Medical Board of Australia v Love
[2013] QCAT 608
•1 November 2013
| CITATION: | Medical Board of Australia v Love [2013] QCAT 608 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr James Fitzgerald Russell Love (Respondent) |
| APPLICATION NUMBER: | OCR013-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Eileen Burkette |
| DELIVERED ON: | 1 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) the Tribunal finds that Dr James Love has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 196(2)(a) of the National Law Dr James Love is reprimanded 3. Pursuant to s 196(4)(a) of the National Law Dr James Love is prohibited from applying for registration for a period of 6 years. 4. Dr Love must pay the Medical Board’s costs of these proceedings to be assessed by a costs assessor on the District Court Scale. 5. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any information identifying the patient, or by which she may be identified, is prohibited. |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the former registrant engaged in a sexual relationship with a patient – where practitioner is no longer registered – where the former registrant did not participate in the proceedings – whether the former registrant has engaged in professional misconduct – whether the former registrant should be prevented from re-applying for registration for a period – whether the Tribunal should impose conditions upon the former registrant re-applying for registration – whether the former registrant should pay the Board’s costs in the proceedings Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) s 398ZA Medical Board of Australia v Dall [2011] QCAT 608, 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 (Qld).
REASONS FOR DECISION
The proceedings
Dr James Fitzgerald Russell Love was formerly a registered medical practitioner. He retired from medical practice in about October 2008. At the time of his retirement he was 64 years old. He is now 69.
Dr Love’s retirement brought to a close not only his medical career, but also a relationship which he is alleged to have been conducting with a person who, to that point, had been his patient. The relationship was sexual. It was conducted over a period of about five years.
There is no reason to find that the allegations about this relationship are not true. The patient has sworn to them. They are corroborated, in part, by other evidence: tax invoices from a motel near Dr Love’s surgery where the patient alleges many of the sexual encounters took place; extracts from a pocket mail device which Dr Love provided to the patient and paid for so that they could communicate secretly.
Dr Love is aware of all the allegations. He has not denied them. Rather, he has chosen not to participate at all in these disciplinary proceedings.[1]
[1]On the 25 January 2012 a licensed commercial agent served upon Dr Love a letter from the Board’s solicitors, McInnes Wilson Lawyers, and a copy of the Application or referral – disciplinary proceedings filed in the Tribunal on 17 January 2012 (see Affidavit of Service file by leave on 17 February 2012). In a Affidavit filed by leave on 17 February 2012, Mr McCowan of McInnes Wilson Lawyers deposes to having called Dr Love’s last known telephone number on 16 February 2013. Mr McCowan deposes to having spoken to a man who confirmed he was Dr Love, he identified himself and informed Dr Love that he was the Board’s solicitor. He also informed Dr Love of the directions hearing the following day. Dr Love said he was not aware of this but informed Mr McCowan that he would not be attending. Mr McCowan informed Dr Love that “in spite of him no longer practising medicine the matters in the charge can still be heard and decided upon and the tribunal can make orders and findings and also it was a public forum.” Dr Love refused offers to arrange for him to attend the directions hearing by telephone and re-iterated that he had no intention of appearing. The following day at the directions hearing her Honour Judge Fleur Kingham, the then Deputy President of the Tribunal, made an order that all further notices and communications will deemed to have been personally served on Dr Love if they were delivered to the address at which the licensed commercial agent served Dr Love. On 25 January 2013 the Tribunal directed that the Board give to Dr Love a copy of their submissions in the proceedings and a copy of the Tribunal’s directions, by mailing the documents by pre-paid post to the address at which the licensed agent served Dr Love in 2012 and by delivering a copy to the same address. Those directions directed that Dr Love file any submissions in response by 1 March 2013 and the matter be listed for a hearing on the papers on a date to be advised by the Tribunal. Nothing has been filed in the Tribunal by Dr Love. A hearing notice was sent by the Tribunal to Dr Love notifying him of the date of the on the papers hearing (pursuant to s 92 of the Queensland Civil and Administrative Tribunal Act 2009 and s 398ZA of the Health Practitioner (Disciplinary Proceedings) Act 1999). The Tribunal proceeded to decide the matter in the absence of Dr Love pursuant to s 93 of the Queensland Civil and Administrative Tribunal Act 2009.
Dr Love’s conduct
I accept that the relationship was conducted as alleged by the patient.
The relationship was a gross violation of the responsibility and trust placed in Dr Love as a medical practitioner. The patient was, as Dr Love must well have known, highly vulnerable. It was exploitative in the extreme. He is entirely unapologetic for it.
His conduct clearly qualifies as professional misconduct.[2]
[2]Health Practitioner Regulation National Law(Queensland) (National Law) s 5.
Having accepted that the conduct occurred, and that Dr Love is guilty of professional misconduct, the issue becomes one of determining what is an appropriate sanction to impose upon this former registrant which will achieve the purpose of proceedings such as these. That purpose is not to punish the registrant but to protect the public and the integrity of the profession.[3]
[3]Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 177. See also the objects of the National Registration and Accreditation Scheme established under the National Law which include, at s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
In order to consider the appropriate sanction some further detail of the conduct of Dr Love should be set out.
The patient was initially referred to Dr Love in 1998 for a complete check up in relation to domestic violence that she had suffered as a result of a violent marriage. At that time, she was also suffering from anorexia nervosa, depression and anxiety. Therefore, from the time of initial contact with the patient, Dr Love was aware of her vulnerabilities.
The patient saw Dr Love on a monthly basis through until about 2003 when the consultations became weekly.
Dr Love professed that he wished to take a ‘holistic approach’ to the patient’s treatment. To that end, he asked questions about her personal life. The patient divulged intimate details about herself, some of which demonstrated her particular vulnerability. They included that she had been a childhood victim of sexual abuse and details of her previous violent marriage.
Around the time when the frequency of consultations increased in 2003 the patient began writing letters to Dr Love. She had previously written letters to medical practitioners who had treated her as she found the exercise therapeutic. Dr Love replied to her letters, and the pair exchanged letters on a weekly basis for a period of about a month. Dr Love was the first practitioner who had provided responses.
The sexual relationship also commenced in 2003. After one of her consultations, the patient said to Dr Love that she would not be seeing him until the following week. Dr Love then touched her hand and said words to the effect that it did not have to be that way, and that they could meet for coffee later in the week. They met and had coffee a couple of days later. Afterwards, they returned to Dr Love’s surgery. It was then after hours and no one else was present. Dr Love closed the door to his consulting room and began kissing the patient. They engaged in sexual intercourse.
They again engaged in sexual intercourse at the surgery, after hours, the following day.
After these initial encounters, a pattern of conduct developed whereby the patient would attend for consultations with Dr Love on Tuesdays between 2:00pm and 3:00pm. After her consultation, she would go to a nearby coffee shop until the surgery closed at 5:00pm. When the receptionist had left the surgery, Dr Love would call the patient. She would then go to the surgery and they would engage in sexual intercourse.
From early in this sexual relationship Dr Love told the patient that he would not leave his wife and that she could tell no one about their sexual relationship. He also told her not to have sexual partners other than himself because he still intended to continue having sexual relations with his wife.
Dr Love was on call about every third weekend. When he was, he would book and pay for a room at one of two motels near to his surgery. The rooms were always booked in the patient’s name, never in Dr Love’s. Dr Love would give the patient cash to pay for the rooms.
Dr Love and the patient would engage in sexual intercourse several times over the course of a weekend.
From a time early in their sexual relationship, to facilitate communication between them, Dr Love provided the patient with a PocketMail device. He also had such a device. The devices were used by the patient and Dr Love to exchange emails. Dr Love told the patient that she should not email him other than by using the PocketMail device. She was under the impression that Dr Love did not wish there to be any written evidence of their relationship. The impression was doubtlessly correct.
At one stage during the sexual relationship the patient’s weight dropped to 41 kilograms. Her psychiatrist, who she was seeing but to whom she had not divulged the sexual relationship with Dr Love, admitted her to the New Farm Clinic as a voluntary patient. She was there for a period of three months.
During her stay at the New Farm Clinic she would, on occasions, self harm with razor blades, and overdose on tablets. When she did this she would ring Dr Love on his mobile phone and he would then ring and notify the clinic. On occasions during her stay at the New Farm clinic she was admitted to St Andrew’s Intensive Care Unit and the Wesley Intensive Care Unit as a result of an overdose. She was also admitted to St Andrews for three days as a result of kidney failure due to her low body weight. On that occasion, Dr Love admitted her to the hospital.
Dr Love and the patient regularly engaged in sexual intercourse during the time of her stay at the New Farm Clinic. As she was a voluntary patient she was able to leave the clinic of her own volition. She would catch a taxi and visit Dr Love. During that time her arms would be wrapped in bandages due to her self harming. After she and Dr Love engaged in sexual intercourse he would drive her back to the clinic.
When she commenced having a sexual relationship with Dr Love the patient told him that she could see another doctor instead of him. However, Dr Love did not insist that she do so and he continued to see her for medical consultations on a regular basis. Never did he advise her that their treating relationship must cease while they engaged in a sexual relationship. At no time did Dr Love even express reservation about the continuation of the doctor patient relationship whilst the sexual relationship was being maintained. All he did was advise his patient that she could not tell anyone about the relationship.
The relationships, both sexual and treating, ceased upon Dr Love’s retirement. The cessation of the sexual relationship upon his retirement came as sudden and unexpected news to the patient. She was upset and attempted to salvage their relationship. She met Dr Love for coffee on three occasions and they continued to exchange some emails for a month after his retirement. After that he stopped responding to her emails and all contact ceased. The patient felt used.
Shortly after this, the patient informed her psychiatrist of the relationship. The psychiatrist notified the Medical Board of Australia whose investigation of the notification led to these proceedings.
I have set out that history as it serves to place in context the extent of Dr Love’s misconduct. It demonstrates that Dr Love’s misconduct had the following features.
a) During the entirety of the sexual relationship, which lasted approximately five years, Dr Love remained the patients treating general practitioner.
b) He knew her to be vulnerable from the outset.
c) He went to considerable lengths to maintain the secrecy of the relationship.
d) He continued to exploit the patient for his own sexual gratification even at a time when her mental condition was such that she was in an inpatient at the New Farm Clinic, self harming and overdosing on drugs.
That Dr Love should meet with her at those times, attend to his own sexual gratification and return her to the New Farm Clinic, her self harm wounds bandaged as they had been when she had arrived to meet him, is reprehensible in the extreme.
It is difficult to imagine how a patient could be more evidently vulnerable, yet so shamelessly exploited.
The statutory framework
Section 139 of the National Law provides that where a person was registered in a health profession under a corresponding prior act, and is not, and has not been, registered under the National Law, a notification may be made, and proceedings taken against the person, under the National Law in relation to their behaviour while registered under the corresponding prior act, as if he or she was registered under the National Law. The Board is only able to do so if a notification about the person’s behaviour could have been made, and proceedings taken under the corresponding prior act. Dr Love was registered under Health Practitioners (Professional Standards) Act 1999,[4] which satisfies the definition of a ‘corresponding prior act’ for the purpose of the National Law.[5] The conduct giving rise to the notification under the National Law could also have given rise to a notification under the Professional Standards Act and proceedings could have been commenced in the Tribunal in respect of that conduct.
[4]Now the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld).
[5]See National Law s 5.
Therefore, the Tribunal has jurisdiction to deal with this matter under the National Law.
Sanction
The Board submits that an appropriate sanction in this matter would be that:
a) Dr Love be publically reprimanded;
b) Dr Love be prevented from reapplying for registration for a period of two years;
c) should Dr Love reapply for registration he must first undertake a course in boundary violation as approved by the Board in writing;
d) Dr Love is to pay the Board’s costs of the proceeding.
Section 196 of the National Law, which sets out what the Tribunal may do if it decides that a practitioner has engaged in conduct which constitutes professional misconduct, also applies to a former practitioner in the position of Dr Love.[6] Section 196(2)(a) permits the Tribunal to reprimand the person. A reprimand is appropriate.
[6]National Law s 139(4).
Section 196(4) provides that in respect of a person who does not hold registration under the National Law, the Tribunal may decide to disqualify the person for applying for registration as a registered health practitioner for a specified period. That too, in my view, is appropriate. However, I am not persuaded that the disqualification period of two years suggested by the Board is an appropriate period. In my view it is insufficient.
In its submissions, the Board referred by way of comparable cases to the Medical Board of Australia v Nandam.[7] In that case, Dr Nandam was reprimanded and his registration suspended for three months. That suspension was itself suspended after one month subject to Dr Nandam complying with certain conditions for a period of two years.
[7][2011] QCAT 65.
Dr Nandam had maintained a sexual relationship with a patient for about nine months. At an early stage in the proceedings before the Tribunal he had admitted the conduct although taking some issue with some of the details stated by the patient. The Tribunal found that whilst Dr Nandam had always understood that he was violating professional boundaries, at the time of the hearing he had developed insight into his personality and psychiatric vulnerabilities and was actively addressing them. He had come to recognise the potential harm to his patient and accepted that she suffered as a consequence of the relationship. The patient had been vulnerable and Dr Nandam was aware of health concerns and other personal circumstances which should have indicated to him the particular vulnerability.
In my view, the conduct of Dr Love in this matter is considerably more serious than that of Dr Nandam. Particularly, the duration of the relationship and the extent of the vulnerability to the patient are both much greater in this case. Also, there is no evidence in this matter of Dr Love ever having developed the insight into his conduct which was present in Dr Nandam’s case.
The Board also referred to the decision in Medical Board of Australia v Yasin.[8] Dr Yasin was a psychiatrist. He had an inappropriate and sexual relationship with the female patient who he was treating for bipolar affective disorder in the course of his duties at a hospital in Brisbane. A couple of months into the treating relationship, Dr Yasin agreed to provide the patient with a letter which she had requested concerning her medical condition. Rather than post the letter to her or leave it for her collection Dr Yasin arranged to give it to her personally. This occurred in a shopping centre car park the patient hugged him and he initiated kissing. They were intimate in that way for some minutes. They met again in the same car park and engaged in a similar level of intimacy on two or three occasions over a four month period. On an occasion when Dr Yasin was in Sydney the patient had arranged to be there also. They met and had sexual intercourse. When they returned to Brisbane there was some further meetings, however, Dr Yasin was then attempting to bring the relationship to an end.
[8][2011] QCAT 300.
Dr Yasin was suspended for a period of two years with the suspension itself being suspended after 12 months provided that Dr Yasin complied with conditions for a further period of two years.
Again, in my view, the extent of the conduct in this matter is far more egregious than that in Dr Yasin’s case.
The Board also referred to a decision of the Tribunal in Psychology Board of Australia v Dall.[9] In that matter, the registrant, who was a psychologist, engaged in a relationship of a sexual nature with a patient who was a prisoner. The relationship was never physical due to the patient’s incarceration. The registrant went to considerable lengths to conceal the relationship including installing a separate private telephone line and registering that line with the prison under a false name. The treating relationship between the practitioner and the prisoner had occurred in respect of four episodes between February 2002 and July 2003; a sexual relationship between them continued through until 2008; that is, well subsequent to the cessation of the treating relationship.
[9][2011] QCAT 608.
The practitioner there was prohibited from applying for registration for a period of 18 months.
Again, the conduct in which Dr Love has engaged in this matter is significantly more serious than that engaged in by Ms Dall.
In Medical Board of Queensland v Alroe[10] the Queensland Health Practitioners Tribunal found that a psychiatrist had engaged in sexual intercourse with a former patient on four occasions between January 1999 and April 2000. The Tribunal also found that between about August 1998[11] and April 2000 the psychiatrist had exploited his former professional relationship with the patient for his own gratification.
[10][2005] QHPT 004.
[11]Although at [1] it is stated that the registrant between August 1988 and April 2000 exploited his professional relationship with the patient, this appears to be a typographical mistake. At [2] it is stated that the treating relationship began in 1989 and social interactions commenced in August 1998.
The Tribunal ordered the cancellation of the practitioner’s registration and prohibited him from being registered for a period of four years. The Tribunal found that Dr Alroe’s conduct was ‘a very serious example of exploitation of the significant power and balance that existed between the therapist and a patient in a position of particular vulnerability’. The Tribunal observed that:
The penalty imposed must be one which is designed not only to uphold standards and maintain public confidence in the profession, but which also serves to protect the public and provide a clear message of deterrence to other practitioners who might be minded to behave in a similar way.[12]
[12]Ibid at [15].
In my view, the conduct of Dr Love, in this case, is a more serious case of exploitation than that in Alroe. Had Dr Love been a registered practitioner at the time which this matter was considered by the Tribunal, I have no doubt that the decision would have been taken to cancel his registration.
Given the extent of the violation of boundaries by Dr Love, the extent and duration of the exploitative conduct, the complete absence of evidence of remorse or insight into his conduct, it is difficult to have confidence that he would not pose a risk at any time in the future. I am of the view that an appropriate period to prohibit his ability to apply for re-registration is a period of six years.
The order which the Board seeks imposing conditions on any future registration is not, in my view, supported by s 196(2)(b) of the National Law. For reasons developed in Nursing and Midwifery Board of Australia v Fankhauser,[13] the Tribunal does not have power under the National Law to impose conditions on future registration after a period of cancellation.
[13][2013] QCAT 395 at [39] – [40] and [44] – [50].
Costs
The Board seeks its costs. It is appropriate that Dr Love pay the Board’s costs of and incidental to the proceedings. The Board has limited resources. Proceedings such as these are brought to protect the public and reputation of the profession. It is appropriate that a former member of the profession who was engaged in professional misconduct as has Dr Love ought pay the costs of the Board for bringing the proceedings. Furthermore, because of his lack of participation in the proceedings, the Board has been required to prepare its case to the fullest extent possible.
I shall order that Dr Love pay the Board’s costs of and incidental to the proceedings to be assessed.
Suppression of the patient’s name
Whilst I have refrained from identifying the patient in the course of these reasons, there is material on the Tribunal’s file by which she could be identified. The Tribunal shall order, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009, that the publication of any material identifying the patient, or by which she might be identified, is prohibited.
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