Physiotherapy Board of Australia v Van Der Hoek (Occupational Discipline)
[2024] ACAT 71
•21 August 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PHYSIOTHERAPY BOARD OF AUSTRALIA v VAN DER HOEK (Occupational Discipline) [2024] ACAT 71
OR 2/2024
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner – professional misconduct – breach of personal and professional boundaries by engaging in intimate relationship with patient – orders by consent – disqualification from applying for re-registration for 12 months – reprimand
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 39, 55
Health Practitioner Regulation National Law (ACT) ss 5, 193, 195, 196
Health Practitioner Regulation National Law Act 2010 s 6
Cases cited:Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201933 [2020] ACAT 54
Medical Board of Australia v Ainsworth [2019] VCAT 734
Medical Board of Australia v Dielenberg [2024] ACAT 40
Medical Board of Australia v Singh [2017] WASAT 33
Medical Board of Australia v Stone [2023] ACAT 38
Tribunal:Senior Member D Stewart
Date of Orders: 21 August 2024
Date of Reasons for Decision: 4 September 2024
Date of Publication: 11 September 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 2/2024
BETWEEN:
PHYSIOTHERAPY BOARD OF AUSTRALIA
Applicant
AND:
HAMISH NEIL VAN DER HOEK
Respondent
TRIBUNAL:Senior Member D Stewart
DATE:21 August 2024
ORDER
The Tribunal being satisfied that the respondent has behaved in a way that constitutes professional misconduct within the meaning of paragraph (a) of the definition of ‘professional misconduct’ in section 5 of the Health Practitioner Regulation National Law (ACT) (the National Law), the Tribunal orders by consent:
The respondent is reprimanded for his conduct.
The respondent is disqualified from applying for re-registration as a health practitioner for a period of 12 months from the date of these orders.
………………………..
Senior Member D Stewart
REASONS FOR DECISION
The Physiotherapy Board of Australia (the Board), having formed the view that the respondent has behaved in a way which constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (ACT) (the National Law), has referred the matter to the tribunal for hearing and determination under section 193(1)(a) of the National Law.
On 20 May 2024, the parties provided the tribunal with a statement of agreed facts, findings and determinations in which the respondent admits to conduct which the parties agree constitutes professional misconduct. The parties have also agreed that it would be appropriate for the Tribunal to impose sanctions reprimanding the respondent and disqualifying him from applying for registration as a registered health professional for 12 months.
On 20 May 2024, the parties were advised that the matter would be decided on the papers without a hearing. On 3 June 2024, the applicant provided the tribunal with a Tribunal Book setting out documents relevant to the matter as agreed between the parties.
Section 55 of the ACT Civil and Administrative Tribunal Act 2008 provides that where the parties reach agreement about the terms of a tribunal decision then the tribunal may, by order, make a decision in accordance with the agreed terms without holding a hearing. The tribunal must be satisfied that such an order would be within the powers of the tribunal and appropriate for the tribunal to make.
For the reasons set out below, I am satisfied that the orders sought by the parties are within the powers of the tribunal and appropriate for the tribunal to make, and so will make those orders.
Whether the orders sought are within the powers of the tribunal
It is agreed that at the time of the conduct in question the respondent was registered as a physiotherapist and hence a registered health practitioner for the purposes of the National Law. However, the respondent is no longer a registered practitioner, their registration having lapsed from non-renewal on 31 October 2023.
Professional misconduct is defined in section 5 of the National Law to relevantly include:
(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; …
Unprofessional conduct is in turn defined in section 5 of the National Law to mean:
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 …
In determining whether conduct should be characterised as professional misconduct, it has been accepted that the tribunal should first determine whether the conduct meets the less stringent standard of unprofessional conduct before assessing whether it also amounts to the more serious contravention.[1]
[1] Medical Board of Australia v Al-Naser (No. 2) [2024] ACAT 8 at [42]
The parties agree that the standard reasonably expected of the respondent is set out in codes of conduct developed under section 39 of the National Law. During the time of the conduct in question, there were two applicable codes, the Code of Conduct for registered health practitioners published by the Board in March 2014 and the Shared Code of Conduct published by the Australian Health Practitioner Regulation Agency (AHPRA) and the 12 national boards set up under the various equivalents of the National Law applicable from 30 June 2022 (Shared Code).
Relevantly, the Shared Code, in terms similar to that used in the earlier code, provides (at clause 8.2):
Professional boundaries allow you and your patient to engage safely and effectively in a therapeutic relationship. Professional boundaries mean the clear separation that should exist between professional conduct aimed at meeting the health needs of patients and your own personal views, feelings and relationships which are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good practitioner–patient relationship. They promote good care for patients and protect both parties.
Good practice includes that you:
a) recognise the inherent power imbalance in the patient-practitioner relationship and maintain professional boundaries
b) be clear about the professional boundaries that must exist in professional relationships for objectivity in care, and avoid conflicts of interest, as well as under or over-involvement
c) never use your position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under your care; this includes those close to the patient, such as their carer, guardian, spouse, or the parent/carer/guardian of a child patient
d) recognise that sexual and other personal relationships with people who have previously been your patients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient …
Under section 196(1)(b)(ii), the Tribunal is able to decide that the practitioner has behaved in a way that constitutes unprofessional conduct. Under section 196(2), the Tribunal may impose various sanctions, including to caution or reprimand the practitioner. Under section 196(4), if the person does not hold registration, the tribunal may disqualify the person from applying for registration as a registered health practitioner for a specified period.
It is therefore clear that the tribunal has the power to make the orders sought where there has been a finding of unprofessional conduct by the respondent.
Whether it is appropriate to make the orders sought
As set out above, for the Tribunal to make orders on the terms agreed by the parties under section 55 of the ACAT Act, those orders must be appropriate for the tribunal to make. In Medical Board of Australia v Dielenberg,[2] the tribunal described the approach to determining whether orders are appropriate in this way:
As a general rule, the tribunal is reluctant to “go behind” a proper agreement reached by the parties, particularly where they are legally represented, unless an exceptional circumstance exists.
This must be balanced with the tribunal’s role and function in disciplinary proceedings, which is to set standards for the profession and protect the public.
It is not necessary for the tribunal to determine whether it would have made the same orders had the matter proceeded to a full hearing, but it does need to be satisfied that the proposed sanction is an appropriate response to the conduct having regard to the particular facts and circumstances of the case.[3]
[2] [2024] ACAT 40
[3] [2024] ACAT 40 at [21]-[23] (footnotes omitted)
Applying those principles in this matter, I therefore need to consider whether, on the agreed facts, it is appropriate that the respondent’s conduct is characterised as unprofessional conduct and that the orders sought represent an appropriate sanction. It is noted that both parties were legally represented in these proceedings.
The agreed facts
I will not set out the agreed facts in any detail here. Those facts set out how the respondent provided physiotherapy services to a patient across 7 appointments from 23 June 2022 to 16 September 2022. At one appointment, the respondent provided details of an AirBnB property which he owned. He subsequently did not charge the patient any fees after she stayed at the property for a weekend. The respondent also provided one treatment free of charge. During the appointments, the respondent and the patient discussed personal matters, including “love languages” and the respondent’s relationship status. The respondent also rested his chest on the patient’s hop during a treatment for 4 or 5 seconds.
The agreed facts describe the last appointment in this way:
During the appointment on 16 September 2022, the Respondent said to [the patient] words to the effect of ‘I really like you and I’d like to get to know you better. Would you like to go out on a date after this appointment?’ [The patient] agreed to go on a date, and the Respondent and [the patient] kissed on the lips. The Respondent had his hands on [the patient’s] hips when they kissed. The Respondent continued to treat [the patient] for the duration of the planned appointment.
Following that last appointment, the respondent and patient went rock climbing and had dinner. On 19 and 21 September 2022, they had consensual sexual intercourse at the respondent’s home. On 25 September 2022, the respondent ended the personal relationship with the patient.
Whether the conduct is appropriately characterised as professional misconduct
The respondent admitted that this conduct constituted a breach of the clauses 4.9)(a), (c) and (d) of the Shared Code and constitutes professional misconduct as defined in paragraph (a) of the definition of that term in section 5 of the National Law. I agree with this characterisation.
The respondent’s conduct represents a breach of the code of conduct in establishing a sexual relationship with someone who, at least at the time in which the relationship was initiated, was under the respondent’s care and suggests that the respondent did not adequately recognise the inappropriateness of establishing a relationship in those circumstances. The respondent’s conduct prior to the final appointment also indicated that they were not clear about the professional boundaries that must exist in professional relationships.
The Board, in its application, stated that the respondent had been a registered physiotherapist since January 2017. While the agreed facts do not go to the vulnerability of the patient, and there is no suggestion the personal relationship entered into was other than consensual, the importance of maintaining clear professional boundaries in dealing with clients and the lack of awareness of this importance by the respondent suggests that the respondent’s conduct was substantially below the standard reasonably expected of any registered health practitioner, let alone one with the respondent’s experience.
Whether the orders sought are an appropriate sanction
Sanctions in disciplinary proceedings are not intended to be a punishment for the wrongdoing of the respondent.[4] Disciplinary orders for health practitioners need to reflect the need to protect the public against misconduct by both the respondent and other practitioners as well as the need to maintain public confidence in the profession.[5] Whether the respondent acted knowingly, their disciplinary history and remorse or insight is also relevant.
[4] Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201933 [2020] ACAT 54 at [60]
[5] Medical Board of Australia v Singh [2017] WASAT 33 at [30]
The material provided to the tribunal in the Tribunal Book suggests that, while the respondent may not knowingly have breached his professional obligations, he was not sufficiently aware of those obligations and the importance of maintaining professional boundaries. The Board had not received any complaints about the respondent in the past and he had not been the subject of any regulatory or disciplinary action by the Board. His responses to the investigation by the Board generally demonstrate his remorse for the actions which followed from his lack of awareness of his professional responsibilities. The relationship was consensual and there is no evidence that the patient in question was particularly vulnerable due to the care she was receiving or otherwise, that the respondent exploited the patient, that the respondent provided excessive services or that the respondent otherwise utilised his position as physiotherapist to place the patient in harm’s way or gain an advantage for himself other than in establishing the relationship between them. These factors support a relatively lenient sanction, including that the respondent be reprimanded rather than pay a fine.
However, the importance of professionals maintaining clear professional boundaries and protecting against the potential harms that might arise in breach of those boundaries suggests that a significant sanction is appropriate. In circumstances where the respondent is no longer registered, being disqualified for a lengthy period is appropriate. While, if the matter had gone to hearing, I may not have ordered the respondent be disqualified for 12 months, [6] I do not consider that period to be inappropriate. I note that any reprimand will be recorded in the relevant register under section 225 of the National Law and, under section 228, available for inspection by the public. Publication of these reasons will also provide a form of deterrence.
[6] See for example the sanctions imposed in Medical Board of Australia v Ainsworth [2019] VCA 734 and Medical Board of Australia v Stone [2023] ACAT 38
The statement of agreed facts, findings and determinations does not refer to any orders for costs or to restrict disclosure of information provided to the tribunal in this matter. I therefore make no orders in relation to those matters.
………………………………..
Senior Member Daniel Stewart
| Date(s) of hearing: | In chambers |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Solicitors for the Respondent: | Morey & Agnew Lawyers |
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