Health Ombudsman v JRM

[2025] QCAT 410

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v JRM [2025] QCAT 410

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

JRM

(respondent)

APPLICATION NO/S:

OCR156-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 November 2025

HEARING DATE:

24 October 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Mrs L Jeffery
Mr P Murdoch
Ms C Sharpe

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 107(2)(b)(ii) of the HO Act, the respondent has behaved in a way that constitutes unprofessional conduct.

2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3.     Each party is to bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where the respondent is a registered physiotherapist – where the respondent engaged in a personal relationship with one of his patients – where the relationship was pursued by the patient and the respondent rebuffed her initial advances –where the respondent submitted the Tribunal was bound to make findings on the evidence contained in the statement of agreed facts – where the respondent submitted he had no case to answer on the basis the professional relationship had ended – where there was no power imbalance between the patient and respondent – where the patient was in no way vulnerable – whether the respondent’s conduct constitutes unprofessional conduct or professional misconduct

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw [1938] HCA 34

Medical Board of Australia v BJA [2025] QCAT 152

APPEARANCES & REPRESENTATION:
Applicant:	M Price, Principal Lawyer of the Office of the Health Ombudsman
Respondent:	J Liddle instructed by Lander & Rogers

REASONS FOR DECISION

1. This proceeding is concerned with a referral bought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against JRM (‘respondent’).

2. It is uncontroversial that the relevant standard of proof required in matters such as this is that as enunciated in Briginshaw v Briginshaw [1938] HCA 34. Namely, the more serious the allegation, the more substantial or probative evidence is required to prove the allegation on the balance of probabilities. For reasons that will become apparent, it is also relevant to bear in mind section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), which provides, relevantly: 

   (1)     In conducting a proceeding, the tribunal -

   (a)must observe the rules of natural justice; and

   (b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and

   (c)may inform itself in any way it considers appropriate; …

Agreed Facts

1. By reference to the Statement of Agreed Facts (‘Agreed Facts’),[1] the following matters have been agreed.  At all material times, the respondent was:

   (a)a physiotherapist registered with the Physiotherapy Board of Australia (‘Board’);

   (b)approximately 52 years of age; and

   (c)employed at a practice at a location in South East Queensland.

   [1]Filed in the Tribunal 23 January 2025 (‘Agreed Facts’).

2. The respondent completed a Bachelor of Physiotherapy at the University of Queensland. 

3. On 8 September 2022, the Office of the Health Ombudsman received a complaint from the husband of one of the respondent’s patients, who alleged a sexual relationship between the respondent and that patient (who will be referred to as ‘Patient A’).  Investigations were carried out and, on 26 June 2024, the matter was referred to the Tribunal.

4. On 7 September 2020, Patient A commenced treatment at the practice, primarily for her neck and shoulders, and reported weekly migraines.  Overall, Patient A attended the practice and was treated by the respondent for twenty sessions between 7 September 2020 and 6 April 2022.  From approximately late February 2022 to 11 March 2022, the respondent and Patient A had exchanged some emails concerning cryptocurrencies.  Those emails are irrelevant.

5. On Friday 11 March 2022, during Patient A’s penultimate treatment session, she attempted to kiss the respondent.  The respondent rejected her advances.  Following that appointment, Patient A and the respondent arranged to meet at a local public lookout, which occurred on a date before her final appointment with the respondent on 6 April 2022.  They talked about various topics and discussed her not seeing the respondent as his patient. 

6. In a period ending on or about 10 May 2022, the respondent and Patient A had sexual intercourse at:

   (a)the lookout on one or two occasions;

   (b)the respondent’s practice on one or two occasions when the practice was closed; and

   (c)a local hotel on 23 April 2022.

7. Patient A and the respondent also exchanged sexualised messages between 21 April 2022 and 10 May 2022, including:

   (a)referring to each other as ‘my love’, ‘lover’ and ‘sexy’;

   (b)discussing and describing their sexual desires for each other and anticipated sexual activity; and

   (c)the respondent sending forty-two text messages and making eleven voice calls to Patient A’s mobile phone which were of a personal nature.

8. It is finally said in the Agreed Facts that the sexual relationship between the respondent and Patient A ended on or about 10 May 2022, after Patient A’s husband found the email communications between them.

The hearing before the Tribunal

1. As a consequence of the alleged conduct between the respondent and Patient A, the applicant sought the following relief:[2]

   (a)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;

   (b)pursuant to s 107(3)(a) of the HO Act, the respondent be reprimanded; and

   (c)each party must bear their own costs of the proceedings.

   [2]Applicant’s submissions, filed in the Tribunal 9 June 2025, [3] (‘Applicant’s submissions’).

2. A central issue was the timing and nature of the relationship between the respondent and Patient A after the professional relationship ended.  In paragraph [1.8] of the referral, it was alleged as follows:

   Between on or about 12 March 2022 and on or about 10 May 2022:

   (a)      the respondent and Patient A had sexual intercourse at a Lookout [location not disclosed] on 2-3 occasions, the first occasion being on or about 19 March 2022, the other 1-2 occasions on dates unknown;

   (b)      the respondent and Patient A had sexual intercourse at the respondent’s consulting rooms on 1-2 occasions (on dates unknown);

   (c)      the respondent and Patient A had sexual intercourse at [hotel name not disclosed], Bundaberg on 23 April 2022;

   (d)      the respondent and Patient A exchanged sexualised text messages between 21 April 2022 and 10 May 2022. 

3. By way of response, the respondent replied as follows:

   As to the particulars in paragraph 1.8, the respondent:

   (a)      admits that he and Patient A had sexual intercourse on two occasions at a lookout near [location not disclosed] but does not admit that the first occasion was on 19 March 2022, because the respondent believes it occurred on a later date;

   (b)      admits the particulars in paragraph 1.8(b), (c) and (d); but

   (c)      does not admit that the sexual relationship commenced on 12 March 2022 as alleged.

4. The timing of the first intimate encounter led to the somewhat ambiguous statements contained in the Agreed Facts.  It would also seem to explain the somewhat flexible submissions made on behalf of the respondent, where it was said that:[3]

   [3]Respondent’s submissions, filed in the Tribunal 23 June 2025, 1 [2]-[4], 6-7 [34]-[37].

   There is no factual dispute between the parties.

   The real issue for the Tribunal to determine is whether the conduct was below professional standards and thereby constituted unprofessional conduct or (if substantially below professional standards) professional misconduct. 

   [The respondent’s] own view, expressed in his affidavit, is that the conduct is below the standards he sets for himself as a physiotherapist.  He regrets the relationship with [Patient A].

   …

   If the Tribunal accepts that [the respondent] has a case to answer (that is, the relationship with [Patient A] was below professional standards), the reprimand sought by the Ombudsman may be ordered and is not opposed. 

   A reprimand is not a trivial sanction.  It will remain on the register of practitioners maintained by AHPRA until [the Board] decides it is no longer necessary for it to remain there.  This will serve as a constant reminder to [the respondent] of this matter and will undoubtedly be a source of shame and embarrassment for him.

   Given the ending of the treating relationship, the fact that [Patient A] initially pursued the relationship with [the respondent] initially rebuffing her advances, and the fact that [Patient A] is a mature and educated woman with no apparent power imbalance vis-à-vis [the respondent], it is respectfully submitted that, on any view, the conduct sits at the low end of boundary violations involving a sexual relationship with a former patient.

   The order for a reprimand would therefore be a sufficient and appropriate sanction in all the circumstances.  Given the agreement of the parties to that extent, the Tribunal would not lightly depart from that order, if satisfied that the conduct is unprofessional conduct or professional misconduct. 

   (Emphasis added)

5. The uncertainty surrounding the timing of the events was addressed in the applicant’s written submissions as follows:

   The matter proceeds on the basis of an agreed set of facts, summarised as follows:

   (a)      the respondent provided physiotherapy treatment to Patient A in relation to headaches, migraines, neck tension, muscle tightness and tenderness over the course of approximately 20 sessions between 7 September 2020 and 6 April 2022;

   (b)      some emails in relation to non-therapeutic matters (crypto currencies) were exchanged between them in February and March 2022;

   (c)      at their penultimate treatment session on 11 March 2022, Patient A attempted to kiss the respondent, an advance which was rebuffed by the respondent;

   (d)      following this session, and prior to the final treatment session on 6 April 2022, the respondent and Patient A met at a local lookout;

   (e)      following this meeting, the respondent engaged in a personal and sexual relationship with Patient A which involved the exchange of sexualised messages and sexual intercourse at the respondent’s practice (when it was closed), at the lookout and in a hotel;

   (f)      the personal and sexual relationship between the respondent and Patient A ended on 10 May 2022, when Patient A’s husband found emails between them. 

6. It was submitted by Mr Liddle of counsel, who appeared for the respondent, that the Tribunal was bound to determine this matter based only on the matters set out in the Agreed Facts. It is the Tribunal’s view that, pursuant to s 28 of the QCAT Act, it is open for the Tribunal to address ambiguities and/or deficiencies in the Agreed Facts, especially when probative evidence exists which would assist in doing so. That of course does not mean that it is open to the Tribunal to proceed on a basis that is inconsistent with or contradicts the Agreed Facts.

7. Before proceeding further, a number of observations can be made in favour of the respondent.  First, he has no prior disciplinary record.  Second, he has clear insight as to the nature of his conduct and is deeply remorseful and ashamed about it.  It is also apparent that at the time he was under considerable levels of stress, both in respect of his professional commitments and, perhaps even more so, the stress he was under in respect of his domestic situation at the time.  Having regard to the character references submitted on his behalf, it is also clear that he is highly regarded by others in respect of each of his personal and professional capacities.  It is also tolerably clear the respondent’s conduct could be described as being truly out of character.

8. It should also be observed that there is no suggestion that Patient A was in any way a vulnerable person.  She was a well-educated mature woman.  Also, it was she who initiated the first attempt of intimacy which the respondent rejected.  It is noted that in her second record of interview, Patient A expressly rejected the proposition of there being any power imbalance between her and the respondent.  It is also clear from the record of interview that Patient A had become physically attracted to the respondent and began to flirt with him in a not too subtle manner, which the respondent did not respond to.  When being asked about her attempt at trying to kiss the respondent, she described his reaction as being one of mortification.

9. On balance, it would not be unfair to describe the development of the relationship as follows.  At a time when the respondent was himself a somewhat vulnerable person, Patient A initiated an overtly aggressive flirtatious course of conduct designed to seduce the respondent.  This included not only attempting to kiss him, but also deliberately arranging to ensure that she was the respondent’s last patient on any particular day of attendance.  In this regard, during her first record of interview on 19 April 2023, Patient A said as follows:[4]

   I really didn’t set out to get anyone suspended or have them lose their job, and I, you know, wish that I hadn’t pursued things from that perspective.  I definitely feel responsible, because of how much I pushed it and how much, you know – not go back – you know, how much – not restriction (sic), but, you know, how – how much – how many times I was knocked back.

   [4]Hearing Brief, filed in the Tribunal 10 July 2025, 132 (‘HB’).

10. And then later:[5]

    And, the reason why I think that is because it – mainly because it happened – like, yes, we met at his workplace, but people can meet anywhere.  And, I’m the one who – because I’m the one who instigated things.  Yeah.  I don’t know.  I just feel like it’s very unfair.  And, yeah, definitely because it was outside of work.  I don’t know.  Never mind.  I’ll be quiet.

    [5]Ibid.

11. It is also clear that the relationship between Patient A and the respondent did not involve any grooming or predatory conduct on his part.  Quite the contrary, it was Patient A who pursued the respondent with the definite intention of trying to create an intimate relationship.  In this regard, Patient A went so far as to say, after referencing the attempt to kiss the respondent, that she had nothing to lose because if the respondent terminated the professional relationship, she would simply have to find another physiotherapist to treat her. 

12. In a second record of interview 13 October 2023, Patient A was asked a series of slanted questions clearly designed to paint the respondent in the worst possible light.  Indeed, it was suggested to Patient A that, without any basis whatsoever, the respondent might have been working his way to an ‘end game’.[6]  The clear suggestion being that it was the respondent trying to initiate a personal and sexual relationship.  This was rejected out of hand by Patient A, who replied:[7]

    I don’t think he had an endgame.  No, I think that I was very adamant and forceful, if anything, and I feel like no, I don’t think that he had an end game.  I think he just would have been taken back by the change in me after things were fine for so long, I suppose, like professional and normal, and then I changed.  But not, it definitely didn’t seem that he had an end game.

    [6]Ibid 151-152.

    [7]Ibid 152.

13. In turning to the conduct of the respondent towards Patient A, the Tribunal is of the view that, as stated above at [6], the initial correspondence concerning bitcoin is of no relevance.  It is sufficiently clear that the penultimate appointment between Patient A and the respondent was on 11 March 2022.  The subsequent appointment on 6 April 2022 does not appear to have any particular relevance or significance to the outcome of this matter, as it was agreed between the parties that it only occurred because the other physiotherapist who was to take over Patient A’s treatment was not available on that date and she needed treatment. 

14. The Agreed Facts leave open when the first act of intimacy occurred between Patient A and the respondent.  That act of intimacy did not involve sexual intercourse but did involve cuddling and what Patient A described as ‘passionate kissing’.[8]  It should also be observed that Patient A readily accepted that the kissing and cuddling occurred as a result of her initiative.

    [8]Ibid 157.

15. According to Mr Liddle, the Tribunal is not in a position to make any probative finding concerning when that initial act of intimacy occurred.  During her second record of interview, Patient A, on a number of occasions in response to questions, said that her best guess was that it occurred on 12 March 2022. 

16. It was submitted on behalf of the respondent that little regard could be had to the record of interviews for a number of reasons.  First, the Agreed Facts did not repeat in any material way the actual allegations concerning dates made in the initial referral by the Board.  That can be accepted.  It followed that the respondent, quite rightly, was not then required to call evidence as to when the initial act of intimacy might have occurred, it was at all times for the applicant to establish when those dates might have been.

17. The second matter was that both the first and second record of interviews occurred significantly after the alleged events.  In this regard, in pointing out the potential or inherent unreliability of the answers of Patient A in her second record of interview, particular emphasis was placed on the questions and answers that occurred at pages 6 and 7 of that interview.[9]  The Tribunal does not see the answers to the questions as being particularly indicative of a poor memory in respect of the real issues in this matter.  Her ambiguity there was concerned with emails, what was said in the emails and in respect of appointment dates.  In this regard, the following exchange occurred:[10]

    [9]Ibid 140-141.

    [10]Ibid 141.

    Question: Okay, so that was the first email communications that you had, and you previously said that you conversed via email until the next appointment.  So what date was that next appointment?  Or what do you recall about that next appointment?

    Answer:    I have no idea.  It all blends into one…

    …

    It’s not like I try and think about it.  Next appointment, just probably me trying to flirt again and him just being very standoffish. 

    …

    Question:Did you recall what date that next appointment was?

    Answer:Yeah, no, I definitely don’t remember dates.

18. That ambiguity can be contrasted with the answers she gave in respect of the first meeting where intimate contact occurred after the professional relationship ended on 11 March 2022.  It is of relevance that Patient A had at least three reference points which allow her to be more certain about this encounter than when being asked general questions about emails and appointment dates.  The first was that this was an important meeting, where it was to be determined that the professional relationship was to end and an intimate relationship was to commence, and indeed did commence.  Also, Patient A had the benefit of her birthday, being 20 February, as another reference point.  Finally, on any view of the evidence, the meeting at the lookout where the first acts of intimacy occurred was, if not the next evening, then very soon after Patient A attempted to kiss the respondent on 11 March 2022.  An event likely to be etched in the patient’s memory. 

1. That the first act of intimacy occurred very soon after the professional relationship ended is also borne out by the respondent’s own affidavit where he said:[11]

   Reflecting on what has occurred, from a professional perspective I understand it was wrong of me to commence a relationship with a past patient.

   It was naïve of me as I did not fully understand at the time that I was stepping outside my professional boundaries by engaging in a personal relationship so soon after finishing our therapeutic relationship.  I erroneously thought that it was sufficient to commence an intimate relationship with a former patient so long as the treating relationship had been terminated.  I now understand that this was wrong and a breach of my professional conduct, having since read through the AHPRA Shared Code of Conduct… (emphasis added)

   [11]Affidavit of the respondent, affirmed 16 April 2025 [10]-[11].

2. It can be accepted that the references made by the respondent to a ‘personal relationship’ and an ‘intimate relationship’ might be directed to the acts of sexual intercourse but it is the view of the Tribunal that nothing of significance turns on that ambiguity. 

3. As has already been observed, the exact timing of the first physical encounter may not be able to be exactly ascertained but based on the evidence provided by Patient A during her record of interview, together with the statement of the respondent which is strongly suggestive of the relationship commencing very shortly after the termination of the professional relationship, it seems more likely than not that if that encounter did not occur on 12 March, it occurred very soon thereafter.  Indeed, if not on 12 March, then within only a matter of days after that date, and certainly before the first act of sexual intercourse which seems most likely to have occurred at or about 19 March.[12]  In this regard, Mr Liddle conceded that intimacy commenced very soon after the professional relationship ended. 

   [12]E.g., Patient A’s second record of interview, contained in the HB (n 4) 159. 

4. Before proceeding further, the Tribunal would make two observations.  First, both records of interview of the patient were included in the material briefed to the Tribunal without objection.  Second, the finding that the first intimate encounter, if it did not occur on 12 March 2022, it occurred very soon thereafter and is not inconsistent with nor does it contradict the Agreed Facts.  It simply identifies with an appropriate level of certainty the likely timeframe in which the first acts of intimacy occurred. 

5. It is also the view of the Tribunal that it is not bound to focus solely on when the first and subsequent acts of sexual intercourse occurred nor is it bound to ignore the evidence concerning the acts of intimacy that occurred on the first meeting at the lookout because no reference was made to those acts in the Agreed Facts where it is baldly stated:[13]

   Following the 11 March 2022 appointment, the respondent and Patient A arranged to meet at a local lookout…, occurring on a date before Patient A’s final appointment with the respondent on 6 April 2022.  They talked about various topics and discussed the consumer not seeing the practitioner as a patient. 

   [13]Agreed Facts (n 1) 2 [14].

6. Reference was made on behalf of the respondent to the decision of this Tribunal in Medical Board of Australia v BJA [2025] QCAT 152 (‘BJA’).  It is not necessary to dwell in much detail on that particular decision as it is readily distinguishable from the facts in this case.

7. Relevantly, there, the Tribunal in its reasons said:[14]

   The Board accepted in submissions that the context for the start of the sexual relationship was least helpful to the Board’s case and did not strongly point to misconduct.  The Board acknowledged that the evidence showed a social relationship developed and from that social relationship the romantic relationship developed.

   The Tribunal finds the sexual relationship started in the context of activities totally disassociated with the doctor-patient relationship.  This is the evidence of each of the practitioner and Patient A.  It is supported by the tenor of the Facebook messages that passed between them which are in evidence in the Agreed Hearing Bundle.  That position is unchallenged by other witnesses or by documents.  Relevantly, there is no evidence that:

   (a)      as already noted, anything inappropriate occurred during any of the consultations the practitioner had with Patient A in terms of the practitioner’s behaviour or his professional assessment and treatment of Patient A or his prescribing to Patient A.  The evidence is all to the contrary;

   (b)      the practitioner used or had in mind any information gleaned from the doctor-patient relationship at any time. 

   [14]Medical Board of Australia v BJA [2025] QCAT 152, 14-15 [47]-[48].

8. That is not the situation here.  Very soon after the respondent and Patient A agreed to terminate the professional relationship, an intimate relationship ensued.  Indeed, the decision to end the professional relationship was to enable the intimate relationship to commence. 

9. As to when the first act of intercourse occurred, it is uncontroversial that between 21 April 2022 and 10 May 2022, the respondent and Patient A exchanged numerous messages of a personal nature, some of which were sexual.  Nor is it controversial that up until 10 May 2022, the respondent and Patient A had sexual intercourse somewhere between three and five occasions at various locations which included the respondent’s place of practice.  However, it is unnecessary to place precise dates on when sexual intercourse occurred because, as already addressed, intimacy had already occurred on the first meeting at the lookout. 

10. Before proceeding further, it is noted that the respondent’s primary submission was that there was no case to answer because of the termination of the professional relationship and the gap in timing with the beginning of the intimate relationship.  For the reasons given, that course of action is rejected. 

11. It must always be borne in mind that any findings and orders made by the Tribunal are not to punish the respondent but to, as far as is practicable, ensure the protection of the public which includes protecting public confidence in the safety of the services provided by health practitioners.  In this matter, the principle of personal deterrence is of little, if any, relevance.  As to general deterrence the unusual features in this case make it a less than ideal vehicle for sending a message of general deterrence.

12. Looking at the conduct of the respondent overall, a finding of professional misconduct would not ordinarily be out of range however, given the uncertainty at least in respect of the timing of the first act of sexual intercourse together with a number of militating factors in favour of the respondent, the Tribunal has reached the conclusion that the appropriate finding is one of unprofessional conduct.  The primary reasons for reaching that conclusion are as follows:

    (a)the relevant conduct was consensual, in circumstances where there was no suggestion of any power imbalance or grooming on the part of the respondent;

    (b)it was Patient A who was clearly focused on starting a physical relationship including by trying to kiss the respondent.  It could be said that the flirtatious conduct of Patient A was not only persistent but also deliberately overt;

    (c)no breach of trust was involved;

    (d)to his credit, the respondent rejected that initial advance but unfortunately though, failed to place further distance between him and Patient A;

    (e)it was the respondent’s decision to end the professional relationship, albeit to facilitate the commencement of an intimate relationship;

    (f)Patient A initiated the intimate contact on the meeting date at the lookout following the penultimate consultation on 11 March 2022;

    (g)finally, to give the respondent at least some credit in this regard, it was he who determined that the professional relationship had to end before any intimate relationship commenced in circumstances where it is sufficiently clear that the existence of such a relationship meant little if anything to the patient.  That is, she would have been happy to indulge in an intimate relationship notwithstanding the existence of the professional relationship; and

    (h)the respondent has no prior disciplinary record. 

13. It is not in dispute that in the event that the Tribunal made a finding of unprofessional conduct, a reprimand ought follow. 

14. For the reasons given, the Tribunal makes the following findings and orders:

15. Pursuant to s 107(2)(b)(ii) of the HO Act, the respondent has behaved in a way that constitutes unprofessional conduct.

16. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

17. Each party is to bear their own costs of the proceeding.