Between 29 October 2009 and 8 February 2011 the practitioner exploited the professional relationship he had formed with patient XY by engaging in a sexual relationship with that patient in circumstances where XY was a current client of the practitioner.

[6] The parties have presented a Statement of Agreed Facts and Joint Submissions on Sanction. The function of this Tribunal is to determine whether the conduct in question constitutes professional misconduct or unprofessional conduct as defined, and to make appropriate orders within the ambit of s 196(2) of the adopted National Law. While not bound by the proposal agreed to by the parties, the Tribunal pays considerable respect to the agreed suggestions negotiated by the responsible Board and the practitioner.

[7] The respondent is 48 years old and was first registered as a physiotherapist in December 1997.

[8] He remains registered and is not currently subject to any conditions or undertakings.

[9] At material times he was part of a group practice consisting of a medical practitioner, psychologist, registered nurse and physiotherapist.

[10] The woman with whom he conducted the relationship is a 45 year old beautician ("XY"). They met in October 2008. He provided physiotherapy services for her on three occasions in November-December 2008.

[11] Further physiotherapy services were provided on a further eight occasions between May 2009 and 24 January 2010. The nature of the treatment was for a neck complaint. There is no suggestion of inappropriate touching in the course of the treatment.

[12] During that period they became friendly in July 2009 when XY's friend died. Among other interests they discussed a possible business venture together.

[13] The admitted sexual relationship commenced on 31 December 2009 and lasted until February 2011, a period of 14 months, the last four months of which involved cohabitation at the respondent's house.

[14] In February 2011 the relationship ended acrimoniously.

[15] Further professional services were alleged beyond 24 January 2010 but not proved. On the evidence the professional relationship must be taken to have ended approximately 24 days after the sexual relationship commenced.

[16] The joint submissions included the following observations, with which I agree:

1. There was no significant age difference between the practitioner and SME.

2. Initially there was nothing untoward in the friendship that developed.

3. The professional interactions were reasonably lengthy, spanning a period of approximately 14 months.

4. The respondent has largely admitted the conduct alleged.

[17] It was further submitted that:

These matters place the boundary violation in this case at the lower end of seriousness for cases of this kind. However, any boundary violation is a serious matter and the codes of conduct promulgated by the profession leave no doubt that such conduct is inappropriate.

[18] The codes of conduct promulgated by the profession are the Physiotherapists Board Code of Practice, and the Code of Conduct for Registered Health Practitioners. The requirements of professional conduct on the subject of sexual misconduct with patients are expressed in rather general terms. The latter code, under the heading "8.2 professional boundaries", states that good practice involves:

... recognising that sexual relationships with people who have previously been a practitioners patients or clients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client.

[19] However the Physiotherapists Code of Practice, under cl 2.3 clearly enough states:

They must not ... engage in sexual activities with clients.

[20] That Code contains a statement that the Board has endorsed the Code for Registered Health Practitioners. Understandably these codes are less rigid than those governing the behaviour of practitioners such as medical practitioners and psychologists, whose relationships with patients require considerable mental intimacy and influence. Even so, the physiotherapist/patient relationship is attended by physical intimacy and is open for exploitation by the practitioner.

[21] The imbalance and position of advantage of a physiotherapist in relation to a patient in this area is quite obvious, and its inappropriateness does not require further discussion here.

[22] The fairly extensive conditions which the respondent has agreed to, which will be recorded on his registration, and the experience of these proceedings should render the prospect of any repetition of such misconduct unlikely. There was a reasonable degree of co-operation shown by the respondent, following the complaint, which led to the reaching of a consensus with the Board. This should be taken into account to some extent in his favour.

[23] The parties helpfully provided a number of past decisions as offering some assistance in guiding an appropriate level of response in the present case. In particular reference was made to Medical Board of Australia v North,[1] Medical Board of Queensland v Persley[2] and Medical Board of Australia v Mallon.[3] Those cases involved medical practitioners. The point drawn from them is that boundary violations by medical practitioners that did not feature exploitation, predatory behaviour or emotional distress to the patient tended to result in sanctions ranging from reprimand to suspension for three months.

[24] Those cases are distinguishable in various ways, and it is noted that the conduct in the present matter was more extensive than that in the cited cases, in that this respondent commenced an actual sexual relationship with the patient before termination of the professional relationship. On the other hand, as noted earlier, the greater intimacy involved between medical practitioners and their patients requires the imposition of even more rigid standards. However the cases are helpful overall for purposes of general comparison.

[25] The aspect of general deterrence remains an important one in cases of this kind in all branches of health practitioners.

[26] The conduct in question here clearly satisfies subparagraph (a) of the definition of professional misconduct in the adopted National Law, namely,

(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.

[27] The proposed sanction includes a reprimand, a suspension from practice for two months, the imposition of conditions requiring completion of a suitable course of education addressing boundary management issues, mentoring for 12 months after resumption of practice, and payment of the Board's costs fixed at $14,000.

[28] With the benefit of discussion with the assessors, I consider that the draft order is completely acceptable.

[29] An order will be made substantially in accordance with the terms of the draft order which includes a reprimand, a suspension from practice for two months, the imposition of burdensome conditions requiring completion of a suitable course of education addressing boundary management issues, mentoring for 12 months after resumption of practice, and payment of the board's costs, fixed at $14,000.

[30] These additional components render the two months' suspension, which might otherwise be regarded as being on the light side, appropriate in the circumstances of this case.

[1] [2012] QCAT 546.

[3] [2010] QCAT 311.