Medical Board of Australia v Mbo
[2015] ACAT 69
•8 September 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v MBO
(Occupational Discipline) [2015] ACAT 69
OR15/16
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner regulation – general practitioner – professional misconduct in treatment of two patients – frequent SMS messages and providing advice in an informal setting to one patient – commencement of intimate relationship with another patient shortly following termination of therapeutic relationship – tribunal approved proposed orders – reprimand – suspension of registration – conditions including mentoring, supervision, training and psychiatric treatment
Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT) s 55
Health Practitioner Regulation National Law (ACT) s 196
Cases Cited:Medical Board of Australia v Khalil [2013] ACAT 76
Health Care Complaints Commission v Do [2014] NSWCA 307
Tribunal: Ms M Brennan -Senior Member
Date of Orders: 8 September 2015
Date of Reasons for Decision: 16 October 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 15/16
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR NSUNUNGULI MBO
Respondent
TRIBUNAL: Ms M Brennan- Senior Member
DATE:8 September 2015
ORDER
The Tribunal Orders that:
The Agreed Proposed Orders signed by the parties on 9 September 2015 are made pursuant to section 55 of the ACT Civil Administrative Tribunal Act 2008 (the ACAT Act).
The terms of agreement are:
a)The respondent has behaved in a way that constitutes professional misconduct in engaging in behaviour set out in the statement of agreed facts.
b)The respondent is reprimanded.
c)Noting that the respondent’s registration has already been suspended since 25 July 2014, the respondent’s registration is suspended until 31 December 2015.
d)Upon resumption of clinical practice, the respondent’s registration is to be subject to the following conditions for a period of two years, the conditions insofar as they are applicable, to be reviewed by the Board at the end of 24 months:
(i) The respondent will meet with a Board-approved mentor for ongoing professional mentoring in respect of boundary issues for a period of twelve months from the date the respondent resumes clinical practice.
(ii) The Board-approved mentor is to provide a report to the Board at four monthly intervals, or as requested by the Board.
(iii) If the respondent resumes practice as a trainee in psychiatry, the respondent will practice under a Board-approved supervisor(s), for a period of 12 months, from the date he resumes practice as such.
(iv) The respondent may return to practice as a General Practitioner (GP) in a group practice approved by the Medical Board (comprising 4 or more medical practitioners) under level 3 supervision (as defined by the Board’s Guidelines: ‘Supervised practice for limited registration (attached)) by a Board-approved supervisor, who is to provide monthly reports to the Board for a period of 6 months from the date on which the respondent returns to practice.
(v) Within three months of his return to practice, the respondent must engage in a therapeutic relationship with a psychiatrist in respect of his boundary issues, for a period not less than 12 months.
(vi) The treating psychiatrist is to provide a report to the Board at three monthly intervals, or as requested by the Board.
(vii) Within three months of his return to practice, the respondent must commence a Board-approved training course in relation to boundary violations.
(viii) Prior to any return to practice in a psychiatric trainee position, the respondent must have completed the Board-approved training course in relation to boundary violations.
(ix) The respondent will provide a copy of these conditions to his employer(s).
(x) The respondent will ensure his employer(s) provide the Board an acknowledgement of receipt of conditions within seven days of receiving a copy of the conditions.
(xi) The respondent is to pay the costs of, and associated with, compliance with these conditions.
The names of patients in this matter are to be suppressed and described as patient A and patient B.
………………………………..
Ms M. Brennan – Senior Member
REASONS FOR DECISION
In making orders pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal must be satisfied that the orders proposed would be within the Tribunal’s powers and appropriate for the Tribunal to make.
Sub-section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (ACT) (the National Law) empowers the Tribunal to decide that a practitioner has behaved in a way that constitutes professional misconduct.
Sub-section 196(2) details the powers the Tribunal has after making a finding under sub-section 196(1)(b). These include reprimanding the practitioner and imposing a range of conditions on the practitioner’s registration, including requiring the practitioner complete further training or undertake a period of supervised practice. On the basis of the powers detailed in the National Law, the Tribunal is satisfied it has the power to make the orders sought by the parties.
After hearing the parties, the Tribunal is also satisfied that the orders are appropriate, noting that a key object to be considered is the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
On the basis of the evidence filed by the applicant and respondent, including the practitioner’s statement dated 29 July 2015, the Tribunal is satisfied that the practitioner had engaged in professional misconduct and had failed to maintain appropriate professional boundaries with patient A by using numerous SMS messages to communicate with her, providing clinical advice in a social setting and continuing to provide clinical advice after she had left the practice where the respondent was working.
The Tribunal is also comfortably satisfied that the practitioner had engaged in professional misconduct in commencing an intimate relationship with patient B within two months after she ceased consulting him for medical treatment.
In considering the practitioner’s conduct the Tribunal took account of its seriousness, the level of the practitioner’s remorse and insight and the risk of the practitioner repeating the conduct. It was referred by the respondent’s lawyers to the decision of this Tribunal in Medical Board of Australia v Khalil [2013] ACAT 76.
The Tribunal also considers that deterrence to other practitioners is an important function. In the New South Wales Court of Appeal decision of Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA with whom Basten JA and Emmett JJ concurred, discussed both the value of deterrence and the importance of public confidence and noted at [35]:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In this case the Tribunal is also satisfied that the conditions to be imposed after the practitioner can reapply for registration should assist and support him in maintaining appropriate boundaries in the future and protect the public from future misconduct.
Finally, it is in the interests of the parties and the wider community that this matter could be resolved without requiring a hearing. In making a consent order of this kind the Tribunal had the opportunity to review and comment upon the consent orders proposed. There was also the opportunity to review the agreed statement of facts with the registered health practitioner in order to confirm his understanding of the importance of the matter, why a finding of misconduct was being made and how he intended to avoid any such conduct in the future. Such interpretation is consistent with the emphasis in the National Law that the scheme operate to protect the public according to principles of transparency, accountability, efficiency, effectiveness and fairness.
………………………………..
Ms M Brennan - Senior Member
AGREED STATEMENT OF FACTS
A.Qualification and registration details
Dr Nsununguli Mbo (respondent) was born on 10 January 1978. He graduated from the National University of Ireland on 10 June 2005 with a Bachelor of Medicine, Bachelor of Surgery and Bachelor of Obstetrics.
The respondent was first registered to practice medicine in the Australian Capital Territory on 5 August 2009 and in Australia on 1 July 2010 (Registration no. MED0001635619). The respondent held limited registration between 5 August 2009 and 30 June 2011 as he was an International Medical Graduate. The respondent obtained general registration on 1 July 2011. The respondent does not hold any specialist qualification.
The respondent’s registration is currently suspended and has so been since 25 July 2014. No conditions, undertakings or reprimands currently attach to the respondent’s registration.
The respondent was relevantly employed in Australia as a medical practitioner at the following places:
(a)Between 12 March 2012 and 1 May 2013 – General Practitioner – Tristar Medical Group – Canberra, ACT.
(b)Between approximately 20 May 2013 and 2 August 2013 – Locum Psychiatry Registrar – Alice Springs, NT.
(c)Between approximately December 2013 and 31 January 2014 – Locum Psychiatry Registrar – Goulburn Base Hospital, NSW.
(d)Between approximately February 2014 and 2 February 2015 – Psychiatric Registrar – North Shore Network – Sydney/Central Coast, NSW, but was suspended without pay from 25 July 2014.
B.Notifications
On 12 September 2013, the Australian Health Practitioner Regulation Agency (AHPRA), on behalf of the Medical Board of Australia, received a notification from Miss Jamieson, a clinical psychologist at Headspace ACT, University of Canberra (first notification).
The first notification alleged the respondent had failed to maintain appropriate professional boundaries with a former patient of the respondent, ’Patient A’.
On 22 November 2013, the Northern Territory delegate of the Medical Board of Australia (Board) resolved to investigate the first notification under s 160 of the Health Practitioner Regulation National Law (NT). The investigation was subsequently referred to the ACT delegate of the Board, as the respondent’s principal place of practice was the ACT, and which resolved that the matter should be investigated under the Health Practitioner Regulation National Law (ACT) (National Law).
On 1 July 2014, AHPRA received a notification from Dr Lewis, a psychologist in private practice, in relation to a former patient of the respondent, ’Patient B’ (second notification).
The second notification alleged the respondent had entered into an intimate relationship with Patient B; that the relationship had commenced while Patient B had still been a patient of the respondent; that the respondent had taken explicit photographs of her without her consent; and that the respondent had ‘threatened her’ with the photographs when she had been trying to leave the relationship.
On 17 July 2014, the ACT delegate of the Board met to consider the second notification. The Board proposed taking immediate action under s 156 of the National Law, by suspending the respondent’s registration. The respondent was notified of the proposed suspension and invited to make a submission to the Board.
On 8 July 2014, AHPRA was contacted in writing by Patient B. Patient B indicated that, contrary to some of the detail contained in the second notification, the intimate relationship between her and the respondent had commenced after their professional relationship had ended. As a result of Patient B’s communication, the Board was asked not to make a final decision to take immediate action.
On 24 July 2014, the Board considered the second notification and resolved to take immediate action to suspend the respondent, with effect from 25 July 2014, and referred the matter to AHPRA for investigation.
On 15 September 2014, the Board resolved to join the AHPRA investigation of the first notification with the second notification.
On 21 January 2015, the Board met to consider the first and second notifications, and the written submissions made by the respondent to the Board between July and December 2014.
On 21 January 2015 the Board resolved to refer both notifications to ACT Civil and Administrative Tribunal (Tribunal) under s 193 of the National Law.
C. Application for occupational discipline
On 18 May 2015 the Board filed an application for disciplinary action in the Tribunal.
On 15 June 2015, at the direction of the Tribunal, the Board filed an amended application for disciplinary action in the Tribunal, being the application currently before the Tribunal.
The Board’s application alleges the following, in summary:
(a)Between approximately May 2012 and September 2013, the respondent failed to maintain appropriate professional boundaries with a former patient (‘Patient A’) by:
i.Frequently utilising SMS messages to communicate inappropriately with Patient A, including by commenting on her personal relationships and asking about her mental health;
ii.Providing clinical advice to Patient A in an informal social setting;
iii.Providing clinical advice to Patient A when Patient A was no longer a patient of the respondent.
(b)In relation to Patient A, the respondent’s conduct fails to meet the standard of practice articulated in clauses 1; 3.2 and 8.2, Good Medical Practice: A Code of Conduct for Doctors in Australia, Medical Board of Australia (Code of Conduct) (Annexure A).
(c)Between approximately August 2012 and June 2014, the respondent failed to maintain appropriate professional boundaries with a patient, ‘Patient B’, and transgressed professional boundaries with Patient B when she became a former patient by:
i.Commencing a social relationship with Patient B while she was still a patient of the respondent;
ii.Commencing an intimate relationship with Patient B immediately following termination of the therapeutic relationship between Patient B and the respondent.
(d)In relation to Patient B, the respondent’s conduct fails to meet the standard of practice articulated in clauses 1.2; 1.4; 3.2.6; 3.3; and 8.2 of the Code of Conduct.
(e)Further, in relation to Patient B, the respondent’s conduct fails to meet the standard of practice articulated in clauses 3 and 5 of the Sexual Boundaries: Guidelines for Doctors, Medical Board of Australia (Sexual Boundaries Guidelines) (Annexure B).
(f)In respect of both notifications, the respondent has acted in a way that constitutes:
i.Professional misconduct; or
ii.In the alternative, unprofessional conduct; or
iii.In the further alternative, unsatisfactory professional performance.
within the meaning of s 5 of the National Law.
Section 5 of the National Law defines ‘professional misconduct’ as including:
(a)Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Section 5 of the National Law relevantly defines ‘unprofessional conduct’ as:
...professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers...
Section 5 of the National Law relevantly defines ‘unsatisfactory professional performance’ as meaning:
...the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
D. Agreed facts
The respondent admits, and the Board accepts, the following facts.
First notification
Between approximately May 2012 and September 2013, the respondent failed to maintain professional boundaries with Patient A by utilising SMS messages to communicate inappropriately with Patient A.
The respondent admits the content of the text messages sent between the respondent and Patient A (Tab 5, Exhibit A).
The respondent also provided Patient A with clinical advice in an informal social setting, and provided clinical advice to Patient A after he had left the GP practice where Patient A had been his patient.
Second notification
From approximately August 2012, the respondent saw Patient B as a patient sporadically over a period of approximately four months. The respondent treated Patient B for a variety of physical complaints.
The respondent and Patient B were acquaintances during December 2012 and communicated via mobile phone and text shortly prior to, and following, a social occasion held in December 2012.
The respondent and Patient B commenced an intimate relationship in February 2013, after the therapeutic relationship between them was terminated in December 2012.
In relation to Patient B, there was a degree of overlap between the commencement of a social relationship and the termination of the therapeutic relationship.
The intimate relationship between the respondent and Patient B terminated in June 2014. The termination of the relationship was tumultuous and there was an argument between the respondent and Patient B, during which Patient B made a racial slur towards the respondent, and the respondent threatened to send elsewhere, copies of images made of Patient B that were inadvertently captured by the respondent’s home security system.
The images were not explicit and the respondent did not, in fact, intend to send them to other people, but had made the comments to Patient B in the heat of the argument.
In relation to both the second notification and the first notification, the respondent admits his conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
In relation to both the second notification and the first notification, the respondent admits his conduct constituted professional misconduct in the terms of section 5(a) and/or 5(b) of the National Law.
The respondent has been suspended and without pay since July 2014. The respondent is currently overseas caring for a sick family member.
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