Health Care Complaints Commission v Williams [2024] NSWCATOD 153 | Case summary

NCAT Occupational|2024-05-01

Introduction

The Health Care Complaints Commission ("the Commission") has referred two complaints to the Tribunal about the conduct of the respondent ("Ms Williams"), an occupational therapist. In essence, the complaints allege Ms Williams engaged in conduct inappropriate personal messages, outings, visits, and two instances of sexual intercourse with a female client and these constituted breaches of the Code of Conduct of the Occupational Therapy Board of Australia ("Code of Conduct").
The Commission seeks findings and protective orders under the Health Practitioner Regulation National Law, s 149C ("the National Law").

Factual background

The following facts presented by the parties as "Agreed Facts" to the Tribunal are accepted as established on the evidence before us.
We note the Agreed Facts have been presented chronologically and include dozens of text messages throughout. We have not set out in full the text messages but are satisfied on our review that they contain messages of a very personal nature, often included photographs of Ms Williams' son and on numerous occasions the messages were of a sexual nature. "1993 1. In 1993, the practitioner graduated from the University of Newcastle with a Bachelor of Science (Occupation Therapy). 2. Between 1993 and 2016, the practitioner lived in the United States of America and worked as an Occupational Therapist. 2016 3. In 2016, the practitioner returned to Australia. 4. On 1 October 2016, the practitioner was first registered to practice as an occupational therapist in Australia. 2018 5. In 2018, the practitioner worked as an occupational therapist in Australia, at a paediatric clinic for 6-9 months then at an aged care facility. 6. In July 2018, the practitioner was sub-contracted by … a business owned by Person C ["therapy business"], to conduct assessments as an Occupational Therapist. 7. In September 2018, the practitioner was contracted to assess Patient A, who had been diagnosed with high-functioning autism spectrum disorder (ASD), for a plan under the National Disability Insurance Scheme (NDIS). 8. On 14 September 2018, Patient A telephoned [the therapy business] and emailed her NDIS plan. 9. On 17 September 2018, the practitioner received an email from her employer (Person C) about a new client (Patient A) who indicated her primary problems were mental health issues. 10. On 24 September 2018, the practitioner emailed Person C stating that she had been in contact with Patient A and was planning on meeting later that week. 28 September 2018 - first assessment 11. On 28 September 2018: a. Patient A was 37 years old; b. the practitioner first met Patient A; c. the practitioner visited Patient A's home; d. the practitioner logged 2.5 hours of services rendered for the home visit and initial assessment; e. the practitioner and Patient A signed the service agreement (6 hours of Counselling and liaising with community supports for mental health). f. the practitioner agreed to terms including 'Be open and honest about the service being provided, explain things clearly, treat you politely and with respect and obey all rules and laws that apply re providing and Occupational Therapy service'. The goals printed on the agreement included social skills (eg greeting people, making and keeping friends), anxiety management strategies and leisure activities. The goals handwritten on the agreement were 'Social skill building. Exercise classes Yakalla Center - graded community re-entry'. [Patient A sent a text message to Ms Williams] Particular 1a - personal text messages from 28 September 2018 12. … Between 28 September and 29 October 2018, during the therapeutic relationship, the practitioner failed to maintain appropriate professional boundaries with Patient A where she exchanged 48 text messages and photographs with Patient A, as per Schedule B [attached to the Complaint], that were of a personal nature, often outside of the standard hours of work. Particular 1b - personal outings from 28 September 2018 13. … Between 28 September and 29 October 2018, during the therapeutic relationship, the practitioner failed to maintain appropriate professional boundaries with Patient A where she engaged in social activities with Patient A in a personal capacity, attending the beach, the coffee shop, and the grocery store with her. a. The practitioner went for coffee with Patient A once before 29 October 2018. b. The practitioner went to the beach with Patient A before 29 October 2018. c. The practitioner and Patient A went to a coffee house a few times and the beach a few times. d. The practitioner went to the coffee house and beach with Patient A on different days, about once or twice a week, some times before therapy came to an end. … 3 October 2018 - second assessment 14. On 3 October 2018, the visited Patient's A home. …. 7 October 2018 - initial report submitted to Person C 15. On 7 October 2018: a. the practitioner emailed Person C stating that she had not yet completed the goals and attaching her initial report. b. The initial report noted that Patient A 'is a very polite, quietly spoken, shy young lady with a diagnosis of ASD. She has had anxiety and communication difficulties all her life and has seen many health professions over the years and has only recently been diagnosed with ASD…. Combined, [Patient A]'s ASD, Anxiety, Panic attacks and Depression are causing havoc with her life. She rarely leaves her home… She is extremely shy and has difficulties making new friends because of this. Meeting new people makes her very nervous. [Patient A] talks very quietly and can find it difficult to make and maintain eye contact. She is too nervous to talk on the phone and when she does, she can stutter, or freeze up. …. When [Patient A] is around unfamiliar people she is extremely quiet and can have trouble speaking in a full sentence and may stutter. She is unable to make good eye contact in these instances. … [Patient A]'s concentration is impaired by racing thoughts and her anxiety. She worries incessantly and has poor self - esteem. She is constantly worried that she will "do the wrong thing and upset people"…. [Patient A] becomes extremely anxious on the telephone. She is unable to talk in sentences and begins to stutter…. Due to ASD symptoms and anxiety, [Patient A] finds it extremely difficult to socialize.' c. The practitioner's recommendations included 'OT needs 6 hours of time for Therapeutic Interventions under the Improved Daily Living section of NDIS Plan to continue to address graded community inclusion, anxiety management and mealtime concerns…. [Patient A] would benefit from support to attend the Yakalla Cottage for community participation. … Ongoing Psychology appointments to address mental health issues.' 16. On 8 October 2018, the practitioner received an email from Person C asking her about organising a service agreement (SA) and attaching a revised report including with questions/comments such as 'Is it realistic to say you can do all this in 6 hours, I would think you might need over 20 hrs over the next year to do this well? Including taking her out into the community to help her with practical strategies for overcoming her anxiety, or desensitization? Is she seeing a psychologist? If she is not, then as an OT do you have the skills to help her develop a graded program to help her?' 17. On 8 October 2018, the practitioner logged a phone call to Patient A about SA [service agreement], to LAC [Local Area Coordinator], to CCPC to attempt to clarify details of plan manager. 10 October 2018 - third assessment 18. On 10 October 2018, the practitioner visited Patient A's home; 19. The practitioner logged 2.5 hours of services rendered (home visit and attendance at Yakalla Cottage). 20. On 14 October 2018, the practitioner emailed Person C stating she was having trouble getting back into contact with Patient A. [On 15 October 2018, Ms Williams' texted Patient A inviting her to the beach. On 17 October 2018, they went to the beach together metal detecting.] 21. On 17 October 2018, the practitioner received an email from Person C asking her to contact Patient A to obtain the contact details for her NDIS plan manager, the practitioner obtained the contact details for the Local Area Coordinator (LAC) then Person C reminded her to obtain the contact details for the plan manager. 22. On 18 October 2018, the practitioner telephoned Patient A who was confused about the details of her plan manager and support team and requested the practitioner visit with the draft report. [On 19 October, Ms Williams' sent personal text messages to Patient A] 23. On 20 October 2018, the practitioner sent Person C an email stating that Patient A 'gets really confused and anxious with anything I ask her. This is why writing up her assessment is taking so long. She is worried she cannot trust anyone. She a lovely person, but very hard to work with. Having no family help makes it very difficult' and a further email that Patient A 'stressed out totally when I ask her questions about NDIS'. 24. On 21 October 2018: a. the practitioner emailed Person C stating that 'I have added more into [Patient A's] assessment. I have not shown it to her. I was planning on going over it with her tomorrow if you agree. She is extremely worked up over the hours things will take, that's why I asked for additional hours to the plan to help satisfy her anxiety', b. Person C replied asking whether Patient A has therapists, c. the practitioner replied that 'I am extremely concerned that she is not medicated at all. She desperately needs it', d. Person C replied asking about Patient A's GP, e. the practitioner replied that 'From what I can gather, they have tried benzodiazepines... and ones that are too strong. They haven't tried Beta inhibitors to try to eliminate the fight/ flight response. There are so many combinations that can be used, I'm sure that probably the right combination has not been found. I also think she's been told she's 'stupid' and a lot of other negative things, that she thinks it is 'just her'. It's just very complicated.' f. ETB Therapy logged services rendered - email exchange with the practitioner and Person C. 25. On 22 October 2018, ETB Therapy logged services rendered - email exchange with the practitioner and Person C. [Ms Williams sent a text message inviting Patient A for coffee] 23 October 2018 - fourth assessment 26. On 23 October 2018: a. the practitioner visited Patient A's home; b. ETB Therapy logged services rendered (email exchange with the practitioner and Person C, consult re draft report, home visit at client's request to review report); c. The practitioner provided a copy of the report to Person C; d. the practitioner emailed Person C: I have finalised [Patient A's] assessment after talking with her some more. She has been extremely anxious about what to put into the report and what not to. We finally got to the bottom of it today. Sorry it has taken so long. I worked really hard with [Patient A] and spent a lot of my own time with her to really get her to open up to me'; e. Person C's email (asking whether Patient A had allowed further time); f. Practitioner's email: 'Yes, she will allow me to work with her further. She is wary of people in general... upsetting them and "getting into trouble". I believe this is from a lifetime of how she has been treated. That's from reading into what was not said about her parents. Not that she indicated it.... but I'd go so far as to say I think she may have been abused somehow as a child. It's just a strong feeling I get.' g. Person C's email (asking about the service agreement); h. Practitioner's email: 'She is apparently due for a review in just a few weeks. She wants to wait to ask for more hours. She is too scared to use all the hours she has right at the moment. When she read my assessment, she broke down and couldn't talk. When she could eventually speak, she said no-one has ever understood her like that. She said "that is my exact life on paper". She has shown her sister and her sister agreed. I'll tell you... just assessing her and gaining information was like intense counselling. I've never quite experienced anyone like her. She was so hard for me to describe on paper. There are obviously a lot of really deep issues that have not been dealt with in her life. I just hope my recommendations can at least get the immediate issues dealt with. I really feel for her. She is an extremely intimidated young woman with so much she is way too scared to speak of.' i. Person C's email (explaining about the service agreement, suggesting asking Patient A if she could use some of her unused CB Daily Living funds to do some practical activities to help her begin to master her anxieties 'make sure you are not out of pocket and ask for funds to cover the hours you have put in'); j. Practitioner's email: 'Ok ... so [Patient A] texted me having a panic attack about a couple of things in the assessment. This was after we already went through everything and agreed everything was great. She is sending me a few sentences she wants added. I'm sorry... a new version will be on its way soon.' 24 October 2018 - final report provided to Person C 27. On 24 October 2018: a. the practitioner emailed Person C attaching the final report. b. the practitioner's email included 'I have practically had an all day ordeal talking with her and the LAC. The LAC says there isn't a plan review until September next near and that [Patient A] would have to put in a request for an earlier one. [Patient A] will not let me talk to her Sister under any circumstances and had a breakdown when I asked the LAC about it…. She has agreed to signing for the extra 3 hours which I have already done.. … she won't sign and agreement for any more hours. …I saw her today. I left the +3hrs for her sister to sign which we'll get done.' c. the practitioner's final report listed Patient A's goals including 'She would like to be able to recognize when she is feeling overwhelmed and be able to communicate this.' The final report also included '[Patient A]'s severe anxiety, panic attacks and communication difficulties pose health risks in the aspect of, would she be able to ask for help if she really needed it? It is possible she may be too scared, or anxious to ask for help.'… She has not had a haircut in 2 years and too scared to get it cut… [Patient A] has Valium and Xanax prescribed to her, however reports not taking them as they make her feel drowsy.… Due to ASD symptoms and anxiety, [Patient A] finds it extremely difficult to socialize…. [Patient A] visited the Yakalla Cottage to experience activities on offer there, … [Patient A] spent some time metal detecting with therapist which she has not done in a long time. …[Patient A] came to a coffee shop, which was empty of other visitors at the time.' d. the practitioner's 'OT Specific recommendation was 'OT initially required 6 hours of OT of time for initial evaluation for Therapeutic Interventions under the Improved Daily Living section of NDIS Plan then an additional 3 hours was negotiated to cover the three additional visits by the therapist to assess [Patient A]'s function in the community and introduce her to the Yakalla Center. Over the next year, an additional 14 hours for OT intervention is requested to be added to her plan, including taking [Patient A] out into the community to help her with practical strategies for overcoming anxiety, panic attacks or desensitization. A graded program is essential so as not to stress or overwhelm [Patient A] as she rebuilds her confidence in practical ways'. e. The practitioner's additional recommendations included 'support to attend the Yakalla Cottage for community participation' and 'Ongoing Psychology appointments to address mental health issues - Current program frequency is approximately once every 2 -3 weeks.' and '[Patient A] is currently medically/pharmacologically untreated for her issues. This needs to be addressed as soon as possible.' [The following text messages were sent between Patient A and Ms Williams] Patient A 20:29 24/10/2018 I am overwhelmed I am confused I have never felt so stupid. I am sad to think please I can't anymore I thought I had done the right thing I thought it was ok I thought you wanted to be my friend. Practitioner 20:32 24/10/2018 I am Your friend. Don't worry about anything. Everyone on NDIS signs the form. It's just so the planner knows I've truly seen you. Practitioner 15:51-15:54 27/10/2018 I want you to go and have a psychiatrist appointment for medicine to make you feel better. I would come with you as your friend ok. I want so much for you to feel better. I also want to take you for a hair cut as your friend. Can we do that? Patient A 15:56 27/10/2018 What sort of medicine? I don't like taking things that make me not remember things or not feel myself. I do want to feel better. I do want to not keep worrying about my hair. I used to have it short people thought I was a boy lots then especially because I wear caps too, I liked it shorter it was easier for me. Practitioner 15:59 27/10/2018 There are medicines that don't make you feel tired or hung over. I honestly think there are things that can help. I want you to feel better. I'd love you to get your hair cut. Not really short, but just so it doesn't stress you. I just don't want you stressed all the time. I want to be a good friend for you.

29 October 2018 - final report submitted to NDIS 28. On 29 October 2018: a. the final report was submitted online to NDIS b. the practitioner received an email from Person C including 'You have done a lot of work on this one and several visits and outings with her, so you have well and truly gone over the 6 hours originally agreed to. … unfortunately I won't be able to pay you for the extra time unless [Patient A] comes through and extends the Service Agreement. Makes me want to say we won't submit the report to NDIS until we have a signed agreement for the initial 6+3 hours….In future, please don't do any outings until after the initial assessment at home is complete' c. the practitioner replied including 'I saw her today. I left the +3hrs for her sister to sign'. [Personal text messages between Patient A and Ms Williams were exchanged on this day and subsequent days] 29. On 31 October 2018: a. the practitioner went to the pizza shop with Patient A. b. the practitioner started to form a 'bond' or 'connection' with Patient A; c. the practitioner had pizza at Patient A's house. 30. Sometime between 31 October and 6 November 2018, the practitioner told Patient A she loved her as a friend. Particular 2a - personal texts from 1 November 2018 31. … After the therapeutic relationship ended on 29 October 2018 the practitioner failed to maintain appropriate professional and/or sexual boundaries with Patient A when, between 1 November 2018 and 6 November 2018 she exchanged 61 text messages and photographs with Patient A, as per Schedule C [attached to the Complaint], that were of a personal nature. 32. The practitioner took Patient A to the beach, drove her to Newcastle, took her to skateboard shops and took her to the practitioner's home. 33. On 1 November 2018: a. ETB Therapy logged 2 hours of services rendered (assessment and report write up and submission to NDIS, SA and invoice to CCPC). b. the practitioner emailed Person C informing her about a medical condition c. Person C replied offering support and invited her to ask questions if she is unsure about anything ('I am happy to teach you all I know, but I need you to feel free to ask me whatever question comes to mind', d. practitioner replied asking if it was ok to write an assessment after a couple of visits e. Person C replied indicating that it is 'fair enough to pace yourself and do the initial assessment over two visits. Just make that clear to the client and explain that is how you'll do it' and make sure you cover your time expense-wise and write everything down f. the practitioner replied '[Patient A] was in tears about how many hours I would take and I was too soft on her' g. the practitioner emailed Patient A's further service agreement to Person C. [Ms Williams and Patient A sent numerous personal text messages to each other over the 1, 2 and 3 November] 34. On 3 November 2018, Person C asked the practitioner to attend an appointment at the ETB office on 5 November 2018 with her paperwork and clinical notes on Patient A to talk over the case and lessons learned. [On the same day, the following text message exchange occurred on this day] Practitioner 17:41 3/11/2018 Does anyone know we text so much that you know of? Patient A 17:45 3/11/2018 I don't have my phone around anyone to see them is that what you mean? Practitioner 17:47 3/11/2018 Yes. That is good. My boss wants to go over what I did with you so out texts are our secret. Patient A 17:48 3/11/2018 I don't understand to read our texts? I don't want to have someone read them they are private is she going to read them? Practitioner 17:49 3/11/2018 No she isn't going to read them. Just my evaluation x Patient A 17:50 3/11/2018 I am panic I promise I keep secret I promise I am sorry I don't Understand. Practitioner 17:51 3/11/2018 Don't worry. No one will read our texts. I have a super long code to get into my phone lol. They just want to check my assessment I wrote x Patient A 17:50 3/11/2018 I said things private in texts I panic sorry I wouldn't want anyone to see them they wouldn't understand I am sorry I panic I trust you please I am sad to think people read things about me and not understand not you thank you I am sorry I am sorry. Practitioner 18:03 3/11/2018 Don't be sorry. I promised no-one will read it. I wrote a lot of personal things to you that I don't want anyone to read either. You are safe and so and I x Patient A 18:06 3/11/2018 Thank you I am sorry because I panic I don't like to think people read things about me they don't understand. Who will read the report your boss? You wrote a good report I am sorry I only panic about texts that are private to me and make me sad to think people don't understand texts I write if they don't know me. My heart is beating fast I worry you know I'm silly to worry lots! Practitioner 18:15 3/11/2018 Don't worry. No one will read our texts I promise x

… 35. On 5 November 2018, the practitioner failed to attend the appointment at the ETB office and advised Person C that she was not sleeping and had family issues. [On the same day a length conversation was had via text message between Patient A and Ms Williams]. … 6 November 2018 - practitioner agreed to cease contact [On 6 November, Ms Williams and Patient A had the following conversation via text] Practitioner 11:06 6/11/2018 I'm on my way from Cardiff. See you soon x Patient A 11:44 6/11/2018 Please be ok I can't make you better please I can't help I know you say I am stupid yes I am that is why you need to go to people who can help who know better than me. Practitioner 11:55 6/11/2018 I don't need help. I am as almost at your house and [Practitioner's son] was so looking forward to metal detecting. if you don't want me as a friend just be honest and say so!!!!!!!!!! I have a dr to help me. All I w ant is to help you get friends as you say you don't have any. [practitioner's son] really wants to come metal detecting. Will you let him. Did you tell your sister about me? You promised you wouldn't. Tell me the truth! Patient A 11:58 6/11/2018 Please I can't have you at my house I can't be your friend I can't help you I can't I need help myself I have to stop writing to you I can't I am sorry i have to block your number we can't talk again I am sorry.

On 6 November 2018: a. The practitioner drove to Patient A's house and left some things on her doorstep. b. somebody complained to police. c. The practitioner got a call from the police stating they had an elderly woman at the Police station stating that she did not want the practitioner to visit [Patient A] anymore. d. Patient A's LAC telephoned Person C stating that Patient A was feeling harassed by the practitioner and she needed to stop making contact with Patient A. e. Person C texted the practitioner to stop all contact with Patient A as she was not in the best head-space at the moment to be involved with vulnerable people like [Patient A]. She was warned at that moment that the LAC had said the family was contemplating placing an AVO on her to stop her making contact with Patient A. f. The practitioner texted Person C, stating that Patient A had phoned her reporting that the police had called and threatened her with an AVO if she made contact with Patient A any further, the practitioner declared that she would not make any further contact and would block [Patient A]'s calls, Person C affirmed this line of action and told the practitioner to maintain professional boundaries.84 g. Person C told the practitioner that she shouldn't see Patient A anymore. h. Person C told the practitioner that if she saw Patient A any further, then her family might take it further [an AVO]. i. The practitioner told Person C that she would cease contact with Patient A. 37. On 11 November 2018, Person C texted the practitioner a reminder about the postponed meeting to review Patient A's case. The practitioner withdrew from working for ETB therapy. Late 2018 - practitioner resumes contact with Patient A 38. About 1-3 weeks later, the practitioner received an email from [Patient A] and then replied and then continued her friendship, started to communicate via email regularly, met Patient A at a coffee shop, went to the beach a few times and went to inflatable world with her. 2019 Particular 2c - personal messages from 28 January 2019 39. … The practitioner failed to maintain appropriate professional and/or sexual boundaries with Patient A when, between 28 January 2019 and 21 April 2019 she exchanged approximately 458 messages and photographs with Patient A that were of a personal nature. 40. The practitioner resumed sending messages with Patient A in late January 2019. Particular 2d - sexual messages from 13 February 2019 41. … The practitioner failed to maintain appropriate professional and/or sexual boundaries with Patient A when, between 13 February 2019 and 21 March 2019 she engaged in inappropriate conduct of a sexual nature when she exchanged approximately 60 text messages with Patient A that were of a sexual nature. Particular 2b- sexual intercourse on 2 occasions 42. … The practitioner failed to maintain appropriate professional and/or sexual boundaries with Patient A when, between January 2019 and March 2019 she engaged in inappropriate conduct of a sexual nature when she had sexual intercourse with Patient A on two occasions. … 20 February 2019 - first sexual intercourse 43. On or around 20 February 2019: a. Patient A told the practitioner that she had never been in a relationship, hadn't kissed and didn't know what sex was. b. The practitioner visited Patient A's home, they kissed c. The practitioner watched a movie with Patient A at her home then had sexual intercourse. [On 25 February to 19 March 2019, there were numerous sexual text messages sent between Patient A and Ms Williams including images] 44. On or around 20 March 2019, the practitioner drove Patient A to Newcastle and around the beach, the practitioner attended a doctor's appointment and Patient A waited in the doctors' office, the practitioner took Patient A to the mall, coffee house and her home. The practitioner also took [Patient A] to get her hair cut at Charlestown and to a skateboard shop. 21 March 2019 - second sexual intercourse 45. On or around 21 March 2019: a. The practitioner bought Patient A a lamb [soft toy] for her to cuddle in bed. b. The practitioner visited Patient A's home and had sexual intercourse. [There were numerous text messages of a sexual nature between Patient A and Ms Williams on 21 March 2019] Particular 3 - Code of Conduct 46. … By her conduct in particulars 1 and 2 [of Complaint 1] the practitioner failed to comply with clauses 3.2 (g), 3.8 (d), and/or 8.2 (a), (b), and (c) of the Occupational Therapy Board of Australia Code of Conduct (in force between March 2014 and June 2022). Late March 2019 47. On or around 22 March 2019, the practitioner's partner texted Patient A [using the practitioner's phone] attempting to end the relationship. 48. On 23 March 2019, the practitioner continued texting Patient A. 49. On or around 25 March 2019, the practitioner received a message from Patient A about being kicked out of her rental home, the practitioner went to Patient A's home, emailed her about houses and tried to find somewhere else for her to live. 50. On or around 22 April 2019, the practitioner met Patient A at a shopping centre, hugged her and bought her a St Christopher gold chain necklace and kissed her cheek. 17 May 2019 - first notification 51. On 17 May 2019, Person A (Patient A's support worker) lodged a notification, with Patient A's consent. 52. On 27 May 2019, the practitioner received a letter from the Commission (Alex Sepulveda) requesting the practitioner's response to Person A's complaint. 53. Sometime after 27 May 2019: a. the practitioner and her partner had a conversation with Patient A, b. the practitioner asked Patient A why she had accused her, saying 'Well, something has been put into the board of occupational therapy that says - and it's ticked by the box, it says you agree to the statement of me sexually assaulting you or physically assaulting you'. c. the practitioner said 'Look, there was an Alex Sepulveda from Health Care Commission who was writing to me,' …'Well it needs to be fixed for your good and my good, because you can't make false allegations', …'It's going to really hurt me, and it could really hurt you in the meantime as well,' d. the practitioner's partner gave Patient A Alex Sepulveda's email address. 54. On 17 June 2019, the practitioner emailed the Commission screenshots of selected text messages from Patient A. 55. On 18 June 2019: a. the practitioner emailed the Commission including 'I have been so hurt by this. You will see from my text evidence that it is not true', b. the Commission invited her to provide any information to support her response, c. the practitioner emailed the Commission a text message from Patient A's friend and Patient A. 56. On 19 June 2019: a. the practitioner emailed the Commission about the message from Patient A's friend; b. the practitioner received a phone call from the Commission and advised that she admits to crossing professional boundaries with an ex-client however wishes to advise that the sexual relationship with [Patient A] was purely consensual… advised that the sms messages confirm that her relationship was consensual and knows that [Patient A] will not report this to Police as there is no evidence to prove otherwise. 57. On 24 June 2019, the practitioner provided a written response to the Commission. 58. On 11 July 2019, the practitioner emailed the Commission '[Patient A] has been to the Police and I'm going to be arrested. … You could see from my letter and texts that she is Providing false information'. 59. On 13 August 2019, the practitioner received an ADVO issued by NSW Police naming Patient A as the person in need of protection. 60. On 13 September 2019, police executed a search warrant at the practitioner's address, arrested her and charged her with criminal offences (which were later withdrawn). 61. On 21 August 2019, the practitioner telephoned the Council. The practitioner stated that she did the wrong thing by getting into an 'affair' with the former client 26 August 2019 - second notification 62. On 26 August 2019, Person B (Patient A's psychologist) lodged a notification, with Patient A's consent. 27 August 2019 - S150 hearing 63. On 27 August 2019, the practitioner gave evidence during the section 150 proceedings. The Council imposed conditions that the practitioner not practice occupational therapy and that the practitioner attend a health assessment. 64. On 14 October 2019, the practitioner received a letter from the Commission requesting her CV and CPD. The practitioner did not respond. 2020 65. On 21 January 2020, two of the criminal charges were withdrawn by the prosecutor (invalidly laid). 2022 66. On 3 May 2022, all criminal charges were withdrawn by the prosecutor (no billed). 2023 67. On 19 January 2023, the practitioner received a letter from the Commission inviting her to provide submissions. 68. On 7 March 2023, the practitioner's solicitor provided submissions to the Commission on a without prejudice basis."

The Complaint

Complaint 1 is that Ms Williams is guilty of unsatisfactory professional conduct under s 139(B)(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice or purported practice of Occupational Therapy.
Complaint 2 is that she is guilty of professional misconduct under s 139(E) of the National Law, in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The particulars of complaint 1 are as follows: "1. Between 28 September and 29 October 2018, during the therapeutic relationship, the practitioner failed to maintain appropriate professional boundaries with Patient A where: a. she exchanged 48 text messages and photographs with Patient A, as per the attached Schedule B, that were of a personal nature, often outside of the standard hours of work; b. she engaged in social activities with Patient A in a personal capacity, attending the beach, the coffee shop, and the grocery store with her. 2. After the therapeutic relationship ended on 29 October 2018 the practitioner failed to maintain appropriate professional and/or sexual boundaries with Patient A when: a. between 1 November 2018 and 6 November 2018 she exchanged 61 text messages and photographs with Patient A, as per the attached Schedule C, that were of a personal nature; b. between January 2019 and March 2019 she engaged in inappropriate conduct of a sexual nature when she had sexual intercourse with Patient A on two occasions; c. between 28 January 2019 and 21 April 2019 she exchanged approximately 458 messages and photographs with Patient A that were of a personal nature; d. between 13 February 2019 and 21 March 2019 she engaged in inappropriate conduct of a sexual nature when she exchanged approximately 60 text messages with Patient A that were of a sexual nature. 3. By her conduct in particulars 1 and 2 the practitioner failed to comply with clauses 3.2 (g), 3.8 (d), and/or 8.2 (a), (b), and (c) of the Occupational Therapy Board of Australia Code of Conduct (in force between March 2014 and June 2022)."
The Commissioner relies on the particulars of Complaint One as the substance of Complaint 2.
Mrs Williams admitted both Complaints in writing.

Materials before the Tribunal

Before the Tribunal, Ms Williams relied on a bundle of documents including written submissions as well as orders made by his Honour Judge Wilson on 3 May 2022 in her related criminal proceedings; various bank statements; various Centrelink documents including a payment notification and repayments to Centrelink; a rental ledger; a letter from a women's shelter (Nova); a statement of school fees for her son; and a letter from Dr Cohen, psychiatrist, dated 9 March 2023.
The Commission relied on two volumes of documents including transcripts of proceedings under s 150 National Law and statements from the female client (Person A) and Person C. The bundle also included medical reports from appointed psychiatrist. The Commission filed written submissions and cross-examined Ms Williams at length.

The relevant law

The principles relevant to disciplinary proceedings under the National Law are uncontroversial. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.
The Tribunal may exercise the disciplinary powers conferred by Subdiv 6 of Div 3 of Pt 8 of the National Law if (a) it finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The Commission bears the onus of proving the complaints against Ms Williams on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2 of Sch 5D.

Unsatisfactory professional conduct

Section 139B of the National Law provides a detailed list of behaviours that are covered by the term "unsatisfactory professional conduct" in relation to registered health practitioners in NSW. The two relevant paragraphs in regard to the complaint against the practitioner are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Under s 139B(1)(l), unsatisfactory professional conduct involves improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions and include conduct which, viewed objectively, would be regarded by a reasonable person as falling below the standard of conduct expected of a practitioner in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: see for example Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31]; Health Care Complaints Commission v Knowles [2020] NSWCATOD 80 at [23]-[28]; Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [68]-[69]; Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [55]-[56]; Office of Local Government v Toma [2016] NSWCATOD 21 at [15]-[25].
Section 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA) ("Chen"). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
The question for the Tribunal then, is whether the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances".
When considering whether the conduct amounts to professional misconduct, it may be relevant to consider the circumstances in which the conduct occurred, including the practitioner's motivation and the state of mind, as well as the risk of harm that the conduct was apt to create: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35]-[36] (Kirk JA).

Complaint 1

As previously noted, Ms Williams admitted Complaint 1 and each of the particulars relied upon. However, she made submissions about the breaches of the Code in Complaint 1 which we have addressed separately below.

The Code

As the Commission contends breaches of the Code, we have set out the clauses relevant to the allegations.
Section 3 of the Code deals with "Working with patients or clients". Relevantly, cl 3.2 is as follows: A good partnership between a practitioner and the person they are caring for requires high standards of personal conduct. This involves: … (g) recognising that there is a power imbalance in the practitioner-patient/client relationship and not exploiting patients or client physically, emotionally, sexually or financially … This involves Clause 3.2(g) provides that the practitioner must recognise the power imbalance in a relationship with a client, and not use it to "exploit patients physically, emotionally, sexually or financially".
Section 3.8(d) states: Some patients or clients (including those with impaired decision-making capacity) have additional needs. Good practice in managing the care of these patients or clients includes: … (d) being aware that these patients or clients may be at greater risk.
Section 8 of the Code deals with "Professional behaviour". Clause 8.2 is as follows: 8.3 Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. 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 includes: 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) recognizing that sexual and other personal relationships with people who have previously been a practitioner's patients or clients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client; and d) avoiding the expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause the distress

The practitioner's submissions

Mrs Williams made submissions about the allegations of breach of theCode as follows: 1. While she admits taking Patient A on several unrecorded outings during the time of their professional relationship, Ms Williams contends there was no "intentional design" to exploit the patient in such a manner. 2. In respect of Code s 3.8(d), these unrecorded outings were an attempt to provide a level of care greater than the inadequate provision of NDIS funding in a way required under cl 1.2 of the Code, that is: in "understanding that each patient is unique and working in partnership with patients or clients… adapting what [the practitioner] does to address the needs… of each person." 3. in respect of Code s 8.2(a), Ms Williams' submits that it is "likely" she failed to maintain professional boundaries with Patient A during her assessment period. 4. In respect of Code, s 8.2(b), Ms Williams noted that it provides that the professional relationship should not be used to establish or to pursue a sexual, exploitative or otherwise inappropriate relationship. However, Ms Williams submits that this did not occur during the assessment period. 5. In respect of Code s 8.2(c), Ms Williams notes that the Code does not expressly prohibit a relationship from occurring and provides "allowances for consensual relationships to occur on the proviso that the practitioner keeps in mind the obligations he/she has for the patient that extend beyond the assessment period (e.g., patient confidentiality)." It is not in dispute that the relationship was consensual.
In our view, Ms Williams' conduct clearly breached the Code. Further, her submissions and oral evidence demonstrate to us that Ms Williams has gained limited insight into the gravity of her conduct. During cross-examination she continually appeared to us to be minimising her conduct including, by reiterating that while she now knows her conduct and relationship was wrong, she was "unwell at that time" - more than she realised, and she was not thinking clearly. She also expressed the thought she was helping Patient A and she connected with her. This was the same type of submission she made at the s 150 hearing when she said things like Patient A is "not as naïve as she seems" and "I don't think I have any power over [Patient A]. I think she is the one who had power over me."
Ms Williams was aware that Patient A was particularly vulnerable with autism spectrum disorder and anxiety. Ms Williams said that she felt she was the only one who could help Patient A because Patient A "made her feel like she needed me". She never sought assistance from her manager or disclosed the relationship. Rather, once her manager became aware of the relationship and despite her manager giving her clear directives not to have contact with Patient A, Ms Williams continued to respond to Patient A's messages and Ms Williams continued to ask Patient A to keep the relationship a secret.
As the Commission submitted, Ms Williams' conduct is "intrinsically serious". She blatantly and repeatedly breached professional boundaries; she used her professional position as Patient A's occupational therapist to establish a friendship with a current client and then pursued a sexual relationship with her as a former client. Ms Williams exploited Patient A emotionally and sexually without regard to the power imbalance implicit in the relationship.
We are comfortably satisfied on the materials before us that Ms Williams' conduct as particularized and admitted in Complaint 1, was both improper and unethical: it fell well below the standard of conduct expected of a practitioner.
We find that Ms Williams is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c)(i) of the National Law in respect of Complaint 1.

Complaint 2

Regarding Complaint 2, the Commission relies on the particulars in Complaint 1 either individually or cumulatively.
The question whether Ms Williams is guilty of professional misconduct is a separate question from whether she is guilty of unsatisfactory professional conduct. She admits this complaint.
On the evidence before us, considering the established conduct in Complaint 1 both individually and cumulatively, including her inappropriate relationship with Patient A; her breaches of the Code; and noting that despite a clear directive by her manager to cease the relationship that Ms Williams did not do so, we regard Ms Williams's conduct as being a most serious matter. We are comfortably satisfied the conduct in question is of a sufficiently serious nature to justify suspension or cancellation.
We find that Ms Williams is guilty of professional misconduct within the meaning of s 139E of the National Law in respect of Complaint 2.

What if any disciplinary orders should be made?

Having established each of complaints, the parties have requested the Tribunal to determine the second stage, that is, what protective orders should be made.
Part 8, Div 3, Subdiv 6 of the National Law which is headed "Disciplinary Powers of Tribunals" sets out the disciplinary powers available to the Tribunal where a complaint is found proven: see ss 149A, 149B and 149C of the National Law. 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, the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1) of the National Law.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3A(2)(c) National Law.
This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of appropriate protective orders

As noted above, we are satisfied that the complaints as advanced by the Commission are proved.
In Health Care Complaints Commission v Reid [2018] NSWCATOD 162, after making a finding of professional misconduct, the Tribunal stated at [657]: "The conduct we have found established is of such a serious nature that we are satisfied if the practitioner was still registered, we would have cancelled his registration. We are satisfied that it is appropriate in these circumstances to make an order under s 149C(4) of the National Law."
In the present case, we are satisfied on the evidence that Ms Williams' conduct is of a sufficiently serious nature that if she had been registered, we would have cancelled her registration. We therefore consider an order under s 149C(4) of the National Law to be appropriate.
Ms Williams submits that her registration has been suspended since 27 August 2019 which, at the time, was pending the outcome of criminal proceedings in the District Court, which were later dismissed. She requests that we take into consideration that she has already had a lengthy suspended registration of 4.5 years.
While we acknowledge that Ms Williams has apologised for her conduct and accepted that her conduct caused emotional harm to Patient A, as at the time of the hearing she continued to demonstrate a lack of insight into the gravity of her conduct by minimising her conduct.
Mrs Williams expressed remorse (such as saying "I know I made a terrible mistake … I did the wrong thing … I have lost everything, I hurt the patient"). She also said that she had attended counselling sessions "on and off" and done "some reading" to educate herself about what is appropriate and inappropriate behaviour. However, there was an absence of probative evidence about: what steps she has taken to minimise the risk of blurring/breaching boundaries in the future if she becomes attached to a patient; character references and evidence of reformation of her character; evidence from her treating specialist demonstrating what counselling she has completed and what strategies are being put in place to ensure she maintains professional boundaries in the future; evidence about completing further education to understand and apply professional boundaries; and evidence about why she did not take the obvious steps at the time of her conduct such as seeking guidance from her employer or support from her treating psychiatrist. The absence of this type of evidence caused us to fail to have confidence in her practising as an occupational therapist at this time.
We consider she would benefit from a further period to gain further genuine insight into the seriousness of her conduct and to reflect and re-educate, with therapy.
As we noted above, if she had been registered we would have cancelled her registration to protect the community and to ensure public confidence in the profession. We further consider that disqualifying Ms Williams from being registered for a period of 12 months is appropriate having regard to the need to protect the community but also to enable Ms Williams to get the assistance she needs from trained professionals to reform and rehabilitate.

Costs

The Commission seeks an order for costs as agreed or as assessed.
Mrs Williams contends that the Civil and Administrative Tribunal Act 2013 (NSW), s 60 provides that each party provides their own costs, and specifically, that s 60(2) states that costs should only be awarded where there are special circumstances warranting such an award.
She says she has largely conceded to the orders; has made considerable concessions to resolve the matter; and also has special vulnerabilities including the following: 1. her financial circumstances - she is currently relying on JobSeeker and has had the cost of both criminal and civil proceedings against her; 2. her living situation - she is currently in transitional housing after four months in a women's refuge after the breakdown of her relationship; 3. her role as primary carer for her son, who is autistic; and 4. her mental health - she says she has several diagnoses which include "Bipolar II, Panic Disorder, Generalized Anxiety Disorder and Attention Deficit Hyperactivity Disorder".
Contrary to the submission of Ms Williams, the general rule in s 60 as to costs in the Tribunal does not apply. This is expressly stated in the National Law, cl 13(4) of Sch 5D. Instead under the National Law the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. There is no suggestion that there has been some "disentitling conduct" by the Commission in these proceedings.
Further, we acknowledge that Ms Williams has made concessions about her conduct which demonstrates limited insight and ultimately saved some time at the hearing which resulted in less costs being incurred. However, it is also "important when exercising the discretion to bear in mind that costs that are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made." Health Care Complaints Commission v Philipiah [2013] NSWCA 342 per Emmett JA at [44] (Meagher J and Beech-Jones J agreeing at [1] and [50]) .
While we accept the proposition that the personal circumstances of a recipient of a costs order may cause hardship (such as Ms Williams argued here), we do not consider this to be an appropriate basis for the exercise of our discretion under the National Law.
We have decided to order Ms Williams to pay the Commission's costs, as agreed or assessed.

ORDERS

We make the following orders: 1. If Ms Williams had been registered as at the date of these orders the Tribunal would have made an order cancelling her registration pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law ("the National Law"). 2. Pursuant to s 149C(4)(b) of the National Law Ms Williams is disqualified from being registered for 12 months from the date of these orders. 3. The Registrar is to notify the National Board that pursuant to s 149C(4)(c) it is to record on the National Register kept by the Board the fact the Tribunal would have cancelled Ms Williams's registration if she had been registered. 4. Ms Williams is to pay the applicant's costs under cl 13 of Sch 5D of the National Law as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2024

Health Care Complaints Commission v Williams

At a glance

Court

Decision date

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Judgment (18 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)