Health Ombudsman v BBH - [2021] QCAT 197

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v BBH [2021] QCAT 197

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

BBH

(respondent)

APPLICATION NO/S:

OCR154-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Assisted by:
Dr J Cavanagh
Dr J Quinn
Ms A Blair

ORDERS:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is required to pay a fine of $15,000 to the applicant within a period of six (6) months.

4. Each party must bear their own costs of the proceedings.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner practising in psychotherapy – where the respondent engaged in a platonic relationship with a patient to whom she was providing psychotherapy – where the relationship, which lasted over 22 months, took place during and after the period of the treating relationship – where the parties are agreed as to characterisation of conduct and sanction – whether the respondent’s conduct should be characterised as professional misconduct – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), ss 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v Masamba [2019] QCAT 227
Health Ombudsman v Upadhyay [2020] QCAT 163
Legal Services Commissioner v McLeod [2020] QCAT 371
Medical Board of Australia v Martin [2013] QCAT 376
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

Psychology Board of Australia v Cameron [2015] QCAT 227

REPRESENTATION:

Applicant:

Office of the Health Ombudsman

Respondent:

Avant Law

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

Introduction

This is a referral of a health service complaint against BBH[1] (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
[1]The name of the respondent is anonymised in accordance with a non-publication order made by the Tribunal pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on 4 September 2020, the applicant filing material supporting the continuance of such order and the respondent not opposing its continuance.
The applicant alleges, in the Amended Application or Referral filed 12 March 2021, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 197
Decision Date

CaseChat Overview and Summary

This case involved a complaint against a medical practitioner, BBH, who engaged in a platonic relationship with a patient. The Health Ombudsman sought a finding of professional misconduct and appropriate sanctions. The Queensland Civil and Administrative Tribunal determined that the respondent's conduct constituted professional misconduct and ordered a reprimand and a fine of $15,000.

The legal issues for the Tribunal to decide were whether the respondent's conduct should be characterised as professional misconduct and, if so, what sanction should be imposed. The parties agreed that the conduct constituted professional misconduct and that a reprimand and fine were appropriate. The Tribunal accepted the parties' characterisation and sanction proposal. The Tribunal found that the respondent's conduct was a serious failure to maintain professional boundaries, which put the patient at risk of harm. While no actual harm occurred, the potential for harm was significant in the context of a psychotherapy treating relationship. The Tribunal accepted that a reprimand and fine would appropriately protect the public interest and maintain public confidence in the medical profession.

The Tribunal concluded that a reprimand was warranted as it would publicly denounce the respondent's conduct. A fine of $15,000 was also appropriate given the seriousness of the misconduct, especially considering the prolonged nature of the relationship and the respondent's initial attempts to mislead her employer. Both parties had the opportunity to be heard on the appropriate sanction and the Tribunal was satisfied that the agreed sanction was within the permissible range. The Tribunal ordered that each party bear their own costs.

Orders