Clause 8 of the 2014 Code deals with professional behaviour.  Clause 8.1 is a general statement, clause 8.2 deals with maintaining professional boundaries.  In addition to providing that the doctor must never use their professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under their care; it refers, specifically to the guidelines on sexual boundaries which I have already addressed.  For the reasons already noted the Tribunal is not persuaded that the practitioner’s conduct is inconsistent with the requirements of clause 8.2.  Clause 8.3 deals with reporting obligations.
  15. [50]
    In written submissions, the Board referred to Nursing and Midwifery Board of Australia v Ball (Review and Regulation) (‘Ball’).[59]  A registered nurse was found to have engaged in professional misconduct when she failed to maintain professional boundaries in establishing and continuing an intimate relationship with a patient both during and immediately after the period he had been an inpatient in the hospital where she worked.  The practitioner was reprimanded and an education condition was imposed.[60]
  16. [51]
    The Tribunal observed that the crossing of the line of professional boundaries occurred when the practitioner first decided to engage in social media communications with her patient, outside of their professional relationship.[61]  The Tribunal observed:[62]

The Tribunal has previously warned about the risks of engaging in electronic communication with patients, noting that the ‘casual or familiar style of communication … can quickly blur the line and mean that professional boundaries have been crossed, almost without noticing.

  1. [52]
    The Tribunal went on to observe that that error of judgment was exacerbated when the practitioner continued to engage in some form of non-professional relationship with the patient by inviting him to come and visit her horse and accepting the invitation to dinner at his home.[63]
  2. [53]
    The patient was vulnerable.  Accepting that the patient initiated the social media contact, and an absence of exploitation in the relationship that existed between the patient and the practitioner did not mean that the conduct has not fallen short of the requisite standards, because it is the risk of patient harm from a relationship between the health practitioner and the patient that is the issue of concern.  That risk is always present, even if the relationship appears consensual.[64]
  3. [54]
    The conduct was characterised as professional misconduct because it occurred whilst the patient was still a patient of the hospital where the practitioner worked.[65]  That the practitioner and the patient remain in a relationship is not relevant to the characterisation of the conduct at the time that it occurred.[66]
  4. [55]
    In this case there are significant points of factual distinction:
    1. Ball involved a current patient but in this case the allegation involves a former patient;
    2. In Ball, the practitioner responded to a Facebook message against a backdrop of the patient having professed romantic feelings for her some months earlier, which she rebuffed.  Thus she was aware her current patient had feelings for her when she commenced messaging him outside of the therapeutic relationship.  That feature of the online communication is absent here; 
    3. The treating relationship which existed between Patient A and the practitioner was of a markedly different nature from that existing in this case; and
    4. Unlike in Ball, Patient A was not a vulnerable patient.
  5. [56]
    The Tribunal has otherwise considered the comparable cases provided by the Board in its written submissions.[67]  Accepting that no case is truly ‘comparable’ and each case must be decided on its particular facts, the Tribunal observes that they involve circumstances which are much more serious than this case in that they involve one or more of the following factors: multiple patients,[68] vulnerable patients,[69] conduct occurring whist the treating relationship remains on foot,[70] the practitioner instigating the contact[71] or denials of relevant conduct.[72]
  6. [57]
    In oral argument the Board referred the Tribunal to a further series of authorities:
    1. Chiropractic Board of Australia v Allen (‘Allen’).[73]  The Board relied on a passage at [25] to the effect that the chiropractor failed to recognise the risk to the patient of their relationship developing out of the brief chiropractic relationship.  The Tribunal notes that this principle was supported by the expert in that case.  Whilst the general principle may be accepted, it falls to be applied in the particular factual circumstances of a given case.  In Allen, the position was that but for the professional relationship, the practitioner and the patient would probably never have met.[74]  That is the converse of the present factual situation, where the meeting which founded the relationship was one of complete chance, on Easter Saturday afternoon, on a canal in a small community where everyone knows everyone or knows of everyone.  Unlike the expert’s opinion in Allen, the expert’s opinion in this case is that it would be absurd to expect a doctor in such a situation not to interact socially with anyone.[75]  Further, the patient in Allen was being treated for depression, a fact which was known to the practitioner.[76]  That indicates a level of vulnerability in the patient in Allen which is absent from these circumstances;
    2. Medical Board of Australia v Haifi.[77]  Over a seventeen-month period, the patient consulted the practitioner sixteen times.  They became friends on Facebook and some four-to-five months later she sent him a Facebook message saying she had feelings for him.  Their personal and then sexual relationship arose thereafter, she said, initiated by her and which he at first resisted, whilst she persisted in offering a “no strings attached sexual relationship”.  The Tribunal observes that the very nature of that statement demonstrates the capacity for exploitation of the doctor-patient relationship.  Part way through their personal relationship he was involved in aspects of the patient’s medical management.  It appears the patient had particular vulnerabilities, having a sexual abuse history and a marital breakdown.[78]  The Tribunal’s analysis was that this was a case where events flowing from the doctor-patient relationship may well have caused the beginning of the other relationship[79] and that there was every risk that her attraction to him was grounded in the doctor-patient relationship.[80]  This case also involves relevantly very different facts:
      1. a doctor-patient relationship of double the frequency of consultations over the same approximate time period than in the case before the Tribunal;
      2. a patient who professed feelings for the practitioner, out of which the relationship developed.  There is no suggestion of any chance meeting in circumstances unrelated to the doctor-patient relationship as the genesis of the relationship; and
      3. a patient with evident vulnerabilities.
    3. Medical Board of Australia v Rathnayake.[81]  The practitioner here provided the patient with his personal telephone number during the last of seven consultations over an eight-month period.  Thereafter the practitioner developed a personal relationship with the patient over an approximate three-month period, involving telephone calls, meeting for dinner and coffee, sharing personal information and physical and emotional intimacy.  The Tribunal plainly acted in that case informed by the significant fact that the context in which the relationship was established was that the doctor provided the patient with his personal telephone number during a consultation.[82]  That is manifestly different from this factual situation.  The difference is relevant and significant because it goes to whether the doctor breached the patient’s trust in the treating relationship in developing the personal relationship.
  7. [58]
    It has been stated that the great majority of previously decided cases where a doctor engirded into a sexual relationship with a patient or former patient find professional misconduct occurred.[83]  So much may be accepted in the context of the doctor-patient relationship, particularly where the 2018 Guidelines expressly provide that there is no place for sex in the doctor-patient relationship.  In the context of a relationship with a former patient, as the 2018 Guidelines make clear, it is a discretionary assessment to be made on the particular factual circumstances, where the focus is expressed to be particularly on whether the relationship breaches the trust which the patient placed in the doctor.
  8. [59]
    For the reasons set out at paragraphs [39] to [49] and [55] to [56] in the particular factual circumstances of this matter, the Tribunal is not persuaded that the practitioner’s conduct is unprofessional conduct within the meaning of that term in s 5 of the National Law.  Rather, the Tribunal is satisfied, on the facts of this case, that the practitioner has no case to answer and no further action is to be taken in relation to the referral. 

Should the non-publication order continue and, if so, on what basis?

  1. [60]
    I made an interim non-publication order to protect Patient A’s identity, indicating I would consider this further at the final determination.
  2. [61]
    The parties accept that the identity of Patient A is properly to be protected, where the material contains significant information about Patient A’s medical information which clearly has the character of confidential information encapsulated within s 66(2)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  Further, the Tribunal finds it would be contrary to the public interest to identify the child that Patient A and the practitioner share.
  3. [62]
    The practitioner submits it is necessary the non-publication order be extended to him to ensure this protection is ongoing because:
    1. The community where they both worked and lived at the time they met is small and ‘everyone knows everyone’;
    2. It has been necessary to canvass in these reasons the factual matters which are peculiar to this referral, including that the practitioner and Patient A first met in a professional capacity in this small regional and isolated place and the details of the doctor-patient relationship.
  4. [63]
    The Board submits that two copies of the reasons can be prepared: one for the parties and the other which is redacted.  The difficulty with this course is that it is the redacted matters which substantially inform the decisions the Tribunal has made on this particular referral.  It has been necessary to analyse the information received and the course of the professional relationship when making an assessment of trust and of vulnerability.
  5. [64]
    In any case, where the Tribunal has found there is no case to answer, it is appropriate that the practitioner’s name be protected and to ensure the privacy of Patient A.  The Tribunal will make a non-publication order which extends to Patient A, the practitioner and their child on a permanent basis, subject to the carveout that enables the Board to perform its statutory functions under the National Law.
  6. [65]
    The Tribunal thanks the assessors for their insightful assistance in the determination of this referral.

Footnotes

[1]The medical records material contains a reference to a request from the Office of the Health Ombudsman dated 9 July 2020: Hearing Brief filed in the Tribunal on 17 March 2025 p 79 (‘HB’).  Statement of Agreed Facts filed in the Tribunal on 18 April 2024, [10], [14] (‘SOAF’).  The practitioner provided written responses to Ahpra on 14 January 2022 and 13 February 2023.

[2]Pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[3]Filed in the Tribunal on 18 April 2024 but not included in the HB (n 1) which was filed in the Tribunal on 17 March 2025.

[4]Practitioner’s affidavit [5(n)] contained in the HB (n 1) p 272.

[5]SOAF (n 1) [8].

[6]Practitioner’s affidavit [6] contained in the HB (n 1) p 272.

[7]SOAF (n 1) [9].

[8]Ibid [16].

[9]Ibid [17].

[10]The dates, modalities and medications prescribed are set out in SOAF (n 1) [18]-[19].  The details of the consultations are taken from the consultation notes contained in the Agreed Documents in the HB (n 1).

[11]HB (n 1) p 59.

[12]Ibid p 60.

[13]Ibid p 61.  The medical records contain a report which is dated 14 March 2019 from the consultant who performed the procedure addressed to Dr [X]: Ibid p 100.

[14]Ibid p 65.

[15]Ibid p 66.  A nurse performs the ECG: Ibid p 67.

[16]Ibid 69.  The notes contain a letter dated 26 April 2019 addressed to Dr [X] from the treating consultant from a post-surgical review: Ibid p 99.

[17]Ibid p 74.

[18]Ibid p 75.

[19]Patient A’s affidavit [7]-[8] contained in the HB (n 1) pp 263-264.

[20]Ibid p 265.

[21]Ibid.

[22]Ibid p 266.

[23]Ibid.

[24]Ibid p 267.

[25]Ibid p 264.

[26]Ibid p 264.

[27]This is consistent with the assessment of the expert obtained by the practitioner: Ibid pp 287-295.

[28]Ibid p 266

[29]Ibid p 278.

[30]Ibid p 267.

[31]Ibid p 291.

[32]Ibid p 267.

[33]Ibid p 267.

[34]Ibid p 268.

[35]Ibid p 182.

[36]Board’s submissions at [12]: HB (n 1) p 307.  The submissions are signed under the hand of solicitors.  They contained other factual inaccuracies: the practitioner commenced at the practice in mid-2018 (HB (n 1) p, 272), not December 2019 as 13.1 of the Board’s submissions stage; the practitioner did not prescribe Lorazepam as is contended at 13.4 of the Board’s submissions; rather he ceased it: HB (n 1) p 74. 

[37]Which was that the practitioner said when he moved away it was to another regional centre, Patient A would visit him on some weekends initially and they started living together first interstate in February 2021, (HB (n 1) pp 193, 279) whilst Patient A’s evidence was that she terminated her employment around Christmas 2020 (HB (n 1) p 263).  The Tribunal observes that the regional centres in question are over 250kms apart.

[38]His analysis is that the duration of the consultations was generally brief, ranging from 5-15 minutes, with the longest being 34 minutes, bearing in mind this is the time the file is open, rather than the exact time the practitioner has spent with the patient.  HB (n 1) 287.  This analysis is supported by the records at HB (n 1) p 85. 

[39]HB (n 1) p 292.

[40]Ibid p 288.

[41]Health Practitioner Regulation National Law (Queensland) s 41.

[42]HB (n 1) p 287.

[43]QCAT Act (n 2) s 10(1)(b).

[44]Ibid s 28(3)(a).

[45]Ibid s 28(3)(b).

[46]Ibid s 28(3)(c).

[47](1938) 60 CLR 336.

[48]Health Ombudsman v Moosawi [2020] QCAT 391 [8].

[49]Medical Board of Australia v McGrath (Review and Regulation) [2014] VCAT 641, [18]-[21]. 

[50]In addition to the medical notes, see the expert’s report: HB (n 1) p 287. 

[51]HB (n 1) pp 266 – 267.

[52]HB (n 1) pp 181, 288.

[53]Ibid pp 288-289

[54]Ibid.

[55]Ibid p 289.

[56]Ibid. 

[57]Ibid p 290.

[58]Ibid p 181.

[59][2021] VCAT 232 (‘Ball’).

[60]Nursing and Midwifery Board of Australia v Ball (Review and Regulation) (No 2) [2021] VCAT 864.

[61]Ball (n 55) [39].

[62]Ibid, citations in the original omitted.

[63]Ibid [40].

[64]Ibid [42]-[47].

[65]Ibid [54].

[66]Ibid [56].

[67]Health Ombudsman v RCM [2022] QCAT 59 (‘RCM’); Medical Board of Australia v Chiappalone [2014] QCAT 170 (‘Chiappalone’); Ball (n 55); Health Ombudsman v Masamba [2019] QCAT 227 (‘Masamba’); Medical Board of Australia v Blomeley [2014] QCAT 160 (‘Blomeley’).

[68]RCM (n 63). 

[69]Ibid; Chiappalone (n 63); Masamba (n 63); Blomeley (n 63).

[70]RCM (n 63); Blomeley (n 63).

[71]Masamba (n 63).

[72]RCM (n 63); Chiappalone (n 63); Masamba (n 63).

[73][2018] VCAT 1772 (‘Allen’).

[74]Ibid [24].  In Medical Board of Australia v Haifi [2018] VCAT 1788 (‘Haifi’), the Tribunal stated that in Allen (n 69), the patient had made it clear during the follow up communications initiated by the practitioner that she was attracted to him: [63].  

[75]HB (n 1) p 291.

[76]Allen (n 69) [23].

[77]Haifi (n 70).

[78]Ibid [17].

[79]Ibid [36]

[80]Ibid [37].

[81][2019] VCAT 1012.

[82]Ibid [40].

[83]Haifi (n 70) [40].

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v BJA

  • Shortened Case Name:

    Medical Board of Australia v BJA

  • MNC:

    [2025] QCAT 152

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    13 May 2025

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) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Health Ombudsman v Moosawi [2020] QCAT 391
2 citations
Jump To
Cite 1 - [2020] QCAT 391
Cite 2 - [2020] QCAT 391
Health Ombudsman v RCM [2022] QCAT 59
2 citations
Jump To
Cite 1 - [2022] QCAT 59
Cite 2 - [2022] QCAT 59
Medical Board of Australia v Blomeley [2014] QCAT 160
2 citations
Jump To
Cite 1 - [2014] QCAT 160
Cite 2 - [2014] QCAT 160
Medical Board of Australia v Chiappalone [2014] QCAT 170
2 citations
Jump To
Cite 1 - [2014] QCAT 170
Cite 2 - [2014] QCAT 170
Medical Board of Australia v McGrath [2014] VCAT 641
2 citations
Jump To
Cite 1 - [2014] VCAT 641
Cite 2 - [2014] VCAT 641
Medical Board of Australia v Rathnayake [2019] VCAT 1012
1 citation
Jump To
Cite 1 - [2019] VCAT 1012
The Health Ombudsman v Masamba [2019] QCAT 227
2 citations
Jump To
Cite 1 - [2019] QCAT 227
Cite 2 - [2019] QCAT 227

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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