Medical Board of Australia v Gilbert [2025] QCAT 486

Medical Board of Australia v McCombe [2020] QCAT 511

G Diehm KC and J Liddle instructed by Meridian Lawyers

• [1] These are disciplinary proceedings brought by the Medical Board of Australia in ('Board') against the respondent, a medical practitioner with general and specialist registration in psychiatry. The Board has referred the respondent's conduct to the Tribunal for hearing and determination pursuant to section 193B of the Health Practitioner Regulation National Law (Queensland) ('National Law').
• [2] The referred conduct, which is alleged to have occurred between 2014 and 2021, involves:

(a) breach of professional boundaries with two patients;

(b) inadequate cessation of a therapeutic relationship; and

(c) attempts to defer notification being made.

• [3] There is before the Tribunal a statement of agreed and disputed facts.[1] Some of the disputed facts are of a nature that they would not affect the sanction, and the Tribunal is proceeding on that basis. Allegation four is no longer being pursued by the Board.

• [4] In about May 2018, the respondent commenced his own private psychiatric practice in Hervey Bay.
• [5] At around the same time, he undertook sessional psychiatric practice also in Hervey Bay.
• [6] On 21 April 2021, a notification was made to the Office of the Health Ombudsman ('OHO') by patient AG. On 7 May 2021, the notification was referred to Ahpra. At the time of making the notification, AG worked as an administrative assistant to and was a former patient of the respondent.
• [7] On or about 4 April 2021, AG became aware of a sexual relationship between the respondent and Patient ET. On 5 July 2021, the Board decided to take immediate action to suspend the respondent's registration under section 156(1)(a) of the National Law. On or about 30 January 2023, the matter was considered by the Board and the Board decided to end the period of immediate action by revoking the suspension of the respondent's registration.
• [8] In summary, the respondent's registration was suspended for a period of 19 months.

• [9] Allegation one relates to a breach of professional boundaries involving Patient ET. Patient ET was referred to the respondent by her treating general practitioner on 1 December 2016. After that, the respondent consulted with Patient ET and made certain findings in respect of her. On about 11 July 2019, the respondent offered employment to Patient ET at one of the practices he was attending and on 27 July 2019, Patient ET commenced employment as an administrative assistant at the practice.
• [10] During the course of her employment at the practice, Patient ET provided the respondent emotional support during the breakdown of his marriage and:

(a) personal and/or sexual relationship then commenced from in about November 2019 and continued to about April 2019;

(b) Patient ET was a complex and vulnerable patient;

(c) by reason of his position and Patient ET's vulnerability, there was a significant inherent power imbalance between respondent and ET.

• [11] His conduct was contrary to various sections of:

(a) Good medical practice: a code of conduct for Doctors in Australia (March 2014) ('2014 Code');

(b) Good medical practice: a code of conduct for Doctors in Australia (October 2020) ('2020 Code');

(c) The Board's Guidelines: sexual boundaries in the doctor-patient relationship (December 2018); and

(d) The Royal Australian and New Zealand College of Psychiatrists Code of Ethics ('Code of Ethics').

• [12] Allegation two relates to an inadequate cessation of the therapeutic relationship with Patient ET. The respondent last consulted with Patient ET on or about 11 July 2019 and then failed to transfer her care or facilitate appropriate continuity of her care. This conduct was contrary to the 2014 Code.
• [13] Allegation three relates to an allegation of breach of professional boundaries involving Patient AG. AG was a patient of the respondent from about 10 November 2014 to about 15 June 2020. He was her treating psychiatrist and as such there was a power imbalance between the respondent and Patient AG. Between 2014 and 2021, the respondent and Patient AG developed an ongoing personal relationship in that:

(a) he and his family became friends of Patient AG and her family;

(b) the personal relationship involved Patient AG and her husband having meals at the respondent's home or at AG's home;

(c) Patient AG was hired as a personal trainer to one of the respondent's daughters;

(d) in about June 2019, the respondent employed her as clinical assistant. She held that role until 2021; and

(e) the respondent continued to therapeutically treat her while she was employed by him and/or while they maintained a personal relationship.

• [14] That conduct was contrary to various sections of the 2014 Code, the 2020 Code and the Code of Ethics.
• [15] Allegation five relates to an attempt to deter Patient AG from making a notification. On 6 April 2021, Patient AG sent the respondent text messages raising her concerns in relation to the respondent's personal relationship with Patient ET. He responded to these messages to the following effect:

(a) he was grateful that Patient AG had made him aware that he was in breach of professional guidelines;

(b) his hope of remarriage was now in tatters;

(c) the repercussions are substantial and problematic, not just for himself but also those financially or otherwise reliant on him;

(d) he pointed out that there was a real possibility that he might not be able to earn a living and he had been trying to prepare for that;

(e) his goal was to prevent anyone else being 'dragged into this'; and

(f) he pointed out that Patient AG was not yet qualified psychologist, but rather a student under the law and therefore is not subject to the legal requirement to inform with a penalty if she did not.

• [16] On 7 April 2021, the respondent attended Patient AG's family home and made comments to the following effect:

(a) that when he was a young and naïve practitioner, he reported his boss for unethical behaviour and he lost his job while his boss continued working;

(b) he appealed to her faith encouraging her to be forgiving;

(c) he suggested the Board had been known to investigate practitioners who struggle with their mental health and put them under unnecessary supervision;

(d) he knew of past matters where practitioners he knew had no consequences imposed and the social/work outcomes were worse on the notifier than on the person who was reported; and

(e) that he patient AG are 'keepers of each other's secrets'.

• [17] The applicant refers to these comments as being intimidating and manipulative and, on the facts, that is not an unfair submission. This allegation is a serious part of what is before the Tribunal, although it is conceded that it is connected to ground one. This conduct was also said to contravene the 2020 Code and the Code of Ethics.
• [18] There are some disputed facts but the Tribunal is of the view that they are not so weighty as to concern the Tribunal in considering the appropriate sanction. The Board submits it is open to the Tribunal to make the following findings and determinations in relation to conduct and sanction:

(a) pursuant to section 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct;

(b) pursuant to section 196(2)(a) of the National Law, the respondent be reprimanded.

(c) pursuant to section 196(2)(d), the respondent's registration be suspended for a period of six months.

• [19] The respondent does not oppose that there should be finding of professional misconduct which may be in a global way, but disputes that there should be a further suspension.
• [20] The Tribunal is comfortably satisfied, both on the facts and on the respondent's admission, that the conduct admitted by him when considered globally amounts to professional misconduct. The Tribunal is of the view in relation to grounds one and three that the conduct of serious because it involves the respondent's failure to maintain professional boundaries in the context of a psychiatrist and patient treating relationship.

• [21] Failures to maintain professional boundaries by health practitioners are treated seriously and will commonly be characterised as professional misconduct, particularly where the relationship is romantic, sexual or intimate. This is even so where the conduct full short of a physical sexual relationship or where the sexual relationship results in an enduring relationship, dependant on other relevant features such as the vulnerability of the patient and whether the conduct was persistent or predatory.
• [22] There are two relevant practitioner-patient relationships in the present case:

(a) employment or personal (platonic relationship with Patient AG); and

(b) an employment and personal (sexual relationship) with Patient ET.

• [23] The breaches of professional boundaries in relation to Patient AG can be considered less serious than that with Patient ET and less serious than many of the comparable cases discussed by the parties in relation to sanction because:

(a) there was no intimate or sexual relationship; and

(b) the employment relationship came about in circumstances where:

(i) Patient AG and her husband were already acquainted with the respondent;

(ii) Patient AG's husband had provided accounting services to the respondent in relation to his practice;

(iii) at the time the offer was made, it had been approximately two and a half years since AG had been seen respondent for treatment. Although she later sought treatment on two occasions approximately two years into her employment;

(iv) the respondent was practising in a regional area in which he believes he was the only practising psychiatrist and, as a result, many of his patients were known to him or his family.

• [24] In relation to allegation five (the respondent's attempt to deter a notification), the respondent says that when he made the statements to Patient AG, he believed the matter of his relationship with Patient ET was certain to come to the attention of the regulatory authority and the statements would only have the effect of delaying that notification to allow him time to manage the inevitable consequence. The respondent however says the conduct obstructed the Board's functions and may be seen as an attempt to avoid professional responsibility.

• [25] It is well established that disciplinary proceedings are protective, not punitive, in nature. The paramount guiding principle in the administration of the National Law is that the health and safety of the public are paramount. The Tribunal's jurisdiction must be exercised bearing in mind the need to protect the public and to maintain the professional standards in the eyes of the public. The impact that an appropriate sanction will have on the practitioner guilty of misconduct and any personal hardship to the practitioner are necessarily secondary considerations.
• [26] Both parties have provided a list of comparable cases. Comparable cases are useful in setting the parameters of a permissible sanction, but no two cases are the same. During the course of oral arguments an issue arose concerning the proper interpretation of section 3A(2)(c) of the National Law. Counsel for the applicant sought time to research the matter and the Tribunal made directions about the filing of further submissions. The Tribunal is grateful to counsel for providing the submissions, but the Tribunal finds it unnecessary to resolve this discrete issue as it does not underpin the Tribunals findings in any way.
• [27] The respondent also argues that the rehabilitation of the practitioner concerned is an aspect of the protective purposes of the National Law disciplinary regime, arguing that where a sanction, such as suspension, risks unfairly altering the course of a practitioner's rehabilitation, it may better serve the protective purposes of the National Law not to impose it. In support of this proposition, the respondent cites Medical Board of Australia v McCombe [2020] QCAT 511, particularly paragraphs [4]-[5], which state:

Given that the Tribunal's jurisdiction is protective and not punitive... a short suspension, after such a long period of exceptional conduct and good practice, is not only apt to be punitive, but also it could unfairly alter the course of the respondent's rehabilitation which has been undertaken by him at his own expense and on his own initiative, and tends therefore to undermine the protective nature of the Tribunal's response...

In addition, in my opinion, a short period of suspension, in the quite exceptional circumstances of this case, would have the tendency to discourage other health practitioners from diligently addressing the underlying causes of their behaviour, when misconduct is proved, which is contrary to the principal of general deterrence...

• [28] Here, the respondent says he has changed his practice to ensure he steers well clear of the errors he made leading to this referral. He now works in a metropolitan area where he is less likely to be exposed to patients he knows socially in any case, he also engages in peer group meetings, and has sought advice, guidance and counselling from another practitioner, a psychologist and a social worker. He has also undergone an education course addressing these issues at his own cost, which was significant. He has suffered extra curial consequences in the sense that at the time his registration was suspended, he was the sole income earner for his family, which included five children. His then wife and children have permanently relocated to the United Kingdom. He is now remarried, happily, in what he describes as a healthy, positive relationship. He was unemployed for approximately 18 months without an income, which put him under considerable financial stress including being required to sell his family home. Put simply, he has worked hard to re-establish his personal and professional life.
• [29] He has now been back working for nearly three years and has provided letters of support from a number of medical practitioners. The length of time that has elapsed since the conduct, which last occurred in April 2021, affords the Tribunal an opportunity to observe that the respondent's behaviour since his conduct is not likely to reoccur so specific deterrence is not a consideration that looms large. There is no suggestion he has practised unsafely in any way since returning to practice in February 2023.
• [30] The parties agree that a suspension of 24 months is in range; 24 months would accord with the 19 months already served by way of suspension plus the six months proposed. The Tribunal agrees that if this matter was dealt with when he was first suspended on the immediate action, 24 months would have been an unacceptable suspension. However, the Tribunal has more problem with the idea that imposing another six months now would jeopardise his substantial rehabilitation and is a significant consideration.

1. Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
3. There is no order as to costs.