Two decisions by the New South Wales Civil and Administrative Tribunal (the Tribunal) in 2017 have conveyed a firm warning to health professionals about the appropriate observance of professional boundaries with their patients.
Meridian Lawyers assisted both practitioners involved in the respective hearings, one being a psychologist[1] and the other a chiropractor[2]. Although each case was factually unique, they both highlight the potential snares for health professionals who develop personal relationships with their patients – even if the nature of the relationship appears appropriate at the outset.
The first case concerned a young female psychologist who developed an intimate relationship with a patient treated by her individually and in group sessions, at a drug and alcohol rehabilitation facility. After the patient left the therapeutic program, she provided him with her personal phone number. They exchanged emails and after a time, the relationship became sexual. It also involved socialising with alcohol, and drinking to the point of intoxication. The patient made a complaint to the Health Care Complaints Commission (the HCCC) after the relationship soured.
During the hearing, the Tribunal heard evidence that the psychologist was aware of her professional obligations regarding professional boundaries, but that the conduct occurred at a time of “intense personal crisis”[3] in her life, and that her judgment was clouded. In particular, she understood that there is a prescribed two year period during which she ought to have refrained from engaging in a personal relationship with a patient to whom she had previously provided treatment[4], but she was naïve about the standards expected of her.
The Tribunal condemned the behaviour, and considered that the conduct bore particularly aggravating features. Although the psychologist met her patient at a drug and rehabilitation facility, and therefore knew of his particular vulnerabilities, “she commonly drank in his presence, … and made references suggesting she was using alcohol as a coping mechanism”. [5] Consequently, the Tribunal decided to cancel the psychologist’s registration, with an order that she not be entitled to re-apply for a period of one year. She was ordered to pay the HCCC costs of the proceedings.
In the case of the chiropractor, the circumstances of the relationship were different in that it did not progress to a level of sexual intimacy. It initially began when the practitioner exchanged mobile phone details with his patient on the premise that there may be potential for cross referral of their patients and clients. Over a period of time, they communicated through mobile phone text messages which became increasingly familiar. Shortly thereafter the patient made a complaint to the HCCC alleging that she had engaged in sexual activity with the chiropractor at two consultations.
Once the patient realised that the matter was going to be investigated, she withdraw her complaint stating it was untrue, but the HCCC decided to proceed with the investigation regardless. The patient then contacted the chiropractor and urged him to delete certain text messages because she felt embarrassed and worried that they would become public. Thinking the complaint was withdrawn and to protect her, he agreed.
The peer expert for the HCCC prepared a peer review report for the Tribunal about the chiropractor’s conduct and the nature of his relationship with the patient. He expressed the view that the chiropractor should have been more “forceful”[6] in his replies to the patient’s text messages to “put an end to any suggestion of building a relationship.”[7] He believed that the chiropractor’s conduct was below the standard of what was “reasonably expected of a practitioner with an equivalent level of training or experience”, but that it was not significantly below (such that it would not trigger a contravention of the Health Practitioner Regulation National Law). Importantly, this view was based on the text messages that were accessible, as many had been deleted. The expert acknowledged that the chiropractor was “trying to handle a delicate situation”[8], but that although the communications were “seemingly professional”, they were “not appropriate considering he was under investigation.”[9]
In the end, despite the expert’s opinion regarding the chiropractor’s conduct above, it was his behaviour regarding the concealment of evidence, and dishonesty as to the details of his communication with the patient which attracted the Tribunal’s condemnation. Particularly strong reprobation was made with respect to the deliberate deletion of text messages which constituted material “which (the chiropractor) knew was directly relevant to an ongoing investigation by the Commission”[10]. Further, the Tribunal considered that he had been dishonest about the extent of contact that he had had with the patient during the course of the investigation. This “improper and unethical” conduct resulted in a finding of unsatisfactory professional conduct and professional misconduct against the chiropractor. He was publically reprimanded and conditions imposed on his registration.
These two cases demonstrate the fine line between appropriate and inappropriate conduct with patients and the need for practitioners to draw firm boundaries regarding contact beyond the purely therapeutic context. In particular, they highlight the importance of being hypervigilant in not allowing, actively or passively, a familiarity to develop with a patient even if the purpose behind such a development appears mutually beneficial, consensual and arguably, professional.
Meridian Lawyers provides advice and assistance to practitioners regarding their professional boundaries obligations. This article was written by Principal Nevena Brown and Associate Anna Martin. Please contact us with any questions.
[1] Health Care Complaints Commission v Ledner [2017] NSWCATOD 90
[2] Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149
[3] Health Care Complaints Commission v Ledner [2017] NSWCATOD 90 at [59].
[4] Standard C.4.3 of the APS Code of Ethics
[5] Health Care Complaints Commission v Ledner [2017] NSWCATOD 90 at [65]
[6] Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149
at paragraph [36].
[7] Ibid.
[8] Ibid at [60].
[9] Ibid.
[10] Ibid at [84].
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