QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v MKY (No. 2) [2024] QCAT 336	
PARTIES:	Health Ombudsman	

(applicant)	

	v	
	MKY	

(respondent)	

APPLICATION NO/S:	OCR 92 of 2023	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	4 September 2024 (decision)
10 September 2024 (reasons for decision)	
HEARING DATE:	4 September 2024	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member the Hon P J Murphy SC
Assisted by:
Dr R Bailey, Chiropractor Panel Member
Dr W Grigg, Public Panel Member	
ORDERS:	The Tribunal orders that:
1.	Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)	the contents of a document or other thing produced to or filed in the Tribunal;
(b)	evidence given before the Tribunal; and
(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:
(d)	the respondent;
(e)	any family member of the respondent;
(f)	any patient of the respondent; or
(g)	any family member of any patient of the respondent;
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 to fulfil its statutory functions under the Health Ombudsman Act 2013 (Qld).
2.	Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)	a judicial member;
(b)	a tribunal member;
(c)	
an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d)	any assessor appointed to assist the Tribunal;
(e)	the staff of the Tribunal registry;
(f)	any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)	the parties to these proceedings or any appeal or review arising from these proceedings.
It is the decision of the Tribunal that:
1.	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3.	Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent must pay a fine of $7,500.00 to the Office of the Health Ombudsman within six (6) months of the date of this decision.	
CATCHWORDS:	PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — CHIROPRACTORS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — where the respondent was a registered chiropractor who engaged in a personal and sexual relationship with a patient — where the relationship was entirely consensual — where it is not alleged that the patient had any particular vulnerabilities — where the relationship ended amicably and by mutual agreement — where the respondent agrees that his conduct constitutes professional misconduct — finding of professional misconduct — practitioner reprimanded and fined
ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the respondent submitted for a non-publication order over information that could identify or lead to the identification of the respondent and his family in response to the publication of a newspaper article — where the applicant does not oppose the order but says “the horse has already bolted” — whether a non-publication order should be made — non-publication order made
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Chiropractic Board of Australia v Allen [2018] VCAT 1772
Chiropractic Board of Australia v Dillon [2023] QCAT 117
Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Jagodaz [2016] NSWCATOD 71
Health Care Complaints Commission v Ryken [2016] NSWCATOD 58
Health Ombudsman v Barber [2017] QCAT 431
Health Ombudsman v Leinonen [2021] QCAT 263
Health Ombudsman v Masamba [2019] QCAT 227
Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149
Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Jansz [2011] VCAT 1026
Medical Board of Australia v POS (Review and Regulation) [2019] VCAT 1678
Medical Board of Australia v Trewren [2015] SAHPT 5	
APPEARANCES & REPRESENTATION:	

Applicant:	
M Price instructed by the Office of the Health Ombudsman	

Respondent:	
C Templeton instructed by Potts Lawyers	

REASONS FOR DECISION
[1]	At the conclusion of the hearing of this matter, the Tribunal indicated that reasons would be delivered subsequently in respect of the orders then made.  These are those reasons. 
[2]	MKY is a chiropractor with his own business as such in south-east Queensland.  He was first registered as a chiropractor in 2002 and has remained registered in the 21 years since.  
[3]	In July 2006, Ms D commenced consulting MKY as a patient.  That treating relationship continued over the next 15 years.  During that time, MKY also treated Ms D’s former husband, their two daughters and his then-wife’s mother and sister.  The treating relationships for each also extended over varying periods of years.
[4]	In the latter part of the 15-year period during which Ms D consulted MKY, they conducted an entirely consensual sexual relationship.  That relationship spanned about 18 months from March 2020 until October 2021 when, by mutual agreement, it ceased.  
[5]	MKY and Ms D remain on good terms.  It is not suggested that Ms D has any particular vulnerabilities.  Each of MKY and Ms D were mature adults (aged in their mid-40s and mid-30s respectively) at the time of the relationship.
[6]	On 29 June 2021, Ms D’s now former husband complained to the Health Ombudsman about the sexual relationship.  
[7]	Properly, no immediate action was taken by the Health Ombudsman.  In consequence, in the three years since the complaint was made, MKY has continued to practice as a chiropractor without restriction.
[8]	The complaint has led ultimately to these proceedings in which the Health Ombudsman asserts a finding of professional misconduct should be made against MKY and sanctions imposed which include suspension from practice for “a period of three to six months” and mentoring by “another registered health practitioner”.
[9]	The issues to be determined by the Tribunal are truncated in their depth by a concession on behalf of MKY that his conduct constitutes professional misconduct by reason of the boundary violation inherent in the sexual relationship, and by concessions that a reprimand and mentoring are appropriate sanctions.  
[10]	MKY contends that no suspension should be ordered.  Rather, he asserts that a fine of $7,500 is an appropriate additional sanction.  
[11]	In the period during which this matter was awaiting a hearing, it transpired that MKY has engaged a mentor at his own expense and has attended nine monthly sessions at a total cost of $2,700.  At the hearing, the Health Ombudsman contended that a condition should provide for three more mentoring sessions.
Is the Admission of Professional Misconduct Properly Made?
[12]	Despite the parties’ agreement that the relevant conduct constitutes professional misconduct, the Tribunal is charged with reaching its own conclusions in that respect.
[13]	The HO’s submissions refer to Health Care Complaints Commission v Jagodaz  where it was held (at [30]):
A sexual relationship between practitioner and patient that arises through the therapeutic or clinical relationship is in and of itself inappropriate and a breach of professional boundaries. 
[14]	The applicable Code of Conduct provides evidence of what is expected of registered chiropractors and, thus, evidence of conduct that might be seen to fall below the standards expected of a chiropractor by their peers and the public.  Consistent with what is expected of all health practitioners, a sexual relationship with a patient falls below that standard.  
[15]	The instant conduct is plainly “unprofessional conduct” as defined in the Health Practitioner Regulation National Law (Queensland) (National Law).  The next question is whether the conduct falls substantially below that standard.  
[16]	Obviously enough, boundary violations involving sexual conduct by health professionals toward patients cover a wide spectrum of behaviour from non-consensual criminal conduct to an entirely consensual isolated instance.  Decisions of this and other tribunals are to the effect that, generally, all such conduct falls substantially below the expected standard.
[17]	For example, the HO’s submissions quote what was said in Health Ombudsman v Masamba (at [45]):
Any form of social contact with a patient will not be tolerated. It is inconsistent with the importance of having a system of independent health care professionals, particularly in the mental health sphere given the power imbalance and the vulnerability of patients. 
[18]	An inequality in the power balance between practitioner and patient and the vulnerability of patients lies at the heart of the seriousness with which boundary violations are treated by the tribunal, wherever on the spectrum they might lie. But the seriousness also derives from the duty of health practitioners.  In Medical Board of Australia v Trewren, also cited by the Health Ombudsman, it is said (at [63]):
The relationship was said to develop from a long-standing friendship and was apparently consensual. However, the relationship arose in the setting of an unequal relationship it being the respondent’s duty to maintain the appropriate professional boundaries as set out in the codes of conduct. Such conduct on the part of the respondent was a fundamental breach of professional duty and any sanctions imposed necessarily carry general deterrence against such conduct being pursued by other health professionals. 
[19]	Notwithstanding that MKY and Ms D were adults well known to each other conducting an entirely consensual relationship where neither had specific emotional or psychological vulnerabilities, the conduct should be regarded as falling substantially below the standard of behaviour reasonably expected of a chiropractor with MKY’s level of training and experience.
[20]	The concession that the unprofessional conduct constitutes “professional misconduct” as defined in the National Law is properly made and a finding to that effect should be made.
What Sanction Should be Imposed?
[21]	The principles applicable to the imposition of sanction are not in doubt and arise from a number of decisions of this and other tribunals in which they can be seen formulated or applied.   They should briefly be referred to.
[22]	The purpose of sanctions is protective and not punitive.  Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect of them.  The health and safety of the public is the paramount consideration. 
[23]	Protecting the health and safety of the public includes addressing a risk of the same or similar conduct being perpetrated by the particular practitioner in the future.   That aspect of sanction is ubiquitously referred to as ‘specific deterrence’.
[24]	The Health Ombudsman properly concedes in this case that “there seems little need for specific deterrence” in the instant case.  That concession is based on MKY’s lack of previous disciplinary record, his co-operation with the investigative process, his admissions; completing an education programme on his own volition; and his attempts to secure a mentor.  As has been mentioned, MKY subsequently secured a mentor and attended nine monthly sessions.
[25]	Sanctions directed to protecting the health and safety of the public also have a broader purpose.  HO Act’s primary consideration also embraces upholding public confidence in the standards of the profession and maintaining that confidence can include, for example “… making it clear that certain conduct is not acceptable”. 
[26]	Denouncing misconduct “operates both as a deterrent to the individual concerned as well as the general body of practitioners.  It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice”.  The stature and integrity of the profession, built in turn on compliance with, and the enforcing of, the highest ethical and professional standards is integral to maintaining the public’s confidence in the profession. 
[27]	That complementary component of sanction is ubiquitously referred to as “general deterrence”.
[28]	Regard can be had to comparable cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in cases with comparable circumstances, and also as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.
[29]	Ultimately of course each case falls to be considered by reference to its own facts and circumstances posited within those broad principles.
Relevant Considerations
[30]	A decision as to an appropriate sanction in the present case, and in particular in respect of the issue upon which the parties are divided, occurs within a relevant factual context that is effectively uncontroversial.  Relevant considerations, some of which have already been referred to, include the following:
(a)	it is not suggested that MKY’s behaviour was predatory or exploitative;
(b)	the relationship was genuine and based on mutual affection and respect;
(c)	neither Ms D (nor MKY) suffered from any particular vulnerabilities — each was a mature adult;
(d)	the sexual relationship arose in the latter part of a 15-year therapeutic relationship during which no other conduct of that type occurred;
(e)	it is not suggested that any sexual behaviour, or behaviour that might be described as ‘sexual grooming’, occurred at any earlier time during the treatment;
(f)	no allegation of similar behaviour has been made or hinted at by any other patient during the more than 20 years MKY has been practicing;
(g)	MKY has no disciplinary history (save for a caution in 2020 due to the lapsing of his professional indemnity insurance which was accepted to be inadvertent);
(h)	MKY has been burdened by the prospect of these proceedings and their potential consequences for three years;
(i)	references from authors with full knowledge of the instant conduct refer to MKY’s good character and the high esteem in which he is held in the community;
(j)	MKY has exhibited insight and remorse and expressed shame for his behaviour;
(k)	it is not suggested MKY represents an ongoing risk of any similar behaviour to any patient;
(l)	MKY has implemented specific practices that address the potential for boundary violations, including the displaying of an information sheet for patients. He has subsequently undertaken mentoring at his own expense; and
(m)	a reprimand is not a trivial penalty, and it remains on the public register until removed.
Comparative Decisions
[31]	The Health Ombudsman submits:
… the decisions relied upon by [the Health Ombudsman] suggest that a practitioner’s registration is often suspended when a boundary violation involves an intimate relationship and the imposition of a fine is generally reserved for those circumstances where the boundary violation is fleeting or less intense in character …
[32]	The submission by counsel for MKY that no such general principle exists is accepted.  
[33]	First, comparative decisions are often an important and helpful guide to the appropriate sanction in the sense earlier referred to, but they establish, of themselves, no general principle; they guide the exercise of a discretion left ultimately to the Tribunal.  Secondly, the submissions by Mr Templeton on behalf of MKY that, of the decisions referred to by counsel for both parties, Health Ombudsman v Leinonen is the most comparable should each be accepted.
[34]	The following decisions are referred to in the submissions of both parties:  
(a)	Chiropractic Board of Australia v Allen;
(b)	Chiropractic Board of Australia v Dillon;
(c)	Health Care Complaints Commission v Ryken;
(d)	Trewren; and
(e)	Leinonen.
[35]	Ryken is not comparable with the present case.  It is much more serious circumstances include multiple boundary violations with multiple patients and denials and untrue statements having been made during the course of the investigation.
[36]	The relevant conduct in Trewen occurred in a broader context in which the practitioner prescribed medications not indicated by the patient’s condition and failed to keep adequate clinical records.  The practitioner had a significant disciplinary history and was a general medical practitioner with a knowledge of the patient’s vulnerabilities (anxiety and early depression).  The decision does not greatly assist the Tribunal in the instant circumstances.
[37]	The remorse and efforts at rehabilitation in Allen were significant and the degree to which the practitioner had himself suffered significantly as a result of his conduct was referred to as was the fact that he had sought professional help and education in respect of the conduct.  Referees spoke of the high regard in which he was held both professionally and personally and of his focus on the welfare of his patients.  They also expressed their confidence that he would not repeat the instant conduct.   He was suspended for one month.
[38]	In Dillon, the Tribunal issued a reprimand and imposed conditions upon registration relating to specific education in respect of boundary violations.  No suspension was ordered. The relationship in that case was short.  However, the relationship was with a patient who was also an employee of the practice.  The Tribunal found there were concerns about the practitioner’s veracity, the Tribunal remarking that he was an unimpressive and unconvincing witness.  The patient had vulnerabilities of which the practitioner was aware.  Features of that case render it more serious than the instant case while other aspects can be seen to be less serious.
[39]	The Tribunal agrees that the greatest assistance can be derived from Leinonen.  The relationship in that case was significantly longer than the instant case although it was said to be ‘on and off’.  The period of time over which the relationship continued and the fact that, by reason of its nature, the practitioner had opportunities to reflect on her behaviour were considered aggravating features.  Similarly to the instant case, there was no predatory behaviour; the patient had no particular vulnerabilities and there was no evidence the patient had suffered any harm.  There was also evidence of insight and remorse.  The submission that a three to six month suspension should be ordered was rejected.  A fine of $10,000 was imposed.
Conclusions as to Sanction
[40]	The Tribunal agrees that a reprimand (with its attendant registration consequences) is appropriate in the instant case.  It is not a trivial sanction and reflects the seriousness with which the conduct should be viewed.
[41]	Written submissions by both parties ahead of the hearing contemplated mentoring as a condition of MKY’s registration (although there was disagreement about the nature and extent of the same).  The Tribunal is of the view that the nine months of mentoring organised and undertaken by MKY in the period since is sufficient such that no further mentoring should be mandated.  MKY indicated a willingness to undertake a further three monthly sessions but the Tribunal is of the view that this is a matter that should be left to him without mandate by the Tribunal.
[42]	The Tribunal is not persuaded that a period of suspension is required to reflect general deterrence.  
[43]	Understandably, it is said that the publication in a newspaper circulating widely in the area where MKY practices, of itself sends a very significant deterrent message. That submission is accepted.  More broadly, the Tribunal also accepts that circulation of the action taken by the Health Ombudsman within the profession, particularly within the community where MKY practices, is also significant general deterrence.    
[44]	MKY has been practicing for about three years since the cessation of the conduct the subject of the Referral.  These proceedings have been hanging over MKY for the whole of that time.  It is accepted that has caused him stress.  
[45]	Taken together, those matters, and the matters earlier referred to, lead the Tribunal to the conclusion that no purpose reflective of protection of the public, including general deterrence, is served by a period of suspension.  
[46]	A sanction in addition to reprimand is however warranted to reflect the seriousness with which the conduct should be viewed.  The HO Act’s purposes are served by the imposition of a fine.
[47]	In the event that the Tribunal was minded to order a fine, neither the amount of $7,500 nor the period of six months to pay, was challenged by the Health Ombudsman.  The Tribunal considers a fine is an appropriate additional sanction and the amount and time to pay are both appropriate.
Non-publication order
[48]	An earlier mention of this matter before the Deputy President resulted in a story being published in the Courier Mail newspaper.  The story circulated in the region in which MKY practices.  The story’s headline is “Married chiropractor’s ‘inappropriate sexual relationship with patient’”.  That headline is false — MKY was not married at the time of the instant conduct and had, in fact, been divorced for some years.
[49]	A non-publication order is sought in respect of the patient and of course should be granted.  The article just referred to appears — shamefully, in the Tribunal’s opinion — with a picture of MKY’s family, including his children.  Whatever might be the ramifications for the instant conduct upon MKY’s family, if any, and how the family might deal with it, if at all, should occur privately and in the absence of any prurient interference.
[50]	The Tribunal considers that the non-publication order should extend to MKY and the members of his family.  Although not opposing any such order, it was said in argument that “that horse has bolted”.  That is of course true in respect of the initial publication, but there is good reason to think that MKY’s older children might be the subject of some notoriety in the near future with respect to their sporting prowess and this might excite some interest in following up the initial story.
[51]	Given what has already occurred, MKY’s children, and the broader family including the elder children’s siblings should be protected from any further publicity wholly unconnected with their own lives.  Protection of the public in respect of MKY himself is covered in this case by the addition of his name to the public register.
Orders
[52]	The Tribunal orders that:
1.	Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)	the contents of a document or other thing produced to or filed in the Tribunal;
(b)	evidence given before the Tribunal; and
(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:
(d)	the respondent;
(e)	any family member of the respondent;
(f)	any patient of the respondent; or
(g)	any family member of any patient of the respondent;
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 to fulfil its statutory functions under the Health Ombudsman Act 2013 (Qld).
2.	Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)	a judicial member;
(b)	a tribunal member;
(c)	an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d)	any assessor appointed to assist the Tribunal;
(e)	the staff of the Tribunal registry;
(f)	any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)	the parties to these proceedings or any appeal or review arising from these proceedings.
[53]	The Tribunal decides that:
1.	Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3.	Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent must pay a fine of $7,500.00 to the Office of the Health Ombudsman within six (6) months of the date of this decision.