Medical Board of Australia v North
[2012] QCAT 546
•20 July 2012
| CITATION: | Medical Board of Australia v North [2012] QCAT 546 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Andrew North (Respondent) |
| APPLICATION NUMBER: | OCR225-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 16 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Kong Goh Fiona Petty Dr John Waller |
| DELIVERED ON: | 20 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr North is reprimanded. 2. Dr North’s registration is suspended for 3 months. The order is suspended after 1 month provided that Dr North complies with orders 3 and 4. If he fails to do so, the remaining 2 month period of suspension will be activated upon the order of the Tribunal. 3. Dr North must continue boundary violation counselling, at his expense, with Dr Brian Kable or such other health professional as may be approved in writing by the Board, to be satisfactorily completed within 6 months from the date of the order. 4. Dr North must authorise and allow the Board to access his patient and Medicare records, at his expense, for a period of 2 years from the date of the order. 5. The reprimand, suspension and conditions must be publicly recorded in the Board’s register of practitioners for 2 years. 6. The publication of any details that might tend to identify the patient and the name of the complainant is prohibited. The parties must file a redacted version of the material filed to date within 14 days of the date of this order. Inspection of the original material is prohibited without further order of the Tribunal. 7. Dr North must pay the Board’s costs of and incidental to the proceedings (including any costs of the investigation) on a standard basis to be agreed or assessed. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONERS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant had an inappropriate relationship with a patient – where the relationship was sexual and consensual – where the patient was not particularly vulnerable – where the relationship did not involve actual exploitation of the patient – where the registrant initially denied the alleged conduct – where the registrant later admitted the relationship – where the registrant has undertaken counselling since his admission of the relationship – whether the registrant should be reprimanded – whether the registrant’s registration should be suspended – whether the registrant should continue boundary violation counselling – whether the reprimand should be recorded in the register of practitioners – whether the matter is one that justifies the grant of a non-publication order Health Practitioners (Professional Standards) Act 1999, ss 241, 241(2)(a), 241(2)(g) Medical Board of Queensland v Mallon [2010] QCAT 311 Medical Board of Australia v Nandam [2011] QCAT 065 |
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
The Board brought disciplinary proceedings against Dr North because of his personal relationship with a patient and his false statement to the Board when it investigated the allegation.[1]
[1]As the Board had started dealing with the complaint before the National scheme commenced, it has proceeded under the Health Practitioners (Professional Standards) Act 1999 pursuant to the transitional provision, Health Practitioner Regulation National Law Act 2009, s 289.
There is no dispute about the relevant facts and in all but one respect, the parties have made a joint submission about the sanction the Tribunal should impose.
The conduct
Dr North met the patient in 1993 at a Christmas party hosted by a colleague. Shortly afterwards, he commenced treating her as her general practitioner. Over some years they became friends and, in 1999, they commenced a sexual relationship.
Dr North always understood the relationship involved a breach of professional boundaries. He raised this with the patient, who was not troubled by this. She described their relationship as a “fling”. It lasted about 3 years, until some time in 2002. They remained friends when the sexual relationship ended.
The relationship occurred during an unstable period in Dr North’s former marriage. He has since divorced and remarried. The relationship came to light because of a complaint by Dr North’s former wife.
The Board has not alleged any element of predatory conduct by Dr North. The patient made no complaint about him. There is no evidence she was particularly vulnerable. Nevertheless, the relationship constituted a clear violation of professional boundaries, something that Dr North recognised even at the time he engaged in it.
Dr North’s statement to the Board and his affidavits filed in these proceedings indicate his tendency to minimise or avoid squarely facing his own conduct.
In his first affidavit, Dr North said (at [10]): “There was no real imbalance of power.” This demonstrates that, in February this year, when he swore the affidavit, Dr North still had some way to go in appreciating the power imbalance inherent in the doctor-patient relationship.
Dr North’s initial denial of the relationship reflects very poorly on him. He said his judgment in entering into and maintaining the relationship was affected by the instability in his marriage. He has since divorced and remarried and is no longer emotionally unstable. Yet when confronted by the allegation in January 2011, he prepared and signed an ardent denial in which he mounted a vigorous attack on his former wife, another medical practitioner, who could well have faced disciplinary consequences if the Board had accepted Dr North’s assertion that she had made a false allegation.
In his response to the Board, he declared: “I unequivocally deny having an affair.” Somewhat biblically, he went on to deny the relationship twice more in the statement.
Dr North used the timing of the complaint as the basis for his assault on his former wife’s credit. As he later had to concede, her complaint was well founded. Even so, in these proceedings, Dr North continued to make something of his former wife’s motivation for and timing in making the complaint. That is irrelevant to the Tribunal’s assessment of Dr North’s conduct. Regardless of her motivation, his former wife is not responsible for Dr North’s conduct, whether engaging in the relationship or lying about it to the Board.
Dr North quickly recanted when he was confronted with the patient’s honest and forthright responses to the Board’s inquiry. By then, of course, there was nothing Dr North could gain by his continued denial. Although, Dr North explained his initial denial as stemming from his shame about a mistake he hoped was in the past. The Tribunal can draw an inference from Dr North’s emphatic and detailed denial that he would not have admitted the relationship had the patient not responded honestly.
The Tribunal is satisfied that both the relationship and his subsequent false statement to the Board’s investigator constitute grounds to take disciplinary action against Dr North. He has engaged in conduct of a lesser standard than might be expected of him by his professional peers and the public.
The sanction
The purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession, and protecting the public.
The relationship ended a decade ago, and there is no evidence Dr North has engaged in like conduct since. He has provided references from his current wife, two colleagues and a respected member of his community that all attest to his contributions as a general practitioner.
The Tribunal has determined sanction on the basis that the relationship, although inappropriate, was consensual, genuine and did not involve actual exploitation of the patient. Nevertheless there must be a sanction that recognises the clear breach of professional boundaries and, also, Dr North’s attempt to deceive the Board in its investigations.
Since his admission of the relationship, Dr North has undertaken counselling about boundary violations. Pursuant to the orders he has agreed to, he will continue to be counselled by Dr Kable. In order for this to be effective, Dr Kable should be provided with a copy of these orders and reasons, and all material filed in the proceeding. His attention is drawn, in particular, to Dr North’s initial response to the Board and his affidavits.
His good conduct between the relationship ending and the complaint to the Board, and his conduct since he admitted to the relationship suggest that Dr North does not present a risk to patient safety.
Dr North has agreed to significant penalties. He will be reprimanded[2], which is a formal denunciation of his conduct. His registration will be suspended for 3 months.[3] The suspension reflects both the clear breach of professional boundaries and Dr North’s deceptive conduct.
[2] Health Practitioners (Professional Standards) Act 1999, s 241(2)(a).
[3] Health Practitioners (Professional Standards) Act 1999, s 241(2)(g).
That order suspending his registration will itself be suspended after one month, provided Dr North continues with his boundary violation counselling for 6 months and allows the Board to access his patient and Medicare records for 2 years.[4]
[4] Health Practitioners (Professional Standards) Act 1999, s 241(2).
The only point of disagreement is how long the reprimand should be recorded in Dr North’s entry in the register of practitioners maintained by the Board.
The Board has placed no limit on the period it is recorded. Dr North has requested that it be recorded only so long as the conditions are in force. That is 2 years from the date of this order. The Tribunal has limited the period of recording in similar cases.[5]
[5]Medical Board of Australia v Nandam [2011] QCAT 065; Medical Board of Queensland v Mallon [2010] QCAT 311.
Given the factors identified in [15]-[19], the Tribunal considers no further purpose would be served by recording the reprimand after the conditions have been fulfilled.
Non-publication orders
The material filed by the parties discloses the names of both the patient and Dr North’s former wife. There is no public interest in identifying either of those women. The parties are required to file a redacted version of all material filed in these proceedings within 14 days. The original versions will be retained on file but are not to be inspected without further order of the Tribunal.
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