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[2017] QCAT 336
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2017-09-21
Original judgment source is linked above.
CITATION: Medical Board of Australia v Jonsson [2017] QCAT 336
DECISION OF: His Honour Judge Alexander Horneman-Wren SC, DCJ
3. The registration of Dr Jonsson be suspended for twelve months.
4. Order 3 is wholly suspended ("the suspended decision") for a period of 12 months ("the suspension period").
a. any disciplinary matter is referred to the Tribunal under section 193 or section 193B of the Health Practitioner Regulation National Law or section 103 of the Heath Ombudsman Act 2013 ("the further disciplinary matter");
b. the further disciplinary matter relates to conduct of Dr Jonsson which occurred during the suspension period; and
c. the Tribunal decides that a ground for disciplinary action has been established in the further disciplinary matter;
the Tribunal, in addition to any disciplinary action taken in respect of the further disciplinary matter, after allowing the Board and Dr Jonsson the opportunity to make submissions in relation to the suspended decision, may;
(i) impose the suspended decision, or a part of the suspended decision on Dr Jonsson; or
(ii) if the Tribunal considers the imposition of the suspended decision under subparagraph (i) to be unfair - extend the period of the suspended decision by a period of not more than 1 year.
6. The following conditions are placed on the registration of Dr Jonsson:
a. Dr Jonsson is to have a mentor for the next two years. Within 14 days of this order Dr Jonsson must nominate in writing a doctor for the Board to approve as her mentor. Id the Board does not approve the nominee, Dr Jonsson must make a further nomination in writing within 7 days. If the Board does not agree to the second nomination or the approved mentor is unable to continue as a mentor Dr Jonsson mush nominate a replacement until there is agreement with the Board on the identity of the replacement. As soon as practicable after any mentor is approved by the Board, Dr Jonsson must commence the mentor relationship. Dr Jonsson must meet with the mentor at least monthly. The mentor must focus on professional boundary management, strategies to ameliorate risks arising from the vulnerability of patients or Dr Jonsson and appropriate prescribing practice.
b. Dr Jonsson must provide a copy of the Tribunal's reasons, these orders and a written authority to the mentor, within 7 days of commencing any mentor relationship, to report to the Board as to her fitness and competence to practice:
ii. If request by the Board to provide a report about Dr Jonsson's fitness and competence to practice;
iii. In any event at intervals of 3 months from the commencement date to the mentor relationship.
c. Dr Jonsson is prohibited from self-prescribing any medication.
d. Dr Jonsson must make the clinical records of her patients available for inspection by an officer of the Board at such time or times at the Board shall determine for the purposes of monitoring compliance with these conditions.
e. Dr Jonsson will submit to testing under the Urine Drug Scheme (UDS) as per the UDS hotline with level 2 frequency testing and such frequency as dictated by the Board.
f. Dr Jonsson will give written notification to the Queensland Medical Board Health Surveillance Unit (or equivalent) prior to any leave of absence from her home or place of employment and will resume UDS testing when she returns from any leave, as required.
g. Dr Jonsson will keep the Schedule 8 drug book, as required by law.
h. Dr Jonsson will authorise the Board to access the Dangerous Drugs Unit (DDU) or equivalent for the purposes of checking all prescriptions she writes for Schedule 8 drugs.
i. All costs and expenses in relation to the conditions are to be borne by Dr Jonsson.
The Tribunal directs the parties to file and serve submissions on costs, limited to 4 pages, within 14 days.
CATCHWORDS: PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - where the registrant failed to maintain appropriate professional boundaries with the patient - where the registrant developed an inappropriate familiar relationship with the patient - whether the registrant's conduct amounted to unsatisfactory professional conduct
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - where the registrant inappropriately prescribed a drug of dependency to a close relative - where the registrant prescribed a sanctioned drug for her own personal use - where the registrant wrongly prescribed a medication after previously entering an undertaking for 3 years in respect of similar conduct- whether the registrant's conduct amounted to unsatisfactory professional conduct
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - where registrant divulged confidential information of the patient to a relative of the patient- whether the confidential information disclosure of the registrant was done to exercise improper influence - whether the confidential information disclosure was made in an attempt to pervert the course in ongoing disciplinary proceedings - whether the registrant's conduct amounted to professional misconduct under the Health Practitioner Regulation National Law
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - where the registrant admits to conduct in five counts that amounts to unsatisfactory professional conduct pursuant to s 124 of the Health Practitioner (Disciplinary Proceedings) Act 1999 - where the registrant admits to one count that amounts to professional conduct under the Health Practitioner Regulation National Law - where one count charged under the Health Practitioner Regulation National Law remains in dispute - where remaining matter in dispute is not established - whether sanction is appropriate - where sanction is appropriate
APPLICANT K McMillan QC instructed by Rodgers Barnes and Green
RESPONDENT P Hastie QC instructed by Ashurst Australia
**[1] The Referral on 28 August 2012 the Medical Board of Australia referred disciplinary proceedings to the Tribunal against Dr Clara Isabella Johanna Jonsson. The referral contained five counts of conduct that is alleged to amount to unsatisfactory professional conduct pursuant to s 124 of the ealth Practitioner (Disciplinary Proceedings) Act 1999[1] and a further two counts of conduct that is alleged to amount to unprofessional conduct under the Health Practitioner Regulation National Law.
[2] Counts 1 to 6 as outlined in the further amended Part C to the referral have been admitted by Dr Jonsson as conduct that amounts to unsatisfactory professional conduct and unprofessional conduct, respectively. Count 7 remains in dispute.
[3] In respect of counts 1 to 6, Dr Jonsson had in August 2013 filed an amended response to Part C of the referral as originally filed. In that response she had not denied, and did not require proof of, certain of the particularised allegations. The further amended Part C tendered by the Board in the hearing on 22 June 2015 broadly reflected those matters which Dr Jonsson had not denied and of which she did not require proof. "Broadly" because the further amended Part C retains the particulars as originally set out in paragraph 1.4.2. Those particulars were:**
"1.4 On unknown dates between 1 June 2006 and 30 November 2006 the respondent:
1.4.2 permitted the patient to sleep with the respondent in the respondent's bedroom at the respondent's residence in the same bed as the respondent when there was no therapeutic reason to do so."
[4] In her amended response Dr Jonsson had said, in not denying, and not requiring proof of, paragraph 1.4.2"
"Paragraph 1.4.2 to the extent that the respondent: permitted the patient to sleep in the same bed as the respondent, but separated by a bed cover in the respondent's bedroom at the respondent's residence, when there was no therapeutic reason to do so."
**[5] The further amended Part C did not reflect those more limited facts which Dr Jonsson did not deny and of which she did not require proof.
[6] It is somewhat difficult to discern the factual basis upon which the parties proceeded in relation to paragraph 1.4.2. In its submissions, filed on 17 June 2015, the Board said, noting that a further amended referral was to be filed by leave:**
"The respondent admits charges 1 to 6 (inclusive) of the further amended referral, save for charges 1.5 and 6.1, which the Board does not pursue."
[7] In her submissions, filed on 19 June 2015, Dr Jonsson said:
"2. The Board will withdraw some of the particulars to those charges; namely subparagraphs 1.1(i) to (xii), subparagraph 1.5 and subparagraph 6.1. This is by agreement. The effect is to confine the dates by which it is alleged Dr Jonsson failed to maintain appropriate professional boundaries, to delete the allegation that there were any sexual relations between Dr Jonsson and the patient and withdraw the allegation that the patient (LW) had not informed Dr Jonsson that her father had sexually assaulted her.
**[8] At the commencement of the hearing Mr Hastie QC who appeared for Dr Jonsson said of the further amended referral tendered by Ms McMillan QC for the Board "We have no objection to the amended referral". Notwithstanding that statement that Dr Jonsson had no objection to the amended referral which included paragraph 1.4.2 in its original form, the basis for the respondent's submissions was that the allegations made in paragraphs 1 to 6 of the amended referral were taken to be proved by operation of the amended response as given effect by the Tribunal's orders which included, as order 3, that for the purposes of the proceeding any fact alleged in the amended Part C (as it was then filed) to which there was a plea in the amended response that Dr Jonsson did not deny it and did not require proof of it was taken to be proved.
[9] There has never been an unqualified plea by Dr Jonsson that she did not deny the allegations in paragraph 1.4.2 as pleaded by the Board. Her only plea of not denying paragraph 1.4.2 was on the qualified basis set out in her amended response.
[10] In the Tribunal's view, it should be considered that the parties proceeded on the factual basis set out in paragraph 1.4.2 of Dr Jonsson's amended response, notwithstanding that this was not reflected in paragraph 1.4.2 of the further amended Part C to the referral.**
**[11] Count 1 arises out of an abuse of the position of influence and trust by Dr Jonsson with the patient LW through a failure by Dr Jonsson to maintain appropriate professional boundaries with the patient, and her engaging in an inappropriate personal relationship with the patient.
[12] The patient was referred to Dr Jonsson in March 2004 due to weight loss and issues relating to the use of the drugs amphetamines and heroin; although not admitting the use of heroin until some months after this consultation.[2] The patient was also suffering from depression. Initially, between 2004 and 2007, the patient would attend on Dr Jonsson in the surgery, Dr Jonsson would allow her to sit in the waiting room so the patient had company. They would talk on Dr Jonsson's out of hours contact service and her personal mobile telephone service and Dr Jonsson would often send text messages to her asking her things such as where she was.
[13] At one of the consultations in 2004 Dr Jonsson embraced the patient. This became a common occurrence. The patient refers to those matters in her affidavit as follows:**
"At one of the consultations in about 2004 Dr Jonsson embraced me. I did not ask to be embraced and I was not comfortable with the situation. However, it was comforting to know someone cared about me. After the first few occasions Dr Jonsson embraced me, I became more comfortable and we began to embrace more frequently. At the time I saw my relationship as something of a 'mother/daughter' relationship as my relationship with my mother was not going well at the time."[3]
**[14] Sometime in March 2006 Dr Jonsson, who was on the Gold Coast at the Sheraton Hotel attending a conference, said in a telephone conversation with the patient "I wish you were here". When the patient, in Kingaroy at the time, responded that she could find her way there, Dr Jonsson responded in the affirmative. The patient subsequently hitchhiked her way to the Gold Coast and attended the hotel. Dr Jonsson permitted her to stay with her in the same bed that evening where Dr Jonsson "embraced me in the way a mother would to her daughter".[4]
[15] For a period from 1 March 2006 to 30 April 2006 the patient resided at a women's shelter. Dr Jonsson attended on the patient at the shelter on at least two occasions and embraced the patient on each. There was no therapeutic reason for Dr Jonsson to attend the shelter on those occasions.
[16] Between 1 June and 30 November 2006 Dr Jonsson allowed the patient to move into her residence in Kingaroy. The patient was given her own room and had moved a number of personal belongings and clothing into the house. It is admitted, though, that during that period Dr Jonsson permitted the patient to sleep on the same bed as her, but separated by a bed cover.
[17] The Board submits that there are a number of factors which render these admitted boundary violations by Dr Jonsson particularly serious. Those factors are:**
(a) the patient was especially vulnerable on account of her use of drugs and depression;
(b) the treating relationship lasted for a significant period of time (March 2004 to October 2007);
(c) the respondent began to ingratiate herself into the patient's life in about 2004 by sending text messages to the patient and providing her with a bible, and the relationship lasted until about October 2007;
(d) the relationship was physical in that the respondent embraced the patient on several occasions and kissed her on the cheek;
(e) the relationship was serious in that the patient was very emotionally attached to the respondent and resided with her for a period of three to six months, including sharing a bed;
(f) the patient saw the respondent as a mother figure;
(g) the patient expressed concern that given their relationship the respondent could no longer be the patient's doctor, but the respondent threatened to leave her if she consulted another doctor;
(h) the respondent sought to "cover up" the existence of her relationship with the patient; she made the patient write a letter 'swearing that I would not reveal the details of relationship'.
**[18] A number of observations should be made about those submissions. First, whilst the treating relationship covered the period referred to, and the boundary violations were originally alleged to have occurred over that period, the amended particulars allege such conduct limited to between January 2006 and October 2007.
[19] Secondly, whilst the patient has deposed to some of those matters, they do not form part of the conduct alleged to have constituted charge 1 and Dr Jonsson's unsatisfactory professional conduct. Whilst the patient was not cross-examined on her affidavit, and no objection was taken to its content which went beyond the particularised conduct, the Tribunal ought not act upon that material as though it was evidence of the contravening conduct alleged.
[20] Thirdly, to the extent that Dr Jonsson sought to 'cover up' the existence of a relationship with the patient by making the patient write a letter "swearing that I would not reveal the details of the relationship",[5] the only relationship referred to in the letter[6] is a sexual relationship. Although such a relationship was originally alleged by the Board, that allegation was not pursued. The Tribunal should not, therefore, act on a submission by the Board that Dr Jonsson sought to cover up a relationship which the Board does not now allege existed. If Dr Jonsson took steps to have the patient write a letter retracting the patient's allegation to Dr Jonsson's husband that there had been a sexual relationship between she and Dr Jonsson,[7] then it was the retraction of an allegation which the Board itself has withdrawn.
[21] The Board further submits, and it should be accepted, that the relationship had a very detrimental effect upon the patient who came to see Dr Jonsson as a mother figure. It caused her to slit her wrists on Mother's Day 2010 and to contemplate suicide.[8]
[22] For Dr Jonsson, it is submitted that her conduct involved her crossing appropriate doctor/patient relationship boundaries through establishing what appeared to be a mother/daughter type relationship with an adult, but vulnerable, patient. It is submitted that the case is unusual in that most disciplinary proceedings of this type arise where a male doctor has undertaken a sexual relationship with a younger female patient.
[23] Whilst there are many cases of the kind described in the submissions for Dr Jonsson, and it is true that the boundary violations in such cases may be particularly egregious, boundary violations are by no means restricted to such cases: as Dr Jonsson herself accepts by her admission of charge 1.[9] However, in each case, the nature and extent of the boundary violation, the circumstances in which it occurred, the nature and extent of any vulnerabilities on the part of the patient, and the likely or actual effects upon the patient of the particular violation will all be matters to be considered.
[24] In this case, the patient was vulnerable and the relationship had a very detrimental effect upon her. Whilst the relationship was not sexual, it did involve the patient and Dr Jonsson residing together, and in the course of that a highly unusual level of physical intimacy. These were, in the Tribunal's view serious boundary violations.
[25] Counts 2 to 4 concern inappropriate prescribing by Dr Jonsson of the drug Hypnodorm (Flunitrazepam). Flunitrazepam is described in the evidence as follows:**
"Flunitrazepam has long been identified as a drug of addiction and is not recommended for long term use. In the period under review it was well known in medical circles as a drug of addiction and was identified in the medical press and medical education circles as a drug sought by addicts and drug seekers. Regular communications to general practitioners by the Department of Health reinforced these messages. It is meant to treat severe insomnia after all non-pharmacological methods have been exhausted and other less addictive pharmacological approaches used. It is not designed for long term extended use. Flunitrazepam is rapidly addictive and is widely used as a street drug. It has considerable street value in the drug using fraternity. Prescription for an extended period of time of large quantities of Flunitrazepam would not generally be indicated for any patient."[10]
[26] Consumer medicine information published by AlphaPharm, the manufacturer of Hypnodorm, tendered by Dr Jonsson[11] identifies that:
"Hypnodorm is used to treat severe cases of insomnia (trouble sleeping). Hypnodorm belongs to a group of medicines called benzodiazepines. These medicines are thought to work by their action on brain chemicals. In general, benzodiazepines such as Hypnodorm need only be taken for a few nights and then discontinued by gradually decreasing the dosage. Continuous long term use of Hypnodorm is not recommended. The use of benzodiazepines may lead to dependence on the medicine."
**[27] Dr Jonsson's inappropriate prescription of Flunitrazepam took two forms. First was her prescription of the drug for a relative: her husband. Second was her prescription of the drug for others with the intention of using the drug for her own benefit.
[28] The particulars of count 2 refer to Dr Jonsson, on various occasions, from 1 March 2008 to 31 October 2010, prescribing 30 tabs of Hypnodorm for her husband when it was inappropriate to do so. Dr Kable's report identifies that there were 13 such prescriptions in that period. The Board's submissions refer to the opinion of Dr Kable that "it is clearly inappropriate to prescribe a drug of addiction to a close relative". The inclusion of that opinion in the Board's submissions is unfortunate because it was redacted from the final version of Dr Kable's report tendered by the Board as part of Exhibit 1. Notwithstanding that, Dr Kable's final report, as tendered, included that:**
"Dr Jonsson with her years of experience would have been aware of the sanctions and cautions surrounding the prescription of Flunitrazepam and would clearly be aware of the inappropriate nature of prescription to her husband of a drug of addiction."
It is difficult to see how the latter statement, which is more the expression of a conclusion of fact than an expert opinion, remained in the final version of Dr Kable's report. Nonetheless, no objection was taken to it. Dr Jonsson made no submissions specifically about Charge 2; the prescription of Flunitrazepam for her husband. No explanation was provided by her as to how she came to prescribe the drug to him over such a prolonged period.
[29] The particulars of Count 3 relate to Dr Jonsson, on five occasions between 22 February 2005 and 20 March 2006, prescribing Hypnodorm for a patient LC contrary to s 88 (3)(a) of the National Health Act 1953 (CTH), in that the supply was prescribed otherwise than in relation to the medical treatment of LC and was in fact prescribed by Dr Jonsson with the intention of using the medication for her own benefit.
[30] The particulars of Count 4 relate to the prescription of Hypnodorm to PJ, in circumstances again contrary to the National Health Act in that it was supplied not in relation to the medical treatment of PJ but intended for Dr Jonsson's own personal use. Dr Jonsson attended a Southport Pharmacy falsely representing this prescription was for PJ.
[31] The particulars of Count 5 involve Dr Jonsson attending the private residence of PJ and presenting a signed prescription with repeats, signed by Dr Wadegaonkar, requesting PJ to fill the prescription for the benefit of Dr Jonsson.
[32] All of those allegations are taken to be proven for the purposes of this proceeding.
[33] The Board submits that each of charges 1 to 5 constitute unsatisfactory professional conduct as defined by the Disciplinary Proceedings Act in that they amount to misconduct in a professional respect whether viewed individually or when taken together. The Board also submits that each of Charges 1 to 5 constitute unsatisfactory professional conduct because they amount to conduct discreditable to the respondent's profession. It further submits that Charges 3 and 4 amount to the provision of health services that were excessive, unnecessary, or not reasonably required, and fraudulent and dishonest behaviour.
[34] The Board also submits that Dr Jonsson's conduct, seemingly taking Charges 1 to 5 together, constitutes professional conduct that is of a lesser standard than that which might reasonably be expected of her by the public or her professional peers, and that it demonstrates incompetence or a lack of adequate knowledge, skill, judgement or care.
[35] Because Dr Jonsson concedes that her conduct constitutes unsatisfactory professional conduct, it is unnecessary to analyse and determine each of the bases upon which the Board submits that this is so.
[36] A particularly concerning feature of Charges 3 to 5 is that the diversion of this drug of dependence by Dr Jonsson for her own benefit occurred against a background of her having previously been found by the Board (or its predecessor) to be impaired through narcotic abuse/dependence (pethidine) and major depression.[12]
[37] Dr Jonsson entered undertakings with the Board for a period of three years and the Board extended her period of monitoring for a further two years because she had again self-medicated with drug samples and South African medications on a number of occasions. Her undertakings expired in August 2006. During that period, between 22 February 2005 and 20 March 2006, Dr Jonsson diverted Hypnodorm from a patient to herself on five occasions. Those diversions are the subject of Charge 3.
[38] The diversion of the prescription for a patient the subject of Charge 4 occurred approximately 18 months after she was released from her undertakings upon their expiration. The diversion of the prescription of Hypnodorm the subject of Count 5 occurred approximately a further 18 months after that.
The particulars of Count 6, brought under the National Law, relate to Dr Jonsson's conduct in her divulging confidential information communicated to her by the patient during the course of the therapeutic relationship. The disclosure was made to the patient's parents.
[39] The confidential information, said by Dr Jonsson to have been disclosed by the patient, was that her father had sexually assaulted her from the age of three. The patient in her affidavit states that some information about her parents was provided to Dr Jonsson during the course of their therapeutic relationship, including that her father had physically abused her as a child, but she did not recall telling Dr Jonsson that he had sexually abused her.
[40] On 21 January 2012 Dr Jonsson, in a telephone conversation with the patient's mother said that she was required to appear before the medical tribunal because of the "lies" that the patient was spreading about her. Dr Jonsson said that the patient was spreading "malicious rumours" about her. In an affidavit tendered in the proceedings[13] the patient's mother said, at paragraph 8:
"Dr Jonsson then indicated [the patient] had told her information which concerned [the patient's father], which she thought I should know about. She stated that she had not mentioned anything previously because of doctor/patient confidentiality. However, Dr Jonsson said, she was 'not about to let 40 years of work within the field of medicine be jeopardized by a little strumpet's lies and allegations'.
Dr Jonsson then indicated she wanted to make [the patient's father] aware of what was happening. I informed Dr Jonsson that I would tell [the patient's father] of her call and that he would likely contact her. I asked for her number, which she provided."
[41] Later that day Dr Jonsson in a telephone conversation with the patient's father said that she was to attend a medical tribunal because of the lies which the patient had told about her. She said that the patient had raised various issues about her father when she had been treating the patient but that she had not been able to discuss those matters with him at the time because of doctor/patient confidentiality. Dr Jonsson told him, however, that now that she was facing tribunal proceedings, all these issues would "have to come out". Dr Jonsson proceeded to tell the patient's father that she had been told by the patient that her father had sexually abused her from the age of three when the patient's mother had been in a mental health hospital.
[42] The disclosure of this information by Dr Jonsson was inappropriate and clearly a breach of patient confidentiality. Dr Jonsson should receive some disciplinary sanction for those actions. The nature and extent of what disciplinary sanction is appropriate is somewhat related to, and dependent upon, the Tribunal's conclusions at to the controversial Count 7.
[43] The particulars of Count 7 are the same as those particularised for Count 6 but are brought as an additional count on the basis that, in making those phone calls divulging confidential information to the patient's parents, Dr Jonsson was seeking to exert improper influence over any one or more of the patient and her parents in an attempt to pervert the course of foreshadowed disciplinary proceedings arising out of or in connection with Dr Jonsson's relationship with the patient, and as referred to in a letter dated 23 December 2011 from the Australian Health Practitioner Regulation Agency to her.
[44] The Board submits that Dr Jonsson's conduct in disclosing confidential information said to have been provided to her by the patient to that patient's parents was not within her practise as a doctor, but further submits that it is not necessary for it to have been so in order to be professional misconduct under the National Law. That submission is plainly correct. "Professional misconduct" is defined by s 5 and includes:
"Conduct of the practitioner whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession".
The Board submits that the conduct charged in Charge 7 is inconsistent with Dr Jonsson being a fit and proper person.
[45] In the Tribunal's view, the Board's concession that the conduct charged was not within Dr Jonsson's practice as a doctor may be to construe that part of the definition of "professional misconduct" too narrowly. The definition refers to conduct "whether occurring in connection with the practice of the health profession or not". In the Tribunal's view, although it is not necessary to determine the issue, the conducted alleged in Charge 7 may have sufficient nexus with her practice of her health profession so as to have occurred in connection with it.
[46] The Board submits that Dr Jonsson, having received the investigation report some time prior to responding to it on 6 January 2012, contacted the patient's parents at least two weeks after she was aware of the allegations against her. The Board submits that she therefore had time to "cool off" and that it could be inferred that her conduct in contacting the parents was calculated. It alleges that her conduct was to protect her own interests which she placed above those of her patient or the patient's parents. The Board submits that the allegations which Dr Jonsson made in the phone calls to the parents of the patient had the potential to cause serious harm to both them and the patient. It submits that Dr Jonsson's intent is further evidenced by her remark to the patient's mother that she "was not going to let 40 years of work within the field of medicine be jeopardized by a little strumpet's lies and allegations".
[47] The Tribunal is not satisfied that the Board has proven its allegation that Dr Jonsson sought to exert improper influence over the patient, or her parents, in an attempt to pervert the course of foreshadowed disciplinary proceedings.
[48] In her affidavit, the patient's mother deposes to Dr Jonsson having told her that she (Dr Jonsson) was required to appear before the medical tribunal. She also deposes to Dr Jonsson having indicated that the patient had told her information which concerned the patient's father which Dr Jonsson thought the patient's mother should know about. The mother also deposed to Dr Jonsson indicating that she wanted to make the patient's father aware of what was happening.
[49] The patient's father deposes to Dr Jonsson having told him that she had been unable to previously tell him about matters raised by his daughter, but that now she was facing tribunal proceedings, all those issues would have to come out. He deposes to having questioned Dr Jonsson as to why she thought it was now necessary to tell him that information because of the tribunal proceedings, and that she had responded that she would do whatever she needed to protect her 40 years as a doctor and that she thought he ought to know what his daughter had said about him.
[50] The Board's case is that an inference can be drawn as to Dr Jonsson's intent in making contact with the patient's parents. What, precisely, the alleged intent is said to be is not entirely clear, although it may be assumed that it is alleged that it was an intent to exert improper influence and thus pervert the course of the disciplinary proceedings.[14]
[51] The Board submits that it is the content of Dr Jonsson's conversations with the parents of the patient which is the "most significant evidence in supporting the inference sought to be drawn".[15] The Board submits that Dr Jonsson's intent in making contact with the parents was revealed by her remarks [to the patient's mother] that:
"[She] was not about to let 40 years of work within the field of medicine be jeopardized by a little strumpet's lies and allegations".[16]
[52] In respect of the conversations with the patient's father and the alleged intent to be inferred from it, the Board submits:
"19. The allegations made by the respondent against the father that "[he] had sexually assaulted [the patient] from the age of three..." were of the most heinous kind. He denies them. The respondent had threatened the father that "now that [she] was facing tribunal proceedings, all these issues would have to 'come out'". Any normal person would not wish for such allegations to be made public.
[53] The Board submits that the only inference to be drawn from that remark made by Dr Jonsson to the patient's father is, "that the whole purpose of the respondent's contact with the parents was to seek to exert improper influence over them...".[17]
[54] In support of its submissions that such an inference as to Dr Jonsson's intent may be inferred, the Board places some significance on her not giving evidence in the proceedings. In that regard, it cites the plurality judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v R[18], and the joint judgment in the same case of Brennan and Toohey JJ[19]. In reliance upon those passages, but noting the warning in the joint judgment and also the judgment of Gaurdron, Gummow, Kirby and Hayne JJ in Azzopardi v R[20] as to it being only in both rare and exceptional cases that judges may comment on the failure of an accused to offer an explanation, the Board submits that:
"33. The inference sought to be drawn by the Board in this case concerns the intent of the respondent in making contact with the patient's parents. The respondent's intent may of course be inferred from the circumstances. However, it is a matter peculiarly within her own knowledge.
[55] In the Tribunal's view, those submissions about drawing an inference as to the intention asserted by the Board should be rejected.
[56] The Board's reliance upon Weissensteiner is misplaced. As the plurality in Azzopardi explained at [61]:
"What was important in Weissensteiner and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that was sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial."
[57] The Board's submission that Dr Jonsson's intent "is a matter peculiarly within in her own knowledge" may be correct insofar as it asserts that any person's own intentions, motivations and thoughts may, ultimately, only and peculiarly be known to that person. But that is not to the point. If it were, the direction of the kind given in Weissensteiner might be given in all cases in which the accused's intent was an element of the charged offence. That would, so it seems, and as their Honours suggested in Azzopardi, make the right to silence illusory.
[58] Moreover, far from being a case in which Dr Jonsson failed to give evidence of facts uniquely within her knowledge, which evidence could not be given from any other person, and which had she given it would have explained the evidence against her, it was not even that the evidence in the Board's case as to her intention called for any explanation or contradiction. The evidence in the Board's case included that from the patient's mother which itself included not only Dr Jonsson's statements that she was not about to let 40 years of work be jeopardised by the patient's lies and allegations, but also that Dr Jonsson "wanted to make [the patient's father] aware of what was happening".[21] That was in the context of having told the patient's mother that she was having to go to the Medical Tribunal over lies the patient was spreading about her.
[59] It was also part of the evidence in the Board's case that the patient's mother told Dr Jonsson that the patient's father would probably phone her and that the mother took Dr Jonsson's phone number for that purpose. It was the patient's father who then called Dr Jonsson.
[60] The evidence of the patient's father in the Board's case included that Dr Jonsson had said, apparently at the commencement of the conversation, that "she was to attend a Medical Tribunal because of the lies [the patient] told about her".
[61] Paragraph 6 of the affidavit of the patient's father reads, in part:
"Dr Jonsson said that she was not able to discuss those matters with me at the time because of doctor/patient confidence. However, now that she was facing tribunal proceedings, all these issues would 'have to come out'."
[62] His handwritten notes of the conversation, made the same day, are in slightly different terms. They record:
"She then said at the time she couldn't discuss this with me as it was a doctor/patient confidence thing. But now because she had to face a tribunal all these things will have to come out." [22]
[63] The father's evidence as to that part of the conversation in which Dr Jonsson said that she "would do whatever she needed to, to protect her 40 years as a doctor" went beyond those parts set out in the Board's submissions. Paragraph 9 of the affidavit reads:
"I queried Dr Jonsson as to why she was now telling me this information when it should remain protected by doctor/patient confidentiality. I then questioned Dr Jonsson as to why she thought it was necessary to tell me this information because of the tribunal proceedings. Dr Jonsson said she would do whatever she needed to protect her 40 years as a doctor and she thought I ought to know what my daughter had said about me."
[64] Also, the patient's father's handwritten contemporaneous are again slightly different to the affidavit. They record:
"I said to her if this is doctor/patient confidentiality why was she now telling me and the tribunal, as it should still be in confidence. I also told her I didn't know what she was going on about as no one has said anything to me, and if she had to do what she has to do in the tribunal what was she telling me this for. She said she would do whatever to protect he [sic] 40 years as a doctor and she thought I ought to know what my daughter had said about me."
[65] That evidence which goes beyond that recited in the submissions, particularly when taken with Dr Jonsson having stated that "now because she had to face a tribunal all these things would have to come out", suggests that Dr Jonsson's intention in contacting the patient's parents was to inform them, but particularly the father, of matters which would become the subject of evidence in tribunal proceedings. The evidence suggests that this was said by Dr Jonsson in the context of her understanding and accepting that there would be such proceedings. That understanding as conveyed by Dr Jonsson is reflected in the father's response which enquired not only as to why Dr Jonsson was telling him of matters the subject of confidence, but also why she was telling the tribunal of those matters.
[66] The evidence also includes a further reason offered by Dr Jonsson as to why she was telling the father those things: that she thought he ought know what his daughter had said about him.
[67] That reason may have been misguided, but it was nonetheless a reason which she volunteered when asked by him.
[68] The statements of Dr Jonsson to both the mother and father of the patient concerning the lies which the patient has told her must be viewed in the context of allegations of a sexual relationship between them having been made by the patient. The truth of such allegations has, ultimately, not been asserted.
[69] Whilst the Board seeks for an inference to be drawn that the whole purpose of Dr Jonsson's contact with the parents was to seek to exert improper influence over them, another inference is open. That inference is that Dr Jonsson made that contact for the reasons which she stated. Because those were her stated reasons, in the absence of evidence which would cause them to be doubted, the inference that contact was made for those reasons is as open, indeed more open, than the reason sought to be inferred by the Board.
[70] Reference to Dr Jonsson's statements made to Dr Fredericks in May 2011 of "frustration and annoyance" of the allegations and that she thought them "unfair, inaccurate and unreasonable" to Dr New in June 2015 adds little, if anything, to the Board's submission. In respect of the former, Dr Fredericks reported Dr Jonsson at the time expressing "clearly the frustration and annoyance at what she saw as many false allegations against her, which were adding unnecessarily to her already existing high levels of stress".[23]
[71] It is quite clear from Dr Fredericks' report that amongst those allegations which Dr Jonsson considered false were those that she had engaged in a sexual relationship with the patient. Dr Fredericks reported that Dr Jonsson, even at that early time, agreed that "she got her boundaries blurred with this patient", but denied that she had a sexual relationship with her. The Board, ultimately, did not pursue the allegation of there having been a sexual relationship. Dr Jonsson's expressed frustration and annoyance must be considered in that context.
[72] Similarly, the statement in Dr New's report of 5 June 2015[24], as to Dr Jonsson's viewing of the allegations as "unfair, inaccurate and unreasonable", must be considered in context. That statement is drawn from the following passage in Dr New's report:
"With specific reference to the requirement to maintain professional boundaries, Dr Jonsson has discussed these issues, at length, on several occasions. I am confident that she has a good understanding of the importance of this requirement. It is also notable that she is very alarmed at the possibility of being seen to infringe in this manner, to the extent that she is extremely avoidant of any situations which could give rise to such suspicions.
This has arisen on occasion because of the return to the local town of the young woman who originally made a complaint. Dr Jonsson has been strenuous in her efforts to avoid any contact with her, in part because of her continuing anger at the complaint which she sees as unfair, inaccurate and unreasonable and in part because she is way about her activities being misinterpreted again."
[73] To understand the reference made by Dr New to Dr Jonsson's alarm "at the possibility of being seen to infringe in this manner", consideration must be given to his earlier reports because no such 'manner' is identified in the June 2015 report.
[74] Dr New's first report was dated 10 December 2013[25]. In it, he refers to Dr Jonsson considering "the current process to be unwarranted". He referred to Dr Jonsson readily acknowledging that she had been unwise with respect to the extent of the assistance that she had offered the patient. It identified that Dr Jonsson had provided the patient with accommodation in her home. It stated that Dr Jonsson understood this to be an error in judgment. It went on to say:
"She refuted absolutely any suggestion that she had formed an inappropriate sexual relationship with the lady, or that she had abused her position as a medical practitioner while assisting her."
[75] Dr New went on to record Dr Jonsson having "made the point that although the patient had initially made comments to this effect, she had subsequently withdrawn these. The patient has a history of not being a reliable person".
[76] Dr New provided another report dated 6 January 2015. However, there is nothing in that report which would cast light on the manner of infringement to which he referred in his subsequent report in June 2015.
[77] On reading Dr New's reports in full and in context, the manner of infringement to which he referred in his June 2015 report would seem to be a boundary violation by way of the formation of an inappropriate sexual relationship with the patient. Although the Board amended the complaint soon after that report was provided so as to remove the allegation of sexual impropriety, and that this would occur was known to Dr Jonsson prior to seeing Dr New for the preparation of his 5 June 2015 report, her expression of continuing anger is explicable, particularly as she had identified to Dr New in 2013 that the patient had subsequently withdrawn the comments which she had made to that effect. Her expression of continuing anger is understandable given that she had faced such allegations notwithstanding an earlier withdrawal of them by the patient, only to have them ultimately withdrawn shortly before the Tribunal hearing.
[78] The Board's characterisation of Dr Jonsson's statement to the patient's father that "now that [she] was facing tribunal proceedings, all these issues would have to come out" as a threat by her to him is unwarranted. First, because of the full and proper context in which it was made as already set out. Secondly, because the statement was not in its terms threatening.
[79] There was no contingency to the statement. It was not cast in terms such as that were something to occur, then it would all come out. Nor was it cast in terms that unless something were to be done it would all come out. Rather, it was cast in terms that as there were proceedings which Dr Jonsson had to face, it would all come out. There was no suggestion made by Dr Jonsson that the patient's father should, or could, do anything which would prevent the proceedings in which those matters would be revealed.
[80] Nor is the Board's characterisation of that statement by Dr Jonsson as being "allegations made by the respondent against the father" accurate. Dr Jonsson did not make any allegations. She informed the patient's father that she had been informed of those things by the patient. The information which the patient provided to Dr Jonsson might be characterised as allegations by the patient against her father; but Dr Jonsson's relaying of them to the patient's father cannot be characterised as an allegation against him by Dr Jonsson.
[81] It is to be recalled that the patient's evidence in these proceedings is that: some of the things she told Dr Jonsson about her parents were untrue; she did tell Dr Jonsson that her father had abused her as a child; and that she did not recall ever telling Dr Jonsson that her father sexually molested her as a child. On that evidence of the patient it cannot be discounted that she did in fact make allegations of sexual abuse of her by her father to Dr Jonsson which were the matters which Dr Jonsson relayed to him in their conversation. It could not be found that Dr Jonsson's statement to the father that she had been told those things by the patient was itself a fabrication.
[82] All of those matter militate against the drawing of the inference of an intention to improperly influence the patient or her parents sought by the Board.
[83] Charge 7 should be dismissed.
[84] The Board, in contending for the cancellation of Dr Jonsson's registration and an order precluding her from practising for a period of 3 - 4 years, refers to the need for general deterrence and a lack of insight and remorse in her. It may readily be accepted that general deterrence is, as McGill SC DCJ said in Queensland Nursing Council v Dodd[26] a legitimate aspect associated with a disciplinary order. General deterrence though may be achieved through the making of a variety of disciplinary orders.
[85] So too it may readily be accepted that a lack of insight or remorse are matters relevant to sanction[27]. Such a lack of insight or remorse might warrant the imposition of a disciplinary sanction different to, or more onerous than, that which might be appropriate had insight and remorse been demonstrated. Their absence might go also to fitness to practise[28].
[86] Whilst accepting that Dr Jonsson has made significant admissions as to her conduct, the Board submits that she "has not given evidence to explain her conduct. There is no direct evidence which would allow a finding that she has demonstrated remorse or insight into her conduct"[29]. It submits that she should be given moderate credit for those admissions.
[87] The Board further submits "moreover, there is no psychiatric or psychological evidence which would support a finding of insight or remorse"[30].
[88] In the Tribunal's view, those submissions should not be accepted. There is evidence of Dr Jonsson having insight and remorse into her contravening conduct. Furthermore, the evidence suggests that her insight and remorse have increased over time.
[89] In his report of 31 May 2011[31], Dr Fredericks refers to Dr Jonsson having agreed that her boundaries blurred with the patient, and that she indicated that "in retrospect she should have recognised the danger inherent in her becoming too involved with this disturbed patient, given [the patient's] long history of drug use and associated problems". She also recognised that her judgment was clouded at the time due to a number of work and personal stressors. The existence of those stressors at the relevant time seems uncontroversial.
[90] Dr Fredericks' report as it relates to Dr Jonsson's insight and remorse concerning inappropriate prescription and use of drugs is less reassuring. He referred[32] to having "found obtaining a clear picture of her use of Hypnodorm somewhat difficult". She gave him contradictory and incorrect information. At the time of seeing Dr Fredericks she denied diverting Hypnodorm prescriptions for her own use. Those matters are now admitted. The denials at the time demonstrate a lack of insight at that earlier time; but her later admissions demonstrate a development of insight in the intervening period.
[91] Dr Fredericks noted that in his review of Dr Jonsson in 2008 she had stated that her "tendency not to be as truthful and forthright as she might, appears to be a reflection of her pride, her personality and her fear of being adversely judged".
[92] Dr New in his report of 10 December 2013[33] refers to Dr Jonsson having "readily acknowledged to me that she was unwise with respect to the extent of the assistance that she had offered [the patient]" and that she "now understands the error of judgment as having been greatly influenced by her own personal experience".
[93] Whilst Dr New reports Dr Jonsson having, at that time, refuted absolutely not only that she had formed an inappropriate sexual relationship with the patient, but also that she had abused her position as a medical practitioner while assisting her, that denial of having abused her position must be viewed in light of the fact that she came to admit that her position had been abused in that way. That too demonstrates development of insight in the intervening period.
[94] In his report of 6 January 2015[34] Dr New referred to Dr Jonsson, at that time, having "much greater insight and discipline with respect to developing and maintaining a healthy work life balance than previously" and that "her current approach includes her awareness of significant issues related to the doctor/patient relationship, the importance of defining for herself the appropriate boundaries, and maintaining these".
[95] He reported that "despite her awareness of the psychological risk of some of her patients, she is now resolved to limit herself to providing good quality medical care, rather than extending herself to seek to resolve their associated psychological problems".
[96] Those matters demonstrate insight, and insight greater than that which she exhibited when Dr New had reviewed her in December 2013.
[97] Furthermore, Dr New concluded:
"She has provided good grounds to have confidence that she is considerably more aware and insightful regarding the previous difficulties she experienced, the vulnerabilities of her previous approach, and the benefits of the new approaches that she had developed towards her practice, her own wellbeing, and her living in general."
[98] That conclusion supports a finding that, at that time, Dr Jonsson had developed insight.
**[99] In his final report dated 5 June 2015,[35] Dr New again expressed his confidence that Dr Jonsson had a good understanding of the importance of the requirement to maintain professional boundaries having discussed those matters at length with her on several occasions.
[100] Dr Jonsson has also undertaken some training in respect of professional boundaries in February 2014. This too demonstrates insight.
[101] In the Tribunal's view, insight on the part of Dr Jonsson is established on the evidence. The fact that Dr Jonsson has not given evidence "explaining her conduct" precludes neither a finding that she has insight, nor a finding that the evidence contained in the various medical reports provides an explanation of how the boundary violations occurred.
[102] However, those reports do not set out facts which explain the inappropriate prescribing and diversion of drugs by Dr Jonsson. There is, therefore, little evidence of insight into that conduct other than her admissions.
[103] In the submissions made on her behalf Dr Jonsson expresses remorse. It is not inappropriate that she do so through her lawyers' submissions rather than by direct evidence in circumstances in which she has admitted the conduct and the matter proceeded as a hearing as to the appropriate sanction to be imposed.[36]
[104] The remorse expressed by Dr Jonsson in the written submissions extends to concern for the welfare of the patient. She expresses that she is thankful that the patient did not have to give evidence. It should be noted that this was because of the withdrawal of the allegations of sexual misconduct. This expression of remorse and concern for the patient also demonstrates insight.
[105] Various references were tendered on Dr Jonsson's behalf. Most of them appear to have been provided in the context of immediate action in the form of the suspension of her registration which occurred in 2013. A review of that decision was resolved on the basis of Dr Jonsson entering into undertakings in November 2013.
[106] The referees include: other medical practitioners, both general and specialist; managers of residential aged care facilities; ministers of religion; local politicians; and patients. There are references from the University of Queensland where Dr Jonsson "holds a senior lecturer position" and "is an enthusiastic teacher for medical students", and Bond University where she makes "significant contribution to the clinical teaching and supervision of year 5 students". The references are of varying levels of relevance and assistance.
[107] The various medical practitioners speak highly of Dr Jonsson's competency and dedication, as do the managers of the aged care facilities whose residents are treated by her. The local politicians speak of the difficulties faced in attracting medical practitioners to that rural area and the impact which the loss of Dr Jonsson's services would have. The medical practitioners and facility managers speak of those matters also. The universities are high in their praise of her. Those are relevant matters, but cannot be allowed to overwhelm the process of formulating an appropriate sanction.
[108] The references from others in the community are of little assistance. They do not appear to in any way have been informed by the facts of Dr Jonsson's conduct. Rather they appear to have been informed only by the possible loss of her services. It is not disparaging to patients to observe that when informed of the potential loss of her services some will respond with a degree of a self-interest and, indeed, alarm. That is particularly so when it appears that the patient's views were prompted by a notification which read:**
We invite your views on how it will impact on your life should this surgery be forced to close down. Your comments may be made anonymously if you wish. Write your comments on the paper provided and place them in the box."
**[109] Many of the responses which this notice prompted were highly emotive; which is entirely unsurprising. The Tribunal places no weight upon them.
[110] Of some relevance is a submission to the House of Representatives Standing Committee on Health in respect of skin cancer in Australia. Dr Jonsson provides skin cancer services in her practice. The submission refers to the high rates of skin cancer amongst men in the country, particularly farmers, and the difficulties faced by persons in rural and remote areas if they have to travel to metropolitan areas for treatment.
[111] In contending for the cancellation of Dr Jonsson's registration and a preclusion period of three to four years the Board referred to a number of decisions of the Tribunal and of the former Queensland Health Practitioners Tribunal. The cases to which the Board referred were all cases in which the relationship which was established, or sought to be established, between the practitioner and patient was of a sexual nature. Whilst that is not the case in this matter, the Board having withdrawn the allegations of sexual relationship, the Board referred to observations by the Tribunal and Midwifery Board of Australia v Clydesdale[37] that focusing too closely upon whether a relationship fostered, or sought to be fostered, was of a sexual nature tends to distract attention from the fact that such conduct is a serious boundary violation in any event. Those observations are apposite in this matter.
[112] The Board submits that cancellation and preclusion for three to four years is supported by the decision in the Medical Board of Queensland v Alroe.[38] It contends that this case, as with Alroe, exhibits the features of a very significant power imbalance, the patient being as, if not more, vulnerable than in Alroe. The Board submits that Dr Jonsson sought to "cover up the relationship by having the patient sign a letter which is exhibited to her affidavit.
[113] In the Tribunal's opinion, Alroe had a number of features which made it a significantly worse case than this. First, it did involve a sexual relationship; and one which persisted over a prolonged period of time. Not only was the relationship sexual, it was particularly exploitative. In the Tribunal's reasons it referred to the final act of intercourse between the doctor and his former patient as particularly egregious. It occurred in Toowoomba after the patient had left Rockhampton where she had formerly resided and where the relationship between her and the doctor had been conducted. She had taken herself away from Rockhampton. He visited her, apparently with the intention of having sex with her; which he did. His conduct on that occasion as related in the Tribunal's reasons was exploitative and despicable. Secondly, Dr Alroe had been the patient's psychiatrist. The Tribunal, referring to Medical Board of Queensland v Scott[39] and re: A Medical Practitioner[40], emphasised that misconduct on the part of a psychiatrist may be regarded more seriously than in the case of some other specialities.
[114] Thirdly, as the Board's submissions record, the allegations of the patient were vehemently denied by the doctor who had endeavoured to characterise her as someone who was stalking him. Those matters having been found against the registrant, prior to the decision on sanction, he filed a "Statement of Remorse" which the Tribunal viewed as displaying no real insight into his conduct. For reasons already set out, the Tribunal is of the view that Dr Jonsson has demonstrated insight; and she admitted to her conduct.
[115] The Board's submission that Dr Jonsson sought to "cover up the relationship by having the patient sign the letter" should be considered cautiously. The letter is dated 26 October 2007. As has already been observed, the only relationship which could be said to have been sought to be covered up by it is a sexual relationship. In the letter the patient acknowledges having made false allegations about such a relationship. The disciplinary proceedings brought against Dr Jonsson alleged such a relationship. However, seemingly consistently with the letter, those allegations were ultimately withdrawn by the Board.
[116] In Medical Board of Australia v Love[41] the Tribunal found the doctor's conduct to have been worse than that in Alroe. It was, therefore, far worse than this case. It was shameless exploitation for sexual gratification of a significantly compromised patient over a protracted period. No insight or remorse had been demonstrated. It is not a comparable case to this.
[117] The Board also referred to Medical Board of Australia v Ibrahim;[42] Medical Board of Queensland v Hashim;[43] Medical Board of Queensland v Karthigasu;[44] and Medical Board of Australia v Yasin.[45] Ibrahim, Hasim and Yasin all concerned doctors who had sexual relationships with vulnerable patients. Yasin was a psychiatrist. A jointly proposed sanction was accepted by the Tribunal. It was for a two year suspension suspended after one year. Ibrahim was suspended for two years, the final six months of which were suspended for five years. Hashim was suspended for 12 months.
[118] Karthigasu was a case in which the doctor sought to develop a sexual relationship with a heroin addicted patient who he met through his work as a senior medical officer with the addiction service which she consulted. The registrant had denied any impropriety in his dealings with the patient. He was suspended for two years.
[119] In respect of charges 3 to 5 the Board referred to the decision in Health Care Complaints Commission v Dr Roland Von Marburg.[46] It submitted that the cancellation of Dr Jonsson's registration with preclusion for three to four years would adequately reflect all misconduct in charges 1 to 5.
[120] Mr Hastie QC, counsel for Dr Jonsson, submits that the various cases referred by the Board are not comparable to this case. He submits that only Alroe and Love contain sanctions of the level sought by the Board and that those cases do not justify such a sanction in this case. He refers to the lack of remorse and insight in both Hashim and Karthigasu.
[121] It was submitted for Dr Jonsson that the cases of Medical Board of Australia v Nandam,[47] Persley v Medical Board of Australia[48] and Medical Board of Australia v Jones[49] suggested the type of order which should be made with respect to boundary violations in a case such as this. In Nandam a registrant who for about nine months maintained a sexual relationship with the patient was suspended for a total of three months with two months of that period itself suspended. Various conditions were placed upon his registration. It was accepted by the Tribunal that he had developed insight into his personality and vulnerabilities and was addressing them.
[122] Similarly, in Persley a doctor who had a relationship with a former patient was suspended for three months and had conditions imposed upon his registration.
[123] In Jones a registrant who engaged in a sexual relationship with a patient whilst treating other members of her family, including her husband, who like the patient herself was also vulnerable, was suspended for six months. The suspension was itself suspended after two months for a period of 12 months. Various conditions were placed upon his registration.
[124] The respondent's submissions referred to a number of decisions in other States in which doctors who had engaged in relationships with patients, including sexual relationships, were sanctioned, variously, with reprimands, conditions and fines; but without suspension or deregistration.[50]
[125] It was submitted for Dr Jonsson that a reprimand would, in this case, be a fair result and satisfy the requirement that the Tribunal express disapproval of her conduct and serve as a warning to others.
[126] The respondent's submissions also referred to Medical Board of Australia v Dollar.[51] Medical Board of Australia v Anderson[52] and Medical Board of Australia v Alroe [53] as all being cases in which reprimands were given for inappropriate prescribing practices. In Anderson, a one month suspension was also imposed. In Alroe , the registrant was also ordered to surrender his authority to prescribe controlled drugs.
[127] The orders proposed on Dr Jonsson's behalf[54] included the suspension of her registration for a period of 12 months, with that suspension itself suspended after one month, a reprimand, and various conditions being imposed upon her registration. The proposed order was silent as to the period for which the balance of the suspension should itself be suspended.
[128] The Tribunal sought submissions from the parties as to the power of the Tribunal to suspend a suspension following the repeal of the Health Practitioners (Disciplinary) Proceedings Act 1999, and the appropriateness of the imposition of a fine when a ground for disciplinary action had been established under the Disciplinary Proceedings Act or professional misconduct under the National Law established. Each party filed submissions.
[129] Following the publication of its decision in Pharmacy Board of Australia v Jattan[55] the Tribunal sought further submissions on its power to suspend the operation of a suspension imposed under the Disciplinary Proceedings Act. In Jattan, the Tribunal determined that notwithstanding the repeal of the Disciplinary Proceedings Act and thereby the mechanisms for dealing with the suspended portion of the suspension if the practitioner engaged in further misconduct in the future, such mechanisms could be established by the Tribunal making ancillary orders under s 114(b) of the QCAT Act.
[130] Submissions were filed on behalf of Dr Jonsson that such orders were within power and appropriate in this case. The Board declined the opportunity to make further submissions on the basis that in its submission a suspended sentence was not appropriate in this case.[56]
[131] The Tribunal remains of the view that such orders are within power for the reasons explained in Jattan.
[132] Having taken all of the matters into consideration the Tribunal is of the view that the suspension of Dr Jonsson's registration for a period of 12 months is an appropriate sanction in this matter in respect of charges 1 to 5. The Tribunal considers that it is appropriate to wholly suspend the operation of that suspension for a number of reasons.
[133] The conduct engaged in by Dr Jonsson in respect of charge 1, and to a lesser extent to charges 2 to 5, occurred many years prior to the referral of the disciplinary proceedings to the Tribunal and the hearing of them in the Tribunal. There is no suggestion of Dr Jonsson having misconducted herself with any other patient in the intervening time. She has been under the care of Dr New from November 2013 and had, for the reasons already expressed, developed insight into her conduct. She has also been bound by undertaking since November 2013. Those undertakings are particularly relevant to counts 2 to 5. There is nothing to suggest that she has not been compliant with those undertakings.
[134] The imposition of a 12 month suspension serves the purposes of stating the Tribunal's denunciation of Dr Jonsson's conduct and acting as a general deterrent to others. The suspension of the suspension will act as a significant specific deterrent to Dr Jonsson to desist from any such conduct in the future.
[135] In the Tribunal's view, particularly given Dr Jonsson's drug related issues in the past, suspending the suspension for a considerably lengthy period would have been appropriate. The Tribunal would have suspended it for three years. However, the Tribunal has delayed in delivering its reasons for almost two years. Those matters have been hanging over Dr Jonsson for that period. In those circumstances suspension of the suspension for one year is appropriate.
[136] In respect of Charge 6 Dr Jonsson will be reprimanded. It is also appropriate that she be fined $2,000. In determining a reprimand and a fine to be appropriate sanction for Charge 6, the Tribunal has taken into account the particular circumstances in which the disclosures were made and that there is no suggestion that Dr Jonsson is a practitioner who otherwise breaches patients' confidences.
[137] The Tribunal has considered the conditions proposed by each of the Board and Dr Jonsson to be placed on her registration. The Tribunal considers, generally, those proposed by Dr Jonsson to be appropriate and sufficient. The Tribunal also makes the following specific observations as to why it is not imposing the conditions suggested by the Board.
[138] Both parties proposed that Dr Jonsson enter into a mentoring relationship. The form of condition proposed by Dr Jonsson in relation to this is appropriate.
[139] The Board sought a condition prohibiting Dr Jonsson from prescribing Schedule 8 drugs. Dr Jonsson proposed a condition that she will keep a Schedule 8 drug book as required by law and that she will authorise the Board to access the dangerous drug unit or equivalent for the purpose of checking all prescriptions she writes for Schedule 8 drugs. Whilst it is a condition that she observe the law seems otiose, those conditions are consistent with the undertakings which have bound her since November 2013. It would not be appropriate now to remove her capacity to prescribe those medications which she has been prescribing since that time.
[140] The Board proposed a condition requiring Dr Jonsson to nominate a tertiary level course or courses addressing professional boundary management, the nature of the therapeutic relationship with patients, professional ethics and appropriate prescribing practices. Assuming the availability of such courses, this may require Dr Jonsson to undertake as many as four tertiary level courses. The Tribunal considers that these issues are adequately addressed and the requirement for her mentorship to focus upon those issues.
[141] The Board proposed a condition requiring a period of counselling with a psychiatrist who specialises in boundary violations. Such counselling was to facilitate the development of insight into why she engaged in the behaviour the subject of the proceedings and to develop her awareness of professional boundary management strategy. The Tribunal considers that the reports of Dr New demonstrate that those matters have been adequately addressed.**
the Tribunal, in addition to any disciplinary action taken in respect of the further disciplinary matter, after allowing the Board and Dr Jonsson the opportunity to make submissions in relation to the suspended decision, may;
(i) impose the suspended decision, or a part of the suspended decision on Dr Jonsson; or
(ii) if the Tribunal considers the imposition of the suspended decision under subparagraph (i) to be unfair - extend the period of the suspended decision by a period of not more than 1 year.
The Tribunal directs the parties to file and serve submissions on costs, limited to 4 pages, within 14 days.
[1] Formerly the Health Practitioners (Professional Standards) Act 1999.
[2] Patient's affidavit, Ex. 1, pp 1-7, paras 3-4.
[5] Itself a fact not alleged to have formed part of Dr Johnson's unsatisfactory professional conduct.
[7] Whether Dr Johnson took such steps is not a matter which requires any factual finding to be made in these proceedings.
[9] See also: Speech Pathologist Board of Queensland v Clark [2013] QCAT 237; Nursing and Midwifery Board of Australia v Montero [2015] QCAT 316; Nursing and Midwifery Board of Australia v Brennan [2011] QCAT 328; Pharmacy Board of Australia v Kent [2012] QCAT 329.
[12] Report of Dr Fredericks 31 May 2011; Respondent's documents, Exhibit 4, p 4-5.
[14] See the wording of Charge 7 and the Board's written submissions on Charge 7 at [3], [6], [11], [15], [22] and [24].
[15] Board's written submissions on Charge 7, [16].
[18] [1993] 1 78 CLR 217 at 225 - 227.
[21] That statement was recorded in the notes of the conversation made by the patient's mother on the same day on which it occurred. Ex PW1 to the mother's affidavit; Exhibit 1 pages 18 to 20.
[22] Ex BW1 to the father's affidavit; Exhibit 1 Page 13.
[23] Report of Dr Fredericks 31 May 2011, Ex 4, p 1 at p 8.
[27] Dental Board of Queensland v B [2003] QCA 294.
[28] Re Liveri [2006] QCA 152.
[36] By comparison, an expression of remorse through a lawyer making submissions on sentencing of the defendant was pleaded guilty to a criminal offence is not inappropriate. The only issue to which Dr Jonsson's expression of remorse did not extend was the allegation the subject of charge 7, which has been resolved in her favour.
[37] [2013] QCAT 191 at [53].
[39] Unreported of 1999 delivered 17 March 2000.
[40] [1995] 2 Qd R 154 at 164.
[50] Health Care Complaints Commission v Dr Small [2012] NSWMT 18; Health Care Complaints Commission v Dr Anne Amigo [2012] NSWMT 13; Practitioner v Medical Board of Australia [2005] WASC 198; Medical Board of Australia v Poon [2010] VCAT 1840.
[56] Email from Board's solicitors, 24 August 2015.
Medical Board of Australia
Jonsson [2017] QCAT 336