Medical Board of Australia v Leggett (No 2) - [2013] QCAT 181

CITATION:

Medical Board of Australia v Leggett (No 2) [2013] QCAT 181

PARTIES:	Medical Board of Australia (Applicant)
v
Dr Andrew Alfred George Leggett (Respondent)

APPLICATION NUMBER:

OCR283-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON:

14 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to amend Annexure ‘A’ of the referral to include ground 3 is refused.

2. The Board must file a further amended Annexure ‘A’ of the referral within 7 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the Board filed an application to amend the grounds for referral – where the referral contained a further ground for disciplinary proceedings – whether the application should be granted

Medical Board of Australia v Leggett [2013] QCAT, 19 February 2013, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 19 February 2013 the Tribunal delivered its decision on Dr Leggett’s application to strike out certain parts of Annexure ‘A’ of the Board’s referral of a disciplinary matter to the Tribunal (the February decision).[1] In making its submissions on that application, the Medical Board of Australia had purported to deliver further particulars of the grounds for disciplinary action contained in the referral. It was, therefore, necessary for the Tribunal to rule upon whether the Board should be permitted to rely upon those further particulars.
[1] Medical Board of Australia v Leggett [2013] QCAT, 19 February 2013.
Dr Leggett’s application was partially successful.
The second ground for disciplinary action had been stated as:
Further and/or in the alternative to the matters in 1.2.6 above, following an inappropriate interval after termination of the Registrant’s treating relationship with EK, from a date unknown on or about 12 August 2002 and with knowledge of the circumstances in 1.1.1 – 1.1.5 inclusive above, the Registrant engaged in and maintained a personal and sexual relationship with EK in breach of his obligations as a medical practitioner and further made no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment.
By the February decision the words underlined were struck out.[2] In addition to striking out that part of ground 2, the Tribunal ordered that the Board was not permitted to rely upon the additional particulars provided in Annexure A to its outline of submissions in respect of the second ground.[3]
[2] Order 2, 19 February 2013.
[3] Order 4, 19 February 2013.
On 2 March 2013 the Board filed an application for miscellaneous matters in which it seeks to amend Annexure ‘A’ to the referral. The most substantial amendment proposed is the addition of a further disciplinary ground under the heading ‘THIRD GROUND OF PROFESSIONAL MISCONDUCT’, in the following terms:
3.Further and/or in the alternative to the matters in ~~1.2.10~~ 1.2.1 to 1.2.10, and 2, above the Registrant made no appropriate arrangement at the cessation of the treating relationship for referring EK to an alternative medical practitioner for continuation of any psychiatric or counselling treatment in breach of his obligations as a medical practitioner, such duty or obligation arising from conduct in which he:
3.1.1Engaged in conduct of a sexualized nature during the treating relationship as particularized in 1.2.3 to 1.2.8 above;
3.1.2Had knowledge that the relationship had become sexualized;
3.1.3Stated to EK, shortly prior to the termination of the treating relationship, that “I wish I could have you both” referring to her and his wife Ann;
3.1.4Had been advised at some point after 2000 by his supervisor to terminate the treating relationship on the basis of the physical relationship between himself and EK;
3.1.5Had knowledge, or should reasonably have known, of the transference issues arising from an extended period of psychotherapy involving 3 sessions per week from 1994 onwards;
3.1.6He received from EK a letter from Paris in 2001 that said she was missing him;
3.1.7He sent correspondence to EK in 2001 suggesting a recommencement of the treating relationship;
3.1.8He initiated sexualized conduct involving lap-sitting and prolonged hugging upon restarting the treating relationship in 2002;
3.1.9He stipulated in the final session of treatment in August 2002 a 1 year no contact period between them;
3.1.10He had knowledge of EK’s low mood and visible distress in the final few sessions of treatment in 2002 which ought have suggested to him that the treatment termination process had not been satisfactorily concluded.
Dr Leggett opposes this amendment. He says that, at least in respect of subparagraphs 3.1.1 to 3.1.9, it suffers from the same, or similar, deficiencies as that part of ground 2 which was previously struck out.
I agree. I do not propose rehearsing the reasons provided by the Tribunal in the February decision.[4] However, I am of the view that subparagraphs 3.1.1 to 3.1.9 do not identify facts, matters or circumstances giving rise to a duty or obligation to make arrangements, at the cessation of the treating relationship, for referring EK to an alternative medical practitioner for continuation of any psychiatric or counselling treatment.
[4] See reasons, 19 February 2013 at [40] - [44].
Indeed, the use of the expression for continuation of ‘any psychiatric or counselling treatment’, seems to leave open the possibility that no such treatment may have then been necessary.
As acknowledged in the submissions filed on behalf of Dr Leggett, paragraph 3.1.10 stands in distinction from subparagraphs 3.1.1 to 3.1.9. It raises matters which may be facts or circumstances suggestive of an extant condition in respect of which an obligation to refer to another practitioner may have existed at the time of cessation of the treating relationship. However, as also submitted on Dr Leggett’s behalf, subparagraph 3.1.10 might equally suggest that termination of treatment, as opposed to its continuation by another practitioner, was warranted at that time; but that something further ought to have been done to conclude that termination of treatment.
In my view, the matters referred to in subparagraph 3.1.10 do not save the otherwise deficient pleading in support of ground 3.
In its submissions the Board contends that the deficiencies which led the Tribunal to characterise the previous particulars provided as nonsensical have been overcome by the matters now set out in subparagraphs 3.1.1 to 3.1.10. That contention should be rejected for the reasons set out above. Those matters do not, in my view, establish a basis for the existence of the alleged duty or obligation at the relevant time.
In his submissions, Dr Leggett made what seems a reasonable observation that it should be presumed that clinical need is the only sensible basis there could be for suggesting that a doctor ought refer a patient to a practitioner for psychiatric treatment or counselling. That submission was met by the submission on behalf of the Board that ‘…there is no entitlement to presume that the only basis for an obligation to refer to another practitioner is a requisite clinical need’.[5] It criticises Dr Leggett’s submission on the basis that no authority is cited for it and that it is presently unsupported by expert testimony. Such criticism could equally be levelled at the Board’s submission.
[5] Paragraph 9 of the Board’s submissions.
The Board goes on to submit:
Indeed, the submission is really one directed to an ultimate conclusion to be reached by the Tribunal after considering the evidence, including expert evidence, and the parties submissions. To remove the complaint at this stage would preclude the Tribunal from considering the ultimate issue, irrespective of whether the Board presently has, or proposes to obtain expert psychiatric opinion that supports the existence of such an obligation arising in the circumstances particularised in 3.1.1 to 3.1.10.[6]
[6] Paragraph 10 of the Board’s submissions.
With respect, the submission is not correct. The existence of an obligation to refer is not an ultimate conclusion. The ultimate conclusion is whether Dr Leggett has engaged in professional misconduct. The misconduct alleged relevant to this ground is that he has failed to refer contrary to an obligation or duty to do so. The Board’s submission does not grapple with the fundamental flaw in the pleading of ground three that the duty or obligation is said to have existed, at the end of the treating relationship, because of matters (with the exception of subparagraph 3.1.10) concerning Dr Leggett’s conduct at various times during the treating relationship, rather than any clinical need for treatment of EK which existed at its conclusion.
The Board is seeking to reintroduce a ground for disciplinary action which has already been disallowed through the striking out of the particulars concerning the former ground two. The objections raised by Dr Leggett are not met by saying that it should all be left to the end of the day to see if the obligation’s existence is supported by evidence. The question is whether, on the state of the matters pleaded, Dr Leggett should be put to answering that ground. In my view, he should not.
The erroneous approach of the Board is further demonstrated by its submission that whether the facts ultimately found by the Tribunal satisfy, respectively, professional misconduct, unsatisfactory professional performance, or unprofessional conduct, as defined by the Health Practitioner Regulation National Law (Queensland), is a question of law which cannot be determined in the absence of relevant evidence as to the nature of the treating relationship, the circumstances surrounding its cessation and expert evidence as to the standards of practice in the relevant profession.[7]
[7] Paragraph 13 of the Board’s submissions.
That may be so (leaving aside the issue of only professional misconduct having been pleaded with neither unsatisfactory professional performance nor unprofessional conduct having been pleaded in the alternative), but it is not the presently relevant issue. The issue presently relevant, as it was in determining the strike out application, is whether a sufficiently particularised allegation of the existence of an obligation has been made. It is the breach of the obligation, not its existence, which may ultimately result in a finding of professional misconduct (or unsatisfactory professional performance or unprofessional conduct). Whether there has been misconduct within the terms of the Act may be a question of law; but whether there existed an obligation to refer at the relevant time is not.
The Board’s submission, at paragraph 14, that:
The particulars provided under the third ground of alleged professional misconduct put the Registrant on notice as to the factual basis for the alleged obligation to be determined as a question of law. (emphasis added)
must, therefore, be rejected.
The Board’s submissions concluded as follows:
15.In summary, allegations of a history of sexualised conduct, emotional intimacy, presumed professional knowledge of transference issues, the earlier receipt of supervisory advice to terminate the relationship, and outward indicia of distress on EK’s part are said to enliven an obligation to ensure that someone other than the Registrant was available to prove (sic) therapeutic services for emotional issues more likely than not to arise upon the termination of the treating relationship.
16.Furthermore, there may well arise questions as to a conflict of interest between EK’s need for further therapy and the Registrant’s desire to ensure that the conduct complained of during the treating relationship remained undiscovered by another medical practitioner. Such an issue, should it arise, falls for examination under any or all of the three standards of conduct prescribed by the legislation.
Paragraph 15 does not accord with the pleading of ground three. Ground three is not pleaded on the basis that the obligation to refer arose because EK was more likely than not to experience emotional issues arising upon, or from, the termination of the treating relationship.
Paragraph 16 tends to expose the potential unfairness in the approach of the Board. It is quite unsatisfactory to say that the identified question of a conflict of interest ‘may well arise’ and that ‘should it arise’ it will fall ‘for examination under any or all of the three standards of conduct prescribed by the legislation’.
Parties are entitled to know at the outset of proceedings, not at their conclusion, what questions and issues arise, and against what legislative prescriptions those questions and issues are to be determined.
The approach advocated for on the Board’s submissions is the antithesis of how a disciplinary matter such as this should proceed.
The application for the amendment of Annexure ‘A’ to the referral to include the further ground three is refused.
In respect of the other less substantial amendments sought to be made to Annexure ‘A’, they have not been opposed by Dr Leggett. Dr Leggett has, however, in his submissions, pointed out that there are some typographical errors which need to be addressed. Particularly, ground 1.2 should now refer to paragraphs C to H and not to paragraphs 1.1.1 to 1.1.5.
I will direct that the Board file a further amended Annexure ‘A’ to the referral to reflect these reasons within seven days of the date of these reasons.