Medical Board of Australia v Zimmermann [2023] QCAT 248

Health Ombudsman v Masamba [2019] QCAT 227

Health Ombudsman v ORC [2020] QCAT 18

Medical Board of Australia v Holding [2014] QCAT 632

Nursing and Midwifery Board of Australia and Ballarto [2020] VCAT 248

Paramedicine Board of Australia v Reis [2022] QCAT 120

[1] This proceeding is concerned with an application brought by the Medical Board of Australia (the Applicant) against Dr Rene Zimmermann (the Respondent).

[2] The relief sought by the Applicant is as follows:

(a) that the Tribunal find that each of the allegations 1, 2 and 3 be characterised separately as professional misconduct, alternatively, that the behaviour, considered together, be characterised as professional misconduct;

(b) the Respondent be reprimanded;

(c) the Respondent's registration be suspended for a period of between one and three months;

(d) conditions be imposed on the practitioner's registration requiring him to undertake education in relation to ethical decision making and appropriate use of social media, together with the maintaining of professional boundaries and a requirement for a mentor for a period once the courses are completed.

(e) No relief was sought in respect of costs.

[3] On behalf of the Respondent, the impositions of the conditions formulated by the Applicant were not opposed, nor was the reprimand. That the Respondent did not oppose the making of orders requiring supervision is unsurprising, given the nature of the conduct that brought the Respondent before the Tribunal.

[4] On behalf of the Respondent, it was submitted at paragraphs 95 and 96 as follows:

"It is submitted that the Tribunal ought to find that, in respect of each allegations one and two, Dr Zimmerman engaged in unprofessional conduct. There is no need to make a separate finding with respect to allegation three.

It is further submitted that the Tribunal ought to reprimand Dr Zimmerman and that it is open to order that Dr Zimmerman pay a fine to the Board of between $5,000 and $10,000."

[5] After hearing from Mr Wilson for the Applicant and Mr Liddle for the Respondent, and after considering the comprehensive written submissions made on behalf of both parties, after the conclusion of the proceeding on 13 June 2023, the Tribunal made the following findings and orders:

1. The Tribunal finds that the conduct of the respondent as particularised in allegations 1, 2, and 3(d) constitutes professional misconduct.
2. The Tribunal orders as follows:

(a) The respondent is reprimanded. > > (b) The Tribunal imposes on the registration of the respondent the conditions set out in 'Annexure A' to this decision. > > (c) Part 7, division 11, subdivision 2 of the National Law applies to the conditions imposed by this decision. > > (d) The respondent is to pay a fine of $10,000.00 to the Medical Board of Australia. > > (e) The applicant has two months from 13 June 2023 to pay the said fine in full. > > (f) There be no order as to costs.

[6] On the same day, the Tribunal indicated to the parties that reasons would be given as quickly as was practicable. These are those reasons.

[7] Three allegations were levelled at the Respondent. They are as follows.

[8] On 29 April 2021, a patient (JB) consulted with the Respondent due to the deterioration of her mental health following a recent long-term relationship which had broken down. The Respondent had prepared a referral letter to a psychologist, describing the deterioration of JB's mental health and noting that JB was depressed, lonely and had a decreased interest in various activities. During the course of the consultation, the Respondent:

(a) disclosed personal information to JB regarding his own relationship breakdown and divorce;

(b) invited JB to accompany him on a holiday to Darwin and indicated that he would pay for her travel expenses. He indicated at that time that JB did not have to sleep in the same bed as him;

(c) after JB had declined to travel to Darwin with the Respondent, he offered that she could stay at his house while he was away.

[9] At the end of the consultation, the Respondent also:

(a) wrote down on a piece of script paper his Instagram account details and his personal mobile number and provided this to JB;

(b) said words to the effect that she could look at the photos of his Darwin trip on his Instagram account;

(c) asked JB to message him and let him know how she was going, saying words to the effect that, "If you just text me, I'll have your number then."

[10] On 29 April 2021, the Respondent messaged JB on Facebook from his personal account to, "touch base".

[11] On 3 May 2021, the Respondent messaged JB via Facebook and via SMS, including a link to his Instagram account.

[12] The Respondent inappropriately accessed, obtained and/or used JB's personal information from her clinical records. The particulars allege that the Respondent used JB's mobile number and personal information from her clinical records for the purpose of sending the text and Facebook messages referred to in allegation 2.

[13] The factual matters concerning counts 1 and 2 were not disputed by the Respondent. In respect of the allegations made in count 3, the Tribunal accepts that the only conduct on the part of the Respondent that is made out is that concerning the contact by Facebook. In this regard, the Tribunal proceeds on the basis of the submissions made by Mr Liddle, in his written submissions, where at paragraphs 15 and 16, it is stated,

"In his affidavit filed in this proceeding (prior to receiving the Board's submissions), Dr Zimmerman explained that he searched Facebook using JB's name in order to send her the message on 29 April 2021.

That Dr Zimmerman would have initially learned JB's name from a document in the medical practice of some kind, which might broadly be a clinical record, it is - is uncontroversial. It therefore seems that there is, in fact, no dispute of fact to be determined in respect of allegation three."

[14] As already stated, save for the contact via Facebook, those submissions are accepted.

[15] On behalf of the applicant, it was submitted that the conduct of the Respondent breached a number of the Guidelines: sexual boundaries in the doctor-patient relationship. In particular:

[16] The Applicant also relied on a number of codes set out in the "Good medical practice: a code of conduct for doctors in Australia". However, it is not necessary to dwell on those codes to dispose of this matter.

[17] In respect of guideline 3, "Breaches of sexual boundaries: (spectrum of behaviours)", a number of breaches of sexual boundaries are set out. However, given the unchallenged explanation for his behaviour as set out in the Respondent's affidavit, the Applicant did not press that the Respondent had breached any guidelines concerned with the breaches of sexual boundaries.

[18] The Respondent is a registered medical practitioner who, at all relevant times, practiced at Mount Louisa Medical Centre, which is located near Townsville. The Respondent is a very experienced practitioner, graduating in 2004 and commencing practice as a general practitioner in July 2007. He is also highly regarded by his peers. They also characterise the subject conduct as being completely out of character.

[19] There was a considerable age discrepancy as between the Respondent and the patient and the Respondent was well aware of the patient's vulnerability, particularly given the state of her mental health. In the written submissions made on behalf of the Respondent, it is said in paragraphs 17 to 20:

"As already stated, the factual allegations are substantially agreed.

Dr Zimmerman accepts that he behaves in the manner alleged and that his behaviour departed from the standard which might reasonably be expected of a medical practitioner.

The Board has alleged that Dr Zimmerman's behaviour was inconsistent with several statements contained in the Board's Code of Conduct ... and guidelines published by the Board...

Dr Zimmerman accepts that his behaviour was inconsistent with several provisions of the Code and the Guidelines concerning doctor-patient boundaries and the use of private information provided by patients."

[20] In his affidavit at paragraphs 24 to 34, the Respondent set out his unchallenged explanation for what occurred:

"JB attended the practice following an exacerbation of her mental health which occurred as a breakdown in her relationship. At the time, it became apparent to me that it would take greater than 15 minutes for the consultation and I excused myself to advise the receptionist that extra time may be required. This is my usual practice when patients with a mental health concern have booked a short appointment.

JB attended with a book in which she had written down her thoughts and feelings, which she showed to me. I recall that she said or had written that there had been infidelity by her partner.

During the consultation, I noted the general practitioner (sic) mental health care plan had been implemented and was still current. As such, I wrote a referral letter to the psychologist noting the deterioration in JB's mental health and outlining that she was depressed, lonely and had a decreased interest in activity.

The similarity between JB's own circumstances and my own experience separating from my ex-wife hit a raw nerve for me and I felt emotional myself. In a misguided effort to show empathy, I disclosed to JB that I had been through a relationship breakdown and divorce and I found what helped me was keeping myself occupied. I told her that I was going on a road trip with friends in a couple of days. I recall that I said something to the effect of 'if we were friends, you could come along and are welcome to join me at any point during the trip and see the sights".

I told JB that we would "sleep in separate beds" or words to that effect and there would not be any intimacy between us.

I made these comments out of a misguided notion of offering JB a distraction from her problems and someone to talk to. I had previously gone through a similar situation and found that helped me. I acknowledge that it was inappropriate for me to do so and while not an excuse, I made these comments without thinking. I did not intend to pursue a relationship with JB. Rather, I thought my offer would give her a distraction from her current situation as I felt empathetic, having had a similar experience. I acknowledge that this breached the doctor patient boundary, and this was unprofessional and inappropriate.

..."

[21] It can be readily accepted that the Respondent has fully recognised the seriousness of his inappropriate conduct and that he is deeply remorseful about it. It can also be accepted that the Respondent has never been the subject of any serious complaints. In this regard, Dr Haggerty, the part-owner and clinical lead at the practice where the Respondent worked stated that any complaints about the Respondent "relate to his inflexibility in that he is a stickler for the rules". It is also relevant, in this regard, that only one patient is involved and as soon as she made it clear that she wanted no further contact with him, the Respondent ceased immediately.

[22] It is also to his credit that the Respondent, in recognising the seriousness of his conduct, of his own volition has already undertaken 10 hours of education and counselling.

[23] On behalf of the Applicant, a finding of professional misconduct is sought. Professional misconduct in the context of this case is:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience...

[24] On the other hand, it is submitted on behalf of the Respondent that the finding should be limited to unprofessional conduct. In this regard, it was submitted on behalf of the Respondent at paragraph 52 as follows:

"Given the absence of any expression of sexual or romantic interest by Dr Zimmerman, the unusual feature that his conduct was motivated by an intention to offer friendship to JB because that helped him during his divorce, and the fact that Dr Zimmerman desisted as soon as it became apparent to him that the conduct was unwanted, the better view is that the conduct was not substantially below the standard expected within the meaning of paragraphs (a) and (b) of the definition of professional misconduct."

[25] Unprofessional conduct, relevantly, is described in s 5 of the Health Practitioner Regulation National Law (Queensland) (the National Law) as:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers...

[26] For a finding of professional misconduct, it must be established that there has been conduct that falls substantially below the requisite standard. In Fittock v Legal Profession Conduct Commission (No 2) [2015] SASCFC 167 at paragraph 110, it was observed:

... it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, "substantial" connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

[27] On behalf of the Applicant, a number of cases were referred to. The first of these was the Medical Board of Australia v Holding [2014] QCAT 632. The factual background to that case was summarised by Mr Wilson in the following way at paragraph 29 of his submissions:

[28] The second case referred to on behalf of the Applicant was Nursing and Midwifery Board of Australia and Ballarto [2020] VCAT 248. The facts and the circumstances in that case involved a nurse who admitted to professional misconduct by engaging in an inappropriate relationship with a patient by breaching patient confidentiality and privacy and otherwise engaging in other conduct indicating that she did not possess adequate insight into the needs of vulnerable psychiatric patients. The conduct that was admitted, included sending text messages to the patient, sending and asking for personal photographs and using sexually explicit or otherwise inappropriate language, including about other patients. The Tribunal characterised the conduct as professional misconduct within the definition of paragraphs (a) and (b) of the National Law The practitioner's registration had been suspended by way of immediate action for a period of two and a-half years and the Tribunal took that into account in imposing a further one-month suspension.

[29] The third case referred to was that of Health Ombudsman v Masamba [2019] QCAT 227. That case also involved a registered nurse who had engaged in an inappropriate relationship with a former patient, which included meeting the patient outside of work and sending inappropriate Facebook messages suggesting that they should have a sexual relationship. The practitioner and the patient met for lunch at a restaurant approximately two weeks later. The practitioner sent a series of messages, including suggestions and comments of a sexual nature and continued to make such statements for some time after the patient had rebuffed him. Initially, the practitioner was evasive during the investigation by the Health Ombudsman but ultimately admitted to his conduct, including that it constituted professional misconduct. The parties made a joint submission that in addition to a finding of professional misconduct, the practitioner should be reprimanded, his registration suspended for a period of three months and conditions be placed on his registration requiring him to undertake a programme of education.

[30] The final case referred to or relied on by the Applicant was that of the Paramedicine Board of Australia v Reis [2022] QCAT 120. In that case, the practitioner, a paramedic, accessed a restricted ambulance service computer system to obtain contact details for a patient he had attended upon approximately 10 days earlier. Having obtained those details, he then contacted the patient and exchanged at least 200 text messages with her, including some of a personal and/or sexual nature. The text messages were sent over a period of approximately 12 days. The Tribunal made no finding of any predatory conduct. The practitioner had not worked as a paramedic for a period of three years since the subject behaviour. The Board sought a period of disqualification for a period of nine to 12 months; however, that submission was rejected. There was, however, a finding of professional misconduct and the practitioner was reprimanded.

[31] Arguably, the conduct in Ballarto, Masamba and Reis is more serious than the conduct in this case; however, I consider that the conduct here is more serious than that in Holding.

[32] Those cases were described by Mr Liddle as being helpfully summarised by Mr Wilson and added that the Tribunal might also be assisted by the decision of this Tribunal of Health Ombudsman v ORC [2020] QCAT 18. The relevant facts and findings of that case could be summarised as follows.

[33] ORC was a male medical practitioner who had performed a number of sexual health tests on a female patient, as well as a pap smear. The practitioner had invited the patient for a drink and later texted her to arrange to meet that evening. The practitioner and the patient did, in fact, meet that evening at a bar. The patient kissed the practitioner on the cheek twice during the evening and the two agreed to meet again for a meal. The next day, the patient contacted the practitioner and told him that she did not think it was a good idea for them to meet again. The practitioner replied confirming that that was an appropriate outcome. The patient was vulnerable because of the sensitivities of a prior therapeutic relationship. Unlike this case, however, the practitioner was described as being relatively inexperienced and there had been a significant delay in the matter being brought before the Tribunal which was not attributable to the practitioner. The practitioner was subject to chaperone conditions for 12 months on an immediate action basis and supervision conditions for four years after that, which hindered his ability to obtain employment for a period of about four months. The Tribunal accepted the parties' joint submission that the conduct should be characterised as unprofessional conduct and the practitioner was reprimanded.

[34] Each case has, of course, to be treated on its own merits and each of the cases referred to by the parties can be distinguished one way or the other. On balance, though, it is considered that the case of ORC is of little assistance. In that case, the practitioner was, as already referred to, relatively inexperienced and significantly, the parties had agreed that the conduct should be characterised as being unprofessional conduct. Those features are not present in this case. Also in ORC, the Tribunal clearly had regard to the delay in the finalisation of the matter, which was not caused by the practitioner.

[35] Notwithstanding what the best intentions or motivation on the part of the Respondent were, his conduct fell substantially below the standard reasonably expected of a health practitioner. The conduct also involved a degree of persistence. The unchallenged evidence of the patient is that the Respondent first offered that she fly and stay with him in Darwin for two weeks at his expense. When that offer was rejected, he then offered that she could fly up and stay with him for a period of one week, again, all at his expense and, when that offer was rejected, he then offered that she could stay at his house while he was in Darwin. It is tolerably clear that that Respondent clearly wanted to form some sort of personal and non-professional relationship with the patient. As he said in his affidavit at paragraph 27:

"I recall that I said something to the effect of 'if we were friends, you could come along and are welcome to join me at any point during the trip and see the sights."

[36] It is also of significance that these offers were made to a very young woman, only 23 years of age at the time, and in circumstances where she was clearly in a very vulnerable state. While the conduct may tend towards a lower end of the scale overall, the Tribunal is satisfied that the conduct described in the three allegations against the Respondent, when looked at together, is sufficient to warrant a finding of professional misconduct.

[37] It is uncontroversial that the Respondent ought to be reprimanded and be the subject of the conditions as advanced on behalf of the Applicant. The one remaining matter is whether the Respondent's right to practice ought to be suspended for a period of one to three months. During oral submissions, Mr Wilson accepted that any period of suspension could be as low as one month. It can be accepted that in cases such as this, the protection of the public and, associated with that, deterrence looms particularly large. There is no suggestion that a period of suspension is required for public safety reasons. It can also be accepted that by reason of the matters referred to above, there is little, if any, need for personal deterrence. A period of suspension, even if relatively short, might send a message of general deterrence; however, that has to be balanced by reference to other relevant matters.

[38] The Respondent is an experienced and highly regarded practitioner, his conduct was limited to one patient and is accepted to be conduct clearly out of character and occurring at a time when he himself was suffering a number of emotional issues. In addition, a period of suspension would result in one less medical practitioner practicing in the only medical practice servicing this regional area of approximately 9000 people. It would also result in the delay of the operation of the conditions imposed.

[39] On balance, the Tribunal is of the view that instead of a period of suspension, the Respondent ought to be fined the sum of $10,000 with time to pay. It is for these reasons that the Tribunal made the findings and orders that it did on 13 June 2023.