Health Ombudsman v Trudinger [2025] QCAT 254

Queensland Civil and Administrative Tribunal|2025-10-01

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - PSYCHOLOGISTS - where the respondent was a registered psychologist - where the respondent made an inappropriate comment about differential reinforcement to a young and vulnerable female patient - where the respondent breached professional boundaries by providing the young and vulnerable patient with his mobile number and in the absence of setting any boundaries about her use of his number - where the respondent failed to maintain appropriate clinical records - where the parties came to an agreed position - where the respondent admits the conduct - whether the Tribunal is satisfied the agreed position is within the permissible range

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] The respondent was born on 16 January 1960. At all relevant times he practised as a clinical psychologist and held registration with the Psychology Board of Australia.
[2] The applicant Director filed a referral on 31 May 2023 which referred a series of allegations alleging professional misconduct and seeking various orders by way of sanction. Today's proceedings are based on an amended referral filed on 17 October 2023.
[3] At that time, the parties had reached an agreement about a number of allegations in the amended referral which resulted in a Statement of Agreed Facts being filed on 18 April 2024.
[4] A number of issues remained in contest, particularly matters relating to expert evidence relied on by the applicant and the matter had been set down for a contested hearing for two days.
[5] The parties have negotiated further and have reached a joint position as to facts, characterisation and determination. The parties have filed a short set of joint submissions. As a result, the two-day hearing is not necessary, and each party has given ground in reaching that joint position.
[6] The admitted conduct relates to a vulnerable female patient of the respondent who was 17 at the relevant time of her professional contact with him. Between July 2021 and September 2021, the respondent provided treatment to Patient A at the Queensland Childrens' Hospital where he was then employed. As noted, Patient A was an extremely vulnerable young woman.

The conduct that is the subject of the amended referral

[7] Allegation 1 in the referral relates to what was alleged to be more extensive, inappropriate conduct on the part of the respondent, but has now resolved into one incident of inappropriate conduct where, during a consultation, the respondent was discussing with Patient A differential reinforcement of other behaviours as an alternative to self-harm. The respondent commented to Patient A, in a de-identified way, about another patient who had asked the respondent if he thought it was okay to masturbate at times when that other patient thought about and wanted to self-harm. The respondent related that anecdote to Patient A as an example of differential reinforcement of other behaviours that the other patient had felt was positive.
[8] Clinical Psychologist Dr Wong expressed an opinion that this comment was inappropriate because Patient A was a victim of childhood sexual abuse and there were many other strategies that could be adopted to reduce self-harm. The respondent accepts that opinion.
[9] Allegation 2 relates to a breach of professional boundaries. It alleges the respondent failed to maintain appropriate professional boundaries with respect to text messages he sent to Patient A during the course of the treating relationship. An agreed transcript of the text messages is produced as Annexure A to the Statement of Agreed Facts.
[10] The applicant does not suggest, nor does any expert witness, that the contents of the text messages were inappropriate. The issue that has now been agreed is solely one as to the conditions for the use of text messaging.
[11] The respondent accepted in his trial affidavit that he did not set out or notate a strict set of boundaries surrounding his patient's use of his phone number to text and contact him. He agrees that he did not stipulate the types of things or topics that Patient A could text him about, but did stipulate the times he would turn his phone off at night and otherwise when he would be available to respond.
[12] Both experts agreed there was a failure to set boundaries. Dr Wong opined that if text messages are going to be integrated into a treatment plan, the purpose, frequency and timing of the text messages needs to be discussed and agreed upon by both client and psychologist; and if the psychologist's phone number is given for an emergency purpose, then clear discussion is required so the client is aware of the limitations and conditions of the use of phone calls or messages.
[13] The other expert in the case, Dr Lowry (also a clinical psychologist), agreed with Dr Wong's opinion and concluded that the respondent could have, and should have, established and maintained clearer conditions for the use of mobile phone text communications with Patient A.
[14] He opined the respondent's actions indicate some awareness of, and steps taken to establish and maintain proper professional boundaries with clients, however this was lacking in clarity, and as a result did not meet the standard in the relevant code of ethics albeit by omission. The respondent accepts these opinions.
[15] Allegation 3 alleges that the respondent failed to maintain appropriate clinical records.
[16] The respondent accepts there are no notes of the sessions on three occasions with Patient A during 2021. Dr Lowry expressed the opinion that notes should be recorded for all professional contacts with the patient, irrespective of the content of the session and the respondent accepts that opinion.
[17] In relation to the records, Dr Wong opines the notes which are in evidence were not adequate because the notes of the initial sessions did not record the necessary information required for assessment and formation of treatment planning; and the notes in subsequent sessions were not adequate because they did not record Patient A's changes in presentation from previous sessions, update from previous sessions, intervention for current session and session plan for future sessions. The respondent accepts Dr Wong's opinion.

[18] The parties jointly submit the respondent's conduct that is the subject of the admitted allegations 1(f), 2 and 3 amounts to unprofessional conduct. The parties jointly submit that the admitted conduct, even if aggregated, does not amount to professional misconduct.
[19] The parties in the joint submission make following observations:

(a) the conduct concerns only one patient;

(b) the conduct the subject of allegation 1(f) involved a misjudgment by the respondent, but nonetheless was made in a clinical context for a genuine clinical purpose;

(c) as to allegation 2, the content of the messages themselves was not inappropriate. The respondent's motive in providing his phone number was well-meaning, but he failed to set appropriate ground rules; and

(d) the conduct the subject of allegation 3 concerns only one patient and given the nature and circumstances of the treatment, cannot be seen as a substantial failure.

[20] The Tribunal exercising its independent discretion agrees with that characterisation.
[21] As to sanction, the respondent no longer holds registration as a psychologist. It is said in the joint submissions that he has reached an age suitable for retirement. At the time of filing the Statement of Agreed Facts in 2024, his registration was current until 30 November 2024. It can be inferred therefore he did not renew his registration.
[22] I agree with the parties' submission that the nature of the conduct admitted and proved does not warrant an order for any preclusion period.
[23] If the respondent, despite having retired, does apply to be registered again, it will be for the Board to consider his application on the merits.
[24] I accept the respondent has made appropriate admissions in the proceedings which removed any possibility that a very vulnerable young woman would be required to give evidence to the Tribunal.
[25] I agree with the parties that a reprimand is the appropriate disciplinary response in the circumstances here. It adequately reflects the seriousness of the conduct and will act as an appropriate reminder to the other practitioners of the importance of clinical note taking and setting appropriate boundaries, particularly with young and vulnerable patients, at a time when text message communication is extremely commonplace.

Pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) ('HO Act'), the respondent has behaved in a way that constitutes unprofessional conduct.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
There is no order as to costs.

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Judgment (11 paragraphs)

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