Health Care Complaints Commission v Brush

Health Care Complaints Commission v Brush - [2015] NSWCATOD 120 - NSWCATOD 2015 case summary — Zoe

[8]

Particulars of Complaint 2 1. Mr Brush failed to observe proper professional boundaries in that in approximately April 2012 Mr Brush digitally penetrated Patient A in his treatment room during a consultation. 2. Between 13 May 2012 and 15 March 2013, Mr Brush engaged in a personal and/or sexual relationship with Patient A. 3. Between 17 April 2012 and March 2013, Mr Brush failed to observe professional boundaries in that he and Patient A exchanged approximately 12,000 SMS messages which were inappropriate having regard to the number, frequency and timing of the text messaging which included content of a personal and sexual nature. 4. Mr Brush failed to appropriately deal with Patient A's reported distress, in that he did not refer her for any psychological support or by discussing the matter with another osteopath, psychologist, medical practitioner or relevant health authority when: Patient A suggested on 22 June 2012 that she would take 46 Panadeine Forte tablets which she had in front of her. On 24 August 2012, when Patient A threatened to take 10 Endone tablets. 1. Mr Brush failed to keep adequate clinical records in that he failed to record consultations with Patient A on the occasions as set out in Schedule B to the Complaint [Schedule B lists 17 consultations]. 2. Mr Brush failed to keep adequate clinical records in that he failed to record and describe the treatment provided to Patient A on the occasions as set out in Schedule C to the Complaint [Schedule C lists 16 consultations]. 3. In approximately April 2012 at the outset of a personal relationship between Mr Brush and Patient A, Mr Brush failed to terminate treatment with Patient A and/or failed to refer Patient A to an alternative osteopath for ongoing osteopathic care. 4. Mr Brush failed to adequately communicate with Patient A's other health care providers by: Failing to provide any report of progress and/or management of Patient A to the orthopaedic surgeon who performed an operation on Patient A on 14 August 2012. Failing to provide any report of progress and/or management of Patient A to the physiotherapist who was also treating Patient A after surgery on 14 August 2012. 1. Mr Brush failed to appropriately manage termination of the therapeutic relationship with Patient A on 27 November 2012 in that he failed to refer Patient A for future care to another osteopath or any other clinician.

[16]

Complaint 2

Patient A provided a statement to the Commission dated 9 May 2013 and gave oral evidence in these proceedings. While there were some differences in their respective accounts of their personal relationship, Patient A and Mr Brush agree that the relationship was at all times consensual and, for a period, passionate, if not tumultuous. The relationship commenced in May 2012 and came to an end in March 2013 when Patient A discovered that Mr Brush was in a relationship with another woman. Throughout the course of the relationship each sent the other sexually explicit text messages and photographs on numerous occasions.
Patient A initially saw Mr Brush for treatment on a weekly basis and from August 2012, twice weekly. According to Patient A, in November 2012 she decided to stop seeing Mr Brush for treatment, in part because of the cost and in part because of misgivings alluded to by her Pilates instructor about the appropriateness of the type of treatment being provided by Mr Brush.
In a notification made to the Commission in May 2013, Patient A's treating psychologist reported that Patient A had been referred to her for counselling on account of lack of confidence following a long period of recovery from hip surgery and the breakdown of a relationship. The psychologist opined that in February 2013, Patient A was suffering severe depression, which she attributed in part to the deterioration of the relationship with Mr Brush.
On 15 August 2013 the Commission notified Mr Brush of the allegations made by Patient A, setting out in broad terms the particulars of Complaint 2 (apart from Particulars 4, 8 and 9). In an email in reply sent the following month Mr Brush admitted the alleged conduct. He wrote in closing: The biggest mistake I made was not dropping [Patient A] as a patient before anything had even started. Once we had started a personal relationship I made [Patient A] perfectly aware right from the outset of just what a vulnerable position I had chosen to put myself into by agreeing to develop our relationship outside of the clinic. Towards the end of our relationship, both [Patient A] and her mother made repeated threats about reporting me to the board as well as threats of self-harm which made it increasingly difficult for me to end the affair. … On a personal level: Above all else, I pride myself on being a real man. One indispensable characteristic of being a man is possessing strength of character at significant moments in life, such as these, as well as the strength to follow my conscience when it comes to affairs of the heart. I am unwavering in speaking the truth when facing the case against me by [Patient A] and [Patient A's treating psychologist] and am preparing to face the consequences of my choices with equally unwaivering determination. I am guilty of nothing other than following my heart in pursuing [Patient A] romantically and for which I make no apology. It disheartens me that [Patient A] would drag our failed relationship into the public domain and degrade what should have been a private affair into an attempt to hurt me and bring my life to shame. For me personally being scorned by my ex-lover in this way pains me more than anything else.
In oral evidence Mr Brush admitted not referring Patient A for psychological treatment when on two nominated occasions she threatened to overdose on pain relief medication. He claimed that the two incidents particularised in Complaint 2 were "only half if it" and throughout the course of their relationship, Patient A repeatedly made numerous "fake suicide" threats. He said he initially came to Patient A's assistance but later decided he was no longer prepared to submit to "emotional blackmail".
Mr Brush testified that shortly after meeting Patient A he formed the opinion she was suffering from "broken dancer syndrome" (by which we understand to him to mean a person unable to continue a career as a dancer because of injury) and recommended that she seek psychological assistance. He said early on the relationship he concluded Patient A was "unhinged".

[19]

Particulars 1, 2, 3 and 7

The gravamen of Complaint 2 is Mr Brush's conduct in engaging in a sexual relationship with a patient (Particular 2). Mr Brush continued to treat Patient A for most of that ten-month relationship.
Section 8.2 of the Code deals with "professional boundaries" and states: 8.2 Professional boundaries Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: a). maintaining professional boundaries b). never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; this includes those close to the patient or client, such as their carer, guardian, spouse or the parent of a child patient or client c). recognising that sexual relationships with people who have previously been a practitioner's patients or clients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client …
The Code recognises the inherent risks of not maintaining professional boundaries in a practitioner/patient relationship. These include the risk that the practitioner will be unable to maintain professional detachment and objectivity; and the risk that the patient will be unable to make a reasoned and "best interest" decision about whether to consent to treatment recommended by the practitioner and/or to continue the patient/practitioner relationship.
While relevant to the assessment of the nature and seriousness of the impugned conduct, the fact that the sexual relationship between the parties was consensual and both parties were adult does not, as we understand Mr Brush to suggest, exculpate his conduct.
There are no mitigating circumstances which might justify the decision of Mr Brush to commence and continue a sexual relationship with Patient A. This is not a case for example where because of the practitioner's specialist skill or experience no other suitably qualified practitioners are available to treat the patient.
Mr Brush's decision to enter and continue a relationship with Patient A represented a serious error of judgement. His decision to continue the concurrent relationships in circumstances where early in the relationship he had formed the view that Patient A was "unstable", is of particular concern. While a relatively inexperienced practitioner at the time the sexual relationship commenced, his decision to engage in that relationship nonetheless demonstrates judgment significantly below that which could reasonably be expected of a practitioner of his experience.
The conduct outlined in Particular 1 (digital penetration of Patient A during treatment session), Particular 3 (exchange of sexually explicit text messages with Patient A) and Particular 7 (failure to terminate the practitioner/patient relationship on commencing a sexual relationship with Patient A) are aspects or incidents of Particular 2. That conduct also demonstrates that Mr Brush's judgement fell "significantly below" the relevant standard.

[28]

Is the impugned conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's registration?

In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances which bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
Of the conduct found to constitute unsatisfactory professional conduct, engaging in a concurrent sexual and treating relationship with Patient A (Complaint 2, Particular 2), in our opinion is the most serious. Its seriousness was aggravated by the duration of the concurrent relationships (eight months) and, as recognised by Mr Brush, Patient A's vulnerability as evidenced by her repeated threats to self-harm. We find that conduct "sufficiently serious" to warrant suspension or cancellation.
We find the balance of the conduct particularised in Complaint 2 found to constitute unsatisfactory professional conduct, considered together with Complaint 2, Particular 2 also constitutes professional misconduct.
The conduct the subject of Complaint 3 while serious, in our opinion was less serious. Assessed individually we are not satisfied that the particulars of that conduct were sufficiently serious to justify suspension or cancellation of Mr Brush's registration. Apart from the making of the false declaration to the Board, we are not satisfied that the conduct particularised in Complaint 3 was of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's registration even when considered together with the conduct in the subject of Complaint 2.
The inescapable conclusion in relation to the making of the false declaration to the Board (Complaint 3, Particular 4) is that Mr Brush made a deliberate and conscious decision to mislead the Board and did so for personal gain: to maintain his registration as a heath practitioner. Considered together with the conduct the subject of Complaint 2 we find that conduct to be of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's.
It follows that Mr Brush is guilty of professional misconduct within the meaning of s 139E of the National Law.

[29]

Is Mr Brush not a suitable person to hold registration as an osteopath?

The Commission submits that Mr Brush is not a "suitable person to hold registration" as an osteopath, relying on: Mr Brush's conduct in relation to the charge of contravening s 474.17(1) of the Criminal Code Act The particulars of Complaint 2 and 3, individually and cumulatively.
The Tribunal may suspend or cancel a registered health practitioner's registration if satisfied the practitioner is not a suitable person for registration in the practitioner's profession (s 149C(1)(d) of the National Law).
The expression "not a suitable person for registration" is not defined by the National Law. The Commission submits that s 55 of the National Law provides guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 states that a National Board may decide an individual is not a suitable person to hold general registration, if, among other things: (h) in the Board's opinion, the individual is for any other reason (i) not a fit and proper person for general registration in the profession; or …
The Commission submits that the expression "not a fit and proper person" while broader than the notion of "being of good character" includes a consideration of character.
The Commission submits that the principles enunciated by the Court of Appeal in McBride v Walton (unrep, NSWCA, 15 July 1994) and consistently adopted by the NSW Medical Tribunal (see for example, HCCC v Meyer [2008] NSWNMT 22 at [78] and HCCC v McKay [2007] NSWNMT 5), provides useful guidance on the factors to be taken into account in determining whether a practitioner is of good character: To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
The Commission argues that the particulars of Complaint 5 cannot be satisfactorily explained as an error of judgment but rather evince a defect of character. This is not a case, argues the Commission, of a single error of judgment but rather of a total disregard for professional responsibilities under the Code and the National Law, over an extended period. Of relevance, argues the Commission, is the absence of any evidence of a change or improvement in Mr Brush's character since the impugned conduct occurred.

[30]

Consideration

We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law).
While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
While concerning the conduct which led Mr Brush being made the subject of a criminal finding, in our opinion does not indicate that he is not a suitable a person to hold registration as an osteopath. The decision not to record a conviction indicates that the sentencing court viewed the conduct as falling at the low end of the scale. The conduct was of short duration and has not been repeated. We accept Mr Brush's claim that at the time he was extremely distressed at the prospect of having his access to his children limited. While that does not excuse, it nonetheless provides an explanation for his actions.
More troubling is the conduct the subject of Complaint 2. We agree with the submission made by the Commission that this conduct was not as Mr Brush contends the result of a "single mistake" - namely embarking on a sexual relationship with a patient - but rather a series of egregious errors repeated over a significant period. It was open to Mr Brush at any time to terminate the treating relationship. His conduct reveals poor judgement, disregard for the responsibilities imposed under the Code of Conduct and the National Law and a callous disregard for Patient A's welfare. Mr Brush's lack of contrition and failure to acknowledge the need for rehabilitation, which we consider below, lends weight to the Commission's submission that he is not of good character.
Where, as in this case, character is relied upon to support the contention that the practitioner is not a suitable person to hold registration, generally firm evidence will generally be required to demonstrate that the practitioner's personal qualities are incompatible with those essential for the discharge of their professional responsibilities. While the impugned conduct continued over a significant period, it did not as stated by the Commission occur over a period of years. The dividing line between proven misconduct and conduct that warrants a finding that a practitioner is not of good character is not always clear. On the basis of the particulars relied upon by the Commission Mr Brush's conduct comes dangerously close to, but probably doesn't cross that line. We are not comfortably satisfied that Mr Brush is not a suitable person to practice as an osteopath.

[31]

What if any disciplinary orders should be made?

Headed "Disciplinary Powers of Tribunals" Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case the Tribunal is satisfied the practitioner is guilty of professional misconduct and has been made the subject of a criminal finding for an offence the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration (s 149C(1) of the National Law).
The Tribunal is directed that in exercising its functions under the National Law, the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law).
Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

[32]

Orders sought by the parties

The Commission seeks the following orders: Cancelling of Mr Brush's registration (s 149C(1) of the National Law) Disqualifying Mr Brush from seeking a review of the decision to cancel his registration for at least three years from the date of our decision (s 149C(7) of the National Law) Prohibiting Mr Brush under s 149C(5) of the National Law from providing the following health services unless and until he is registered as an osteopath: (a) Any form of massage therapy or therapy involving physical contact of the body; (b) Any treatment or therapy involving body movement, joints or the musculoskeletal system; (c) Any other alternative or healing or healthcare or therapies; and (d) Any health education services.
Mr Brush opposes these proposed orders and submits a more appropriate order would be to suspend his registration for up to 12 months. He states that if, the Tribunal required reassurance that the subject conduct will not be repeated, which he contends is unnecessary, he would be prepared to submit to appropriate conditions. Mr Brush states that he has already paid an extremely high price for his actions. He says his decision to enter a sexual relationship with Patient A has cost him everything: his livelihood, children and reputation.
He said he can "live with" the fact that he allowed himself to be seduced by a patient. He said when the relationship commenced he did predict that it would come back to "bite [him] so hard" and that Patient A would act like a "scorned lover" and use the Commission to extract revenge. He said when the relationship commenced he and Patient A had "that talk" and mistakenly, as it turned out, he concluded that she would not "dob him in" if, or when, the relationship ended. He claimed the relationship with Patient A was a "one in 10,000" and his first and definitely last relationship with a patient.
On questioning, Mr Brush said he acknowledged that the practitioner not the patient bore the responsibility for maintaining professional boundaries. He agreed with the proposition that Patient A put herself at risk by entering an intimate relationship with him. He said his decision to embark on the relationship had been a "massive error" on his part.
Mr Brush says he should not be judged solely on "one huge mistake", namely having a relationship with the "wrong person". On questioning he said he did not intend to convey by that statement that it was ever appropriate for a practitioner to have a sexual relationship with a patient.
Mr Brush said in this case the "hunter had become the hunted". On questioning he explained that he saw himself as "the hunted" and Patient A, the Commission and the Tribunal as "the hunter".
Mr Brush states that in considering what order to make, the Tribunal should take into account that he has never denied the relationship with Patient A and that there has never been a complaint made about his professional competence.

[33]

Should Mr Brush's registration as an osteopath be cancelled?

On deciding whether in the circumstances of this case it is appropriate to exercise the power conferred by s 149C(1) of the National Law we must bear in mind that cancellation of a practitioner's registration is but one of a number of orders available, where, as in this case a practitioner is found guilty of misconduct. While at all times the safety of the public is the paramount consideration any order made must nonetheless be commensurate with the seriousness of the impugned conduct.
The parties agree that the gravamen of the Complaints is Mr Brush's action in engaging in a concurrent sexual and practitioner-patient relationship.
The evidence given and submissions made by Mr Brush in these proceedings reveal a breathtaking lack of insight. While we accept he now deeply regrets having entered into an intimate relationship with Patient A, it is difficult not to conclude that the reputational and associated harm he has suffered is the main reason he regrets his actions. Mr Brush's evidence does not leave us with a sense of reassurance that he now recognises the impropriety of engaging in a sexual relationship with a patient, particularly one whom he believed to be "unbalanced". The comment the "hunter has becomes the hunted" suggests that Mr Brush feels aggrieved by the making of the complaint and its subsequent investigation and prosecution. This suggests he lacks a real understanding of the extent to which his actions transgress the standards that apply to his profession.
While Mr Brush admits not keeping adequate clinical records and liaising with Patient A's treating practitioners in the period after surgery, his evidence does not indicate that he recognises the significance of that omission or acknowledges the potential risk it posed to Patient A's health and safety.
Mr Brush has not undertaken any rehabilitation and apparently has no plans to do so. It would appear he believes remedial action is unnecessary because there is no prospect he will "make the same mistake again". Somewhat surprisingly Mr Brush elected not to provide any character references to support his claim that his misconduct was an aberration and not representative of his otherwise good character and professionalism.
Whether the conduct the subject of our misconduct finding is likely to be repeated depends upon, among other things, Mr Brush's recognition of its inappropriateness and evidence of rehabilitation, both demonstrated and prospective. In the absence of any reliable evidence that Mr Brush has developed insight or put in place measures to safeguard against a reoccurrence we could not be confident that there is no material risk that the conduct will be repeated.
We gave careful consideration to whether these concerns could be adequately addressed by making a less restrictive order, such as imposing a condition on Mr Brush's registration that he not treat female patients. Mr Brush adduced no evidence which enables us to assess the likelihood such an order would be complied with and whether it is capable of being monitored. For that reason we decided not to make that order.
We conclude the appropriate order is the cancellation of Mr Brush's registration. We have decided not to order, as the Commission urges, that he be disqualified from reapplying for registration for a period of three years but instead decided that an 18-month disqualification is more appropriate. A three year disqualification period in our opinion is unnecessarily punitive. It may be, as a result of this decision, Mr Brush recognises the need to undertake remedial steps. If Mr Brush elects to apply for re-registration he will need of course to satisfy the relevant admission body that he has developed insight and put in place protective measures to ensure his misconduct will not be repeated.

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