Health Ombudsman v Brown
[2024] QCAT 424
•15 October 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Brown [2024] QCAT 424
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
EDWARD JOHN MURPHY BROWN (respondent)
APPLICATION NO/S:
OCR116-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
15 October 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Rinaudo AM
Assisted by:
Mr S Brown, Osteopath Panel Member
Dr L Marry, Osteopath Panel Member
Ms K Thomson, Public Panel MemberORDERS:
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 thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal;
(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 Patient A or the complainant, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the HO Act.
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 this proceeding 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) in respect of allegation 1, the Tribunal decides that 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 is to pay a fine of $10,000 to the Health Ombudsman within six months from the date of this order.
4. Each party must bear their own costs of the proceedings.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — OTHER HEALTH CARE PROFESSIONALS — where the respondent is an osteopath — where the respondent has engaged in a consensual sexual relationship with a patient during the treating relationship — whether the conduct constitutes professional misconduct — where a non-publication order is sought — whether the respondent has demonstrated any insight and remorse in respect of his offending — what is the appropriate sanction — professional misconduct — fine — reprimand
Health Ombudsman Act 2013 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Medical Board of Australia v Jansz [2011] VCAT 1026
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The respondent is 28 years of age, having been born on 28 July 1996. He obtained a Bachelor of Science and Master of Health Science (Osteopathy) from Victoria University in 2019. He was first registered as an osteopath on 30 January 2020 and is currently practising without any restrictions.
He was practising as an osteopath at Head 2 Toe Health from 2020 to the end of July 2021. Since approximately August 2021, he has been practising at his own practice, Edward Murphy Osteopathy. In respect of the allegations made against him, the Tribunal has received a statement of agreed facts and submissions on sanction. There is, therefore, no factual issue in dispute
On the 7 March 2022, the Office of the Health Ombudsman received a complaint about the conduct of the respondent, namely allegations of a sexual relationship with a patient during the treating relationship. For the present purposes, the complainant will be known as ‘Patient A’.
Particulars of the allegations are contained in the statement of agreed facts. But, in essence, on 15 September 2021, the respondent attended a birthday party for Patient A. On or about 15 September 2021, the respondent began a sexual relationship with Patient A. During the course of the relationship, the respondent continued to treat Patient A.
It is alleged and accepted that the respondent’s conduct and behaviour was in breach of the Code of conduct for registered health practitioners (‘Code of Conduct’),[1] in particular section 8.2 and the Sexual and professional boundaries: Guidelines for osteopaths (‘Guidelines’),[2] in particular sections 2, 3 and 4. It is accepted, and the Tribunal is satisfied, that pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’) the respondent has behaved in a way that constitutes professional misconduct.
[1]‘Code of conduct for registered health practitioners’ (March 2014) (‘Code of Conduct’).
[2]‘Sexual and professional boundaries: Guidelines for osteopaths’ (April 2013).
It is noted that disciplinary proceedings are protective rather than punitive in nature and, including other issues, involves:
(a)preventing practitioners who are unfit to practice from practising;
(b)securing maintenance of professional standards;
(c)bringing home to practitioners the seriousness of their conduct; and
(d)deterring other members of the profession who might be minded to act in a similar way.
It is noted that the primary principle for administering the HO Act is that the health and safety of the public are paramount.[3] As was noted in the decision of Medical Board of Australia v Jansz,[4] the purpose of disciplinary proceedings is to protect the public, and determinations should in no way be punitive.
[3]Health Ombudsman Act 2013 (Qld) s 4(1).
[4][2011] VCAT 1026.
It is submitted, and the Tribunal accepts, that the conduct the subject of the allegations is serious. It is clear that the respondent demonstrated a significant breach of professional boundaries and a lack of judgment, care, ethical and moral behaviour in the practice of his profession. The patient is vulnerable by virtue of the professional relationship and the nature of the osteopath/patient relationship. It is noted that the Code of Conduct provides that it is ‘an abuse of this power imbalance for an osteopath to enter into a sexual relationship with a patient’ and more importantly, the ‘existence of actual harm to the patient is not relevant to the consideration of whether the sexual behaviour is exploitative or abuse’.[5]
[5]Code of Conduct (n 1), p 3.
The Tribunal has considered whether the respondent has demonstrated any insight and remorse in respect of his offending. The Tribunal is satisfied that, having regard to the cooperation which the respondent has afforded the complainant and the acknowledgement of his wrongdoing, he shows remorse and insight.
The Tribunal is also required to consider the issue of deterrence. Clearly, any sanction imposed must be considered in the light of the protective jurisdiction and the maintenance of professional standards. This is in respect of both general and personal deterrence. In this case, the Tribunal is satisfied that the proposed sanction would have both a general deterrence and specific deterrence effect.
A number of authorities have been provided for the consideration of the Tribunal in respect of the sanction that is proposed. It is noted that the sanction of a fine of $10,000 is in range, having regard to the authorities that have been provided. As I said, in respect of the sanction, it is noted that the fine of $10,000 is, in the view of the Tribunal, an appropriate sum.
Further, it is noted that the respondent will be reprimanded. A reprimand is not a trivial penalty. It is recorded on the public register of conditions and can have serious adverse implications for a professional health provider; it is a serious and public form of censure. In this case, the Tribunal is satisfied that a reprimand is appropriate, having regard to the consensual nature of the relationship, Patient A and the respondent being aged between 22 and 25 respectively, and the respondent characterised his conduct as ‘young love’, which he acknowledged was a grave mistake.
It is noted that in the submissions the range of fines, having regard to the authorities that have been provided, is between $10,000 and $15,000. Accordingly, the Tribunal accepts that the fine is in range and appropriate in the circumstances. The Tribunal notes that a non-publication order has been sought in respect of Patient A and considers that it is appropriate in all the circumstances to make that order.
Order and decision
The Tribunal orders that:
Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act2009 (Qld), publication of:
(a)the contents of a document or thing filed in or produced to the Tribunal;
(b)evidence given before the Tribunal;
(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 Patient A or the complainant, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the HO Act.
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 this proceeding or any appeal or review arising from these proceedings.
The Tribunal decides that:
Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013 (Qld) in respect of allegation 1, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to section 107(3)(a) of the Health Ombudsman Act2013 (Qld), the respondent is reprimanded.
Pursuant to section 107(3)(c) of the Health Ombudsman Act2013 (Qld), the respondent is to pay a fine of $10,000 to the Health Ombudsman within six months from the date of this order.
Each party must bear their own costs of the proceedings.
Observations
The Tribunal makes the following observations:
(a)the Tribunal is concerned that the respondent may have breached Patient A’s confidentiality in respect of her sexually transmitted infection diagnosis; and
(b)the Tribunal notes from the material which has been provided that the respondent’s clinical notes appear to be inadequate due to repeated lack of diagnosis and poor assessment.
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