Health Ombudsman v SAA

[2023] QCAT 528

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

JONES, Judicial Member

Assisted by:

MS BUTLER

MR DAVIES

MS TAYLOR

No OCR 122 of 2022 &

No OCR 093 of 2023

HEALTH OMBUDSMAN

Applicant

SAA

Respondent

BRISBANE

TUESDAY, 12 DECEMBER 2023

REASONS FOR DECISION

JUDICIAL MEMBER: The Tribunal has before it two referrals brought by the Director of Proceedings on behalf of the Health Ombudsman (‘the Applicant’) concerning SAA (‘the Respondent’). Before proceeding further, on 28 April 2023 and 1 August 2023, this Tribunal made Non-Publication Orders in respect of both matters. Those Non-Publication Orders are to remain in force.
In respect of the first referral (No OCR 122 of 2022) the Respondent was 50 years of age, and in respect of the second matter (No OCR 093 of 2023) he was 51 years of age. At all material times, the Respondent had practised as a psychologist in various clinics and practices. He had completed a Bachelor of Arts with Honours (Psychology) at the University of Stellenbosch in South Africa and, in 1997, a Master of Arts (Clinical Psychology) at the University of Pretoria, also in South Africa.
The Respondent was first registered as a psychologist in Australia on 16 April 2009. In May 2021, the Respondent applied for and was granted a non-practising registration by the Psychology Board of Australia.
The matters before the Tribunal involve the Respondent breaching professional boundaries with female patients together with other matters concerning the failure to keep proper clinical records. This is not the first time that this Respondent has been before the Tribunal. On 3 May 2019, the Health Ombudsman referred the Respondent to the Tribunal in connection with a failure to maintain professional boundaries with a patient. In that instance, the Respondent engaged in a close personal relationship with the patient, involving regular and personal text and emailing communications, which occurred during the treatment period. Following the treatment period, the former patient worked for the Respondent and then looked after his family home, including a period when they stayed alone together in the home, where they kissed, swam naked together, and were physically affectionate and expressed mutual romantic feelings for each other. That period of behaviour also involved a failure to keep proper clinical notes.
The Tribunal handed down its decision on 9 September 2020 in respect of that matter. The practitioner was found to have engaged in professional misconduct and was reprimanded. Unfortunately, those findings and orders had no deterrent effect on the Respondent.
On 13 December 2020, the Health Ombudsman received a complaint from a former patient of the Respondent. That patient alleged an inappropriate personal relationship between herself and the Respondent between March 2020 and October 2020.
By reference to the Agreed Statement of Facts, the following matters are uncontroversial:
(a)On 19 February 2019, the complainant was referred to the Respondent by her general practitioner. The Respondent provided psychology therapy services to the complainant between 5 March 2019 and 25 October 2020. Between March 2019 and October 2020, the Respondent engaged in a total of 34 treatment sessions with the complainant.
(b)From March 2019 to July 2020, save for two sessions in November 2019, those sessions were covered by the patient’s private health insurance. From July 2020 to October 2020, the Respondent accepted nominal payments from the patient in amounts ranging from $25 to approximately $50 per session. The Respondent last treated the complainant on 25 October 2020 and by letter dated 17 November 2020, the Respondent referred the patient back to her general practitioner. It was recorded that the patient had what was described as Bipolar I Disorder.
In respect of the first referral, there are two allegations:
(a)the failure to maintain professional boundaries with the patient; and
(b)the failure to maintain appropriate and adequate clinical records concerning the patient.
In respect of the second referral, there are, again, two allegations:
(a)failing to maintain professional boundaries with the patient; and
(b)failing to maintain appropriate and adequate clinical records concerning the patient.
Both patients were females.
In respect of the first referral, the findings and orders sought by the Applicant in the first instance were as follows:
(a)a finding that the Respondent had behaved in a way that constituted professional misconduct;
(b)that the Respondent be reprimanded; and
(c)that the Respondent should be suspended for a period of 12 to 18 months and conditions imposed, to be completed following the suspension.
Those conditions were attached to the submissions filed on behalf of the Applicant as Annexure A. However, following the Respondent surrendering his registration, the Applicant submitted that the appropriate findings and orders that ought be made by the Court are as follows:
(a)pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘the HO Act’), the Tribunal find that 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;
(c)pursuant to s 107(4)(a) of the HO Act, the Respondent be disqualified from applying for registration as a registered health practitioner for a period of 12 to 18 months; and
(d)pursuant to s 107(4)(b) of the HO Act, the Respondent be prohibited from providing any health services to females until such time as he obtains registration as a health practitioner.
That those findings and orders be made is agreed to on behalf of the Respondent. The only amendment is to the last of the orders by adding words to the effect of “or until further order of the Tribunal”.
In submissions filed on behalf of the Respondent, it was said:

[The Respondent] does not oppose the tribunal making orders in terms of paragraph 4(a) to 4(c) of the applicant’s supplementary submissions dated 19 September 2023. The length of any disqualification is a matter for the Tribunal and [the Respondent] does not challenge the range suggested by the applicant.
[The Respondent] submits that the order sought in paragraph 4(d) of those should be slightly amended. Subject to such an amendment, he does not oppose those orders being made.[1]
[1] Submissions on behalf of the Respondent (No OCR 122 of 22) filed 29 September 2023, [1]–[2].

It was said in support of the proposed amendment as follows:
The form of prohibition order proposed by the applicant is too broad. It prohibits the provision of health services without some form of registration in the context where many health services are lawfully provided without the need for registration.
If in the future [the Respondent] wishes to provide a health service that does not require registration, he would be faced with the problem of needing to gain some kind of registration before he could commence providing the relevant health services. That registration may be completely irrelevant to the relevant health services.
This problem is easily cured by making the order subject to a further order of the tribunal. If [the Respondent] wishes to provide a health service to females where registration is not a requirement, and should his capacity permit, he can apply to the Tribunal and make his case then.[2]
[2] Ibid, [7]–[9].
In response to that, the Applicant relevantly said:
In [the Respondent’s] submissions, the only proposed change to the orders proposed by the applicant is to the order in paragraph 4(d) of the applicant’s submissions dated 19 September 2023, that is, the addition of “or until further order of the tribunal” to the prohibition order.
The applicant does not oppose that amendment, submitting that it is a matter for the Tribunal whether it is content to make the order in those additional terms.[3]
[3] Applicant’s Submissions in Reply (No OCR 122 of 22) filed 9 October 2023, [2]–[3] (emphasis in original).
It is beyond controversy that the conduct involved in respect of both referrals constitutes professional misconduct.
In respect of the second referral, the Applicant submitted as follows:
The applicant submits the respondent’s misconduct should be denounced by way of a reprimand, which is, of itself, not a trivial sanction.
If the respondent was currently registered, the applicant would also propose conditions on his registration similar to those imposed in Pallini requiring him to undertake further education and be subject of mentoring, supervision and, potentially, limitations on his practice. A short period of suspension may also have been sought for the reasons of both specific and general deterrence.
However, in the particular circumstances, the applicant considers that a finding of professional misconduct and the Tribunal’s denunciation of the impugned conduct by way of a reprimand would be proportionate and reflective of the paramount guiding principle.
Should the respondent seek registration in the future, it will be a matter for the Psychology Board, taking into account his disciplinary history, to consider his suitability to practice, and, if so, whether he should be subject to particular conditions.[4]
[4] Applicant’s Submissions (No OCR 093 of 23) filed 4 October 2023, [97]–[100] (citation omitted in original).
The Respondent does not oppose the findings and consequential orders proposed.
It is, of course, for the Tribunal to decide the appropriate outcome in proceedings such as these, but that there is agreement between the parties about the outcome is a matter of some significance. In this instance, the Tribunal sees no reason to depart from the orders proposed, including the proposed amendment advocated for on behalf of the Respondent.
It is convenient to deal with the factual circumstances surrounding the second referral first. That is so because up until the morning of the hearing of this matter on the papers, there were still some areas of disagreement and dispute about certain factual matters which were of an aggravating matter. As noted, that issue was not resolved until this morning, and, in fact, those areas that were once in dispute are no longer disputed.
The factual circumstances concerning referral No OCR 093 of 2023 are as follows:
(a) In respect of the first allegation, it is alleged that on 17 November 2015, the patient was referred to the Respondent by her then treating psychiatrist in relation to a number of matters, including alcohol dependency, a depressive disorder and social phobia. Commencing in November 2015, the respondent began to provide psychology services to the patient, engaging in weekly or fortnightly sessions.
(b) During the therapeutic relationship, in particular between October 2019 and April 2021, the Respondent referred the patient to a personal trainer of his acquaintance who provided services at a gym where the Respondent was a member, advising the personal trainer that the patient was a client of his.
(c)Commencing in around October 2019, the Respondent:
(i)trained at the same gym as the patient on numerous occasions at the same time;
(ii)provided advice and feedback to the patient via email and during gym sessions about her exercise training program and weight loss goals;
(iii)engaged in social banter with the patient at the gym while training and encouraged her to be sociable and join in banter with himself and other people training at the gym, including his friends and acquaintances; and
(iv)encouraged the patient to develop social relationships and friendships with his friends and personal acquaintances who also attended the gym.
In early 2021, the Respondent and the patient engaged in discussions regarding potential termination of the therapeutic relationship. During these discussions, the patient expressed concerns about the possibility of terminating the relationship and, on occasion, agreeing that it was a good idea, yet on other occasions, not wanting to terminate the therapeutic relationship. During these discussions, the Respondent assured the patient that he would remain part of the patient’s wider social circle after the ending of the therapeutic relationship, including telling the patient by emails dated 18 March 2021:
[First email]

The people around me (the people now beginning to form around you) are like me. You are becoming part of a caring WORLD. A therapist, no matter how caring, is not a world. It’s right there in front of you. I’m inviting you to step in. I will step aside, but I will watch over you. [5]
[Second email]

Everything will be all right. We will not abandon you. You will not be left in the cold. We are not that kind of people. We look after each other. You are welcome in this world.[6]
[5] Hearing Brief (No OCR 093 of 2023), p 330.
[6] Ibid, p 337.
The therapeutic relationship was ultimately terminated in April 2021. The termination of the therapeutic relationship and the Respondent’s subsequent absence from the patient’s life detrimentally impacted on the patient’s mental health and wellbeing and caused her significant distress. It is alleged and not disputed that this adverse impact upon her continues to the present. It should be noted that, quite clearly, at the time, this patient was an extremely vulnerable woman.
In respect of the second allegation, which again is not in contest, it is alleged that the Respondent’s records of the patient contain insufficient legible detail of what occurred during the treatment processes and were insufficient to allow the continuity of psychological services. In the Respondent’s clinical records from December 2019 onwards, when the Respondent adopted a “checklist form” of records, there was a paucity of information regarding the treatment process to the patient.
In respect of the allegations concerning the first referral, the now agreed facts are as follows:
(a)On February 2019, the patient was referred to the Respondent by her general practitioner.
(b)The Respondent provided psychology therapy services to the patient between 5 March 2019 and 25 October 2020. At the time, the Respondent was practicing as a clinical psychologist at a private practice.
(c)Between March 2019 and October 2020, the Respondent engaged in a total of 34 treatment sessions with the complainant.
(d)During the treating Relationship, particularly between March 2020 and October 2020, the Respondent failed to maintain professional boundaries with the complainant, including by way of:
(i)sharing personal and inappropriate information with the complainant, including:
(I)discussing his personal relationship with his wife, including that she was not interested in sex and that he lifted weights to not “think about pussy”;
(II)telling the complainant he had been previously in love with a woman while he was married and that he had ended the relationship and gone back to the marriage;
(III)describing to the patient how he liked a woman’s vagina to be waxed:
All hair removed, with the thin landing strip left for landing.
(IV)telling the complainant that he liked strong legs, and saying:
Do you know where strong legs belong?
And when she said she did not, he replied:
Wrapped around my neck.
(V)telling the complainant about a story about a girl who had stolen his car once, and all he could think about was her vagina and how he just wanted it and could picture it;
(VI)suggesting to the complainant about her husband’s birthday she should get a mould of his penis as a present so she could get a dildo in the shape of his penis;
(VII)discussing his medical treatment with the complainant and communicating with her while he was in hospital by email;
(VIII)discussing “FetLife”, a BDSM porn website and dating website with the complainant;
(IX)telling the complainant about an app where she could find wealthy men whose wives were not interested in sex and would give her money for sex;
(X)after receiving a video from the complainant of herself bare-breasted, telling the complainant at the next consultation session that:
A woman’s ass is so beautiful bending down and viewed from behind, though.
(XI)telling the complainant:
I’m seeing you now through your writing. It’s not your pussy that I want – it’s your mind.
Commencing around March 2020, the Respondent suggested the complainant email him in between sessions. This email communication continued until the end of the treating relationship. The Respondent exchanged emails with the complainant:
(a)without establishing clear and appropriate guidelines regarding content, purpose and frequency;
(b)without recording the email communication in the patient’s clinical records;
(c)including receiving a video of the patient in which she was bare-breasted and in lingerie;
(d)including providing comments about a book the patient was writing;
(e)including discussions about diet and weightlifting;
Also, the Respondent received erotic emails from the complainant in which she detailed physical intimacy between the complainant and the Respondent. The Respondent sent the patient a poem about her that he had written. Additionally, the Respondent touched the complainant’s naked foot on one occasion at a consultation session, and said to her that:
There is a whole world of fetishes out there.
Further, the Respondent and the patient shared coffee and cake during two consultation sessions, and the Respondent and the patient hugged on two occasions during consultation sessions. Those factual matters in respect of the first allegation are particularly disturbing. As in the other matter referred to, in this instance, the patient was particularly vulnerable.
It is also an aggravating feature that this conduct occurred after he had already been dealt with by this Tribunal in respect of a previous patient violation of boundaries. The second allegation in respect of this referral again involved the Respondent failing to keep appropriate clinical records, including failing to keep appropriate information regarding clinical testing and examination, diagnosis, treatment plans, psychological tests and the psychological services provided.
As mentioned, both patients were particularly vulnerable, and as already referred to, a particularly disturbing feature of the conduct in respect of the first referral is that it was so protracted and was so sexually explicit in a number of instances. There is also evidence that the conduct of the Respondent in respect of the first referral had negative psychological consequences for the patient, who was already in a seriously psychologically distressed state. It would appear that the Respondent’s conduct occurred at a time when he himself was going through a difficult time in respect of his own mental health. In his affidavit, which was not disputed, he states as follows:
While my actions were aimed at reaching positive goals for [the patient], I acknowledge that I did not pay adequate attention to professionalism and codes of practice, particularly in the last year of the treatment relationship.
I experienced a number of traumatic events in my personal and professional life from May 2019 and through to early 2021. Those events, which were compounding, increasingly impacted on my capacity and professional demeanour throughout this period.
On reflection, I recognise that I began to experience an emotional insensitivity and a lack of concern about professionalism from around the end of 2019. I increasingly acted like a supportive acquaintance, rather than a professional providing a formal service. My judgment was increasingly affected, influencing some treatment decisions.
I recognise that my response to my own growing impairment was also maladaptive, and I regret not taking decisive steps to manage my solution appropriately and much sooner.
During April 2021, I experienced a precipitous decline in my mental health, despite belated medical intervention and efforts to make adjustments to my professional practice.
I ceased practice on 1 May 2021 on medical advice and was granted non-practice registration status on 24 May 2021.
I am unlikely to regain capacity to work in my field of training and experience due to my impairment.
In light of these developments, I’ve notified the board of psychology that I surrender my registration, and I state here that I have no intention of returning to the profession in any manner.[7]
[7] Affidavit of the Respondent (No OCR 093 of 2023) filed 1 September 2023, [12]–[19].

In his affidavit, he also expresses his feeling of distress in the knowledge of the impact his conduct had on one of his patients. That unchallenged evidence, while providing some relevant background, does not excuse the Respondent’s conduct, as he himself recognises. Cases such as this need to be determined in such a manner so as to send an appropriate message of denunciation and to send an appropriate message of personal and general deterrence.
In the previous proceeding, it is clear that a formal reprimand did not provide for a sufficient level of personal deterrence. Also, bearing in mind how unlikely it is that the Respondent will return to practice as a psychologist, one wonders just how much impact any findings and orders made by this Tribunal may act as a deterrent at a personal level. That said, it is important to send an appropriate message of general deterrence to send a clear message that those who conduct themselves in an unprofessional manner will be dealt with appropriately, and thereby hopefully deterring others from conducting themselves in such a way.
On balance, the Tribunal has decided that the sanctions about which the party agreed are appropriate in respect of both matters. Accordingly, the findings and orders are as follows in respect of referral No OCR 112 of 2022:
1.pursuant to s 107(2)(b)(iii) of the HO Act, 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(4)(a) of the HO Act, the Respondent be disqualified from applying for registration as a registered health practitioner for a period of 18 months; and
4.pursuant to section 107(4)(b) of the HO Act, the Respondent be prohibited from providing any health services to females until such time as he obtains registration as a health practitioner, or until further order of this Tribunal.
The Tribunal has decided that the conduct of the Respondent, when looked at in its totality, warrants a finding at the upper end of the range suggested by the Applicant.
In respect of referral OCR 093 of 2023, the Tribunal finds that:
1.the conduct of the Respondent constitutes professional misconduct; and
2.the Respondent is formally reprimanded.
As already referred to, the non-publication orders made by this Tribunal on 28 April 2023 and 1 August 2023 are to remain in force.

[2023] QCAT 528

12 December 2023