Medical Board of Australia v Leggett [2015] QCAT 240

[1] On 31 August 2012, the Medical Board of Australia referred disciplinary proceedings against Dr Andrew Leggett to the Tribunal pursuant to section 193 of the Health Practitioner Regulation National Law which forms part of the law of Queensland by operation of the Health Practitioner Regulation National Law Act 2009 (Qld). In its initial referral, the Board alleged misconduct against Dr Leggett on several grounds. In the event, the matter has now proceeded by way of an agreed statement of facts in which Dr Leggett, together with the further fact admitted today, makes certain admissions to conduct which is much more narrowly confined than that which is contained in the original referral to the Tribunal, and, indeed, in an amended referral which was filed in early 2014.

[2] Dr Leggett is a psychiatrist registered practice under the National Law. Whilst in practice privately, and for a period of about 10 years, he provided intensive psychotherapy for a patient EK. During the course of providing that psychotherapy, Dr Leggett treated EK for dysthymia and assessed EK's principal diagnosis as dysthymic disorder. During the course of the treating relationship, Dr Leggett became aware of a number of personal circumstances pertaining to EK including stressors which she had faced arising from her divorce proceedings in or about 1993 or 1994; ongoing stressors arising from a difficult relationship between her and her father; stressors involved in her being a single parent; and interpersonal and academic stressors involved in her undertaking tertiary studies.

[3] On or about 31 August 2000, Dr Leggett himself determined to cease treatment of EK. The circumstances giving rise to that were that EK had developed, and was displaying, eroticised transference issues toward Dr Leggett and was applying pressure towards him to commence an inappropriate sexual relationship. Dr Leggett informed the patient that therapy must end and recommended that she consult a female therapist and he provided a psychiatrist as a recommendation should she choose to pursue further psychotherapeutic treatment.

[4] At some point after 2000, Dr Leggett was advised by his supervisor to terminate the relationship. At that time, Dr Leggett made what is described as a 'one-year no contact period' following the cessation of treatment. Between July and September 2001, EK sought to recommence psychotherapy with Dr Leggett. On 13 August 2002, Dr Leggett again clinically consulted with the patient EK to assess the possibility that she may recommence therapy with him. EK's pressure towards a sexual relationship with Dr Leggett again resurfaced.

[5] At that stage, Dr Leggett advised EK that she must accept that therapy with him was over and to return to her treating psychiatrist, who had been the female psychiatrist previously recommended by Dr Leggett, or another therapist of the patient's own choice and on her general practitioner's referral.

[6] In about April 2007, Dr Leggett commenced a personal relationship with EK. That relationship developed into a sexual relationship and has been described in the admission provided today to the Tribunal as being a caring, intimate, personal and sexual relationship in which Dr Leggett declared his love for the former patient.

[7] The sexual relationship commenced at about the end of July or early August 2007. Dr Leggett admits that the personal and sexual relationship with EK was nevertheless inappropriate in the context of the history of the treating relationship, notwithstanding the passage of time between the cessation of the treating relationship and the commencement of the personal relationship some five or so years later.

[8] On 29 May 2012, the Medical Board of Australia acting under its powers to take immediate action against a registered health practitioner took immediate action against Dr Leggett in the form of imposing conditions on his registration. Those conditions worked in such a way as to make his then employment in public medicine impracticable. It led to him taking a period of paid leave from about the time at which those conditions were imposed through until October 2012. In October 2012, he accepted an offer of voluntary early redundancy from his employer in the public system. From that time, that is, October 2012, he voluntarily removed himself from the practice of medicine until he recommenced private practice on a limited basis in January 2014. When he recommenced practice at that time, he did so with only one patient and in a practice which has been described as, and which advertises itself as, male only. That is, Dr Leggett has chosen only to see male patients.

[9] His practice has developed since that time such that he is now engaged about three and a-half days per week at his private practice. There are a number of affidavits which have been filed by professional colleagues of Dr Leggett, all of whom are aware of the circumstances giving rise to the disciplinary proceedings. All of them speak highly of his professional qualities in the practice of psychiatry and of his dedication and commitment to the profession, particularly through education and training of more junior doctors. It is clear from the material, and indeed the Board accepts, that Dr Leggett has shown from the earliest times great insight into the inappropriateness of his conduct and great remorse in respect of it.

[10] Of course, that insight is no more evident than from his voluntarily excluding himself from practice for the period to which I have referred. It is also reflected in his ongoing practice directed towards the treating of male patients only. It is also reflected in the fact that Dr Leggett first filed a response to the allegations contained in the Board's referral on 29 October 2012. In respect of the conduct which he now admits, Dr Leggett back then admitted essentially all the facts on which the Board now proceeds, or, at least certainly sufficient facts upon which the Board could proceed. Importantly, he admitted the commencement of the personal relationship in April 2007; the commencement of the sexual relationship in or about June or August 2007; and he admitted that that relationship was nevertheless inappropriate in the context of the history of the treating relationship notwithstanding the passage of time.

[11] Those are, in my view, important matters to bear in mind in determining an appropriate sanction to be imposed upon Dr Leggett in this matter. The parties have jointly advanced a sanction. It is, of course, a matter for the tribunal to determine what is an appropriate sanction in any particular case. However, for reasons set out by the Tribunal in Medical Board of Australia v Martin,[1] the Tribunal ought not depart from a proposed sanction agreed between the parties in a disciplinary matter unless that sanction falls outside the permissible range of sanctions for the conduct. For the reasons set out in Martin, there are sound jurisprudential reasons for that course to be taken.

[12] The parties have identified that a period of suspension of 12 months would be, in the ordinary course, an appropriate period of suspension for the conduct to which Dr Leggett has admitted. Without descending to the authorities which have been drawn to the Tribunal's attention, I agree that that would have been an appropriate period of suspension in the ordinary course. In particular, it is to be noted that, on the admitted conduct, the relationship between Dr Leggett and the ex-patient arose some four and a-half to five years after the second occasion upon which Dr Leggett ceased to treat the patient. It does not have any characteristics of predatory behaviour or of Dr Leggett having groomed the patient in an exploitative way to take advantage of the imbalance of power between doctor and patient, which are often features of cases where boundaries have been crossed by practitioners. In that regard, it distinguishes itself from other cases dealt with by this Tribunal and earlier tribunals where those features, absent in this case, have been present.

[13] The parties have both contended that it is within the powers of the tribunal to order a period of suspension but, by way of ancillary order, to order that that period of suspension be made retrospective or backdated to a particular time. They have jointly advanced that it should be backdated to October 2012, when Dr Leggett ceased practice.

[14] There are competing authorities in this tribunal as to whether such an order, backdating or making retrospective a period of suspension, is available to the Tribunal in exercising disciplinary powers under section 196 of the National Law. Section 196(2)(d) provides that if the Tribunal makes a decision, relevantly, that the registrant has engaged in one of the forms of misconduct referred to in section 196(1), that it may suspend the practitioner's registration for a specified period.

[15] In Psychology Board of Australia v GA[2], the Honourable Mr James Thomas AO, sitting as a judicial member of the Tribunal, found that the Tribunal cannot order a retrospective suspension. A contrary conclusion was reached by his Honour Judge Rafter DCJ, sitting as a supplementary judicial member of this Tribunal, in Medical Board of Australia v Doolabh,[3] where his Honour found, in respect of an analogous provision in the Health Practitioner Disciplinary Proceedings Act (1999), namely section 241 (2)(g), which permitted suspensions that, together with section 114(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal was empowered to backdate or make retrospective a period of suspension. Section 114(b) provides that a tribunal's power to make a decision in a proceeding includes a power to make an ancillary order the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.

[16] For my part, I have reservations as to whether section 114(b) would extend to making an order of suspension imposed under section 196 (2)(d) of the National Law, retrospective in its operation. It has not been a matter determined in respect of the National Law in other jurisdictions, although I note that the legislation by which the national law becomes part of the law of those other jurisdictions may not include a provision analogous to section 114(b). I do note that in respect of earlier legislation in Victoria, the Medical Practitioners Act 1994, the Victorian Civil and Administrative Tribunal declined to make retrospective an order of suspension on the basis that it lacked power to do so.[4]

[17] Mr Diehm of Queen's Counsel, who appears in this matter and who also appeared in the matter of Doolabh, has informed the Tribunal that the issue was not subject of discussion or debate in the course of the Doolabh proceedings. It was a position which was agreed by the parties and which the Tribunal did not raise further with them. I am grateful for that indication.

[18] With respect, I agree with the opinions of Judicial Member Thomas although it is not necessary for me to determine that issue in these proceedings because, in my view, in all the circumstances, this is a matter in respect of which it is unnecessary to impose a period of suspension on Dr Leggett. It seems to me entirely appropriate to take into account what might be considered, as it has been described in other cases, as a de facto period of suspension, which a practitioner has experienced in the period of time between when the conduct giving rise to disciplinary proceedings arose and the determination of an appropriate sanction.

[19] In Psychology Board of Australia v GA, Judicial Member Thomas[5] observed that whilst there was no power within the Tribunal to order a retrospective suspension, it is appropriate to take into account the fact that a health practitioner has disqualified himself or herself from the profession for a period. As the Judicial Member there pointed out, periods of voluntary suspension undertaken by registrants will not, in all circumstances, be appropriately regarded as being the equivalent to a de facto suspension. I respectfully agree with the judicial member's observations in that regard. It will be in each case a matter to consider the particular circumstances in which the voluntary cessation or removal from practice took place, as to whether it ought appropriately be regarded as being equivalent to a period of de facto suspension.

[20] In this case, there are two periods which warrant consideration. The first is the period from the time of taking immediate action at the end of May 2012 to the time at which Dr Leggett took a redundancy in October 2012 and removed himself from practice; and the period from that time in 2012 to January 2014.

[21] Mr Diehm QC frankly concedes that the fact that Dr Leggett received payment during that period of time between May and 2012 means its effects upon the registrant were not as significant as circumstances in which immediate action taken might, for example, result in a registrant not being able to practise at all. That said, it seems a reasonable inference to draw that the circumstances which led to the taking of immediate action in the form in which it took at the time may have included matters which were subject of the referral and concern the manner in which consultations were performed by Dr Leggett which now form no part of the Board's case against him, and in respect of which there is no evidence.

[22] Dr Leggett has deposed to the substantial impact which these events have had on him personally and professionally, including in respect of his family. Those matters are no doubt quite true. However, they are the direct or indirect consequences of him having conducted himself in the way in which he has now admitted.

[23] In my view, the removal of himself from practise for a period of about 14 months is a significant matter to take into account in Dr Leggett's favour in this matter. It not only is identifiable as a de facto suspension period, as recognised by Judicial Member Thomas in Psychology Board of Australia v GA, and by other tribunals such as the Victorian Civil and Administrative Tribunal in Honey v Medical Practitioners Board of Victoria (2007) VCAT 526 at 61, it also, as I have said, demonstrates his significant insight from that time in relation to his conduct. He himself has sought and undergone counselling in respect of these matters which, too, indicates the level of insight which he has.

[24] The purposes of proceedings such as these are to protect the public and to uphold the standards of the profession so that the public can maintain confidence in the medical profession. I am not of the view, that the protection of the public, or indeed the other purposes, requires that there be a period of suspension imposed in all the circumstances on this case. I am also not of the view that the other purposes of the proceedings are further advanced by such a suspension.

[25] Another significant issue, in my view, relevant to it being inappropriate to impose a period of suspension on Dr Leggett in this case is the substantial period of time which has passed since his initial admission in October 2012 of essentially the entire facts which give rise to the sanction being imposed. As I have said before, these are matters which go further to indicate his insight from that time and are relevant to the consideration as to whether or not to impose a suspension.

[26] In circumstances where the Tribunal forms that view, then in my opinion it is appropriate for the Tribunal to indicate that, if circumstances were different, it would have suspended the registrant's registration but refrained from doing so for the particular reasons identified.

[27] That, in my view, is the preferred course to imposing a suspension which itself is then backdated. In my view, in terms of section 114(b) of the QCAT Act, backdating a suspension would not be the exercise of a power considered appropriate for achieving the purpose for which the tribunal may exercise the primary power. It would be recognising that the primary power, that is, the power of suspension, ought not be exercised in the particular circumstances of the case.

[28] The parties have jointly submitted that in the absence of a suspension actually being imposed, it would be appropriate to reprimand Dr Leggett. There have been views expressed by the tribunal in a number of cases to the effect that where a disciplinary sanction more serious and significant than a reprimand is also imposed upon a registrant, then there is little utility in the registrant being reprimanded as well.

[29] As the parties frankly submit here, however, if a suspension is not to be imposed, it is appropriate there be a reprimand of Dr Leggett, which reprimand will form part of the public record associated with his registration. Dr Leggett will be reprimanded.

[30] The parties have also proposed that conditions be imposed upon Dr Leggett's registration requiring him to complete a course of counselling with a psychiatrist who specialises in boundary violations. The psychiatrist must be nominated by Dr Leggett and approved by the Board and the counselling must be for such duration as the psychiatrist recommends but for a minimum of 12 months, comprising at least monthly counselling sessions. It will be for the psychiatrist to determine whether further counselling is required beyond the initial 12 months, or at a greater frequency. There are provisions for the psychiatrist to report the outcomes of the counselling to the Board on a quarterly basis. The cost of this counselling is to be met by Dr Leggett.

[31] All of those conditions are appropriate and they will be imposed. The Tribunal is required, if conditions are being imposed upon a registrant's registration, to nominate a review period for the conditions. The parties propose one year as the review period and that seems appropriate.

[32] Dr Leggett has agreed to pay the Board's costs of and incidental to these proceedings on the standard basis for matters in the District Court, to be agreed or fixed after assessment, and that order also will be made.

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Judgment (18 paragraphs)

Medical Board of Australia v Leggett [2015] QCAT 240 (19 May 2015)

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