Medical Board of Australia v Blomeley [2018] QCAT 163

Medical Board of Australia v Blomeley [2018] QCAT 163 | Case summary | Zoe

[13]

[3] By the time of the making of this referral, Dr Blomeley had already been the subject of an earlier referral to the tribunal arising out of a relationship with the same patient. The patient, JJW, had been a patient of Dr Blomeley between May 2000 and July 2012 and was treated by Dr Blomeley for various ailments including depressive symptoms and the absence of sexual intimacy in her marriage.[1] A personal and then sexual relationship had developed in late 2010 and continued unabated until 26 July 2012. The existence of that relationship had been the subject of a notification by JJW to the Board on 26 July 2012.[2]

[4] A letter was sent by the Board to Dr Blomeley on or about 16 August 2012. On 4 September 2012, Dr Blomeley responded to the notification admitting the existence of a sexual relationship, acknowledging its inappropriateness and expressing remorse. The Board took immediate action and imposed conditions on Dr Blomeley's registration on 17 September 2012 including a requirement that Dr Blomeley only see female patients with a chaperone present and that he undertake an education program addressing professional boundaries and ethical decision making in clinical practice (the 2012 conditions).

[5] Between 20 November 2012 and 8 April 2013, Dr Blomeley attended six sessions with Dr Brian Kable. Dr Kable provided a report dated 9 April 2013 on the completion of the sessions.

[6] On 26 September 2013, the Board filed its referral in the tribunal alleging that from November 2010 to about July 2012 Dr Blomeley had engaged in a sexual relationship with JJW (the first QCAT proceedings). In those proceedings, consistent with the approach taken in his dealings with the Board, Dr Blomeley:

(a) admitted the sexual relationship;

(b) admitted the conduct constituted professional misconduct; and

(c) admitted the sexual relationship had an adverse impact on JJW's mental health.

[7] In those proceedings, Dr Blomeley swore an affidavit on 13 December 2013 deposing to the fact that the counselling and further education provided by Dr Kable had helped him work through the issues of how and why boundary violations can occur and how to be prepared and identify the risks so that further such violations can be prevented.[3] Annexed to the affidavit was the report of Dr Kable dated 9 April 2013.

[8] An agreed statement of facts was filed on 21 February 2014 with each party filing separate submissions in March and April 2014 regarding sanction.

[9] The matter proceeded by way of an on the papers hearing. In its decision delivered on 23 May 2014, the tribunal found Dr Blomeley guilty of professional misconduct and ordered that Dr Blomeley be reprimanded and suspended for a period of 15 months with chaperone conditions to be imposed for a twelve-month period on his return to practice. Dr Blomeley was also ordered to pay the Board's costs of and incidental to the proceedings.

[14]

[10] JJW made a further notification to the Board through AHPRA on 29 September 2013 advising that the relationship with Dr Blomeley was ongoing.[4] That notification was retracted on or about 3 October 2013, but again repeated on 8 October 2013.

[11] On 4 November 2013, JJW was admitted to the Royal Brisbane and Women's Hospital (RBWH) having taken an overdose of prescriptive medication. Six days later on 10 November 2013, JJW drove her car into Dr Blomeley's garage, effectively destroying the roller door and causing extensive damage to an internal wall of the property. Following this incident, JJW was again admitted to RBWH and placed on an involuntary treatment order. JJW was subsequently charged with criminal offences arising out of the incident.[5]

[12] By letter dated 11 November 2013, in response to the further notification, the Board notified Dr Blomeley of an intention to take immediate action.

[13] On 25 November 2013, in the letter from his solicitors to the Board in response to the notification of an intention to take immediate action, submissions were made on behalf of Dr Blomeley denying any "conduct of a sexual and/or intimate nature" with JJW since July 2012. [6] The submissions contained admissions by Dr Blomeley of having exchanged emails and telephone calls with JJW and of having met with JJW on three occasions but said that the practitioner had "genuinely attempted to cease contact with JJW since the relationship ended in or about July 2012. However, JJW had gone to significant lengths to restore contact with me."[7]

[14] On 5 December 2013, the Board resolved not to take immediate action "as the Committee reasonably believe the notification is lacking in substance".[8]

[15] JJW made a further notification in the form of a sworn statement dated 6 January 2014. A copy of that statement was provided to Dr Blomeley with a request for his response to the allegations. A further notification was received by the Board from JJW's treating psychiatrist on 10 February 2014 with JJW lodging a further notification with AHPRA on 11 February 2014.

[16] On 31 March 2014, the Board received legal advice that it was too late to join the further notifications of JJW and her treating psychiatrist to the first QCAT proceedings.

[17] The further notifications became the subject of these referral proceedings with the referral being filed on 11 November 2014, some six months after the tribunal's decision in the first QCAT proceeding.

[18] It is not disputed that the existence of the second notification and the investigation resulting from it was not disclosed to the tribunal by either party in the first QCAT proceedings.

[19] By the time of the filing of this referral, Dr Blomeley was six months into his 15 month suspension. By the time this matter came on for hearing before this Tribunal in June and July of 2017, Dr Blomeley had been practising absent any conditions, including chaperone conditions, since October 2016.

[15]

[20] The further amended referral in these proceeding makes the following allegations against Dr Blomeley:

(a) between 21 October 2012 and 28 October 2013, Dr Blomeley re-engaged in and maintained a personal relationship with JJW in breach of his obligations as a medical practitioner to his former patient (allegation 1);

(b) Dr Blomeley knowingly provided incorrect and/or inaccurate and/or misleading information to Dr Kable during the counselling sessions held during the period 20 November 2012 to 8 April 2013 (allegation 2);

(c) Dr Blomeley knowingly provided incorrect and/or inaccurate and/or misleading information to the Board and the tribunal with respect to:

(i) the nature and/or duration and/or scope of his relationship with JJW; and

(ii) his degree of insight and contrition and/or the benefits he had obtained from counselling and/or his willingness to address any deficiencies (allegation 3);

(d) in the alternative to allegation 3, Dr Blomeley knowingly provided information which he knew, or ought reasonably to have known, would create a false impression in the mind of the reader as to the true state of affairs (allegation 4).

[21] The initial referral filed on 11 November 2014 included only allegation 1 and included as part of that allegation an allegation of the re-engagement in and maintenance of both a personal and sexual relationship with JJW and included additional particulars of that relationship.

[22] The first amended referral filed on 17 August 2015 extended the grounds of disciplinary action to allege that Dr Blomeley had engaged in conduct that was inconsistent with him being a fit and proper person to hold registration in the profession. The amended referral incorporated allegations 2 to 4. With the filing of the second amended referral on 31 August 2016, the reference to the re-engagement in and maintenance of a sexual relationship was removed.

[23] During the hearing, the Board called and tendered evidence as to each of the allegations against Dr Blomeley, with particular reliance on the telecommunication records from both Optus and Telstra. The admissions made by Dr Blomeley meant that it was not necessary for the Board to call JJW.

[24] Dr Blomeley gave evidence to contradict some of the evidence before the Tribunal. His evidence was particularly directed to challenging allegations 2, 3 and 4. On behalf of Dr Blomeley, it was submitted that, based on the evidence received, the Board had not proved, to the necessary standard, its allegations regarding Dr Blomeley's motives or the assertion of Dr Blomeley engaging in knowingly misleading conduct.

[25] The Tribunal accepts, as was submitted, that the Tribunal must be satisfied to the standard referred to by Dixon J in Briginshaw v Briginshaw[9] as Dixon J said:

[18]

[28] The allegation of re-engagement in the maintenance of a personal relationship with JJW contains 14 particulars. By reference to the amended response filed by Dr Blomeley, Dr Blomeley admits 11 of those particulars and disputes the remaining three. Having regard to the admissions made, the following factual allegations are admitted:

(a) In late 2012, a meeting occurred between Dr Blomeley and JJW at Indooroopilly Shopping Centre;

(b) Between November 2012 and April 2013 Dr Blomeley attended counselling sessions with Dr Kable addressing boundary violations;

(c) Throughout 2013, Dr Blomeley and JJW had a number of meetings including meetings at Mount Coot-tha Slaughter Falls and a meeting at the Waterloo Hotel;

(d) Emails were exchanged between JJW and Dr Blomeley including;

(i) An email dated 3 October 2013 in which Dr Blomeley queried whether JJW would withdraw her recent letter to AHPRA;

(ii) An email from JJW to AHPRA dated 4 October 2013 reaffirming that the Health Practitioner was a "good, caring and decent person";

(iii) An email from Dr Blomeley dated 5 October 2013 following receipt of the email sent to AHPRA by JJW, in which Dr Blomeley stated: "Thank you - that means so much to me. This is the lady I fell in love with.";

(iv) An email sent by JJW to Dr Blomeley dated 6 October 2013 in which she stated: "If I don't go to work on Tuesday would you lie in the garden with me again? For an hour and a half and whisper in my ear, and kiss my neck and let me love you?? Please?";

(v) An email response from Dr Blomeley to JJW on 7 October 2013 in which Dr Blomeley stated: "As much as I love that idea, I will be at work unfortunately. It sounds very tempting but all booked out as usual. Hope your breakfast is going well - our damn internet is still down - Telstra are doing something in the area and it may be for another 24 hours. Missing you - would love to be biting on your neck. Nxx (sic).";

(vi) An email sent by Dr Blomeley to JJW on 13 October 2013 in which Dr Blomeley stated: "That's a good idea - you way over-analyse things to the point that it all becomes distorted. I won't disappear unless you tell me to or if the nastiness reappears. We can support each other in this time but only if there are just loving thoughts - no more nastiness and cruelty. I am back Tuesday night from Sydney then Darwin Thursday am and back Friday evening. Then off to Phuket for Sports Med conference on Sunday and back the following Sat. Then I will sit still. Have a good day - we have cricket today and I won't have lap top with me - they are doing the security things with no phones etc. I was in trouble on Thursday for having my phone. Have a good day - will be thinking good thoughts for you. N (sic)";

(vii) An email sent by JJW to Dr Blomeley on 28 October 2013 in which JJW stated: "I can't win. You were happier a week ago (or pretending to be laying on the rug with me) (sic)"; and

(viii) On 28 October 2013 Dr Blomeley sent an email in which he stated: "Yes I was happy then and then you did all that whilst I was away - it started on Sunday 18 hours after seeing you so obviously I didn't give you any joy and then the demands started even though I had been emailing to check you were ok. I can't win either. (sic)"

[29] Dr Blomeley disputes:

(a) whether the date of the meeting at Indooroopilly Shopping Centre was in October 2012 (as alleged) and whether that meeting was by chance;

(b) that meetings with JJW also occurred at Roma Street Parklands and a carpark at Sherwood;

(c) that Dr Blomeley made all of the 450 telephone calls to JJW's personal telephone service between 23 October 2012 to 16 November 2013.

[30] For reasons which will become apparent, it is convenient to deal with the dispute in relation to the phone calls first.

[19]

[31] Dr Blomeley admits he made a number of calls but does not accept that every call as listed in annexure RN-1 to the referral notice was made by him. Annexure RN-1 details all the phone calls between 23 October 2012 and 5 November 2013 made to the personal mobile of JJW where the originating number was a number registered in the name of the surgery where Dr Blomeley worked.

[32] The accuracy of the schedule was not disputed by Dr Blomeley. It was accepted that the originating number belonged to the surgery and that the calls had been made to the personal mobile number of JJW.

[33] Dr Blomeley refused to accept that the majority of the calls had been made by him. In cross-examination, even when taken to particular days, Dr Blomeley simply said, "I don't know," or, "I can't guarantee I made those calls." When asked to accept he made the majority of them, he said, "I accept I made a percentage of them. I can't say it was the majority of them."

[34] In giving evidence, he continued to maintain the calls could have been made by other people at the surgery, saying that JJW continued to be a patient of the surgery. He accepted that if the calls had been made by a treating practitioner a note of the call would have been recorded. A reference to JJW's medical records does not suggest any of the calls were made by her treating practitioner in the relevant period. Further, the medical records tendered in these proceedings do not record JJW having attended at the surgery for a consultation after June 2012.[10]

[35] Dr Blomeley maintained that certain calls were definitely not made by him because they were made at times when he was either away from work or not at that particular medical practice. He listed some 42 such occasions out of the 450 calls but led no independent evidence in support of that statement.

[36] Later in cross-examination, he was prepared to accept that he made a significant number of the calls.

[37] He acknowledged that there was multiple calls on some days and said they resulted from times when JJW would hang up on him, "and was causing a scene." He said he was concerned that "she might do something irrational and so I continued to try and contact her".

[38] Whilst Dr Blomeley made some concessions in relation to the phone calls, he repeatedly refused to give unequivocal answers. Apart from his attitude, it is entirely improbable that there could have been so many calls between JJW and the surgery which were not made by him. His evidence to the contrary, particularly having regard to his demeanour when questioned about this issue, was not believable.

[39] The Tribunal accepts that the majority of the 450 calls identified in annexure RN-1 were made by Dr Blomeley and that many of the calls made lasted between two minutes and 20 minutes.

[20]

[40] In terms of the meeting at Indooroopilly Shopping Centre, Dr Blomeley gave evidence that JJW had "sat herself" at Indooroopilly Shopping Centre where he went for coffee every day. Dr Blomeley said that on this particular day he saw her and walked across to her table and chatted for about 10 minutes. Dr Blomeley accepts the contact between JJW and himself gradually increased after this meeting.

[41] Dr Blomeley continued in giving oral evidence his denial that the meeting occurred in October 2012, insisting that his recollection was that the meeting occurred later, in December 2012 or even January 2013. He said he recalled the meeting being much closer to the settling of the civil claim by JJW against him. The claim was settled in February 2013. It is not disputed that the meeting was their first contact after the cessation of the relationship on 26 July 2012.

[42] The evidence otherwise received by the Tribunal does not support Dr Blomeley's recollection. The phone records tendered in evidence by the Board indicate outward phone calls from Dr Blomeley's surgery to JJW on 23 and 24 October 2012.[11]

[43] Further, the phone records indicate continuing contact in the period between 5 November and 1 December 2012, with 17 outward calls from Dr Blomeley's surgery recorded in that period. Dr Blomeley denies making any of those calls, despite JJW's medical records indicating that she did not attend at the surgery after June 2012. Dr Blomeley maintained his first further contact with JJW did not occur until some time in December 2012.

[44] The Tribunal was provided evidence of a note made by JJW's solicitor on 8 November 2012 which recorded JJW reporting that she had bumped into Dr Blomeley at Westfield Shopping Centre. Further, JJW's treating psychiatrist also gave evidence of JJW reporting at a consultation on 7 November 2012 recent contact with Dr Blomeley.

[45] On 22 October 2012, JJW had also sent an email to her lawyers requesting they make contact with Dr Blomeley's lawyers asking if they will cover "all her expenses and costs" and if so, that she will withdraw from the legal action. Dr Blomeley accepts that in the October/ November period there was "back and forth" between lawyers in relation to the civil case. Dr Blomeley also admitted that in the meeting there was reference to the civil case but denied that they had any discussion regarding the complaint to AHPRA. Dr Blomeley denies putting any pressure on JJW regarding the civil case or the notification to AHPRA.

[46] Given the evidence before the Tribunal, the Tribunal does not accept the evidence of Dr Blomeley as to when the first further contact was made with JJW. The Tribunal accepts that first contact occurred on or about 22 October 2012.

[47] In terms of the locations of meetings, it is the fact of meetings having occurred between JJW and Dr Blomeley that is a matter of some significance and Dr Blomeley has admitted meetings occurred at JC Slaughter Falls and one at the Waterloo Hotel. It is unnecessary for the Tribunal to decide whether the meetings, as particularised at Roma Street Parklands and/or a carpark at Sherwood occurred but JJW has sworn that these meetings occurred and there is no reason not to accept that evidence and every reason, as appears in this decision, not to accept Dr Blomeley's denial.

[23]

[53] Dr Blomeley's answers in cross-examination as to why he did not disclose anything to Dr Kable are very telling and provided the Tribunal further insight into the general attitude of Dr Blomeley. Throughout, Dr Blomeley maintained his denial that his non-disclosure had anything to do with obtaining a more favourable report from Dr Kable or the process he would be required to undertake being prolonged.

[54] In cross-examination, Dr Blomeley maintained that he regarded the sessions with Dr Kable as being "educational". Dr Blomeley described the sessions as "really rewarding and educational" and that he "took a lot out of them". Despite in his earlier submissions to the Board referring to attending upon Dr Kable for "counselling",[12] in his oral evidence, he continued to maintain the distinction between education and counselling and to offer that as a justification as to why he did not mention his continuing contact with JJW to Dr Kable.

[55] Interestingly, Dr Blomeley stated: "And I know that I would never cross the boundaries again because of the sessions - or partly because of the sessions." When reminded in cross-examination that he did cross the boundary again, Dr Blomeley's explanation was: "This was an ongoing relationship that occurred from the time before."

[56] Dr Blomeley also made reference to being aware that Dr Kable was not being paid for his services.

[57] Dr Blomeley accepted that the video played during the sessions with Dr Kable emphasised the need to "consult with your colleagues". When it was suggested to Dr Blomeley in cross-examination that he declined to consult with anyone, Dr Blomeley said he saw a psychologist and consulted some close friends.

[58] It is clear from the answers given by Dr Blomeley that the purpose of the consultations with that psychologist was to save his marriage and not to address his issues which had led to the boundary violations, despite statements by Dr Blomeley to the contrary. Dr Blomeley admitted that the sessions with the psychologist were attended by his wife and that, in fact, his wife was unaware at the time of the sessions that there was any ongoing contact with JJW. Subsequently, Dr Blomeley's evidence was that he attended sessions alone. He said that his psychologists was "happy enough" that he was aware of the boundary issues. However, Dr Blomeley admitted that he had not disclosed the full story to the psychologist. The Tribunal does not accept that Dr Blomeley was attending upon the psychologist to address the issues surrounding his boundary violation with a patient. The Tribunal finds the evidence given in this regard as another example of Dr Blomeley's lack of candour.

[59] Dr Blomeley said that he had a strong need for approval, though his evidence made it clear he had not attempted to address his own vulnerabilities by seeking professional help. It was also clear that he had not admitted any vulnerabilities to Dr Kable.

[60] Given the evidence accepted by the Tribunal as to when Dr Blomeley's contact with JJW recommenced, all sessions with Dr Kable occurred after contact had recommenced. By the time of the second session with Dr Kable on 17 December 2012, even accepting fully Dr Blomeley's evidence, Dr Blomeley had met JJW at a coffee shop and had had email exchanges and numerous telephone conversations with JJW.

[61] On the day of the second session with Dr Kable, Dr Blomeley had received an email from JJW and had phoned her number twice.

[62] The emails received by Dr Blomeley from JJW make it clear that JJW continued to express the intensity of her feelings for Dr Blomeley and the power he held over her. He accepted he considered JJW "difficult" but denied that made her vulnerable.

[63] In an email sent by JJW to Dr Blomeley on 1 December 2012, JJW stated:

[35]

[74] At the conclusion of the counselling sessions, Dr Kable prepared a report to AHPRA dated 9 April 2013. In the report, Dr Kable described that he had conducted six sessions of counselling with Dr Blomeley. Dr Kable referred to the first session conducted on 20 November 2012 which he described as "general information gathering about Dr Blomeley and his circumstances, the events which led to the offence and my assessment of his insight into his situation and outlined the plans ahead".

[75] Dr Kable referred in his report to the special attention paid to explaining the harm that may come to patients involved with a practitioner.

[76] Dr Kable stated in his report that he had formed the view that Dr Blomeley had gained a great deal from the sessions and had made appropriate changes to his practice to prevent any further violations in the future. Importantly, Dr Kable expressed the view, "I would conclude firmly that Dr Blomeley does not represent a danger to the public in any way and is most unlikely to reoffend."

[77] In his affidavit dated 17 December 2015, Dr Kable referred in more detail to the first session with Dr Blomeley and said in it he explored the common vulnerabilities that may lead to the commencing of boundary violations. Dr Kable said these included the practitioner's personal relationships, personal illness, family history of abuse and/or sexual abuse, and financial difficulties. Dr Kable said Dr Blomeley advised that he did not identify himself as vulnerable in any of those stated areas.

[78] Dr Kable said that he emphasised to Dr Blomeley that a patient with whom a doctor had maintained an intimate relationship could not be retained only as a friend. Dr Kable said, "The boundaries are too blurred and the scars too deep."

[79] In his affidavit dated 18 November 2016, Dr Kable says that he specifically recalls at the conclusion of the final session with Dr Blomeley he asked Dr Blomeley if he felt that he would be able to avoid any further transgressions in the future. Dr Kable says Dr Blomeley replied with words to the effect of, "Yes, I can contact you in the future if I have any concerns with these types of issues." Dr Kable says at no point did he receive any further contact from Dr Blomeley.

[80] In giving evidence before the Tribunal, Dr Kable stated that a clear emphasis of the sessions with Dr Blomeley was the importance to cut off all contact. In his evidence, Dr Kable said that in this particular case he directly said:

[41]

[97] As to the third ground, it is clear from his ongoing interactions with JJW, many of which are admitted in these proceedings, that at the time of the first QCAT proceedings, Dr Blomeley had gained no understanding as to the importance of maintaining professional boundaries.

[98] His evidence in these proceedings makes it clear that at the time of recommencing contact with JJW, he still had feelings for JJW and there remained unresolved issues. Despite his sessions with Dr Kable, he considered there could be a friendship and they could support each other. As a medical professional, he showed no understanding as to why the continuance of any relationship was wrong. Relevantly, he admitted to failing to understand the vulnerabilities of JJW.

[99] Despite being told by Dr Kable to stop all contact and to seek the help of colleagues, he did neither. At that time, he showed an extraordinary lack of insight and statements made in these proceedings indicate a continuing lack of insight.

[100] Dr Blomeley had permitted his lawyers to send the Board the submissions dated 25 November 2013 in response to the notice of proposed immediate action. It was not said in these proceedings that the submissions had been sent without instruction.

[101] A very disturbing aspect of the submissions was the blame which Dr Blomeley sought to attribute to JJW. The submissions state that JJW had gone to significant lengths to "restore contact with me" and spoke of JJW's "repeated and continued attempts at contact".

[102] In his affidavit sworn 6 December 2013, filed in the first referral proceedings, Dr Blomeley refers to the counselling with Dr Kable in addressing boundary violations. Dr Blomeley says Dr Kable has "provided me with tools to evaluate ethical dilemmas". Dr Blomeley deposes to being more aware of "what are boundaries and the reasons as to why they are essential in therapeutic relationships".

[103] General statements were made by Dr Blomeley and those statements were not limited to the violation of boundaries through a sexual relationship. In the same paragraph of his affidavit, Dr Blomeley also made particular reference to the responsibility of the medical practitioner where a sexual relationship develops and the harm which can be done to a patient in the event of a sexual boundary violation.

[104] The statements made by Dr Blomeley in his affidavit are clearly intended to indicate an understanding by him as to his broader obligations. Dr Blomeley was clearly indicating that he understood the importance of professional boundaries and that he had gained insight and knowledge of maintaining professional boundaries; not just sexual boundaries.

[105] A reference to the various emails sent by Dr Blomeley to JJW highlights the inaccuracy of these statements. Dr Blomeley could not have believed that he was maintaining clear professional boundaries in his continuing dealings with JJW.

[106] In the final paragraph of his affidavit, Dr Blomeley states:

[51]

[120] The exchange of emails and phone calls continued that day with Dr Blomeley making further demands for JJW to tell him what she was doing about the complaint. Eventually at 7.12pm on the night of 3 October 2013, JJW sent an email to AHPRA retracting her statement and apologising for taking up their time. In the agreed statement of facts, Dr Blomeley agrees that he was sent by JJW a copy of that email. Later that same evening, JJW sends a further email to AHPRA, describing Dr Blomeley as a "good, caring and decent person and doctor. I respect him totally as a doctor and a kind and caring human being." The very next day, Dr Blomeley sent an email to JJW saying, "Thank you - that means so much to me. This is the lady I fell in love with. N."

[121] Curiously, despite admitting in the statement of agreed facts to the sending of this email, during cross-examination about these email exchanges, Dr Blomeley said he had doubts as to whether he actually sent that email and then said, that if he did send it, "it was not meant in those terms". He said, if he did send it, "that yes, I had strong feelings for her in the past and this was the sort of person that I did develop affection for." He said, "This is relating more back to the early days when we did have a strong connection." Dr Blomeley continued, "I'm not saying that I am in love with her at that point in time; I'm just saying this is the type of person that I did develop affection for. I think it was pretty clear at that stage that there was no love between us."

[122] Dr Blomeley again denied that he had put any pressure on JJW to withdraw her complaint to AHPRA, insisting that he had said to her a number of times, "If you want to write to AHPRA, that's your choice. I don't want anything to do with it." The Tribunal does not accept that evidence. It simply does not sit with the email communications sent by Dr Blomeley to JJW.

[123] It also does not sit with the fact that Dr Blomeley at around this time agreed to meet up with JJW at JC Slaughter Falls, not once but twice: firstly, on Saturday 12 October, and then again on Saturday 19 October 2013, and admits that they sat on a rug together and that he gave JJW a farewell hug

[124] Following the making of the further complaint by JJW to APHRA, the contact between JJW and Dr Blomeley intensified. Despite the emails, the meetings and the numerous phone calls, Dr Blomeley denied that he was putting any pressure on JJW and said that any reference as to whether she was going to withdraw her complaint "was merely a question on my behalf". In cross-examination, when asked further about the email, Dr Blomeley maintained, "I believe, at the time it was not pressure"; albeit he accepted that he can accept now "it can appear that it's pressure".

[125] The Tribunal does not accept that Dr Blomeley can truly believe that, at the time, he was not applying pressure to JJW. The manipulation in his conduct at the time was brutally blatant and clearly directed to JJW not pursuing a further complaint to AHPRA. He was driven by trying to obtain the best outcome for himself: he was driven by that when he attended upon Dr Kable, and he remained driven by that.

[54]

[130] The Board says the conduct of Dr Blomeley as alleged amounts to professional misconduct.

[131] The term professional misconduct is defined under the Health Practitioner Regulation National Law (Queensland) (National Law).[14] Sub-paragraphs (a) and (b) of the definition are defined by reference to unprofessional conduct. Sub-paragraph (c) defines the term as being conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession, whether occurring in connection with the practice of the practitioner's profession or not. That limb of the definition entitles the tribunal to consider conduct beyond the parameters of the person's professional practice.

[132] It was that limb which was the focus of the Board's submissions. The Board referred to various statements as to the meaning of the expression "fit and proper" and pointed in particular to phrases such as assessing his "knowledge, honesty and ability", "a commitment to honesty and in those circumstances, when it is required, to open candour and frankness, irrespective of self-interest or embarrassment" and issues of character. The Board submitted that "the evidence demonstrates that in the conduct of his professional and personal life, Dr Blomeley did not and does not exhibit the requisite characteristics of frankness and honesty to be considered to be a fit and proper person to practice medicine".

[133] In making submissions on behalf of Dr Blomeley, Dr Blomeley's counsel referred to Dr Blomeley's admission that his conduct as admitted fell within the definition of sub-paragraphs (a) and (b) of the term professional misconduct, but not sub-paragraph (c). In oral submissions, counsel for Dr Blomeley said that Dr Blomeley accepted his admitted conduct of re-engaging in a personal relationship amounted to professional misconduct pursuant to sub-paragraphs (a) and (b). He said where the parties join issue is whether it amounts to professional misconduct pursuant to sub-paragraph (c).

[134] In addition to the admitted conduct of the re-engagement in a personal relationship, the Tribunal has found each of the allegations in the referral proven. The Tribunal has found that Dr Blomeley knowingly provided incorrect, inaccurate and misleading information to Dr Kable so as to cause Dr Kable to believe that Dr Blomeley's relationship with JJW had ceased and that Dr Blomeley had insight into the inappropriate relationship, the harm that could be done to a patient and had modified his practice. Dr Kable produced a report consistent with his beliefs and the Tribunal finds that Dr Blomeley knowingly provided that report to the Board and to the tribunal and hence knowingly provided to the Board and the tribunal incorrect, inaccurate and misleading information.

[135] The Tribunal has also found that there was a level of intimacy to the personal relationship which is not admitted by Dr Blomeley.

[136] The totality of Dr Blomeley's behaviour is such that it must be regarded as professional misconduct that was inconsistent with him being a fit and proper person to hold registration in the profession.

[56]

[144] Dr Blomeley submits that the imposition of sanction in this case, given the circumstances surrounding the first QCAT proceedings, requires close consideration of the totality principle.[19] It was said the totality principle arose here because essentially there had been a deliberate splitting of two closely related disciplinary matters:

(a) the sexual relationship with JJW between November 2010 and July 2012 which was the subject of the first QCAT proceedings; and

(b) the subsequent personal, but not sexual, relationship with JJW between late 2012 and 28 October 2013 which is the subject of these proceedings.[20]

[145] It was said on behalf of Dr Blomeley that the Board made a deliberate decision to split the disciplinary matters and thereby denied Dr Blomeley "any opportunity to seek to have both allegations dealt with together".[21]

[146] There is no doubt that the regulatory authority dealt with the matter poorly. However, both parties were complicit in the tribunal in the first QCAT proceedings not being told the full facts of which both parties were aware at the time. Dr Blomeley, however, was the only person who knew the full extent of the misinformation which was being provided to the tribunal.

[147] In those circumstances, it is difficult to proceed on the basis that Dr Blomeley was denied an opportunity to have both sets of allegations heard together. Dr Blomeley had a choice and he chose to remain silent as to the true nature of any continuing personal contact with JJW. The Tribunal does not accept, as was suggested by Dr Blomeley, that the non-disclosure in the first tribunal proceedings was because "everyone's mind was at all times on the sexual relationship".

[148] In any event, however, the focus for this Tribunal is not so much on why the matter proceeded as it did. Any resolution of that issue will not assist the Tribunal in determining the appropriate sanction. If the totality principle applies, as is submitted on behalf of Dr Blomeley, the issue will be whether, had the tribunal in May 2014 been seized of the misconduct the subject of these proceedings, as well as the misconduct before it at that time, what penalty it would have imposed.[22]

[149] Dr Blomeley accepts that the tribunal would have imposed an additional penalty of an extended period of suspension, based on the misconduct admitted in these proceedings. That said, it was submitted on behalf of Dr Blomeley that the Tribunal ought to first consider the overall sanction. Dr Blomeley says that would be a sanction of around 24 to 30 months. It is submitted that having determined the overall sanction, the Tribunal should then adjust the total sanction to reflect the fact that Dr Blomeley has already served a 15-month suspension.

[150] The Board opposes that approach and in its submissions says that "totality of sentence" ought to be confined to the criminal jurisdiction where the purpose of sentence is punitive.[23] Whilst there is no doubt in disciplinary proceedings, the focus point is protection of the public, inevitably in imposing a sanction which may carry with it elements of personal and general deterrence, it is accepted that there may be an element of the sanction which is punitive. Further, it has been acknowledged by the courts that the totality principle, as it is termed in the criminal jurisdiction, can have a role to play in disciplinary proceedings.[24] The Tribunal accepts, in determining the final sanction, some regard will need to be had to the totality of the sanction imposed.

[57]

[151] In making its more general submissions as to sanction, the Board referred to the aggravating features of this case. Particular reference was made to the vulnerability of the patient and the impact of the practitioner's misconduct on the patient. It is not disputed that on or about 4 November 2013, JJW attempted suicide by taking an overdose of Valium. In her sworn statement to AHPRA, it was said that she felt so distressed by the "contradictory messages" she was receiving. Shortly after discharge from that hospital admission, JJW received a letter from Dr Blomeley's lawyers dated 7 November 2013 to cease any further contact with Dr Blomeley. On 10 November 2013, three days later, JJW drove her vehicle through Dr Blomeley's garage. As a result of that incident, JJW was criminally charged and admitted involuntarily to a mental health hospital.

[152] In giving evidence, Dr Blomeley disputed whether the latter incident could properly be described as an attempted suicide, stating that he did not believe that was the conclusion stated in the medical records. Dr Blomeley preferred to describe the incident as "a cry for help" and "a crash into a garage door to do as much damage to me and my family".

[153] The Board says that Dr Blomeley's refusal to accept that incident as an attempted suicide as a matter of fact is a demonstration of his lack of remorse. The Tribunal does not need to resolve that issue and would find it difficult to do so based on the evidence before it. There is no doubt that Dr Blomeley's responses to the cross-examination regarding that incident and his response to the incident at his surgery on 2 November 2013, in which JJW attended at the practice, an altercation occurred and the police were called, were both attempts by him to minimise his role in the very tragic circumstances which had unfolded. His answers were evidence of his continuing refusal to accept responsibility and continuing willingness to lay blame at JJW.

[154] Towards the end of cross-examination, counsel for the Board when questioning Dr Blomeley as to the steps taken by him to gain insight, counsel commented that in the explanations provided by Dr Blomeley he had not heard anything about JJW, Dr Blomeley's response is an indication of the belief he held:

[59]

[155] Given that Dr Blomeley was the treating practitioner who has admitted to having crossed the boundary, his continuing reference to not holding any bitterness towards JJW, is indicative of his failure to understand the true import of his actions and his continuing refusal to accept complete responsibility. That is reinforced by his response to the public incident at the surgery on 2 November 2013 in contacting the police, and in having his solicitors provide a letter to JJW following the incident.

[156] Despite JJW's condition, Dr Blomeley continued to deny the significant role he had played. In his dealings with the police and, as has been found in these proceedings, in his subsequent dealings with the Board and in his evidence in the first QCAT proceedings, statements made by him and on his behalf were clearly misleading.

[157] In these proceedings, whilst Dr Blomeley was prepared to make certain admissions and on occasions in giving evidence was prepared to make certain concessions, parts of his evidence were simply not believable; in particular, his continued denial as to having made the majority of the 450 telephone calls; his attempts to distance himself from having received certain email communications; his evidence that he had consulted a psychologist as a result of the sessions with Dr Kable, in circumstances where he later admitted that the purpose of the sessions were to save his marriage, rather than addressing the issues which had led to the boundary violations; and his evidence as to when the meeting at Indooroopilly occurred. Given the events which unfolded and the evidence obtained through the exposure of the email communications, he could not have done otherwise than admitted to the relationship and admitted that he had handled it badly.

[158] Of particular concern are Dr Blomeley's answers which evidenced a continuing lack of insight and continuing refusal to accept complete responsibility. His continuing denials that the information given to Dr Kable, to the Board in his submissions and to the tribunal in his affidavit were misleading and showed an unwillingness to now take responsibility for the errors committed. His continuing insistence that the counselling sessions with Dr Kable were educational, that he did not feel there was the opportunity to make disclosure and his insistence that everyone in the first proceedings was focused on the sexual relationship, are all examples of his inability to take ownership.

[159] His denial in these proceedings that the relationship could be described as intimate, despite the various references in emails to "love" is not accepted and shows a lack of understanding by Dr Blomeley. His reference to the relationship as being a friendship also is evidence of lack of insight; albeit he accepted it was "a love/hate relationship" and a "dependent relationship of a trauma survivor". Interestingly, Dr Blomeley made an admission of JJW having characteristics of "BPD"; though earlier in his evidence he challenged Dr Kable's reference to JJW having a borderline personality disorder and Dr Kable's comments that that would impact what would be appropriate conduct by a treating practitioner and heighten the importance of "no contact".

[160] Dr Blomeley's refusal at any time to engage in any real form of counselling or to seek help from fellow colleagues when the situation with JJW was spiralling out of control is particularly concerning. It showed a complete lack of insight as to the need to engage and consult other professionals, particularly given his admissions to having his own vulnerabilities. With those admissions, the fact that he has chosen not to address them in any formal sense shows little real efforts at true rehabilitation.

[161] Rather, Dr Blomeley expects the Tribunal to accept that he is at no risk of reoffending because he says he now has an incredibly strong marriage, has reconnected with his faith and attends church regularly, has curtailed his work hours and has very close friends who have supported him through all this. Dr Blomeley has support in this evidence from his wife by way of a reference from her and a church pastor.

[162] The extent to which Dr Blomeley clearly exploited and manipulated JJW for his own gain is very serious and the fact that that behaviour is still not readily admitted is a sign that it has not been addressed by him. At one stage in cross-examination, Dr Blomeley accepted that one particular email could be viewed as manipulative, but maintained his denial that his communications with JJW were putting any pressure on her.

[163] The Tribunal has found that his manipulation of JJW was directed to obtaining for himself the best outcome in the civil case and in the AHPRA proceeding. The Tribunal has found Dr Blomeley discussed the civil case and the AHPRA proceedings at the first meeting with JJW at Indooroopilly Shopping Centre. The Tribunal does not accept that the email sent to AHPRA by JJW the day after settlement of the civil case in February 2013 was simply coincidental.

[164] Further, the Tribunal does not accept that Dr Blomeley did not put pressure on JJW to withdraw her further complaint to AHPRA. The Tribunal does not accept his evidence that he had no role to play in the various emails sent by JJW to AHPRA in which she changed her position. The Tribunal does not accept that Dr Blomeley's behaviour should be viewed as other than manipulative and a deliberate attempt to achieve a better outcome for himself in the proceedings.

[165] Further, it is also clear from the email exchanges that Dr Blomeley criticised JJW's current treating psychiatrist; including referring to the treating psychiatrist as a "bloody lesbian bitch" and commenting: "Who does she think she is, saying that I never loved you... She has no bloody idea what she's talking about." Those statements must be viewed in the most serious light by the Tribunal as Dr Blomeley conceded in these proceedings.

[166] The Tribunal has accepted that Dr Blomeley misled Dr Kable, the Board, and the tribunal. The Tribunal has accepted that the sole motive in his misleading Dr Kable was to obtain a report that would assist him in sanction.

[60]

[167] In making submissions on behalf of Dr Blomeley, counsel for Dr Blomeley referenced a number of mitigating circumstances. Counsel described Dr Blomeley's misconduct as an "isolated incident". The Tribunal considers it is difficult to view the misconduct in that light, in circumstances where the initial misconduct of a sexual relationship ultimately developed into a continuing personal relationship with the same patient, which the Tribunal has found had a level of intimacy.

[168] The Tribunal accepts, as was submitted, that Dr Blomeley's conduct should not be viewed as "predatory" or "exhibiting sexual addiction". However, not all boundary violations result from the presence of those characteristics and the Tribunal has not accepted that Dr Blomeley does not pose any current risk. The Tribunal has found there remains a risk of subsequent transgressions. The Tribunal is not satisfied that Dr Blomeley has taken the necessary formal steps to rehabilitate himself. The Tribunal has not accepted that Dr Blomeley has addressed his own vulnerabilities and fully developed insight into his offending.

[169] Dr Blomeley has provided the Tribunal with a number of positive references,[25] all of which speak of his highly professional manner. He is described by a co-worker as "one of the pivotal doctors in the surgery". One reference co-written by husband and wife, both patients of Dr Blomeley, stated that: "As a general practitioner, he stands head and shoulders above the majority of them. He has always and continues to show genuine care for our medical issues." Another patient referred to statements made by specialists that they consider Dr Blomeley to be an excellent, highly respected doctor.

[170] The Tribunal acknowledges that Dr Blomeley was a highly regarded medical practitioner and that he had contributed significantly to the broader community. The Tribunal accepts that the former proceedings and these current proceedings amounted to a fall from grace and resulted in a number of adverse consequences for Dr Blomeley. In making submissions, it was said that the Tribunal should infer the media interest continues and that the likelihood for continuing adverse publicity has a deterrent effect. It was submitted that there is no particular need for further personal deterrence.

[171] The Tribunal's findings do not support such submissions. Dr Blomeley remains vulnerable and the Tribunal has found that he continues to lack insight. The Tribunal acknowledges that Dr Blomeley has apologised and has admitted that he handled matters very badly but he has still not accepted complete responsibility for the events which unfolded. In cross-examination, his concessions were limited.

[172] His counsel referred to Dr Blomeley's co-operation in the progress of both proceedings. Given the findings of the Tribunal in relation to the first QCAT proceedings, Dr Blomeley's behaviour in those proceedings must be viewed as a serious aggravating circumstance, not mitigating. Further, in these proceedings, whilst Dr Blomeley is to be credited with admissions which avoided the necessity for the calling of JJW, the existence of the telephone and computer records made the making of some admissions inescapable.

[173] It is not disputed that Dr Blomeley has fully complied with the conditions imposed on his registration. Given the nature of the misconduct, however, it is not suggested by either party that Dr Blomeley should not be subjected to a further period of not practising.

[174] Finally, counsel referred to the evidence given by Dr Blomeley. It was submitted that he had been confronted, during the course of his cross-examination, with the worst features of his past conduct, and that his answers indicated a genuine acceptance of wrongdoing and a determination to uphold the standards of the profession. For the reasons already given, the Tribunal does not accept that submission.

[61]

[175] In making its submissions as to the appropriate sanction the Board referred in particular to the cases of Nursing and Midwifery Board of Australia v Isgrove,[26] Medical Board of Australia v Love,[27] and Psychology Board of Australia v Shahinper.[28]

[176] The professional misconduct in those cases resulted in the cancellation of registration and periods of preclusion from reapplying of between nine years in the case of Isgrove, six years in the case of Love and three years in the case of Shahinper. It is principally on the basis of those authorities that the Board says the appropriate sanction is cancellation and a period of preclusion of five years.

[177] Isgrove was a case involving a psychiatric nurse engaged in an inappropriate sexual relationship with an extremely vulnerable patient. The relationship was found to be highly exploitative and involved the registrant coercing the patient to deny the relationship to both his employer and AHPRA, and to retract earlier statements. The inappropriate sexual relationship was maintained both physically and via mobile phone for a period of over one year. It was found the registrant demonstrated no remorse. In making submissions, the Board accepted the case was distinguishable in that there was found to be a high degree of exploitation for personal sexual gratification, which was not evident here.

[178] In the case of Love, a general practitioner pursued a combined treating and sexual relationship for five years with a patient identified as highly vulnerable. She had been referred to Dr Love for a check-up in relation to domestic violence suffered due to a violent marriage; she also suffered from anorexia nervosa, depression and anxiety. The tribunal found that the doctor had gone to considerable length to maintain the secrecy of the relationship and that he had sexually exploited the patient even at a time when her mental health condition was such that she was an inpatient at a psychiatric clinic. There was a complete lack of insight and remorse. The relationship was described as "exploitative in the extreme" and the practitioner was found to be "entirely unapologetic".[29]

[179] In the case of Shahinper, a psychologist engaged in a sexual relationship with a vulnerable patient without adequately terminating the relationship and arranging a transfer. The practitioner was found to be engaging in the relationship whilst negotiating undertakings with the Board concerning earlier proceedings with a different patient for breach of professional boundaries. A distinguishing feature of that case was the payment of money by the practitioner to the patient (and the patient's son) with the inference being that the payments were made in an attempt to keep the patient quiet. The Tribunal accepts that is a more frank act of deception than the manipulative behaviour of Dr Blomeley. However, the prolonged behaviour of Dr Blomeley makes his conduct very serious. At the time of the hearing, Mr Shahinper was undertaking a course of counselling to address his behaviour; though the tribunal found that he still lacked insight.

[180] Counsel for Dr Blomeley, whilst not accepting the relevance of any of those cases, referred to the case of Medical Board of Australia v Azam.[30] In that case, the practitioner was found by the tribunal to have engaged in "grooming" behaviour towards two vulnerable female patients, which had led to a sexual encounter with one of the patients. In response, the Board had imposed chaperone conditions, which the tribunal found Dr Azam had breached. The tribunal found that Dr Azam had deliberately misled the Board by causing the chaperone register to be falsified and had engaged in harassing and intimidating behaviour towards the patient, including hiring a private investigator with the intent of having the patient retract her complaint against him. Dr Azam denied the allegations, necessitating a three-day trial, including both patients being cross-examined. The tribunal imposed a sanction of cancellation of registration with a disqualification period of four years.

[181] Counsel for Dr Blomeley submitted that Dr Blomeley's misconduct is objectively less serious than that which confronted the tribunal in Shahinper, Azam and Love and says his mitigating circumstances are significantly more cogent. Counsel submitted that a total suspension for the entirety of the conduct of something less than three years is called for.

[63]

[186] The Board seeks that Dr Blomeley pay its costs of the proceedings. It is accepted that the consequence of the repeal of s 195 of the National Law is that the making of costs order in health disciplinary proceedings is governed by Div 6 of Part 6 of the QCAT Act.

[187] Pursuant to s 100 of the QCAT Act, the starting point is that each party must bear its own costs. The tribunal may depart from that position if it considers that the interests of justice require it to do so.[31] It is accepted that gives the tribunal a broad discretionary power,[32] though there must be "a basis for departing from the default position."[33]

[188] Section 102(3) of the QCAT Act relevantly provides that the tribunal may have regard to whether a party has acted in a way that unnecessarily disadvantages another; the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; the financial circumstances of the parties, and "anything else the tribunal considers relevant".

[189] The "costs follow the event" principle, as applies to proceedings under the Uniform Civil Procedure Rules 1999 (Qld), does not apply in QCAT proceedings.[34] As Wilson J observed in Ralacom, the question that will usually arise in each case is "whether the circumstances relevant to the discretion inherent in the phrase 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indications against costs orders in s 100".[35]

[190] On behalf of the Board, it was submitted the proceedings arose from very serious allegations including the development and maintenance of an inappropriate personal relationship and misleading a treating colleague, the Board and the tribunal. Dr Blomeley had at all times denied the true nature of the personal relationship with the patient and denied having misled his treating colleague, the Board or the tribunal. Until this hearing, Dr Blomeley had also denied that his conduct amounted to professional misconduct.

[191] The matter was properly brought by the Board before the tribunal and the sanction to be imposed was a matter properly determined by the tribunal. Further, the Board submits that it is registrant funded and has limited resources.

[192] On behalf of Dr Blomeley, it was submitted that the Board's conduct caused the disciplinary proceedings to be split resulting in extra cost to Dr Blomeley. However, Dr Blomeley was the only person who knew the full extent of the information and chose to remain silent. In those circumstances, it is difficult to have any regard to a complaint about the incurrence of additional costs by him as a result of the way the proceedings progressed.

[193] Given the seriousness of the allegations, the undisputed need for legal representation, the strength of the Board's case and that the proceedings were prolonged by Dr Blomeley's denials which were all ultimately unsuccessful, the Tribunal considers that the interests of justice make it appropriate that there be an order that Dr Blomeley pay the Board's costs of the proceedings.

[194] No submissions were made suggesting that the Tribunal should fix the amount of costs. Absent submissions, given the complexity of the matter, it would not be possible for the Tribunal to fix costs.

[195] The appropriate order, absent the amount of costs being agreed, is for costs to be assessed on the District Court Scale.

At a glance

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Judgment (96 paragraphs)

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Legislation Cited (1)

Cases Cited (3)