Two years ago we reported on a number of decisions dealing with complaints of sexual misconduct made about registered health practitioners. In AHPRA’s annual report of 2012/2013, the figures revealed that of all the regulated health professionals under the AHPRA umbrella, medical practitioners and psychologists (followed fairly closely by nurses) received the greatest number of complaints in relation to alleged boundary violations.
Despite the different factual circumstances the tribunals responsible for adjudicating consistently make reference to the power imbalance between patient and practitioner, which can override any consent or genuine feeling said to be present in the relationships.
Penalties are varied, taking into account the level of insight shown by the practitioner (often demonstrated by a willingness to admit the allegations at an early stage and/or undertake education or counselling), and other relevant personal factors, which may include the level of experience of the practitioner, the length of time between a treating relationship ending and a personal relationship commencing, and matters going to the vulnerability of the patient.
The following matters have recently been the subject of tribunal decisions, and they illustrate the above factors which can be taken into account in the role of ensuring protection of the health and safety of the public. While a consistent theme is the abovementioned power imbalance, the decisions show that the penalties imposed can vary significantly.
- Medical Board of Australia v Blomeley  QCAT 160 – professional misconduct was established on the part of medical practitioner Dr Blomeley, a practitioner of 37 years experience. He had a sexual relationship with a patient between November 2010 and July 2012, with the doctor-patient relationship continuing during the time of the sexual relationship.
Dr Blomeley acknowledged his misconduct early, cooperated with the investigation, made an early apology to the complainant, and also undertook counselling sessions himself. It was relevant to the tribunal that the patient’s presenting issues included depression, and in 2010 she had mentioned to Dr Blomeley difficulties in her marriage, including issues in relation to sexual intimacy. The adverse impact upon the patient’s mental health was noted. The tribunal ordered a period of 15 months suspension, a reprimand, and a 12 month period of chaperoned consultations after the suspension had ended;
- Medical Board of Australia v Chiappalone  QCAT 170 – professional misconduct was established on the part of Dr Chiappalone. While the patient did have a history of depression, the matter was somewhat different from that involving Dr Blomeley as the doctor and patient had been known to each other outside of the doctor patient relationship, and the treating relationship was for only 3 consultations. Furthermore, the sexual relationship (which was initially denied by the doctor) did not occur until after the treating relationship.
Notwithstanding those matters, it was found that there was a power imbalance, and even though the patient initiated the sexual contact, the patient had a vulnerability that was known to the doctor. The tribunal found that the doctor’s way of conducting the proceedings showed a lack of insight into the issues (including personal attacks on the character of the patient, and a denial by the doctor that the relationship was sexual despite overwhelming factual evidence in the form of text messages which supported the sexual nature of the relationship). The doctor was reprimanded and, having already surrendered his registration, he was disqualified for a period of 12 months from applying for reregistration;
- Psychology Board of Australia v Cooke  QCAT 162 – the patient was referred to the psychologist by a general practitioner to deal with a traumatic stress disorder. The referral occurred in 2007, and the sexual relationship took place from August to October 2009. Both the psychologist and patient lived in the same street, and had personal contact through the local kindergarten. Between 100 to 200 personal phone calls were admitted to, as well as 4 sexual encounters.
The matter came to the knowledge of the registration body when the patient’s psychiatrist made notification of the relationship between the psychologist and the patient. Although the psychologist did not volunteer details of the relationship, she cooperated when the matter was investigated, and undertook counselling sessions and education, as well as providing reports to the Board. Ultimately, the tribunal ordered a 6 month suspension to take effect from a deferred date, with that deferral being put in place to allow an orderly transition of patients;
- Health Care Complaints Commission v Bergermeyer  NSWCATOD 75 – this matter involved professional misconduct on the part of a female pre-registration/early career psychologist who commenced a relationship with prison inmate who was serving a 21 year sentence for murder and malicious wounding. The allegations related to the improper relationship, as well as falsification of records which went not only to the client’s clinical state, but potentially his offender classification.
The psychologist met with the client for provision of psychological services on a monthly basis from May 2012 to August 2011. From around the time that the personal relationship began (early 2011), she was in daily phone contact with him, and used a false name to facilitate Skype telephone conversations.
The relationship with the inmate continued, and the psychologist resigned from her role with the correction facility. At the time of judgment the inmate was on parole and living with the psychologist’s family. The tribunal noted the inherent power differential between the inmate and psychologist. The inmate had been in prison for all of his adult life, and had been described as needy, dependent, and psychologically vulnerable. The psychologist was criticised for her inability to appropriately prioritise professional obligations with her personal desires and her lack of insight and candour said to bring the profession into disrepute. The underlying conduct in relation to falsification of records and adopting a false identity was criticised as dishonest.
The tribunal noted that the psychologist had undertaken courses on ethics and boundary issues, and had commenced seeing a counsellor. It issued the psychologist with a reprimand in the strongest terms, and cancelled her registration with a prohibition upon any fresh application for a period of 2 years. The psychologist is also subject to a prohibition on working in any health related field for a period of 2 years. Any application for reregistration would also need to be accompanied by evidence of relevant further study.