Psychology Board of Australia Applicant v Flaherty, Shane
[2024] QCAT 244
•16 APRIL 2024
| [2024] QCAT 244 | |
| QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL | |
| OCCUPATIONAL REGULATION | |
| DICK SC, Judicial Member | |
| Assisted by: | |
| MR BRIMSTONE | |
| MR GEDDES | |
| MRS THOMSON | |
| No OCR 335 of 2022 | |
| PSYCHOLOGY BOARD OF AUSTRALIA | |
| Applicant | |
| v | |
| FLAHERTY, Shane | |
| Respondent | |
| BRISBANE | |
| TUESDAY, 16 APRIL 2024 | |
| REASONS FOR DECISION | |
JUDICIAL MEMBER:: the Respondent obtained registration as a psychologist on 26 March 2009 and has held registration since 21 July 2010.
On 14 April 2020, the Office of the Health Ombudsman received a complaint from the complainant (Patient A) regarding the Respondent’s professional conduct in the course of his treating relationship with her. On 20 April 2020, the Office of the Health Ombudsman referred the matter to the Australian Health Practitioners Registry Agency (AHPRA).
On 27 April 2020, the Psychology Board of Australia (Board) decided to commence an investigation. On 17 June 2020, the Board took immediate action by accepting an undertaking by the Respondent not to practise (that was in relation to the first immediate action decision).
On 28 January 2021, after a request from the Respondent, the Board ended the undertaking and imposed an alternative condition requiring that the Respondent be subject to supervision. On 7 December 2021, that condition was removed and the period of immediate action ended.
On 1 September 2022, the Board notified the Office of the Health Ombudsman of its reasonable belief that the Respondent had behaved in a way that constituted professional misconduct. On 6 September 2022, following a request from the Office of the Health Ombudsman for the Board to retain the matter, the Board referred the matter to the Tribunal as a disciplinary hearing.
The findings available to the Tribunal are as follows: under section 196(1) of the National Law,[1] it is open to the Tribunal to make the following findings:
(a)that the Respondent has no case to answer, and no further action is to be taken in relation to the matter;[2] or
(b)the Respondent has behaved in a way that constitutes unprofessional conduct and/or that the Respondent has behaved in a way that constitutes professional misconduct.[3]
[1] Health Practitioner Regulation National Law (Queensland).
[2] Ibid, s 196(1)(a).
[3] Ibid, s 196(1)(b)(ii)-(iii).
If the Tribunal decides that the Respondent has engaged in unprofessional conduct or professional misconduct, it may order one or more of the following:
(a)that the Respondent be cautioned or reprimanded;
(b)that conditions with a review period be imposed on his registration;
(c)that he be fined up to $30,000;
(d)that his registration be suspended for a specified period; or
(e)his registration be cancelled.[4]
[4] Ibid, s 196(2)(a)-(b).
Grounds of This Matter
That between 12 April 2020 and on or about 13 April 2020, the Respondent failed to maintain professional boundaries that should and ordinarily do exist between a psychologist and a client.
Ground 1
That between 2018 and about 13 April 2020, a treating relationship existed between the Respondent and Patient A involving approximately 26 consultations in connection with post-traumatic stress disorder.
There is no doubt that Patient A was a vulnerable patient, including having been the victim of domestic violence and stalking conduct.
Between 12 April 2020, at about 9:08 pm and 10:13 am on 13 April 2020, the Respondent:
(a)sent Patient A 13 text messages;
(b)sent Patient A eight text messages containing external links;
(c)attempted to call her nine times on her mobile;
(d)attempted to call her 12 times through FaceTime; and
(e)left Patient A four voicemail messages.
In circumstances where there was no clinical justification for any of the communications or attempted communications. The Tribunal has viewed the text messages.
These facts are not in dispute except to say that the Respondent says the conduct was unintentional. The Board alleges that the conduct is inconsistent with the Australian Psychological Society Code of Ethics. That is not in dispute.
Ground 2
The Respondent failed to take reasonable steps to appropriately manage the termination of his professional relationship with Patient A.
On or about 13 April 2000, Patient A sent the Respondent a text message that because of his conduct or attempted conduct, and that because of his contact or attempted contact, as set out above, she was:
…unable to continue with his service.
The same day, the Respondent sent a text message apologising and stating:
…he did not mean any harm.
The Respondent sent another text indicating he was “very embarrassed” by his conduct. Patient A responded by text asking the Respondent to stop contacting her and that she did not want to hear from him again “under any circumstances”. He replied that she had his word he would not contact her again.
It is alleged he did not take steps towards making arrangements for the continuity of psychological services in contravention of General Principle B11.3 of the Australian Psychological Society Code of Ethics.
The Respondent does not agree his conduct in Ground 1 amounts to professional misconduct but, rather, constitutes unprofessional conduct.
As to Ground 2, the Respondent says he did take steps, including discussing the matter of Patient A’s continuing care with a general practitioner (GP) who had previously treated Patient A and was a colleague of the referring GP. He also says that he asked the GP to make contact with Patient A or Patient A’s treating physician to offer an alternative referral.
He says he discussed the matter with his supervisor before concluding that he was unable to contact Patient A directly or indirectly. It is in those circumstances the Respondent contends there is no case to answer in respect of Ground 2. Without yet coming to the finding on that matter, it is to be noted that Patient A arranged alternative treatment.
Were the Texts Deliberate?
The Board accepts that the text messages were mostly meaningless and some texts were sent to other people. However, the Board says that some were deliberately sent to Patient A.
One text referred to witches being asleep and witchcraft, which Patient A says is something she had discussed in treatment. The Board invites the Tribunal to infer that the Respondent meant to contact Patient A. The Tribunal is of the view that this is too long a bow to draw without further context.
The Board says any of the steps the Respondent took fell short of his duty and that there were steps he could have taken, despite his commitment not to contact Patient A, including having another member of the staff contact her. It is a moot point whether his commitment included indirect contact as his commitment was, in any circumstances, close contact.
The contact with the GP is also criticised because it involved “a conditional promise” that if the GP “were to see” the patient, or contact her treating GP, he would have referred her to “an alternative psychology practitioner.”
The Tribunal is of the view that there was another option to the Respondent, and that was to send a closure letter to her referring GP, and he did not take this step. Both the Board and the Respondent have referred the Tribunal to case law, which the Tribunal has read and noted.
Going to the context of the Respondent’s conduct in question, the Respondent submits that the evidence discloses he suffered an unforeseeable adverse reaction to Endone, which had been prescribed for a back injury he had suffered.
Professor Ian Coyle provided a report dated 27 July 2020 to the Respondent’s solicitors. He noted the Respondent’s reaction to the Endone, although unusual, is very well documented. There was collateral evidence that he had suffered a prior reaction to oxycodone following a rotator cuff surgery on 27 June 2018. However, he was informed then that he had suffered post-anaesthesia delirium, not oxycodone-induced delirium.
I interpose to say that it would not be unusual for a patient to expect that if a doctor prescribes medication, there will not be an adverse reaction.
Dr Coyle further opined that the conduct was:
Overwhelmingly, a consequence of drug-induced delirium that he had no reason to expect would occur…
Further:
There was no attempt at being self-serving or attempting to avoid answering… questions.
Or:
Evidence of elaboration or malingering.
Dr Andrew Abud supplied a report dated 1 September 2021 to AHPRA in which he opined that there was insufficient evidence that the Respondent suffered from an impairment, and he did not believe there was a requirement for any particular restrictions or requirements in respect of his practice.
The clear aggravating circumstances in relation to both grounds is the vulnerability of the patient, Patient A, and the Tribunal notes that it is very well aware of that factor. There are, however, mitigating factors:
(a)Remorse: there was an immediate expression of remorse to Patient A.
(b)The nature of the contact: a large number of calls over a short period of time which were platonic or nonsexual.
(c)The context: the Respondent was in the grip of a manic episode caused by an adverse reaction to prescribed medication.
(d)The voluntary undertaking: after being notified of the intention to take immediate action, the Respondent gave a voluntary undertaking not to practice until further notice. That undertaking was in place for some seven and a-half months.
(e)Rehabilitation: the Respondent will not take Endone again. He obtained a separate work mobile for work. Reduced his workload, reduced his alcohol intake, and increased his exercise levels to help cope with stress.
(f)Delay: the matter has been on foot since April 2020 when the immediate action was commenced. The delay is not attributable to the Respondent.
There is another aggravating feature which I failed to mention. It has been pointed out the Respondent had a prior breach which came before the Board, relating to documentation provided to the Coolangatta Magistrates Court and the end result.
There were a number of issues before the Board, and what resulted was a caution relating to the fact that the Respondent had provided treatment to two persons, both individually and in joint sessions, and failed, as required by the code of ethics, to obtain explicit consent and acceptance of the limitations to each client’s confidentiality in the circumstances.
‘Unprofessional conduct’ is defined by s 5 of the National Law as:
Professional conduct that is of a lesser standard than that which might be reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
‘Professional misconduct’ is defined by s 5 of the National Law as:
Unprofessional conduct… substantially below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
Further, either or both grounds, even if found to be unprofessional conduct, can amount to professional misconduct.
Findings
In the context of the abhorrent behaviour brought about by severely compromised decision making, evidenced by the meaningless or nonsensical messages, and in light of the authorities quoted, the Tribunal’s opinion to the conduct in Ground 1 amounts to unprofessional conduct, and that the conduct in relation to Ground 2 is unprofessional conduct, and the Tribunal is not satisfied that even a combination would amount to professional misconduct.
Sanction
Disciplinary proceedings are protective not punitive. The Board seeks a reprimand and conditions that require the Respondent to engage in education and training in professional boundaries and the termination of professional relationships.
The Respondent says a reprimand is sufficient and it is well-established that a reprimand is not a trivial penalty; it is a matter of public record and has the potential for serious adverse implications for a health practitioner.
The Tribunal is not persuaded that the suggested conditions are appropriate in circumstances where four years have elapsed. The Respondent has taken steps towards his rehabilitation and has been practicing without conditions or restrictions since 7 December 2021.
Both parties agree that it is not within the power of the Tribunal to order that the reprimand be removed after a certain period, but both parties agree that it is within the Tribunal’s power to recommend that the reprimand be removed after a period of time.
The order, in this case, is that the Tribunal finds that the Respondent has engaged in unprofessional conduct.
The Tribunal orders that the Respondent be reprimanded, and the Tribunal strongly recommends the Board give consideration to the removal of the reprimand after three years. There is no order as to costs.
Orders
1. Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the Respondent has behaved in a way that constitutes unprofessional conduct.
2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the Respondent is reprimanded.
3. The Tribunal strongly recommends the Board give consideration to removal of the reprimand after three (3) years.
4. No order as to costs.
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