1. There was substantial agreement as to the facts. The parties filed a Statement of Agreed Facts.[3] We make findings in accordance with that Statement. The agreed facts were supplemented by further evidence, contained in an Agreed Book of Documents (Exhibit C1). This included a transcript of an interview with the respondent[4] and two written statements sent by the respondent to AHPRA on 16 August 2018.[5] Two affidavits of the respondent were also included.[6] This evidence was not disputed by the complainant in any substantial respect and there is no apparent reason why we would not generally accept it.[7] We have adopted caution in relation to aspects of the affidavits which contain hearsay material. However, on the evidence before us we are comfortably satisfied of the findings as set out below.[8]
2. The respondent was first registered as a physiotherapist on 29 January 2010. Her principal employment since that time has been within the public sector. That employment continues. From about January 2015 until 4 June 2018 the respondent was also employed to do evening sessions at a private physiotherapy clinic ("the Clinic").
3. The evidence before us suggests that the respondent is regarded as a dedicated and competent practitioner. She has not previously been the subject of any misconduct proceedings.
4. These proceedings relate to an improper relationship with a patient whom the respondent treated at the Clinic. We will refer to the patient as AB. The respondent first met AB when AB attended as a support person for another patient of the respondent. We will refer to this patient as CD.
5. CD was undergoing regular therapy sessions, so the respondent got to know AB. Eventually AB also attended as a patient. The first such appointment was on 28 December 2017. There were subsequent appointments on 18 January 2018, 20 March 2018, 24 May 2018 and 29 May 2018.
6. There were early warning signs that AB exhibited extreme anxiety and somewhat unusual and obsessive attitudes and behaviours. From January 2018 AB initiated frequent contact with the respondent (sometimes calling the respondent up to 20 times in a day) and repeatedly invited her to attend performances for which AB could obtain tickets. The respondent attended performances with AB and others on 28 February, 10 March (when the respondent's husband attended with her) and 24 March 2018. By this point, the respondent considered that they had become friends. They communicated frequently and would discuss areas of mutual interest. The respondent says that she had at this point failed to identify that the relationship was in breach of her ethical obligation to maintain appropriate boundaries in the professional relationship.
7. From 24 March 2018 to 18 April 2018, the relationship between the respondent and AB became sexually intimate, eventually including sexual intercourse. The respondent states that intercourse first occurred on 13 April 2018 after she had "impulsively" booked a hotel room for the night following their attendance at a performance.
8. After the first occasion of sexual intimacy which had occurred on 24 March 2018, the respondent had said to AB that it was inappropriate for AB to continue seeing her as a physiotherapist. However, the respondent did not document this advice and took no steps to hand over the care of AB to another physiotherapist.
9. The respondent went on a holiday overseas from 19 April to 19 May 2018. In the days before she left, the respondent agreed to attend AB's home to provide physiotherapy treatment as she did not want AB to attend the Clinic. When the treatment was to commence, it became clear that AB wished to use the occasion for sexual intimacy rather than treatment. Intimate conduct occurred between the respondent and AB. The respondent subsequently told AB that she felt violated and unprofessional. AB responded by referring to the potential for the respondent's employer to be made aware of her conduct.
10. The respondent returned to AB's house the following night and further intimacy occurred. The respondent says that she doesn't know why she did this. She suggested that it may have been an attempt to appease AB.
11. Whilst overseas the respondent revealed to her husband aspects of what had occurred between her and AB. On return she attempted to terminate her personal relationship with AB. AB threatened to reveal further details to the respondent's husband. AB continued to contact the respondent in the following days although requested not to by the respondent.
12. On 24 May 2018, AB booked an appointment with the respondent at the clinic. The respondent treated AB for the presenting complaint. AB then read the contents of a pre-prepared letter or statement. It expressed AB's disappointment at the relationship ending. It suggested that AB had been the subject of predatory conduct by the respondent. It contained veiled threats to let the respondent's family members know of the relationship. AB stated that the respondent had five business days to respond to the letter or AB would "take things further". The respondent understood that she was being pressured to continue the relationship.
13. The respondent was greatly distressed by this conversation and left without making any note of the consultation. A retrospective note was made by the respondent on 31 May 2018. The retrospective nature of the note was made apparent, but the note wrongly recorded the date of the consultation. This was an unintentional error. The note dealt only with the physiotherapy treatment.
14. AB again made an appointment at the clinic for 29 May 2018. The respondent says that she did not cancel that appointment as she was afraid of the potential consequences if she did so. The respondent provided physiotherapy treatment. AB then read a further prepared statement. AB implied that the respondent had been filmed with AB by cameras at AB's house and threatened to make the photographs public.
15. The respondent was very shaken by these threats and failed to make any note of the consultation. She made a retrospective note on 31 May. It was made apparent that the note was retrospective. The note dealt only with the physiotherapy treatment.
16. AB made a further appointment for 31 May 2018. The respondent sent a message, advising AB not to attend. Nonetheless AB attended and, on several occasions, entered the consulting room without invitation. Eventually, AB had to be escorted from the practice. No treatment was provided.
17. On 1 June 2018 messages were posted on Facebook and sent to the respondent's husband, mother-in-law, sister and stepmother. They referred to the respondent having an affair.
18. On 1 June 2018 an anonymous complaint was made to a Director of the Clinic. The caller did not name the physiotherapist who was the subject of the complaint but provided information suggestive of the fact that it might be the respondent. The caller stated that a complaint would be made to AHPRA.
19. When contacted by the Director, the respondent admitted that she was the physiotherapist referred to and that the complaint was legitimate. Subsequently, the obligation to notify AHPRA was discussed and it was agreed that the respondent would self-notify. She did so on 4 June 2018.
20. The respondent made admissions concerning her misconduct and fully co-operated in the subsequent investigation. She appears to have been frank and open about what had occurred.
21. The respondent resigned from the Clinic on 4 June 2018, effective immediately.

Observations and findings in respect of the facts

1. The complaint referred to various aspects of the respondent's conduct as follows:

(i) The respondent failed to maintain professional boundaries by engaging in a close personal relationship and a sexual relationship at a time when [AB] was a patient.

(ii) The respondent failed to terminate the treating (or professional) relationship.

(iii) The respondent failed to transfer the care of the patient [AB] to another physiotherapist.

(iv) The respondent failed to maintain contemporaneous records of the treatment provided to [AB].

1. These are, of course, not discrete failings, but part of a total picture. We approached the matter, and imposed disciplinary action, by reference to the totality of the respondent's conduct.
2. The complainant identified two issues not fully conceded by the respondent on which the complainant pressed for a finding. The first was an assertion that AB was a vulnerable patient. The Tribunal finds that this was so. A relationship between a practitioner and a patient will generally involve an imbalance of power. The patient comes to the practitioner for help and pays a fee. The relationship thereafter should be entirely for the patient's benefit. The practitioner has control of the practicalities of the relationship. The practitioner will endeavour to gain the trust and confidence of the patient. A patient's trust in the practitioner will serve to heighten the imbalance of power. A patient is potentially vulnerable because of the professional relationship.[9] In this case the patient was described as extremely anxious. AB presented with unusual attitudes and behaviours. The respondent was able to gain AB's trust in the professional relationship. Then the patient started contacting the respondent with a frequency and level of insistence that should have rung warning bells. There was an evident degree of vulnerability in such a situation.
3. Subsequent events have demonstrated that AB was highly vulnerable. AB has obviously been enormously hurt by the termination of the relationship, as will become apparent later in these reasons. The full extent of AB's vulnerability may not have been obvious to the respondent at the outset, but there were signs that the respondent failed to observe. They should have put the respondent on notice concerning the absolute importance of maintaining strict professional boundaries. It does not detract from this point to acknowledge that AB acted in a manipulative way during the relationship. Vulnerable patients can be manipulative. The need to manipulate others can be an indication of their insecurity and vulnerability.
4. The second issue raised by the complainant was the respondent's failure to terminate the professional (treating) relationship. It was most unwise and unprofessional for the respondent to allow a close social and personal friendship to develop whilst treating this patient. When the relationship became intimate on 24 March 2018, it was imperative that the treating relationship be terminated, and the care of AB transferred to another physiotherapist. The respondent suggested this to AB, but simply did not follow through on the necessary action. She failed to transfer the care of AB or to note the termination of treatment. She agreed to provide treatment at AB's house on 17 April.[10] She continued to treat the patient on 24 and 29 May 2018, albeit under some manipulative pressure from AB. The respondent was fearful that her misconduct would be disclosed if she did not comply with AB's wishes, but that is no excuse.
5. Treatment ought not to have occurred on 24 or 29 May 2018. There was a clear risk that the personal relationship and its contentious termination would interfere with the respondent's ability to provide objective and professional treatment and with the patient's ability to trust the respondent's advice and treatment. The respondent failed to make a contemporaneous record of the treatment and later made a mistake as to the date of the treatment. The Tribunal notes that the respondent had suggested in March that the treating relationship be terminated, but the respondent's actions in that regard were wholly inadequate.
6. We return to the central issue. The gravamen of the respondent's misconduct is that she engaged in a sexual relationship with a patient. It was conduct calculated to bring the profession into disrepute. The patient was a vulnerable person. There was a significant risk that the conduct would ultimately cause damage to the patient. Inevitably, the conduct would also damage and destroy the professional relationship and disrupt the treatment that the patient had sought. The respondent failed to terminate the treating relationship or transfer the care of the patient. She provided further treatment in circumstances that were unprofessional.
7. Viewed overall, the respondent engaged in serious professional misconduct. She admitted that this was so. The Tribunal made a finding to this effect.[11]

1. The first affidavit of the respondent[12] details numerous events occurring between 4 June 2018 and the Tribunal hearing on 31 October 2019. It is clear on that evidence that an extended campaign of serious harassment has been directed towards the respondent, her husband, their extended family members, friends and colleagues. On many occasions, AB was directly involved in these actions. On other occasions the actions appear to have been perpetrated by associates of AB. It is not necessary for the Tribunal to make specific findings. Not every event was necessarily connected with AB or associates of AB. However, the overall effect of this evidence is that this campaign of harassment resulted from AB's reaction to the termination of the relationship with the respondent. The resulting events have been very distressing for the respondent and her family.
2. The evidence suggests that AB has been so hurt by the termination of the relationship that it has prompted AB to embark upon a malicious and abhorrent campaign of revenge. This was not a reasonable or proportionate response by AB, but it does indicate the impact (however unexpected or disproportionate) of the respondent's misconduct on AB. If it was ever necessary to illustrate why professional boundaries should be observed, this case does so.
3. The second affidavit of the respondent provided detail as to the respondent's current employment and the arrangements for mentoring and supervision that apply in that role. Key supervisors and managers are aware of the matters before the Tribunal.
4. The respondent indicated in the affidavit that:

"I accept that I engaged in professional misconduct in respect of my relationship with [AB]. I fully accept responsibility for my failure to identify the relationship as giving rise to a breach of my ethical obligations."

1. This statement requires some comment. It asserts a high degree of naivety on the respondent's part, given that she had been in practice for about 8 years at that time. Even if this was her state of naivety before the relationship became intimate on 24 March 2018, it is difficult to believe that she remained oblivious to her responsibilities thereafter. Her own evidence is that she advised AB soon after that date that the professional treating relationship should not continue.[13] In a statement sent to AHPRA on 16 August 2018, the respondent stated:

"Having asked [AB] not to see me at the Clinic, I am aware that I must have had insight into the inappropriate nature of our situation and can only reflect in hindsight that this realisation ought to have been a primary concern, however I recall mostly guilt, shame and devastation around my treatment of my family, coupled with not wanting to hurt [AB], for whom I had genuine feelings."[14]

1. In that same statement, the respondent indicated that:
   • She deeply regretted the impact of her conduct on the Clinic and its directors.
   • She had taken steps to assist in reflecting on "my severely flawed decision-making and what strategies I can employ to ensure the situation is not repeated".
   • She was regularly attending a psychologist to "assist with processing feelings of personal and professional failure relating to uncharacteristic behaviour, of stress, fear and shame, but more practically to build acceptance, self-esteem and to develop tangible strategies for behaviour change."
   • She was committed to maintaining the professional relationship with her treating psychologist as a means of supported self-evaluation and accountability.
   • She had familiarised herself with the Board's Code of Conduct and reflected on her breach of the provisions concerning professional boundaries.
   • She accepted complete responsibility for her "series of unsound decisions" and would accede to any further recommendations from the Board as to ensuring the propriety of her future practice.
   • She continued to be deeply remorseful for the hurt caused to AB.
2. In her second affidavit the respondent reiterates some of this material and states that:

"I have, and continue to, suffer considerably as a result of my lack of judgement, which has acted both as a significant deterrent from any like behaviour in future and as a catalyst for me to seek professional help and guidance to learn from my mistake."

1. Exhibit C1 contains a report from the psychologist[15]. Whilst not particularly detailed, it supports the assertion that the respondent is conscientiously seeking to better equip herself to deal with professional issues she might face in the future.

1. The respondent committed serious professional misconduct and thus it was appropriate for a formal reprimand to be imposed.
2. The complainant proposed detailed Conditions of Registration which it submitted should be imposed. The respondent did not oppose these suggested conditions.
3. The Tribunal considered that the Conditions were appropriate and necessary. On the respondent's own case, there was a considerable naivety involved in her misconduct. She professed a comparative ignorance as to the importance of maintaining appropriate professional boundaries and a lack of familiarity with the relevant Code of Conduct. She clearly failed to recognise and respond to warning signs that were present at an early stage.
4. The respondent lacked either the will or the capacity to resist insistent requests to become socially involved with AB. She appears not to have had the professional and interpersonal skills and strategies to deal with this. Even when it must have become apparent to her that the relationship was unprofessional, she did not take appropriate steps.
5. The respondent deposed to steps she had subsequently taken to improve her insight, knowledge and understanding. Those steps are to be commended and it was clear that they have been of assistance to the respondent. However, this aspect of the evidence[16] was somewhat short on detail, compared to the significant effort put into demonstrating that the respondent was the subject of manipulation and malicious conduct by AB.
6. The Tribunal was not satisfied that the issues of insight, knowledge and understanding had been adequately addressed as at the time of the hearing. It was not demonstrated to our satisfaction that the respondent's psychological treatment or the mentoring arrangement in her public sector position had sufficiently dealt with the concerns that had arisen. Furthermore, we were not satisfied that the respondent had developed adequate insight into areas such as the vulnerability of AB or the existence of factors that should have alerted her to that vulnerability.
7. The Conditions of Registration address these deficiencies. They require the respondent to undertake an approved programme of education on ethics and professional boundaries and write a reflective practice report following the programme. They provide for an audit of the respondent's practice and patient notes by an auditor approved by the Board. They require the respondent to participate in a mentoring programme over a period of six months with a mentor approved by the Board. Reports must be provided to the Board by the respondent and the mentor.
8. With these Conditions in place, the complainant was satisfied that the respondent was unlikely to "reoffend". The Tribunal agreed with this assessment. The consequences of the respondent's misconduct have been described as horrific for her and her family. She is unlikely to repeat the conduct.
9. The complainant submitted that a significant period of suspension was nonetheless appropriate. The Tribunal accepted this submission. A significant period of suspension was required to maintain public confidence in the profession by reinforcing high professional standards and denouncing the transgressions. The conduct was of such a nature that it was appropriate for the Tribunal to give an emphatic indication of its disapproval.[17] A suspension for a period of three months was necessary to protect the integrity of the profession and maintain public confidence. The suspension for a period of 3 months reassures the public and the profession that serious professional misconduct will not be tolerated.[18]
10. In coming to this decision, the Tribunal considered the respondent's previous good record and competent performance as a physiotherapist. We had regard to her early admissions in relation to the misconduct and her cooperation with the investigation.
11. We also had regard to the respondent's personal circumstances, including the consequences that have befallen her and her family. However, such personal circumstances are of limited weight in disciplinary proceedings. In the end, the Tribunal imposed a sanction that it considered necessary to protect the public and the integrity of the profession.
12. The respondent was ordered to pay the Board's costs of the proceedings.
13. The Tribunal made an order under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) prohibiting the publication of the name of, or any material tending to identify, the patient referred to in the complaint.

1. The Tribunal imposes a reprimand on the respondent.

1. The Tribunal suspends the registration of the respondent for a period of 3 months, commencing 2 December 2019.
2. The Tribunal imposes conditions on the registration of the respondent as set out in the attached document "Annexure A" with intent that the commencement of the conditions as referred to in that document shall be a reference to the date upon which the suspension of the respondent expires and the respondent is able to return to practice.
3. The Tribunal fixes a review period for the conditions as a period ending on 1 March 2021.
4. The respondent must pay the complainant's cost of and incidental to the proceeding to be agreed or, in default of agreement, to be fixed by the Tribunal.
5. Pursuant to s 60 of the SACAT Act, the Tribunal prohibits the publication of the name of, or any material tending to identify, the patient referred to in the complaint.

1. The Practitioner must undertake and successfully complete a program of education, approved by the Physiotherapy Board of Australia (Board) and including a reflective practice report, in relation to the following topic:
   1. Ethics and professional boundaries (or such other approved related topic approved by the Board).
2. Within 28 days of the commencement of these conditions, the Practitioner must, on the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topic required. The Practitioner must ensure the:
   1. the nomination includes a copy of the curriculum of the education.
3. The Practitioner must complete the education within three (3) months of the notice of the Board's approval of the education, and prior to the commencement of the mentoring detailed at conditions 7 to 12 below.
4. Within 28 days of the completion of the education, the Practitioner must to provide to AHPRA:
   1. evidence of successful completion of the education
   2. a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition requiring they take education and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.

1. The Practitioner must submit to an audit of their practice (the audit), including any supporting records, within six (6) months of the commencement of these conditions by permitting an auditor (the auditor) approved by the Chair of the Physiotherapy Board of Australia (the Board) to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on good documentation and communication skills and must include, at a minimum, full clinical notes including but not limited to external communications with referring practitioners.
2. Within three (3) weeks of the commencement of these conditions, the Practitioner must:

1. Make contact with a Board approved auditor and establish an audit plan outlining the form the audit(s) will take and how the areas of concern for the Board will be addressed. The audit(s) will take the form determined by the auditor.

1. Provide the Board approved auditor with a copy of the conditions on their registration

1. Provide to AHPRA, on the approved form (HP8), acknowledgement that AHPRA will seek reports from the auditor. 2. Provide to AHPRA a copy of the audit plan, together with written acknowledgement, on the approved form (HPNA8), from the approved auditor.

1. The Practitioner must be mentored by a Board nominated and appointed registered health practitioner in relation to maintaining professional boundaries with patients, effective communication, and effective clinical record keeping during the treatment process.

For the purpose of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. The mentoring must comprise a minimum of six sessions with each session being of at least one-hour duration, to take place with a minimum of four weeks between and occurring over a period of no more than six months.

As part of the mentoring program, the Practitioner is to provide a brief report at the conclusion of each mentoring session, within 14 days of the end of the session, describing the topics covered, with a final reflective practice report at the end of the sessions demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issue that gave rise to this condition and how the Practitioner has incorporated the lessons learnt during the mentoring sessions into the Practitioner's practice.

1. Within 21 days of the commencement of these conditions, the Practitioner must, on the approved form (HPN16), contact the person nominated and approved by the Board to act as mentor. The Practitioner must ensure that the Board is provided with acknowledgement of the arrangement, on the approved form (HPNA16), from the nominated person.
2. Within 21 days of the commencement of these conditions the Practitioner must provide to AHPRA, on the approved form (HP16), acknowledgment that AHPRA may seek reports from the approved mentor on all of the following occasions:

1. at the conclusion of every session 2. at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring

1. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance, and

1. when otherwise requested by AHPRA or the Board.
2. In the event that the approved mentor is no longer willing or able to provide the mentoring required, the Practitioner is to contact the Board within 21 days of becoming aware of the termination of the mentoring relationship.
3. Within 14 days of the end of each session of mentoring, the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.

Within 21 days of the commencement of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each and every current place of practice. In providing this form, the Practitioner acknowledges that:

1. AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and
2. The Practitioner will be required to provide the·same form:
   1. within seven days of the commencement of practice at each and every subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.

1. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

[1] The order was sealed on 7 November 2019.

[2] These conditions are contained in Annexure A to our order as sealed on 7 November 2019.

[7] AB was not called as a witness and thus has had no opportunity in these proceedings to respond to the material. However, we are required to make findings on the material before us. We have no reason to doubt the credibility of that material.

[8] We have not detailed all of the additional material contained in Exhibit C1 but we have taken it all into account.

[9] Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314.

[10] Although it is not suggested that physiotherapy treatment was provided on this occasion.

[11] Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314; Nursing and Midwifery Board Australia and Jackson [2013] WASAT 140 at [23-26].

[16] Including the psychological report.

[17] Medical Board of Australia and Singh [2017] WASAT 33.

[18] Craig v The Medical Board of South Australia [2001] SASC 169 at paras [47], [57-58], and [64], per Doyle CJ (Williams and Martin JJ agreeing).