Health Ombudsman v NHG

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v NHG [2023] QCAT 568

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

NHG

(respondent)

APPLICATION NO/S:

OCR162-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 October 2023 (decision)

21 October 2025 (reasons)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Ms D Anderson
Ms M Ridley
Dr D Wilmoth

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 107(2)(b)(iii) of the HO Act, in respect of allegations 1 and 2, the Tribunal decides that 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)(c) of the HO Act, the respondent is to pay a fine of $5,000 to the Health Ombudsman with three months to pay from the date of the Tribunal’s order.

4.     The non-publication order made by Judge Dann, Deputy President on 22 November 2022 is to remain in force.

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

6. Pursuant to s 62(2)(ii) of the HO Act, the immediate registration action dated 6 July 2022 is set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent failed to maintain professional boundaries with Patient A – where Patient A was a vulnerable person – where the respondent failed to terminate the treating relationship in a timely fashion after violating professional boundaries – where the respondent had extenuating personal circumstances at the time of her conduct – where there is evidence of a number of rehabilitative steps taken by the respondent – where the parties have reached an agreement as to characterisation and sanction – whether the Tribunal is satisfied that agreed outcome falls within the permissible range

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against NHG (‘respondent’).
This matter concerns the respondent’s failures to maintain professional boundaries with a patient (‘Patient A’) during the treating relationship, and transfer Patient A’s care to another psychologist or back to their general practitioner.
Initially, the applicant sought the following orders and sanctions:[1]
(a)Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), in respect of allegations 1 and 2, the respondent has behaved in a way that constitutes professional misconduct.
(b)Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
(c)Pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of between three and six months.
(d)Each party is to bear their own costs of the proceeding.
[1]Applicant’s Submissions, filed in the Tribunal on 31 January 2023, 1 [2] (‘Applicant’s Submissions’).
In response, it was submitted on behalf of the respondent that the findings and sanctions that ought to be imposed be as follows:[2]
(a)Pursuant to section 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.
(b)Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.
(c)Each party is to bear their own costs of the proceeding.
[2]Respondent’s Submissions, filed in the Tribunal on 31 March 2023, 28 [163] (‘Respondent’s Submissions’).
Upon receiving the submissions made on behalf of the respondent, it was said in the applicant’s further submissions:[3]
Since the filing of the applicant’s primary submissions, the parties have reached agreement on sanction as follows:
(a) Pursuant to section 107(2)(b)(iii) of the [HO Act], in respect of allegations 1 and 2… the respondent has behaved in a way that constitutes professional misconduct.
(b) Pursuant to section 107(3)(a) of the [HO Act], the respondent is reprimanded.
(c) Pursuant to section 107(3)(c) of the [HO Act], the respondent is to pay a fine of $5,000 to the Health Ombudsman with three months to pay from the date of the Tribunal’s order.
(d) Each party must bear their own costs of the proceeding.
[3]Applicant’s Further Submissions, filed in the Tribunal on 16 June 2023, 1-2 [4].
There was no dispute concerning the factual background of this matter, save for one matter involving the opinions of a clinical psychologist, Ms AB. Ms AB provided, in her capacity as a professional mentor of the respondent, two reports in support of the respondent.[4] Evidence was also provided by another clinical psychologist, Dr MC.[5]
[4]Exhibit 3 to the Respondent’s Affidavit affirmed on 20 December 2022; and Exhibit 1 to the Respondent’s Affidavit affirmed on 10 March 2023.
[5]Exhibit 2 to the Respondent’s Affidavit affirmed on 20 December 2022.
Initially, the Tribunal was concerned about an apparent tension between some of the opinions expressed by Ms AB and Dr MC; however, in the circumstances of this matter, it is unnecessary to try and resolve those apparent tensions.

Background

By reference to the Statement of Agreed Facts,[6] the following factual background is uncontroversial.
[6]Filed in the Tribunal on 29 November 2022.
The respondent holds the following qualifications:
(a)Bachelor of Behavioural Science from Griffith University (2002);
(b)Post Graduate Diploma (Psychology) from the Central Queensland University (2003); and
(c)Master of Psychology (Clinical) from the University of the Sunshine Coast (2014).
The respondent commenced practising as a provisional psychologist in 2004. At all material times the respondent was registered with the Psychology Board of Australia holding general registration with the endorsed approved area of practice being clinical psychology.
At the time of the hearing, the respondent’s registration was subject to conditions imposed on 6 July 2022 by the Office of the Health Ombudsman.
In respect of the respondent’s employment history, between January 2004 and November 2004, she worked as a Rural Family Counsellor at Lifeline on the Darling Downs and Southwest, St George.
Between November 2004 and January 2006, the respondent worked as a psychologist on the Sunshine Coast.
Between August 2006 and October 2012, the respondent worked as a job capacity assessor at Centrelink.
Following that, between October 2012 and April 2013, the respondent worked as a psychologist in private practice.
In April 2013, she opened her own private practice in Nambour.
Following that, between March 2014 and June 2015, the respondent also worked three days a week at Evolve Behavioural Support Services with Disability Services Queensland.
Between September 2015 and November 2016, she worked three days a week as a psychologist at Headspace.
Between December 2016 and November 2017, she worked as a clinical psychologist at Return to Work.
But since 2017 to the time of the hearing of this proceeding, the respondent has been working at her practice in Nambour.

The conduct that is the subject of the referral

The first allegation, which is admitted, involved the respondent’s failure to maintain professional boundaries concerning Patient A between 12 February 2018 and 19 April 2020. Relevant particulars of that alleged conduct are as follows.
Patient A was referred to the respondent in June 2015 by her general practitioner. Between 2015 and 19 April 2020, the respondent provided psychological services to Patient A (‘treating relationship’). During the treating relationship, Patient A consulted the respondent on approximately a fortnightly basis. At all times, the respondent was aware that Patient A was a vulnerable person.
During the treating relationship, the respondent failed to maintain professional boundaries with Patient A as follows:
(a)From a date unknown until 15 August 2019:
(i)      Patient A was the respondent’s friend on her personal private Facebook account; and
(ii)      The respondent interacted with patient A via Facebook Messenger.
(b)Between 12 February 2018 and 19 April 2020, the respondent engaged in communications with Patient A via text messages which were of a personal and/or overly familiar and inappropriate nature. By way of examples, those texts included, but were not limited to:
(i)      On 11 November 2018, a text message was sent that said: ‘strong bitch’. That message was accompanied by three emojis, two of which were tears of joy and one of a kiss mark.
(ii)      On 27 July 2019, another text was sent that said, ‘Thanks babe xx’.
(iii)     On 15 August 2019, the respondent said:
Hi there! I just wanted to let you know that I have taken you off Facebook but please don’t stress – just thought it might be better for a while ok x
(iv)     On 15 August 2019, the respondent sent a further text that said: ‘I hope you are ok babe’.
(v)      Between 4 and 7 September 2019, the respondent sent a photograph of herself holding her shirt above her breast showing her tattoo which was accompanied by a message that said, ‘six fucking hours’. That message was accompanied by two emojis, one depicting a confounded face and the other being a woozy face.
(c)Of a physical nature, on occasions during the consultation period, the respondent would greet Patient A with a hug and words to the effect of, ‘hello babe’. The consultations would sometimes finish with a hug and words of a physically flattering nature.
There were a number of other instances involving the respondent interacting with Patient A on a personal basis, and the full extent of the texts are set out in an annexure to the Statement of Agreed Facts.
In respect of allegation 2, which is also admitted, the particulars could be summarised as being that the respondent failed to, contrary to accepted professional standards, terminate in a timely fashion her treating relationship with Patient A once those professional boundaries had been violated and to transfer Patient A’s care to another psychologist and/or alternatively back to Patient A’s general practitioner.
It is clear that at the time of the conduct that brings the respondent before this Tribunal, she had been the victim of extreme domestic violence, which involved physical and emotional abuse and personal property vandalism. The domestic violence was so extreme that she understandably feared not only for her life but also for the safety of her children.
In May 2019, the respondent suffered from a medical event that was described as a stress-induced stroke.
In July 2022, of her own volition, the respondent engaged with the clinical psychologist, Ms AB. At the time of the hearing of this matter, the respondent had consulted with Ms AB on ten occasions. In a written report, Ms AB expressed the opinion that there is no longer any real risk of the respondent engaging in any further boundary violation behaviour or any other form of unprofessional behaviour.
Ms AB provided two reports. In her report of 1 December 2022, she reported:[7]
To date [the respondent] has participated in mentoring actively and openly and has displayed good insight and increasing reflective practice. She has implemented a significant number of practice changes since this complaint that all move her clearly to a far more disciplined standard of ethical practice and maintain professional boundaries.
At this stage I have no concerns regarding [the respondent’s] professional boundaries with her clients.
[7]Exhibit 3 to the Respondent’s Affidavit affirmed on 20 December 2022.
In respect of the second report dated 19 February 2023, Ms AB reported:[8]
[The respondent] continues to be a willing and active participant in her mentoring program…
I genuinely have no concerns regarding [the respondent’s] work as a psychologist. I believe she has developed significantly both as a clinician and practice owner since the time of the complaint.
In addition, her personal life is far more stable…
[8]Exhibit 1 to the Respondent’s Affidavit affirmed on 10 March 2023.
Since these matters were revealed, the respondent, in addition to attending Ms AB, has put a number of rehabilitative steps in practice. It is unnecessary to go into detail about those steps, as they are set out in some detail in the applicant’s written submissions.[9] The respondent is clearly a dedicated psychologist with a busy practice. The practice was described uncontroversially in the following terms:[10]
The respondent has 55 ‘therapy clients’ who regularly schedule appointments with her.
As part of, or in addition to, the therapy and psychological assessment work, the respondent supports her clients by:
(a)      assisting clients applying for the National Disability Insurance Scheme (‘NDIS’), including participating in planning meetings with NDIS;
(b)      assisting clients applying for Disability Support Pension through Centrelink;
(c)      completing Educational Queensland Verification forms to verify a child’s diagnosis, for the purposes of that child being eligible for school funding through Education Queensland; and
(d)      completing companion card verifications for people assisting clients with disability.
[9]Applicant’s Submissions (n 1) 14 [77]-[80].
[10]Respondent’s Submissions (n 2) 9 [53]-[54].
The respondent also expressed grave concerns for her clients’ psychological care should her ability to practise be suspended. The respondent said, in respect of this matter, there were two key issues described as follows:[11]
(a) based on the respondent’s experience in (sic) knowledge, there is a significant shortage of psychologists in Queensland and nationally, and even more so, clinical psychologists. This is demonstrated by the fact that the respondent’s practice currently has 47 clients on a waitlist; and
(b) the respondent continues to offer bulk billing to approximately 30% of her clients. In the respondent’s experience, bulk billing is not provided by many other clinical psychologists and is becoming less available. The inability to be bulk billed for appointments would likely defer some of the respondent’s clients from making psychological therapy and other non-bulk billing psychologists.
[11]Ibid [55].
That evidence was not challenged.
At the end of the day, it is, of course, a matter for the Tribunal to decide the outcome of proceedings such as this; that said, the fact there is agreement as to the appropriate outcome between the parties is a significant matter to be taken into account, particularly, where both parties are legally represented.
This is a clear case where to suspend the respondent from practising would be likely to result in a deleterious outcome for a number of the respondent’s more dependent patients. That is an outcome that is not warranted in this matter, either in respect of the matters of personal or general deterrence. Having regard the impact on the respondent’s practice and more relevantly, her patients, and also to the personal circumstances surrounding the respondent at the relevant time, together with the rehabilitative steps the respondent has put in place and her low risk of any further untoward conduct, the Tribunal considers the findings and consequential orders as agreed between the parties ought be made. Accordingly, the Tribunal orders as follows:
Pursuant to s 107(2)(b)(iii) of the HO Act, in respect of allegations 1 and 2, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
Pursuant to s 107(3)(c) of the HO Act, the respondent is to pay a fine of $5,000 to the Health Ombudsman with three months to pay from the date of the Tribunal’s order.
The non-publication order made by Judge Dann, Deputy President on 22 November 2022 is to remain in force.
Each party must bear their own costs of the proceedings.
Pursuant to s 62(2)(ii) of the HO Act, the immediate registration action dated 6 July 2022 is set aside.

[2023] QCAT 568

11 October 2023 (decision) 21 October 2025 (reasons)