TXA v Medical Board of Australia [2021] QCAT 279

Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701

Smith v Physiotherapy Board of Australia [2020] SACAT 67

• [1] The applicant is a registered health practitioner. At all relevant times, he was in general practice. He is a mature man in his early 60s, has held medical qualifications for more than 30 years, and has practised for about a decade in Australia. He has no previous adverse disciplinary history.
• [2] On 15 March 2021, the Medical Board of Australia (the Board) decided to take immediate action pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law) and suspend the applicant's registration as a health practitioner. His registration has remained suspended since that time. The applicant applies pursuant to section 199 of the National Law to review the decision of the Board.

• [3] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that the Tribunal must hear and decide the review by way of a fresh hearing on the merits, with the purpose of the review being to produce the correct and preferable decision.
• [4] Pursuant to section 19 of the QCAT Act, the Tribunal must decide the review in accordance with the enabling Act under which the reviewable decision being reviewed was made, in this case, as already stated, the National Law.
• [5] Section 156(1) of the National Law relevantly provides as follows:

156 Power to take immediate action

(1) A National Board may take immediate action in relation to a registered health practitioner... registered in a health profession for which the Board is established if -

(a) The National Board reasonably believes that -

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety...

• [6] A "belief" is the inclination of the mind toward assenting to, rather than rejecting, a proposition. In Oglesby v Nursing and Midwifery Board of Australia,[1] the then Deputy President Horneman-Wren SC DCJ stated:

... I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.[2]

• [7] To similar effect as the statement of Deputy President Horneman-Wren SC DCJ, and in terms particularly apt to the matter under consideration, the South Australian Civil and Administrative Tribunal in Smith v Physiotherapy Board of Australia[3] stated as follows:

A review under section 156 requires the formulation of a reasonable belief. It does not require findings on the balance of probabilities concerning the applicant's conduct. In a matter of this nature, we are to scrutinise the evidence, and assess in a general way the weight that may be given to it, but we are not required to finally resolve disputed issues as to the applicant's conduct or intentions.

Where conduct is not in dispute, it can be taken into account in considering whether the Tribunal has a reasonable belief. Where conduct or the motivation for conduct is disputed, it is not the role of the Tribunal in the present context to resolve that dispute. However, the Tribunal may, in assessing the risk for the purposes of section 156, have regard to the allegations as unresolved issues or concerns. The Tribunal may also have regard in a general way to the apparent strength of the competing positions. In our view, there are some parallels to the approach taken to the assessment of risk in other legal contexts, albeit that we are here dealing with untested allegations rather than allegations that remain unproven one way or the other after a hearing.

• [8] As to the term "serious risk", the term is not defined in the legislation and takes its ordinary meaning in its statutory context. The word "serious" is defined in the Macquarie Dictionary as "of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind."
• [9] In assessing whether a person poses a serious risk to persons, it is helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk does eventuate.

• [10] The applicant, in the course of his general practice, provided treatment over a period of about five years to the patient (Mr P). Mr P's medical records show 14 consultations with the applicant between May 2018 and May 2020. Eleven of those consultations related to Mr P's lower urinary tract syndrome and associated erectile dysfunction.
• [11] The applicant and his wife had known Mr P and his wife (Mrs P) since about 2015. It appears that the applicant's wife and Mrs P were close friends. Both couples had regular social contact, although there seems to be some dispute as to the extent of the social contact between the applicant and Mrs P. That is not a matter which requires resolution for the purpose of arriving at a decision in this matter.
• [12] Mr P's employment circumstances were such that he was regularly away from home for substantial periods of time, and, indeed, at the relevant time, had been away from his home for a substantial period and was likely to remain so for a further substantial period.
• [13] On 28 December 2020, Mrs P attended a lunch with other people where the applicant and his wife were present. Mrs P attended alone as her husband had been overseas since approximately June 2020. Following the lunch, the applicant contacted Mrs P. He told Mrs P that he wished to visit her residence because "they" (presumably, the applicant and his wife) had forgotten to give her something at lunch. Mrs P expected that both the applicant and his wife would arrive at her home but, in fact, the applicant arrived alone.
• [14] Mrs P provided a statement in the course of the investigation of her complaint by the Australian Health Practitioner Regulation Agency. She stated that the applicant arrived at her house between 6.00pm and 6.30pm that evening and stated as follows:

Although I initially had no concerns with [the applicant] coming over, as soon as he arrived, the situation felt awkward. I describe the situation as awkward because [the applicant] was not with [his wife]. The first thing I stated to [the applicant] was, "Where's [your wife]?" [The applicant] responded that his wife was not coming. Although I was uncomfortable, I did not want to appear rude and invited [the applicant] into my home.

I told [the applicant] to keep his shoes on as I did not believe that he would be staying for long. However, I later noticed that [the applicant] had removed his shoes. [The applicant] was seated on the couch in my living room. I offered him something to drink, and he asked whether I had an alcoholic drink. I apologised as I did not have any alcohol in the house at the time. I offered [the applicant] water or juice, and [the applicant] advised that he wanted juice.

I left [the applicant] on the couch and went to the kitchen to get the juice. When I turned back towards [the applicant], I noticed that he had followed me into the kitchen. I started to feel more concerned about [the applicant's] presence in my home at this stage. I felt concerned because I noticed that [the applicant] did not have any items with him for me, including gifts or food. I did not understand why he had come to my home.

I allowed [the applicant] to sit at the kitchen table, and I drew my chair away from him at the table, prior to sitting down. [The applicant] said that he wanted to talk to me about something. He appeared hesitant to begin the conversation, however, when I prompted him, he stated words to the effect of, "We are both adults". And, "This is only between you and me". And, "Only if you agree - I would like to have a one hour a week sexual relationship with you". He did not look into my eyes when making this proposal and was looking away the whole time.

After [the applicant] made the proposal to enter into a sexual relationship with me, I was angry and asked [the applicant] to leave my home immediately. I was angry because I could not believe that a man that I respected and was respected in the [redacted] community in Australia, would request this of me.

I said to [the applicant] words to the effect of, "Get out of my house!" [The applicant] did not appear to expect this reaction, as he started to shake and dropped his juice. [The applicant] then left my home, after apologising several times for the proposal. [The applicant] was in my house for approximately seven minutes in total. No one else was present at this time.

When [the applicant] left my house, I cried and felt ashamed. I believe that [the applicant] had taken advantage of my family situation, because he knew that my husband had ED and was away in [redacted] and my daughter had moved out of our home.

• [15] Under cross-examination during the hearing, the applicant accepted Mrs P's statement of the terms of his proposition as accurate.
• [16] The following day, the applicant and his wife attended a meeting with Mrs P and her friend. The conversations during the meeting were recorded, with the knowledge of all present. Mrs P expressed, in strong terms, her offence at the applicant's conduct, the possible consequences to her reputation, and her firm belief that the applicant had used his knowledge of her husband's erectile dysfunction to motivate him to proposition her in such a way.
• [17] Mrs P made a complaint to the Office of the Health Ombudsman on 4 January 2021. Following an assessment of her complaint, including consideration of written submissions on behalf of the applicant, the Board made the decision the subject of this application to review.

Disputed matters and the evidence of the applicant

• [18] The stated facts as to the conduct of the applicant are not in dispute. There remain some matters in dispute between the parties, but ultimately, the only matter of substance in dispute was that of the extent to which the applicant's knowledge of Mr P's erectile dysfunction and any effect that might have had upon Mr P's relationship with his wife, motivated the applicant in deciding to proposition Mrs P.
• [19] The applicant was extensively cross-examined by counsel for the Board. He was not an impressive witness. My impression was that he was somewhat evasive in answering questions as to the extent of his knowledge of any impact of Mr P's health condition on his relationship with Mrs P. He did not impress as a frank witness when questioned as to his intentions as to the nature of the future relationship he hoped he might develop with Mrs P. Whilst professing a desire to form a romantic and then possibly later sexual relationship with Mrs P, such evidence was inconsistent with both the terms of the proposition to Mrs P and the domestic circumstances of both the applicant and his wife and Mr and Mrs P. It is more likely that his intentions as to the nature of the relationship were such as proposed to Mrs P.
• [20] The applicant's lack of frankness in his evidence does call into question his adamant denial that his knowledge of Mr P's erectile dysfunction played no part whatsoever in his thinking when he decided to proposition Mrs P. It is likely that the applicant's knowledge as to that matter did influence his decision, even if only subconsciously, to proposition Mrs P. That is, obviously, a disgraceful breach of trust of Mr P. At the very least, such circumstances would readily, as they did, engender a belief on the part of Mr and Mrs P that there was such a breach of trust.

• [21] The applicant characterises the nature of the risk suggested by the applicant's conduct as one that the applicant would proposition a woman he is friends with, whose partner, also a friend, is a patient of his, and desist immediately when the woman expresses disinterest.
• [22] The applicant points to the unique circumstances of the relationship between the applicant and his wife and Mr and Mrs P, and the fact that he has no other patients with whom he has social relationships, as indicating that the likelihood of that risk eventuating is negligible. As to the seriousness of the consequences if the risk does eventuate, the applicant contrasts the seriousness of the risk with other more serious cases of boundary violations involving sexual assault.
• [23] The applicant submits that the single instance of very poor judgment on the part of the applicant, in a context of social contact with Mrs P and a limited connection to his therapeutic relationship with Mr P, does not provide a sufficient foundation for a reasonable belief that the applicant presents a serious risk to persons in the future conduct of his practice as a general practitioner.
• [24] The Board submits that the nature of the risk presented by the applicant should not be characterised as narrowly as submitted by the applicant. The Board submits that it would be wrong to characterise the risk as simply being a repetition of the very specific behaviour the applicant engaged in and that regard must be had to the nub of the conduct, namely the breach of his patient's trust and his preparedness to prefer his own interests over those of his patient.

The Board submits that the relevant context is that the applicant was having difficulties in his marriage and was seeking sexual fulfilment elsewhere. He sought that fulfilment with the wife of a patient whom he was treating for erectile dysfunction. It is submitted that that context and the nub of the applicant's conduct are suggestive of a risk involving not just people close to patients, but patients themselves. Accordingly, the Board submits that the proper characterisation of the risk is that the applicant may engage in, or attempt to engage in, a boundary violation with a patient or someone close to the patient to advance his own sexual interests and that he may use confidential information to further that purpose.

• [25] The Board submits that the fact that the applicant was influenced by his knowledge of Mr P's erectile dysfunction, in deciding to proposition Mrs P, is relevant to the assessment of the risk he presents to persons. The Board submits that if the applicant was so influenced, it indicates a preparedness on his part to breach the trust of a patient to his own benefit.
• [26] The Board submits that there is a moderate risk of the applicant engaging in like conduct in the future, given that there is some amelioration of the risk because of the deterrent consequences of the applicant's conduct to date, his subsequent education as to professional boundaries, and his obvious regret for his behaviour. Nevertheless, the consequences of the recurrence of such behaviour, whilst obviously lesser than, for example, a sexual assault, are very significant as exemplified by the significant consequences to Mrs P and what the Tribunal would infer to be significant consequences to Mr P and the possibility that the breach of trust of Mr P might impact upon Mr P's frankness with other treating practitioners in the future.
• [27] Given the extent of the risk and the seriousness of the consequences if the risk eventuated, the Board submits that the Tribunal would be satisfied that the applicant does present a serious risk to persons.
• [28] The Board submits that the necessary action to address such risk is a suspension of registration because the risk extends beyond the confines of the applicant's practice and outside his consulting rooms and, thus, cannot be adequately addressed by conditions such as gender restrictions or chaperone conditions. The Board submits that the decision of the Board should be confirmed.

• [29] One swallow does not a summer make. There is no evidence of any pattern of predatory behaviour on the part of the applicant apart from the single instance the subject of the Board's immediate action. The applicant denies, and there is no evidence to the contrary, that he has ever violated or attempted to violate professional boundaries with a patient.
• [30] The single instance of conduct occurred in the context of a social relationship between the applicant, his wife and Mrs P, and his social and therapeutic relationship with Mr P. That confluence of circumstances is unlikely to reoccur. Indeed, the applicant has given evidence that he does not treat any other friends or social acquaintances and does not intend to do so in the future.
• [31] Whilst the conduct of the applicant was extremely inappropriate, in my view it is quite unlikely to be repeated. In making that finding, I have not disregarded the submissions on behalf of the Board that the risk presented by the applicant should be characterised more widely than simply a repetition of the same conduct. However, I am not satisfied that the particular conduct engaged in by the applicant in this instance provides a sufficient foundation for finding that he would be likely to engage in any other type of boundary violation with a patient or a family member of the patient.
• [32] It is clear from the evidence of the applicant that he is extremely embarrassed and ashamed of his conduct. He has suffered the adverse consequences of being unable to practice his profession for a period approaching five months. He deposes to having suffered strains in the relationship with his wife as a consequence but gave evidence during the hearing that the relationship is improving, and it is likely to continue. He deposes to having suffered distress, poor sleep, lack of concentration and suicidal thoughts, leading him to seek the assistance of a counsellor and general practitioner, including prescription of antidepressant medication. I expect that the experience of being cross-examined during the hearing would have had an additional salutary deterrent effect.
• [33] The applicant remains subject to an investigation of his conduct by the Board and would no doubt be mindful that any further failure on his part to adhere to proper professional standards would be of great interest to those investigating his conduct.
• [34] On all the material, I assess the risk of the applicant engaging in further boundary violations as being low. As to the seriousness of the consequences if the risk was to eventuate, I accept the submissions by the Board that they would potentially be of great significance. One only has to look at the consequences of the applicant's conduct upon Mr and Mrs P to reach that conclusion. Mrs P's distress, as a consequence of the applicant's conduct, continued after her meeting with the applicant and his wife. She felt unsafe in her home and was tearful. She sought medical assistance for emotional issues and needed the emotional support of other persons sleeping at her home. Mrs P states that Mr P felt guilty, and it is reasonable to infer, as submitted on behalf of the Board, that his confidence in medical practitioners would have been shaken, if not irreparably damaged.
• [35] Taking into account the likelihood of the risk eventuating and the seriousness of the consequences if it was to, I do not find that the material provides a sufficient basis for the formation of a reasonable belief that the applicant presents a serious risk to persons, so as to provide the power to take immediate action, by way of suspension of the applicant's registration or the imposition of conditions upon his registration.
• [36] It is clear from the reasons of the Board that the sole basis for taking immediate action was a finding of serious risk, pursuant to section 156(1)(a) of the National Law. The Board did not decide that there was a further basis for taking immediate action otherwise in the public interest pursuant to section 156(1)(e) of the National Law. During the proceedings before the Tribunal, the Board did not contend that there was any consideration distinct from the serious risk which might go to the public interest and justify immediate action.
• [37] In my view, the correct and preferable decision is to order that the decision of the Medical Board of Australia of 15 March 2021 is set aside.

[1] [2014] QCAT 701.

[2] [2014] QCAT 701, [20].

[3] [2020] SACAT 67 at [67] - [69].