The key issues
What is the appropriate sanction for an egregious breach of sexual boundaries that nonetheless does not involve the health professional engaging directly in a sexual relationship with a patient?
The respondent, a psychiatrist, engaged the complainant to work as an au pair in her home.
After time, the respondent entered into a therapeutic relationship with the complainant providing her with prescriptions for medication, including for depression. The respondent failed to keep proper medical records for these medical interactions with the complainant.
The complainant later confided in the respondent that she had issues with sexual anxiety. The respondent then provided the complainant with sex therapy, although it did not comply with any conventional therapy for sexual problems. The complainant and the respondent’s husband engaged in various types of sexual activity, from holding hands to sexual intercourse, whilst the respondent watched and provided the complainant with reassurance if necessary. In addition, the respondent engaged in sexual acts in front of the complainant, by way of demonstration.
The sex therapy ceased prior to the complainant notifying the Medical Board of Australia.
Even though the respondent did not herself engage in a direct sexual relationship with the complainant, the Queensland Civil and Administrative Tribunal (the Tribunal) found that the conduct was a clear breach of professional boundaries and constituted professional misconduct.
The Tribunal concurred with the penalty agreed between the parties that the respondent psychiatrist:
- receive a reprimand;
- be required to pay a $25,000 fine; and
- have conditions imposed on her registration restricting her scope of practice to medico-legal work.
In considering the penalty proposed by the parties, the Tribunal placed emphasis on the considerable efforts taken by the respondent at ‘rehabilitation’ including seeking her own mental health professional and restricting her practice to medico-legal matters, and her co-operation with the Board and the Tribunal during the proceedings.
The Tribunal was also amenable to the respondent’s request for a non-identification order, after the Tribunal heard evidence that the respondent’s vulnerable mental state would be impacted if her name was published in relation to the proceedings. The Tribunal also recognised the need to protect the respondent’s husband who would similarly be identified by the publication of the decision.
A practitioner can be found to be in breach of professional boundaries, including sexual boundaries, without engaging in a direct sexual relationship with a patient. This decision demonstrates that the censure does not necessarily attach to the act of engaging in a sexual relationship with a patient, but the extent to which the power imbalance between a practitioner and a vulnerable patient induces the patient to engage in a sexual relationship which they would not otherwise have engaged in but for the health practitioner’s influence.
To read the full case in Health Ombudsman v KDB  QCAT 288, click here.