Facts
The proceedings related to the general practitioner’s interactions with Mr and Mrs P. Mr and Mrs P were from the same ethnic community as the general practitioner and the parties knew each other socially from around 2015.
The general practitioner also saw Mr P as a patient, having around 14 consultations with him from May 2018 to May 2020, mainly regarding lower urinary tract syndrome and associated erectile dysfunction.
On 28 December 2020, the general practitioner and his wife attended a lunch, where Mrs P was also present. During the lunch, Mrs P disclosed that Mr P had been away for some time and unable to return to Australia due to the COVID-19 pandemic.
After the lunch, the general practitioner contacted Mrs P and asked to visit her home as he had forgotten to give her something at the lunch. The general practitioner attended Mrs P’s home and proposed that they engage in a regular sexual relationship. Mrs P was extremely offended and asked the general practitioner to leave her home.
Decision and order for costs
The Board referred the matter for determination in QCAT alleging that the general practitioner engaged in professional misconduct by:
- seeking to enter a sexual relationship with the wife of a patient;
- accepting Mr P as a patient when they had a personal relationship; and
- misusing personal information obtained through his treating relationship with Mr P to seek a sexual relationship with Mrs P.
QCAT noted that the general practitioner’s position throughout the proceedings was that his knowledge of Mr P’s erectile dysfunction was not a factor he consciously considered when he propositioned Mrs P. The Tribunal considered there was no evidence that the general practitioner had used his professional position or relationship with Mr P to pursue the relationship with Mrs P.
QCAT found that the general practitioner had acted inappropriately by accepting Mr P as a patient in circumstances where they knew each other socially. The Tribunal cautioned the general practitioner in relation to this allegation.
The general practitioner was granted an order that the Board pay a contribution towards his legal costs. QCAT concluded that this was appropriate as the Board had advanced allegations that were without evidentiary basis and were based “entirely on speculation”. The Tribunal ordered that the Board pay a contribution towards the general practitioner’s legal costs.
Consideration of conduct alongside relevant guidelines or codes of conduct
It is not sufficient for the National Boards to allege that a practitioner’s conduct was ‘inappropriate’ based on the ‘feel’ of a matter. The National Boards must be able to specifically identify what actions taken by the practitioner were inappropriate and support this by reference to objective codes or guidelines.
In circumstances where the general practitioner’s interactions with Mrs P were largely a result of his social relationship with her, QCAT determined it was not possible to conclude that the general practitioner used his professional position or information obtained in a therapeutic relationship to pursue a sexual relationship with her.
In our experience, tribunals and courts will not adopt an overly legalistic or narrow interpretation of the relevant codes and guidelines they are tasked with interpreting. However, it is important to keep in mind that Ahpra and the National Boards are not the moral arbiters of society generally and allegations must be critically assessed alongside the relevant codes and guidelines under which they have authority.
Applications for costs in regulatory matters
We consider that there is potential for costs orders of this nature to become more frequent, due to a change to the Health Practitioner Regulation National Law in most jurisdictions that allows National Boards to decline to refer a matter that may involve professional misconduct to a tribunal where this is not in the public interest. Before this amendment, the National Boards were required to refer all instances where a health practitioner may have engaged in professional misconduct to a tribunal.
This change to the law was considered by QCAT in their decision on costs and the tribunal noted that the Board was not required to refer the matter to the tribunal, it was simply entitled to do so if it considered appropriate. This meant an assessment of whether the decision to refer and pursue the matter was reasonable was possible. Prior to the amendment, the National Boards could comfortably state that they had no discretion to deal with matters administratively where there were serious concerns that may amount to professional misconduct and escape criticism on this basis.
