Health Ombudsman v Hand
[2025] QCAT 99
•5 February 2025 (decision) 23 May 2025 (reasons)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Health Ombudsman v Hand [2025] QCAT 99 PARTIES: HEALTH OMBUDSMAN
(applicant)v MATTHEW WILLIAM HAND
(respondent)APPLICATION NO: OCR164-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 5 February 2025 (decision)
23 May 2025 (reasons)HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Jones
Assisted by:
Mr M Halliday
Dr S Joeffry
Dr D WilmothORDERS: IT IS THE DECISION OF THE TRIBUNAL THAT:
1.
Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), in respect to the three allegations, the respondent has behaved in a way that constitutes professional misconduct;
2.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded;
3.
Pursuant to s 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of 12 months;
4.
Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action by the Health Ombudsman dated 19 August 2022 is set aside;
5.
Each party is to bear their own costs of the proceedings.
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 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 the patients of the respondent and persons as referenced, or any family member of the patients of the respondent and persons as referenced, 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 provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s 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.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISICPLINARY PROCEEDINGS – where the respondent is a registered psychologist – where the respondent engaged in a sexual relationship with person A shortly after the treatment relationship had ceased – where person A was vulnerable – where the respondent provided false and/or misleading information to various third parties about person B – where such representations were made in his capacity as person B’s psychologist in circumstances where a treating relationship never existed between the respondent and person B – where the respondent failed to maintain client confidentiality by disclosing confidential information to person B – where the parties reach an agreed position on characterisation and sanction – whether the Tribunal agrees the agreed position is appropriate in the circumstances
Health Ombudsman Act 2013 (Qld), s 8, s 62, s 107
Health Practitioner Regulation National Law
(Queensland)
Queensland Civil and Administrative Tribunal Act 2009, s
66Psychology Board of Australia v Meulblok (Review and
Regulation) [2020] VCAT 579APPEARANCES & This matter was heard and determined on the papers REPRESENTATION: pursuant to s 32 of the Queensland Civil and
Administrative Tribunal Act 2009 (Qld)REASONS FOR DECISION
[1] This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Matthew William Hand (‘respondent’). Save for one matter which will be addressed in a moment, the parties are in agreement about the relevant facts and the appropriate outcome. Accordingly, save for where required, it is unnecessary to overly dwell upon the facts, matters and circumstances leading up to this proceeding.
[2] At all material times, the respondent was and remains registered under the Health Practitioner Regulation National Law (Queensland) (‘National Law’) with the Psychology Board of Australia. He was first registered as a psychologist on 21 July 2005 and was and remains a health service provider within the meaning of s 8(a)(i) of the Health Ombudsman Act 2013 (Qld), being a health practitioner under the National Law.
[3] The referral of this matter contains three allegations against the respondent:
(a) that he breached professional boundaries by engaging in a personal and sexual relationship with person A; (b) that he provided false and/or misleading representations or information to third parties regarding person B; and (c) he had failed to maintain client confidentiality by disclosing information to person B without consent or legal obligation. [4] Particulars in respect of count 2 can be summarised as follows.
[5] Between September 2015 and January 2016, the respondent had a treating relationship with person A. During the treating relationship, person A consulted the respondent on four occasions between 3 September 2015 and 13 January 2016. It is not disputed that the respondent was aware that person A was, at the time, a vulnerable person.
[6] Following the end of the treating relationship, that is, shortly after 13 January 2016, the respondent asked person A to go with him on what is referred to as a “date”.
[7] They went on the said date towards the end of January 2016. A personal and sexual relationship developed two to three days following that. The respondent obviously knew that the relationship was wrong, and a somewhat aggravating feature was that, knowing that the relationship was wrong, he told person A to tell people that they had met in circumstances that did not involve a practitioner/patient relationship.
[8] That relationship was described as being an on-and-off one which lasted for a period of four and a-half to five and a-half years.
[9] In respect of count 2, the particulars could be summarised as follows. The respondent engaged person B as his personal trainer sometime in January 2018. Person B was 19 years old at the time, and at the time, the respondent was approximately 41 years of age. Person B at no material time had been a patient of the respondent, and accordingly, there was no treating relationship between the respondent and that person.
[10] The respondent continued to train with person B for approximately six months, during which time they developed a personal relationship. Again, it is not disputed that, at the relevant time, the respondent knew that person B was a vulnerable person, as they had spoken about her mental health issues, which included a history of eating disorders and other personal issues.
[11] Somewhat bizarrely, the respondent also made a number of representations to various third parties about person B designed to advance her interests.
[12] The third allegation can be summarised quickly. Some time between 2019 and 2020, the respondent had failed to maintain client confidentiality by disclosing information to person B, without consent or legal obligation to do so.
[13] As can be seen, at all material times, the respondent was between his early and mid- forties during the period of the relevant conduct. It should also be noted that, in respect of the second allegation, the respondent made the various representations purporting to be person B’s treating psychologist. That was never the case.
[14] In the Psychology Board of Australia v Meulblok (Review and Regulation),1 it was said:2
Tribunals across the jurisdictions have consistently recognised the serious departure from professional standards that occurs when a psychologist enters upon a dual relationship with a client to whom they are (or have recently been) providing therapeutic services, particularly where the relationship is romantic, sexual or intimate. Invariably, that conduct is found to be professional misconduct.
[15] Here, there is no dispute as between parties that the conduct on the part of the respondent constitutes professional misconduct.
[16] It should be stated that the parties have agreed that there are no factual issues in dispute and – save for one matter which will be addressed in a moment – are in agreement about the appropriate orders and sanctions that ought to be made.
1 [2020] VCAT 579.
2 At [36] (citations therein omitted).
Sanction and discussion
[17] In the submissions made on behalf of the respondent, it is said:
The respondent agrees with and adopts the applicant’s submissions filed 9 August 2024 as a joint submission to the Tribunal. The respondent wishes only to clarify or add the following, adopting the headings and terms defined in the applicant’s submissions for ease of reference.
[18] It then goes on to be submitted on behalf of the respondent as follows:
The Tribunal has no power to make any order as to how long the reprimand of the Respondent remains recorded on the public register, as it is a decision for the Board.
However, there is no prohibition on the Tribunal expressing a view on such matter[s], as it has done so on several occasions, provided it is clear that the ultimate determination of such matter remains solely a matter for the Board.
The Respondent seeks a recommendation from the Tribunal that the applicant seriously consider removing the recording of the reprimand after a period of two years. The reprimand remaining any longer would be unduly punitive, in all the circumstances, where:
(a) the conduct the subject of the proceedings occurred over three years ago now; (b) the respondent does not personally present a risk to the public health and safety; (c) there is clear evidence of insight and remorse; and (d) the respondent has taken significant rehabilitative steps.
[19] Those rehabilitative steps are set out in some detail in earlier material filed on behalf of the respondent. There is no need to particularise them here, other than to say that the steps referred to therein were significant and voluntarily taken on the part of the respondent. It should also be noted here that, in particular, there is no suggestion that the respondent still remains a risk in respect of his dealings with female patients.
[20] There are a number of cases that are referred to in the respondent’s submissions that are relied on in support of that recommendation. However, that such a recommendation be made is disputed by the applicant.
[21] In respect of the issue of the recommendation, even accepting the significant steps of rehabilitation voluntarily taken by the respondent, the offending nonetheless constitutes serious examples of professional misconduct, in particular, counts 1 and 2; as they involve two vulnerable young women.
[22] Count 1 is a particularly disturbing example, as it involved a sexual relationship that lasted, even on an off-and-on basis, for a period of four and a-half to five years. It also involved a degree of manipulation on the part of the respondent in respect of person A, in that he persuaded her to lie about the circumstances leading up to the relationship.
[23] It should, though, be noted that, and repeated, that at the time the personal and sexual relationship with person A started, the treating relationship had ended, and there is no suggestion of a treating relationship as between the respondent and person B.
[24] The cases advanced on behalf of the respondent have been considered. It would appear, in a number of those cases, that the delay in bringing the proceedings was a significant factor to be taken into account. It is the Tribunal’s view that no such delay exists in the circumstances of this matter. Given that there is no evidence of serious or significant delay in the bringing of these proceedings and having regard to the serious nature of the conduct, on balance, the Tribunal is not inclined to make the recommendation sought.
[25] It is, of course, at the end of the day, a matter for the Tribunal to determine the appropriate outcome of proceedings such as this. However, particularly in circumstances where both sides of the matter are legally represented, that there is such agreement is a significant factor to be taken into account, and, at the end of the day, the Tribunal is in agreement that the conduct of the respondent is such as to warrant the orders that have been agreed to.
[26] On 21 November 2023, her Honour Judge Dann, made orders to the following effect:
Until further order, pursuant to section 66(1)(a) of the Queensland Civil and
Administrative Tribunal Act 2009, publication of:
(a) the contents of a document or thing filed in or produced to 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 the patients of the respondent, or any family member of the patients of the respondent, save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).
Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
[27] The Tribunal orders that this non-publication order be made on a permanent basis.
[28] Accordingly, the findings and consented orders of the Tribunal are as follows:
1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), in respect to the three allegations, the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded;
3. Pursuant to s 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of 12 months;
4. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action by the Health Ombudsman dated 19 August 2022 is set aside;
5. Each party is to bear their own costs of the proceedings.
Powered by TCPDF (
0
0
0