Health Ombudsman v Sharma, Hemant Kumar

[2023] QCAT 186

[2023] QCAT 186

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REID, Judicial Member

Assisted by:

DR CAVANAGH

MS ELLIOT
DR WALDEN

No OCR 298 of 2020

HEALTH OMBUDSMAN  Applicant

v

SHARMA, Hemant Kumar  Respondent

BRISBANE

TUESDAY, 28 FEBRUARY 2023 JUDGMENT

[1]JUDICIAL MEMBER: The Director of Proceedings on behalf of the Health Ombudsman (hereinafter the Health Ombudsman) has brought disciplinary proceedings against the respondent for his engaging in an inappropriate relationship with a vulnerable patient over a period in excess of two years, from late 2016 until early 2018.

[2]The respondent was born in about 1966, and in December 2016 was a 50-year-old psychiatrist working at the Townsville Private Clinic. The referral involves a 24-year-old female patient who received inpatient treatment at the clinic over five weeks from December 2016.  The respondent was her treating psychiatrist. He quickly failed to maintain proper professional boundaries, referring to her as his daughter, socialising with her, and giving her money and gifts, including a car valued at $29,000. The relationship became sexual and the respondent and the patient travelled to Europe together in April 2018. They used illicit drugs together. He invested half a million dollars in a café and restaurant run by the patient and her partner. He purchased a home for the patient and her family to live in rent free. The respondent estimates that over the period of their relationship, he spent 1.5 million dollars on the patient and her family, though it is not clear how much of that was lost, since, presumably, some of that includes the cost of the purchase of the home.

[3]The patient became emotionally and financially dependent on the respondent, who in turn clearly seems to have been infatuated with the patient. This is confirmed most obviously and, having regard to the fact he had been her psychiatrist and knew of her vulnerabilities, most appallingly by an email of the 10th of December 2017. I will not set it out, but it attests to the respondent’s preoccupation with the patient and the extent to which he abandoned any objectivity or rationality.  During the course of their relationship the respondent had the patient assist in the completion of both professional courses (including a course relating to an earlier alleged professional boundary violation) and patient discharge summaries on his behalf. How he imagined that this was appropriate is difficult to ascertain. During the course of their relationship, he prescribed Concerta and Vyvanse, drugs which I understand are used for treatment of ADHD, to the patient.

[4]The respondent had graduated from university in India with an MBBS in 1990. He married in 1991; his wife, and incidentally their daughter, are doctors. He became a fellow of the Royal Australian and New Zealand College of Psychiatrists only in 2015, after earlier being a cardiothoracic surgeon. Thus, while he had relatively little experience as a psychiatrist at the time of his boundary violations, he was a mature man with significant medical experience. It is also clear, in my view, that the respondent was himself somewhat vulnerable, and was financially exploited by the patient. He has, as I understand it, expended an extraordinary amount on the patient and her family. As he has spent all of his savings, he has had to enter into an arrangement with the ATO to pay his tax bill related to the failed investment in the café business.

[5]I conclude (1) that the respondent’s relationship with the patient was an appalling breach of his professional obligations, (2) that the patient herself exploited the respondent and engaged in a consensual sexual relationship with the respondent.

[6]I have read the respondent’s affidavit contained in the hearing brief. In my view, it shows both the patient’s use of the respondent, but also illustrates that the respondent, in some ways, seeks to minimise his own misconduct by suggesting his actions were also designed with the patient’s best interests in mind. In my view his self-interest in developing the inappropriate relationship with the patient is minimised in that affidavit. An example of this is the following from paragraph [63] of the respondent’s affidavit:

Throughout the course of my interactions with (the patient) I felt responsible for her happiness and I wanted to give her whatever support she needed to get her life back on track and to get her through university. I felt paternalistic towards her, and I believed that I was trying to save her from her old life by financially supporting her and her family. I anticipated that my role in supporting her would end when (the patient) graduated from university and became a professional, as she then would be in a position to support herself and her family.

[7]In my view, it is impossible to conclude that throughout their interactions he always had her best interests in mind. The relationship was in many ways inappropriate, both financially and sexually.

[8]As a result of the Health Ombudsman’s investigation:

(1)the respondent has had gender-based conditions imposed since May 2019, resulting in his losing about 50 per cent of his patient base;

(2)the respondent had to leave the Townsville Clinic from August 2019;

(3)the respondent worked for some time in a GP clinic, was unable to work in a hospital, and has more recently worked at the Department of Veteran Affairs;

(4)the respondent has also lost many child and youth patients, as they needed to attend with their mother and the gender-based restrictions also apply to such attendances.

[9]He has nevertheless practiced subject to those restrictions for a period of four years, and without any ongoing issues.

[10]The respondent also relies on a reference from Dr Choudhary, a cardiothoracic surgeon, who worked with the respondent in that capacity from 2008 to 2012. He attests to the respondent’s good character and professional expertise, and says he is aware of the respondent’s personal indiscretion of a consensual nature with an ex-patient. He describes the conduct as a momentary loss of judgement.

[11]I have no confidence that Dr Choudhary has been made fully aware of the extent of the respondent’s conduct. It involves much more than a momentary personal indiscretion. In the circumstances I place no weight on Dr Choudhary’s reference. That is not a criticism of Dr Choudhary himself, but an observation of the need for persons giving such references to be fully briefed on the whole of the circumstances if they are to be taken into account.  To be effective, he ought have been provided with the agreed schedule of facts, or at least a proper summary of them.

[12]A more helpful report is that of Dr John Varghese. He has seen the respondent on two separate periods. In July 2017, the respondent consulted Dr Varghese about the respondent’s own concerns that he may have adult ADHD. He made at the time no mention of his relationship with the patient. Dr Varghese’s view was that the respondent was neurodevelopmentally and psychodynamically vulnerable.

[13]Dr Varghese again saw the respondent in May 2021 and, I am told, has been seeing him monthly thereafter to discuss the boundary violations and to provide appropriate treatment and support. Dr Varghese has a good knowledge of the facts. He noted the respondent’s naivety. He felt the respondent’s inability to have foreseen the consequences of his behaviour as confirmatory of the respondent’s long held features of ADHD and of being psychodynamically damaged. Dr Varghese noted that he responded well to Ritalin and to an antidepressant in 2017, and it seems has continued with medication.

[14]Dr Varghese concluded the respondent’s mental health conditions would have influenced his judgement in relation to the patient, in the sense that one’s actions are always influenced by one’s psychodynamics, but said he was not forensically impaired, though vulnerable. He opines that the respondent has considerable insight and remorse, but:

…would still have to be considered a potential risk to the public if he was to see female patients at this point in time.

[15]He recommends ongoing treatment, which he has been providing since the time of the report, and says that he would require ongoing peer supervision of patients where there is a potential for a similar dynamic.

[16]The parties are agreed about many things. There is no dispute that I should find the respondent has engaged in professional misconduct and ought to be reprimanded. It is agreed that he should be precluded from practice for a period. The Health Ombudsman submits that his registration ought to be cancelled and he be disqualified from applying for registration for a period of three years. The respondent’s counsel submits I ought only suspend him for a period of two to three years and that to impose conditions relating to ongoing treatment and peer supervision would be appropriate.

[17]In determining the matter, it is important to recognise that the jurisdiction in QCAT is protective rather than punitive, and the paramount principle is the safety of the public. Deterrence has, however, two aspects: specific and general. An aspect of the safety of the public is that all medical practitioners, and psychiatrists in particular, should recognise, through the imposition of a suitable penalty, that very significant boundary violations, such as the respondent’s, will result in significant sanctions.

[18]Important features of this case are:

(1)the significant power imbalance between the 50-year-old treating psychiatrist and the vulnerable mental health patient. The respondent described her to Dr Varghese as very needy with a history of depression and childhood trauma.

(2)that the relationship extended over more than two years. All aspects of it were consensual against a background of both patient and the psychiatrist having what I might describe as mental health issues. I am not, however, provided with any detail about the patient’s conditions, other than the general matters that I have mentioned.

(3)that the respondent admitted to the boundary violations at an early stage after a complaint was made by the patient’s new psychiatrist, following her admission as an inpatient to another clinic.

(4)boundary violations by psychiatrists are of particular importance, because inevitably the patients are vulnerable, as the psychiatrists would know.

(5)the respondent was, as Dr Varghese found, a high functioning autistic, with comorbid psychological vulnerabilities.

[19]Whilst relevant to the issue of general deterrence, the reputation of psychiatrists, and the confidence of the public need to have in them, means that general deterrence is still critically important.

[20]The case is of a particularly unusual nature. It is important to understand that, whilst the patient was vulnerable, the relationship was at all times consensual. It is also important to understand the respondent’s own vulnerabilities and the significant financial and personal loss he has undergone as a result of his engagement in this inappropriate behaviour. The parties have provided helpful written submissions in respect of the issues that might cause a tribunal to come to a conclusion that a respondent should be disqualified from practice or, as an alternative, suspended.  It is agreed between the parties that, even if he is only suspended, that he will never again be able to practice as a psychiatrist because of the zero-tolerance attitude of the College to boundary violations involving sexual misconduct, and in particular serious sexual misconduct, as the respondent here engaged in.

[21]It is also important, however, to understand that the circumstances of the respondent in this case are very unusual. I have been unable, and the parties have been unable, to find any similar case where a practitioner with significant personal vulnerabilities has engaged in a relationship in which he has himself lost significant sums of money, as is here the case. It also seems that, while there are aspects of grooming in the respondent’s conduct towards the applicant, that he himself was entirely infatuated with her. This of course is a danger in engaging with boundary violations as he engaged in in this case, but I think it is reasonable to say that, at least at the early stages, his personal sexual gratification was not a primary driver of his engaging in the boundary violations. Indeed, as I have said, she was his patient in December 2016 and their relationship did not become sexual - and then only for a relatively short period of time - until they travelled to Europe in May 2018.

[22]In the circumstances, after careful consideration I have determined it is appropriate to suspend the respondent from practice for a period of three years. In so concluding, I am particularly mindful of the extremely unusual circumstances of the relationship between the respondent, and his engaging in treatment with Dr Varghese, now for a period of almost two years. Dr Varghese speaks of his insight and remorse.

[23]I think that it is extremely improbable that the respondent himself will engage in misconduct of this sort ever again in whatever area he may be able to practice in. And in my view the highly unusual circumstances of the case mean that the issue of general deterrence is not of critical importance, as might usually be seen to be in the case of a sexualised boundary violation.

[24]I order that:

1.Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.

2.Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the respondent is reprimanded.

3.Pursuant to section 107(3)(d) Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of three (3) years with such suspension to take effect from 30 April 2023.

4.Pursuant to section 62(2)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman on 14 May 2019 to impose immediate registration conditions is set aside on the commencement of the respondent’s suspension on 30 April 2023.

5.There is no order as to costs.