The background
On 15 March 2021, the (then) Minister for Health met with a person (Patient) who made allegations of inappropriate behaviour against a medical practitioner who worked at the Royal Hobart Hospital.
The Minister and her staff were very concerned for the Patient’s wellbeing. An adviser of the Minister arranged for Dr Groves to contact the Patient in the context of the concerns that were held about the Patient’s mental health at that time. Dr Groves did so. He arranged for her to be seen the following day for treatment by another practitioner.
Between March 2021 and October 2021 there was some sporadic contact between Dr Groves and the Patient, including about the complaint the Patient had made.
In December 2021, Dr Groves and the Patient commenced a personal relationship.
In late June 2022, AHPRA received a notification from a pharmacist in relation to prescribing by Dr Groves of a Schedule 8 controlled drug. This issue was brought to the attention of the Department, and on 8 July 2022, Dr Groves was advised that an investigation was to commence as to whether he had breached the Code of Conduct (ED5 Investigation).
On 23 August 2022, AHPRA received a notification about Dr Groves, concerning the commencement and existence of his relationship with the Patient. In October 2022, the Board suspended Dr Groves’ registration by way of immediate action under s156(1)(a) and (e) of the National Law.
Dr Groves applied for a stay of that immediate action.
Findings
The application for stay of the immediate action was dismissed. The principles applicable to stay applications were noted as follows:
- whether the failure to grant the stay would render the application for review nugatory;
- whether there was a serious question to be tried on the review;
- whether the granting of the stay would be in the public interest;
- the period of time that would elapse before the review application hearing.
Stay render review nugatory?
The Tribunal held that a failure to grant a stay would not render the review of the Board’s immediate action nugatory.
The Tribunal noted that the Board’s decision to suspend Dr Groves’ registration carried with it the risk of reputational damage, and created a stressful situation for Dr Groves and his loved ones. However, in circumstances where Dr Groves was also the subject of the ED5 Investigation, the Board’s decision was not the sole cause of those things.
There would also likely be an adverse effect on Dr Groves’ finances and a flow on effect to others he supported financially. However, there was no evidence that Dr Groves would suffer irreparable damage in a financial sense if a stay was not granted.
Whether or not a stay was granted would not affect the ED5 investigation. Dr Groves would be stood down whilst that investigation proceeded, and an inevitable reputational effect would likely flow, irrespective of the AHPRA immediate action proceedings.
Serious question to be tried
The Tribunal held that there was a serious question to be tried because, while the Tribunal would not be making any final determination in relation to the appropriateness or otherwise of the relationship between the Patient and Dr Groves, it would need to consider whether the Board’s decisions to take action under either or both s156(1)(a) or (e) and to suspend Dr Groves were correct and preferable.
Public interest
The most interesting aspect of this case arose under the Tribunals’ consideration of the public interest factor. The Tribunal held that the public interest was not a factor that would weigh in favour of a stay being granted.
The Tribunal noted that this situation differed in many respects from those usually involving medical practitioners and alleged boundary violations. Dr Groves’ position was not one from which therapeutic relationships arose. He did not treat individuals, but his role rather involved responsibility for advice and guidance on matters relating to mental health care and treatment and associated professional practice, including strategy, policy and standards. He did have the power to intervene directly with regard to the assessment, treatment and care of any ‘patient’ as defined by the Mental Health Act 2013.
Dr Groves submitted that the public interest would be best served by allowing Dr Groves to return to work. The Board argued that public confidence would be better maintained by the public being reassured that vulnerable people, including those with mental health issues, or those raising allegations of sexual assault, would be protected by the maintenance of professional boundaries. The Board submitted that there were identifiable features of vulnerability of the Patient and of a power imbalance that existed between herself and Dr Groves, in place from the time contact between them commenced.
A stay of the suspension decision would not affect the Department’s ED5 Investigation process. Dr Groves would still be suspended whilst the ED5 investigation continued. In the meantime, the statutory role of Chief Psychiatrist of Tasmania would be performed by another, appropriately qualified, person.
Time before review hearing
The relatively short period of time before the review of the Board’s decision could be heard by the Tribunal was a deciding factor against granting a stay.
The implications
In many respects, Dr Groves’ situation is a unique one. The Tribunal viewed the Department’s parallel disciplinary proceedings as very relevant to the stay refusal because of their potential for reputational damage, stress and financial disruption, regardless of the AHPRA immediate action proceedings.
The statutory nature of Dr Groves’ role also meant that the public interest in regard to continuity of care (or possibly here, merely oversight) was not a significant consideration.
The meaty issue of whether the relationship between the Patient and Dr Groves was appropriate was not for decision in the stay application. However, the Tribunal’s comments relating to the difference between this and a “usual” boundary violation in the context of Dr Groves’ lack of therapeutic jurisdiction may hint as to the Tribunal’s approach to the question in due course. The fact that the Tribunal raised the Board’s submissions relating to the vulnerability of the Patient and the importance of medical practitioners maintaining professional boundaries in that context, however, raises the prospect that the question is far from open and shut.
To read the decision in Aaron Groves v Medical Board of Australia [2022] TASCAT 123, click here.
