QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Medical Board of Australia v DEL [2019] QCAT 63	
PARTIES:	MEDICAL BOARD OF AUSTRALIA
(applicant)	
	v 	
	DEL
(respondent)	
APPLICATION NO:	OCR079-17	
MATTER TYPE:	Occupational regulation matter	
DELIVERED ON:	27 March 2019	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Judge Allen QC, Deputy President
Assisted by:
Dr E Chew
Dr H Moudgil
Mr K MacDougall
	
ORDERS:	1.	Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law Act 2009, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law Act 2009, the respondent is reprimanded.
3.	Pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law Act 2009, the respondent’s registration is suspended for a period of six months commencing one month after the date of this decision.
4.	Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law Act 2009, the Tribunal imposes conditions on the respondent’s registration in the terms of the Schedule of Conditions annexed to these reasons.
5.	The respondent pay the applicant’s costs of the proceeding as agreed or assessed on the District Court scale.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent is a general practitioner – where the respondent engaged in a sexual relationship with a patient under her care – where the respondent made derogatory and belittling remarks to the patient when the patient ended the relationship – where the respondent knew the patient suffered with depression and anxiety – where there has been a lengthy delay between the conduct and the disciplinary proceedings that is not attributable to the respondent – where the respondent made full and frank admissions at the earliest opportunity – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate 

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – NON-PUBLICATION ORDERS – where the respondent applies for a non-publication order requiring that the reasons of the Tribunal be anonymised to restrict publication of the respondent’s identity – where the respondent submits that such order is necessary to prevent any negative impact upon the respondent’s mental health as a consequence of the publication of her identity – whether the non-publication order is appropriate

Health Practitioner Regulation National Law Act 2009, s 5, s 193, s 193B, s 196
Queensland Civil and Administrative Tribunal Act 2009, s 66, s 100, s 102

John Fairfax Group Pty Ltd v Local Court of New South Wales [1991] 26 NSWLR 131
J v L&A Services Pty Ltd (No.2) [1995] 2 Qd R 10
Legal Services Commissioner v XBY [2016] QCAT 102 Legal Services Commissioner v XBV [2018] QCAT 332
LSC v XBV [2018] QCAT 332
Medical Board of Australia v Martin [2013] QCAT 376
Medical Board of Australia v Leggett [2015] QCAT 240 
Medical Board of Australia v Jones [2012] QCAT 362
Naidu v Medical Board of Australia [2016] NTSC 8
Psychology Board of Australia v Cooke [2014] QCAT 162
Psychology Board of Australia v IVX [2016] VCAT 35
Psychology Board of Australia v Wakelin [2014] QCAT 516 
Medical Board of Australia v Waldron [2017] QCAT 443	
APPEARANCES:		
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
[1]	The applicant has referred this matter to the Tribunal pursuant to s 193B(2) of the Health Practitioner Regulation National Law Act 2009 (“National Law”) having, pursuant to s 193(1)(a)(i) of the National Law, formed a reasonable belief that the respondent has behaved in a way that constitutes professional misconduct.  The matter has proceeded by way of an agreed statement of facts and joint submissions of the parties.  There are no matters in dispute between the parties who are in agreement as to the facts of the matter, the characterisation of the respondent’s conduct as professional misconduct and proposed orders by way of sanction and for costs.
[2]	The respondent is an experienced general practitioner.  This matter concerns the respondent engaging in a sexual relationship with the patient from mid-February 2011 until 5 July 2011.  This period of time overlapped the period of the doctor/patient relationship which commenced in mid-September 2009 and ceased in mid-April 2011.
[3]	During these periods of time the respondent worked part-time at a Brisbane suburban medical centre.  During the doctor/patient relationship the patient attended upon the respondent for various medical reasons including depression, anxiety and difficulty sleeping.  The respondent prescribed the patient medication for his depression and anxiety and referred him to a psychiatrist for management of his depression and anxiety.  In mid-February 2011, the respondent referred the patient for a screening endoscopy/colonoscopy.
[4]	In mid-February 2011, the patient saw the respondent, privately and outside the medical practice, to seek her support for an education project relating to his experience of depression.  At around this time the respondent and the patient commenced a personal and sexual relationship.  During the relationship, the respondent and the patient engaged in sexual intercourse and sexual intimacy on several occasions and maintained a personal relationship, such as having dinner together and contacting each other via telephone and text message.
[5]	Once the personal and sexual relationship commenced there was no entry in the medical records indicating that the respondent had referred the patient to another general practitioner.  On 2 April 2011, there was a surgery consultation recorded for a reminder regarding blood tests.  The respondent consulted with and treated the patient on 16 April 2011.  On this occasion the respondent noted that the patient was “well” and provided the patient with a prescription for medication and reminded him that he needed to undergo a colonoscopy.  The respondent accepts that when the patient attended on 16 April 2011 for a consultation and it thus became apparent that he had booked an appointment with her she should have asked him to return on another day when he could be seen by another doctor.  On 28 May 2011, the respondent sent a further referral letter referring the patient for an endoscopy/colonoscopy.
[6]	The patient terminated the relationship between him and the respondent on 5 July 2011.  Following the termination of the relationship, the respondent continued to contact the patient by text message and phone calls.  In the course of contacting the patient by text messages, the respondent made derogatory and belittling remarks about the patient, including remarks that referred to his health, including his drinking, and that he was impotent and unable to sexually satisfy her.  The respondent admits that she knew, or ought to have known, that contacting the patient would or could aggravate and/or cause distress to him, a person who she knew suffered from depression and anxiety.  Mobile phone records show numerous text message and phone call communications between the respondent and the patient from July to October 2011, decreasing in frequency over that period of time.
[7]	It was not until three years after the cessation of contact between the respondent and the patient that the patient contacted the Office of the Health Ombudsman and lodged a complaint about the respondent.
[8]	On 28 November 2014, in response to a letter from the Office of the Health Ombudsman indicating that the Ombudsman was considering taking immediate action, the legal representative for the respondent provided a response to the complaint in which she made full and frank admissions.  The Health Ombudsman did not take immediate action but on 23 December 2014 issued a notice of decision to refer the matter to the Australian Health Practitioners Regulation Agency (“APHRA”).  On 16 January 2015, APHRA issued a notice that it would be investigating the matter.   On 13 October 2016, APHRA notified the respondent of the applicant’s decision to refer the matter to QCAT.  On 28 April 2017, the applicant filed disciplinary proceedings in QCAT.  
[9]	The respondent has not engaged in similar conduct prior, or subsequent, to the conduct which constitutes this matter.  At no stage has the Office of the Health Ombudsman or the applicant imposed any conditions on the respondent’s registration.
[10]	The applicant and the respondent jointly submit that the respondent has engaged in professional misconduct in that she:
(a)	commenced, engaged in and maintained a personal and sexual relationship with the patient, whilst she continued to provide medical care to him; and
(b)	communicated with the patient, after he terminated the relationship, by text messages in circumstances where the respondent knew, or ought to have known, that contacting the patient would or could aggravate and/or distress him, a person who she knew suffered from mental health issues such as depression and anxiety.
[11]	The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct in that she has engaged in unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. 
[12]	The applicant does not allege that the patient’s medical conditions were, in fact, adversely impacted by the respondent’s conduct.  Nevertheless, the respondent’s misconduct is serious because such conduct has the potential for it to have adverse effects on such a patient.  Furthermore, the boundary violation constituted by engaging in a sexual and personal relationship with a patient was aggravated by the respondent sending the patient belittling and derogatory text messages.  Such conduct is disgraceful and deserves the Tribunal’s denunciation.
[13]	There are some mitigating factors:
(a)	the respondent has not engaged in such conduct at any other times;
(b)	it has been some seven years since the misconduct and it is not submitted that such delay is attributable to any fault of the respondent;
(c)	the respondent’s conduct could not properly be described as predatory;
(d)	the respondent’s judgment at the time of the misconduct was compromised due to her own vulnerabilities;
(e)	she has demonstrated insight into her own vulnerabilities and there is little risk of recidivism; and
(f)	the respondent made full and frank admissions at an early stage of the investigation of the matter and co-operated in the conduct of proceedings before the Tribunal.
[14]	The parties have referred to and compared and contrasted the following comparable decisions:
(a)	Psychology Board of Australia v Cooke [2014] QCAT 162;
(b)	Medical Board of Australia v Jones [2012] QCAT 362;
(c)	Naidu v Medical Board of Australia [2016] NTSC 8;
(d)	Psychology Board of Australia v IVX [2016] VCAT 35;
(e)	Medical Board of Australia v Leggett [2015] QCAT 240; and
(f)	Psychology Board of Australia v Wakelin [2014] QCAT 516.
[15]	The parties jointly submit that a suspension of practice of six months would constitute an appropriate sanction.  The parties jointly submit that it would be appropriate for the Tribunal to order that:
(a)	the respondent be reprimanded;
(b)	the respondent’s registration be suspended for a period of six months; and
(c)	education and mentoring conditions be imposed on the respondent’s registration.
[16]	The Tribunal ought not to depart from the proposed sanction agreed between the parties unless it falls outside a permissible range of sanction for the conduct, whilst bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.  The terms of the sanction proposed by the parties’ falls within a permissible range of sanction for the misconduct and accordingly the Tribunal will accede to the submissions of the parties as to appropriate orders of sanction.
[17]	The parties jointly submit that it would be appropriate for the Tribunal to order that the suspension start one month after the date of the decision, to enable the respondent to put in place appropriate locum cover or to otherwise ensure continuity of care for her patients.  The Tribunal agrees that that is an appropriate course for the Tribunal to take.
[18]	On 26 May 2017, an order was made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) prohibiting the publication of material that could identify any patient or any family member of any patient.  That order will continue.
[19]	Also on 26 May 2017, an order was made pursuant to s 66(1) of the QCAT Act prohibiting the publication of:
(a)	the contents of a document or thing filed in or produced to the Tribunal, or order made or reasons given by the Tribunal; and
(b)	evidence given before the Tribunal;
(c)	to the extent that it could identify the respondent, save as is necessary for the parties to engage in and progress the proceedings.
[20]	The parties were subsequently directed to file submissions in support of the continuance of such non-publication order.  On 9 June 2017, the respondent filed submissions seeking continuation of the interim order protecting the respondent, relying upon a report of the respondent’s treating psychiatrist dated 5 June 2017.  On 22 June 2017, the parties were advised that the non-publication order protecting the respondent would continue.
[21]	Upon the final hearing of the matter and given the time that had elapsed since the report of the respondent’s treating psychiatrist dated 5 June 2017, the Tribunal sought further submissions as to whether or not the non-publication order protecting the respondent should continue.  Both parties have submitted that the non-publication order should continue.  
[22]	The respondent relies upon a further report of the respondent’s treating psychiatrist dated 18 February 2019, and submits that on the basis of such evidence the Tribunal would consider it necessary to make a non-publication order in order to avoid endangering the mental health of the respondent. 
[23]	The respondent’s treating psychiatrist reports that she has treated the respondent since 15 April 2016, and opines that the respondent has a major mood disorder being either a form of bipolar affective disorder (manic depression) or recurrent major depressive disorder and is currently prescribed an anti-depressant and a mood stabiliser.  The respondent’s treating psychiatrist states as follows:
“(The respondent’s) mood disorder has been difficult to manage pharmacologically.  She has had trials of several antidepressants and mood stabilisers.  Her remission is only partial on the current medication regime, and she is at constant risk of relapse.
She has been shown to have severe relapse under the impact of external stressors, i.e. when I first saw her, she was severely depressed with strong suicidal thinking, under the impact of the medico-legal issues she was facing.
Because medication achieves only partial remission, and because her mood disorder is reactive to external stressors, I believe that she would be of significant risk of a relapse if she were to be subjected to the major stress of publicity in the media.”
[24]	Section 66 of the QCAT Act provides as follows:
“(1) 	The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order— 
(a) the contents of a document or other thing produced to the tribunal; 
(b) evidence given before the tribunal; 
(c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
(2) 	The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— 
(a) to avoid interfering with the proper administration of justice; or 
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or 
(e) for any other reason in the interests of justice. 
(3) 	The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative. (4) The tribunal’s power to act under subsection (1) is exercisable only by— 
(a) the tribunal as constituted for the proceeding; or 
(b) if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.”
[25]	In LSC v XBV [2018] QCAT 332, Peter Lyons QC stated: 
“[26] Section 66 should be read with section 90 of the same Act.  That section commences by identifying, as the primary rule, a requirement that a hearing of a proceeding be held in public.  It then provides that the Tribunal may direct a hearing or part of a hearing be held in private, but only in circumstances similar to those specified in section 66, including where the Tribunal considers it necessary to make the order to avoid endangering the physical or mental health or safety of a person.  As will become apparent, both sections give the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.”
[26]	The exercise of the discretion pursuant to s 66(1) of the Act is informed by the paramount principle of open justice:
“Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.”
“… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’…”
“… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light.  Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms.”
[27]	Section 66(2) of the QCAT Act provides for the circumstances in which a non-publication order may be made.  The Tribunal may make an order “only if the Tribunal considers the order is necessary” to avoid one of the specified consequences or “is necessary… for any other reason in the interest of justice”.  The onus lies upon the party seeking the non-publication order to satisfy the Tribunal of its necessity.
[28]	In Medical Board of Australia v Waldron [2017] QCAT 443 at [81]-[82], Sheridan DCJ observed:
“The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary.  The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.
The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.”  The onus is on the applicant to show special circumstances exist which justify the making of the order.”
[29]	Examples of cases where the Tribunal has made similar non-publication orders because of psychiatric opinion that publication would negatively impact upon a practitioner’s mental health include Legal Services Commissioner v XBY [2016] QCAT 102 and Legal Services Commissioner v XBV [2018] QCAT 332.
[30]	The Tribunal is satisfied that the non-publication order contended for by both parties is necessary to avoid endangering the mental health of the respondent and that a pre-condition for the exercise of the discretion to make an order exists.  In choosing to exercise such discretion to make the order sought, the Tribunal takes into account:
(a)	the risk to the mental health of the respondent if the order is not made;
(b)	the length of time that has elapsed since the misconduct including the lengthy period of time that has elapsed since the commencement of the investigation into the respondent’s conduct, none of which delay is submitted to be the fault of the respondent; and
(c)	the fact that the applicant does not oppose but indeed positively supports the making of the order.
[31]	The non-publication order in relation to the respondent made on 26 May 2017 will continue and these reasons will accordingly be anonymised.
[32]	The applicant and the respondent jointly agree and jointly submit that the respondent should pay the applicant’s costs of the proceeding as agreed or assessed on the District Court scale.  The applicant points to its statutory obligation to refer the matter to the Tribunal and its sole source of funding by registration fees paid by its registrants. Given the agreement and joint submissions of the parties, the Tribunal is satisfied that the interests of justice require a departure from the general rule that each party to a proceeding should bear the party’s own costs for the proceeding. 
[33]	Accordingly, the Tribunal orders that:
1.	Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law Act 2009, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law Act 2009, the respondent is reprimanded.
3.	Pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law Act 2009, the respondent’s registration is suspended for a period of six months commencing one month after the date of this decision.
4.	Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law Act 2009, the Tribunal imposes conditions on the respondent’s registration in the terms of the Schedule of Conditions annexed to these reasons.
5.	The respondent pay the applicant’s costs of the proceeding as agreed or assessed on the District Court scale.

Schedule of Conditions
Undertake education
[1]	The Practitioner must undertake and successfully complete a program of education, approved by the Medical Board of Australia and including a reflective practice report, in relation to:
(a)	boundary violations and a registered health practitioner’s obligation to self-notify under the National Law; and
(b)	appropriate use of a patient’s medical information.
[2]	Within 28 days of the commencement of these conditions, the Practitioner must, on the approved form (HPN11):
(a)	nominate a person(s) to be approved by the Board to act as educator; and
(b)	provide acknowledgement that AHPRA will obtain a report from the approved educator the conclusion of the education. 
[3]	The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and include an education plan outlining the form the education will take and how the topics of the education will be addressed.
[4]	The education must consist of a minimum number of 8 hours.
[5]	The Practitioner must complete the education within 6 months of the notice of the Board’s approval of the education.
[6]	Within 28 days of the completion of the education, the Practitioner is to provide: 
(a)	evidence of successful completion of the education. 
(b)	A report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition requiring they undertake education and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner’s practice. 
Attend for mentoring
[7]	The Practitioner must be mentored by another registered health practitioner in relation to:
(a)	boundary violations; and
(b)	incorporating the lessons learnt in the education into the Practitioner’s practice.
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. 
[8]	The mentoring must comprise a minimum of 12 sessions with each session being of at lest 1 hour in duration. The mentoring must be for a minimum of 12 months. 
[9]	Within 28 days of the commencement of these conditions, the practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board/AHPRA to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgment, on the approved form (HPNA16), from the nominated person. 
[10]	Within 28 days of the commencement 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:
(a)	every 3 months;
(b)	at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
(c)	whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance; and
(d)	when otherwise requested by AHPRA or the Board. 
[11]	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. 
[12]	Within 28 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practise. 
Other requirements
[13]	Within 21 days’ notice of the commencement of these conditions the Practitioner must provide to AHPRA, on the approved from (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, 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, and the Practitioner will be required to provide the same form:
(a)	within seven days of the commencement of practice at each and every subsequent place of practice; and
(b)	within seven days of each and every notice of any subsequent alteration of these conditions.
[14]	All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense. 
Review of conditions
[15]	Subdivision 2, Division 11, Part 7 of the National Law applies to these conditions.
[16]	Pursuant to s 196(3) of the National Law and for the purposes of Subdivision 2, Division 11, Part 7 of the National Law, the relevant review period for the conditions is 18 months.