Chiropractic Board of Australia v Dillon [2023] QCAT 117

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chiropractic Board of Australia v Dillon [2023] QCAT 117 PARTIES: CHIROPRACTIC BOARD OF AUSTRALIA (applicant) v SEAN DILLON (respondent) APPLICATION NO/S: OCR301-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 5 May 2023 HEARING DATE: 7 June 2022 HEARD AT: Brisbane DECISION OF: Judicial Member J Robertson Assisted by: Dr Robert Bailey Mr Michael Halliday Dr Clare Noble ORDERS: Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the respondent has behaved in a way that constitutes professional misconduct. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to s 196(2)(b) of the National Law, the respondent’s registration is subject to conditions in the terms set out in annexure A to these orders Pursuant to section 196(3) of the National Law the review period for the conditions imposed pursuant to s 196(2)(b) of the National Law and annexed at annexure A is 8 months. Each party bear its own costs. Pursuant to s127(3)(b) of the National Law, Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions imposed on the respondent’s registration. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PRACTITIONERS – CHIROPRACTORS – where -- 1 of 23 -- 2 respondent and patient worked in the same practice – whether an intimate relationship developed before or after the commencement of a therapeutic relationship – whether professional misconduct is proved EXPERTS – where parties had experts with significantly divergent views and opinions as to the respondent’s conduct – where the applicant’s expert was not required for cross- examination but the respondent’s expert was cross- examined SANCTION – where the Tribunal finds that the intimate relationship commenced after the commencement of the therapeutic relationship – where the respondent did not disclose any conflict of interest to the other members of the clinic in which he worked or record it in his practice notes Health Practitioner Regulation National Law (Queensland) ss 5, 127, 156, 196, 226 Queensland Civil and Administrative Tribunal Act 2009, s 28 Chiropractic Board of Australia v Allen (Review and Regulation) [2018] VCAT 1772 Craig v Medical Board of South Australia (2001) 79 SASR 545 Dental Board of Australia v Gazelakis (Occupational and Business Regulation) [2011] VCAT 726 Health Care Complaints Commission v Dr Small [2012] NSWMT 18 Health Ombudsman v Veltmeyer [2021] QCAT 77 Medical Board of Australia v Nguyen [2021] QCAT 346 APPEARANCES & REPRESENTATION: Applicant: BJ Power KC, instructed by Clayton Utz Respondent: M Judd, instructed by Geoff Skelton REASONS FOR DECISION Introduction [1] On 13 March 2023, I made a final decision in this matter. After the making of the orders on that date, the parties agreed that paragraph 6 should be added as it had been omitted in error from the original order. These are my reasons for that decision. [2] The respondent is and was at all relevant times, a chiropractor registered with the Chiropractic Board of Australia (the applicant). [3] On 7 June 2022, the applicant’s disciplinary referral was heard by the Tribunal. The referral (in effect) contains two grounds, the second of which is proffered in the alternative depending on the facts accepted by the Tribunal. -- 2 of 23 -- 3 [4] The first allegation against the respondent in Ground 1 is a failure to maintain appropriate professional boundaries in respect of a patient, Patient A. The critical allegation of fact is that the applicant alleges that the intimate relationship between the respondent and Patient A commenced after the commencement of their therapeutic relationship, whereas the respondent contends that it commenced before they commenced a therapeutic relationship. [5] It is common ground that at all relevant times, both Patient A and the respondent were employed at a suburban medical and specialist centre in Brisbane (the Centre). As pleaded in the alternative in Allegation B, ground 1 alleges that the respondent’s personal relationship with Patient A commenced before he commenced the therapeutic treating relationship with her on 29 April 2016. [6] The health service complaint in this event is framed thus in the Referral: The commencement of the therapeutic relationship so closely following the commencement of (their) personal/sexual relationship was contrary to proper professional standards and expectations. [7] In either event, the applicant alleges that the respondent’s behaviour is contrary to various provisions of the Code of Conduct of Chiropractors (2014) (the Code of Conduct) and constitutes professional misconduct. [8] Ground 2 is pleaded in the alternative to Ground 1 and is framed (in summary) as a failure to appropriately manage and document a “dual-relationship” with Patient A. [9] The parties (I infer) were unable to agree on a statement of facts, and the proceedings were conducted (most certainly from the respondent’s side) in what I think was an unnecessarily adversarial and combative fashion. Having said that, the conduct of the respondent’s case did not offend any ethical or professional boundaries, and it is understandable that he is very upset about the allegations, and the consequences to him. [10] These comments will not affect the Tribunal’s assessment of the evidence in those areas where there are conflicts to resolve. Rather it is a reminder that under its Act,1 the Tribunal, in conducting proceedings (inter-alia): (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. 1 Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), section 28. -- 3 of 23 -- 4 [11] The applicant alleges that either taken separately or together, the conduct (whichever facts in dispute are proved) constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). [12] In a rather unorthodox approach, in his response filed 2 June 2021, the respondent relies on his statement dated 21 February 2021 filed with the Tribunal on 26 February 2021. In his response, the respondent (relevantly) submits: (a) he commenced a therapeutic relationship with Patient A on 29 April 2016. (b) he commenced a personal and sexual relationship with her on 20 April 2016 (i.e., before the commencement of the therapeutic relationship). (c) the therapeutic relationship ceased on or about 8 July 2016. (d) after 8 July 2016 till 9 October 2016, he maintained a personal/sexual relationship with Patient A. (e) that his clinical records maintained in respect of Patient A in the period in 2016 in which he was involved in a therapeutic relationship with her (29 April – 8 July 2016), did not disclose any dual-relationship on their face. [13] He denies, as the applicant alleges, that he knew or ought to have reasonably known that Patient A was a patient of particular vulnerability, including having regard to the significant and inherent power imbalance between them by virtue of the therapeutic relationship, and the fact that immediately prior to commencement of the relationship, Patient A had made disclosures to him in respect of her mother’s suicide and her own recent relationship breakdown. His denial in this regard is (in summary) on the basis that there was no significant and inherent power imbalance, and that they were in a “romantic and caring relationship”. [14] Based on an expert report by Dr Sharyn Eaton dated 5 May 2021 (the Eaton Report), he denies that any conduct of his breached any provision of the Code of Conduct or otherwise constitutes professional misconduct as defined in any of the three limbs of section 5 of the National Law. Background and relevant chronology [15] The process leading up to the filing of the referral,2 and this hearing, commenced with mandatory notifications from a general practitioner and a psychologist employed at the Centre both made on 26 July 2016.3 The respondent also made what he describes as a voluntary non-mandatory notification to the office of the Health Ombudsman (the OHO) on the same day. [16] At that time, he was clearly acting under legal advice from Mr Solley, a solicitor with Thynne and Macartney.4 [17] On 7 October 2016, Patient A made a statutory declaration to the Australian Health Practitioner Regulation Agency (Ahpra), who was then investigating the matter. In that statutory declaration, she said that she commenced work as a casual receptionist at the Centre in November 2015 and met the respondent in the course of her employment and struck up a good work relationship/friendship with him. She also 2 Filed 28 September 2020. 3 HB, Volume 2, page 7 and 10. 4 HB, Volume 2, page 25. -- 4 of 23 -- 5 states that she was born in 1988 (making her 25 at all relevant times), was a registered nurse, and undertook nursing duties when required, especially on weekends. [18] She states that she first sought professional treatment from the respondent “around the end of March/April 2016”. She states that the intimate relationship i.e., involving sexual intercourse, commenced on 24 May 2016 and continued until she ended it on 21 July 2016. She could not recall how many treatments she had with the respondent, nor did she say when the therapeutic relationship came to an end. [19] On 18 November 2016, the respondent was advised by Ahpra that the relevant Committee of the Board had decided to investigate whether he was involved in an inappropriate relationship with a patient (Patient A). [20] On 12 January 2018, the respondent was advised that “the investigation is continuing”, acknowledging that there had been a delay. There was further correspondence between the respondent’s then solicitors and Ahpra until early 2019. One of the reasons for the, by then, 2-and-a-half-year delay, was said to be a transfer of the file to another investigator, who it was said (as at 7 February 2019) to be “currently seeking an independent opinion regarding the issue in question”. The record shows that an expert report was not sought formally from Dr Christopher Burrell until 14 May 2019. Dr Burrell provided his first report5 dated 18th June 2016 promptly. [21] I will discuss this and later reports of Dr Burrell later in these reasons. It is appropriate at this stage to deal with one aspect of Mr Judd’s (Counsel for the respondent) trial submission which I raised early in the hearing with him, given the divergence in opinions of the applicant’s expert, Dr Burrell, and the respondent’s expert Dr Eaton. At [39]–[40] of that submission,6 after quoting from Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Mr Judd wrote: 40. The expert opinion provided by Dr Burrell fails to disclose any “demonstration or examination of the scientific or other intellectual basis of the conclusions reached”, (sic) Dr Burrell’s evidence does not explain, or adequately explain “how the field of ‘specialised knowledge’” in which [he] is expert by reason of “training, study or experience”, and on which [his] opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. For the reasons explained below, the Tribunal should place little, if any, weight on Dr Burrell’s flawed opinion. [22] As I read that submission, it involved a form of a challenge to Dr Burrell’s expertise, or at least a failure to comply with his duties as an expert. Given that Dr Burrell had not been required by the respondent for cross-examination, I thought it was important to understand the submission. Mr Judd disavowed any challenge to Dr Burrell’s expertise, and therefore his ability to provide opinion evidence. Rather Mr Judd characterised this submission as part of his overall attack on what he described as the “flawed” approach of Dr Burrell. [23] Dr Burrell’s qualifications and experience, which are unchallenged, are set out at page 1 of his report of 18 June 2019.7 Specifically, he has had 20 years’ experience in 5 Dated 18 June 2019, HB, Volume 2, pages 195 – 204. 6 HB, Volume 1, page 36. 7 HB, Volume 2, page 195. -- 5 of 23 -- 6 private practice, and 15 years at Macquarie University teaching and training chiropractic students. He has particular expertise in teaching ethical and legal obligations to students based on the 2014 the Board’s Code of Practice. The professional assessors confirm that he is a highly regarded expert in his field. Mr Judd’s submission at [40] was poorly framed, given that he now does not challenge Dr Burrell’s expertise. [24] On 12 July 2019, the Ahpra investigator provided the respondent with a copy of Dr Burrell’s report and the letter of engagement and copies of all attachments provided to Dr Burrell. [25] On 2 August 2019, the respondent’s present solicitors responded. The lawyers seemed to think that Dr Burrell was an “independent investigator” on behalf of Ahpra. The factual issue that was central at the hearing was described in these terms: The timing of the first sexual encounter and the commencement of the professional relationship is critical. If sex occurred before the treatment on 29 April 2016 (see clinical notes), then there can be no question of improper influence in the professional relationship as to invitation for sex. [26] On 10 August 2019, the solicitors wrote again. With that letter were three statutory declarations of Scott Taylor (August 2019), the respondent (9 August 2019), and Susan Ruth McDonnell (7 August 2019). [27] Relevantly, the declaration by the respondent, which is four pages in length, says that sex first occurred on 18 or 19 of April 2016. He describes the course of events in that statutory declaration as follows:8 22. Either later that week, or the following Monday or Tuesday the 18th or 19th of April, I cannot be certain, (Patient A) suggested at work that it might be nice to get that glass of wine after work. 23. Prior to her coming to my house to drop or (sic) the food box, I had suggested going for a drink after work or catching up on the weekend outside work. 20. (Patient A) had informed me that she suffered from anxiety and didn’t like being around lots of people in bars and declined. 25. She also said it was difficult due to her ex fiancé still being at home. 26. Due to her not wanting to go out previously and having turned down the offer of a glass of wine on the evening of dropping off the food box I was surprised but pleased and asked her where. 27. (Patient A) then said “well can’t be my place as my fiancé will be home, I could come to yours” or words to that effect. 28. I replied “yes that would be nice” or words to that effect. 29. Shortly after arriving home that evening (Patient A) knocked on my door. I welcomed her in and offered her a glass of wine. 30. We sat and chatted for a while, she quickly turned the conversation to her mother, and her mother’s suicide the previous year. 8 HB, Volume 2, pages 216 and 217. -- 6 of 23 -- 7 31. At this point we were sat (sic) on opposing sofas. (Patient A) became upset and teary, I stood up and got her some tissues, at which point (Patient A) said, “Can I have a hug?” or words to that effect. 32. I replied “of course” or words to that effect as she had become obviously distressed. (Patient A) then began to cry openly; 33. I was feeling overwhelmed and a little awkward as this had all occurred within a short space of her arriving and what had started as a friendly chat. I sat next to her and gave her a hug, as in put my arm consolingly around her shoulder whilst offering her tissues. 34. (Patient A) then put her arms around me and pulled me closer, then even quicker she pulled herself onto my lap straddling me and kissed me, whilst still crying and snorting. 35. I pulled back, genuinely surprised and overwhelmed by this rapid turn of events. 36. (Patient A) pulled back herself and said “look you’ve got me all wet” or words to that effect. 37. Half laughing at herself, half crying she said “can I use your bathroom to clean myself up” or words to that effect. 38. I said “yes of course, there is one downstairs and one up, you can’t miss them” or words to that effect. (Patient A) stood up still wiping away tears and proceeded upstairs. 39. I heard (Patient A) upstairs in the bathroom, taps running, the toilet flush, and I waited for (Patient A) to clean herself up, reflecting, in confusion, on what had just happened. 40. Some time passed, and (Patient A) did not return. 41. I shouted up the stairs “are you ok” or words to that effect. There was no response. So I again repeated “are you ok?”, (Patient A) did not respond again, so I said “I’m coming up” or words to that effect. 42. On reaching the top of the stairs I could see (Patient A) was not in the bathroom, and I opened my bedroom door to look for her. I was shocked to see that (Patient A) was laid (sic) naked on my bed, covering her breasts with her hands, she smiled at me and said “sorry they are a little small” or words that effect, indicating her breasts which she then uncovered. 43. I was speechless at this point, (Patient A) moved towards me and pulled me down on the bed with her kissing me as she did and unfastening my clothes. We proceeded to have sex. It was very quick and afterwards (Patient A) said “hmm that was a good start ” or words to that effect. 44. (Patient A) sat up and seemed in pain, I said “are you okay”, she said “its my back and headaches” or words to that effect, (Patient A) had complained about her sore back and headaches previously at work, I said “you should come and see me sometime about that” or words to that effect and attempted to rub her back. 45. (Patient A) excused herself, picked up her clothes and exited the bedroom. I laid on the bed, and heard her once again in the bathroom, taps running and toilet flush. -- 7 of 23 -- 8 46. After a few minutes (Patient A) had not return, so I grabbed some clothes and proceeded downstairs. I found (Patient A) dressed and ready to leave. 47. I was flabbergasted lost for words. (Patient A) said “I need to get home”, took a small sip of wine and let herself out. 48. I followed her to the door, she herself out and proceeded to her car and drove off leaving me on the doorstep bewildered as I waved goodbye. 49. At this point my friend Scott Taylor arrived, he was passing my place and had decided to drop by knowing I was normally home around that time. 50. I was still in a state of bewilderment and hadn’t seen him park, but he said he had passed (Patient A) as she drove out. 51. Scott was amused at my obvious state of bewilderment and embarrassment and continued “so you fucked her?” or words to that effect. 52. I was embarrassed but admitted I had. [28] On 22 November 2019, the respondent’s solicitors were advised that it was proposed to take immediate action against him under section 156 of the National Law. The respondent was then working as a chiropractor (as an independent contractor) with a chiropractic centre at another Brisbane suburb. It was proposed to impose gender- based conditions on his registration. As a consequence of a submission made on his behalf, on 3 December 2019, the Board decided not to take immediate action. The respondent has continued to work as a chiropractor since without any restrictions on his registration. [29] On 10 December 2019, the respondent’s solicitor was advised by Ahpra that the Board had formed a reasonable belief under relevant provisions of the National Law that the respondent had engaged in professional misconduct and that the Board had decided to notify the Office of the Health Ombudsman. In Queensland this meant that the Office of the Health Ombudsman would in turn decide whether to refer the matter to the Tribunal or whether the Board should continue to deal with the matter under the National Law. [30] The referral was filed by the applicant on 28 September 2020. The respondent’s “personal statement” dated 26 February 2021 was filed on 22 October 2021 (the respondent’s trial statement).9 On 5 May 2021, Dr Sharon Eaton provided a report to the respondent’s solicitors. On 2 June 2021, the respondent filed his response to the referral which relies in part on that report. [31] Dr Burrell provided a supplementary report to the applicant on 27 July 2021 which, in part, responded to Dr Eaton’s opinion. He had a copy of her 5 May 2021 report. He provided another supplementary report on 4 August 2021, which was based on the assumption that the sexual relationship commenced before the commencement of the therapeutic relationship (as alleged by the respondent) or after it commenced (as alleged by Patient A). [32] It is common ground that the applicant Board bears the onus of proof in accordance with what has been described as the “sliding scale” in the judgement of Dixon J (as 9 HB, Volume 3, pages s1 to s20. -- 8 of 23 -- 9 the Chief Justice then was) in Briginshaw v Briginshaw [1930] 60 CLR 336 at page 362: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J says: No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct. Discussion (a) When the sexual relationship commenced [33] At the hearing before the Tribunal, Mr Power KC for the applicant cross-examined the respondent and Dr Eaton. The respondent did not require any witnesses including Patient A and Dr Burrell for cross-examination. [34] The respondent has provided four accounts of the events relating to this matter. These are his notification form to the Health Ombudsman dated 26 July 2016, his statutory declaration dated 9 August 2019, a personal statement dated 29 November 2019, and his personal statement in the present proceedings dated 26 February 2021. [35] In his first account in the notification to OHO on 26 July 2016, the respondent says he struck up an immediate friendship with Patient A when she commenced working at the Centre in November 2015. He stated:10 …Our relationship blossomed outside of clinic (sic) over the following months, whilst both ensuring a purely professional relationship within the clinic and workplace. We are both private people and kept our personal relationship to ourselves such that no one was aware of our personal relationship until my disclosure. [36] In that notification, he further stated:11 As (Patient A) is a registered nurse and in training as a Naturopath, I have always viewed her as an equal in the workplace, intellectually and personally. As a contractor I do not hold any managerial positions within the medical centre. Any issues I have, I will report directly to the practice manager, and hold no ideas of having a position of authority over any other employees within the practice. Any interactions with my work colleagues is always with quiet respectfulness, and great fullness (sic) for work or assistance that helps my practice. I have always and continue to hold (Patient A) in the highest esteem. 10 HB, Volume 2, page 4. 11 HB, Volume 2, page 5. -- 9 of 23 -- 10 I believe that treating (Patient A) did not account to notifiable conduct as we were already in a relationship and she approached and consulted me as a fellow healthcare provider to help her with ongoing condition. All consultations were conducted in a professional manner with the intent of treating and resolving her headaches and associated complaints. I conducted clinical contact as all other consultations, and have maintained clinical notes in the usual manner. [37] This aspect of his first account of the nature of the relationship between himself and Patient A maintained a theme, effectively continued throughout his various accounts, that because the personal relationship commenced before the therapeutic relationship, he had not acted inappropriately or unprofessionally. In my view, this approach is fundamentally flawed in proceedings of this nature. However, it will not be necessary for me to expand in much detail on this criticism for reasons I will expose later. [38] Certainly, by the time of his statutory declaration on 9 August 2019,12 he says that there was one contact on 12 April 16 when she unexpectedly dropped off some food to his residence, and the occasion described above on 18 or 19 April which can only be described as an allegation that she positively initiated sex, which “overwhelmed” and “surprised” him and rendered him “speechless”. There was no talk in that sworn document of their relationship “blossoming” outside the Centre over the following months, following the commencement of her employment at the Clinic. [39] The interaction described in paragraphs 43 to 44 of the 9 April 2019 statutory declaration,13 as with a number of aspects of the respondent’s evidence, strikes me as an event that is contrary to ordinary human experience and common sense. To as it were, put on his professional hat in those circumstances when, in his words, the sexual advances from Patient A had “overwhelmed”, “surprised” and rendered him “speechless”, simply offends common sense. [40] According to the respondent, he was still bewildered and embarrassed when his friend Scott Taylor dropped in. Mr Taylor has provided a short statutory declaration.14 He was not required for cross-examination. He recalls on occasion “around mid-April 2016” of going to the respondent’s residence and seeing Patient A drive out. He states: 7. Previously Sean had mentioned that (Patient A) had been talking to him openly about personal private issues well beyond the usual workplace chatter. He said that she may have been keen on him. 8. When I got to Sean’s unit he opened the door and was obviously flushed in the face. 9. Sean gets flushed when embarrassed. I have seen this before, but in this case, it was after seeing (Patient A) leave. 10. I instinctively started harassing Sean in a joking manner and said “That was (Patient A) just driving out, you fucked her, didn’t you?” 11. Sean replied “Aw mate, she went up-stairs and got naked, of course I fucked her”. 12. I was surprised and so was he, but I was happy for him as he was genuinely interested in her. 12 HB, Volume 2, page 218. 13 See [26] above. 14 HB, Volume 2, page 213. -- 10 of 23 -- 11 [41] This evidence does not really assist the respondent. It is consistent with some blossoming antecedent relationship between them but has little weight as corroborative of the respondent’s evidence as to when the first sexual encounter with Patient A occurred. [42] Similarly, another of the respondent’s friends Susan McDonnell, has provided a statutory declaration.15 The respondent told her that he was seeing someone, during the Anzac week of 2016, and that it was Patient A, a nurse from work. Ms McDonnell was not required for cross-examination, but she is obviously a chiropractor. She states: 9. He also told me that he had just started a sexual relationship. 10. I responded in jest with words the effect, that it was a good thing that she was not a patient then. 11. Sean said that she indeed was not a patient, but a work colleague. [43] The respondent’s third statement,16 is clearly his response to the Board’s proposed immediate registration action in November 2019. In that statement, he does appear to show some insight into the inappropriateness of his conduct in relation to Patient A, however he describes this as “an error of judgement”:17 2. I fully admit and recognise that treating (Patient A) was an error of judgement, and that in the 3 and half years (sic), I have reflected on the error of my actions and the implications of them on a daily basis. 3. I have reviewed and reread the chiropractors code of conduct, in particular but not limited to sections: 3.2 Partnership 3.11 Adverse events and open disclosure 3.15 Personal relationships 9.1 Introduction 9.2 Professional boundaries indent a 9.3 Reporting requirements [44] For some reason, the numbering of paragraphs recommences on page 48 of volume 3 of the Hearing Brief: 1. In engaging (Patient A) as a patient, I refer to the risk assessment course I completed with the then COCA, which covers sexual relationships. 2. I refer to page 52, sexual relationships, If the sexual relationship developed prior to the therapeutic relationship then the practitioners are advice (sic) to: (a) Avoid the development of the therapeutic relationship. (b) Provide therapy for their partner only when another therapist cannot be found. 15 HB, Volume 2, page 219. 16 HB, Volume 3, pages 47 to 49. 17 HB, Volume 3, page 47. -- 11 of 23 -- 12 (c) Manage and document this therapeutic relationship with the same diligence as all other patients. 3. My first and primary concern was to help (Patient A) with the pain and discomfort she had informed me about on several occasions. 4. This primary concern overruled my judgement, which should have been to avoid the development of the therapeutic relationship with someone I had a pre-existing relationship. 5. Secondly my Judgement erred again in not insisting on (Patient A) seeking help with another therapist. 6. I do say that despite my poor judgement in entering a therapeutic relationship, I did not allow my feelings and relationship to affect my clinical objectiveness in the assessment and treatment of her conditions as noted by Dr Burrell’s report. 7. It is of upmost importance for the board to note that I understand and hold strongly the view that to initiate or seek a sexual relationship with a patient that I have met as a new patient, ie someone who I have not had a relationship with prior to seeking chiropractic care with me, is totally inappropriate. And that I am fully aware of the potential of power imbalance in a dr patient relationship. [45] His trial statement (again confusedly) is numbered s1 – s20 in volume 3 of the Hearing Brief. On the critical issue he says this:18 58. In around November 2015, (Patient A) started working at the Centre as a Registered Nurse and receptionist. (Patient A) was also studying to be a naturopath. 59. In the weekday evenings and on Saturday mornings, (Patient A) was the sole rostered nurse and receptionist. Generally, I saw clients at these times. Often, there were gaps in my diary when I had no clients to see. On these occasions, I would often speak with (Patient A). 60. In the early stages of our friendship, (Patient A) told me that she was studying to become a naturopath, she had obtained her pilot licence and motorcycle license, she worked two jobs and owned her own home. Considering all this, (Patient A) seemed to me, in these conversations between patients, to be a confident, driven, witty, and intelligent woman. 61. It was fun to speak with (Patient A). She had a mischievous sense of humour. We had lots of great conversations and lots of laughing. 62. After a short while, I started to get the sense that (Patient A) was flirting with me. She started to tease me in a light - hearted way. This put me at ease in the relationship, and I started to flirt back. 63. As our friendship deepened, we began to reveal more about ourselves in a personal sense. In these conversations, I told her about the Family Proceedings, the FWC Proceedings, the failed the relationships (sic), my concerns for and about Thomas (his son). In turn, (Patient A) revealed that her mother had committed suicide, her father had been absent throughout her life, her engagement had fallen over, she still lived with her [ex] fiancé due to extenuating financial reasons, her financial 18 HB, Volume 3, pages s6 and s7. -- 12 of 23 -- 13 difficulties generally problems with “on and off” anxiety and many other things. 64. On rare occasions, (Patient A’s) voice wavered when she spoke about her mum, but I still regarded her as a resilient woman. 65. Overall, I admired (Patient A) because she seemed to have overcome a lot of adversity in her life, and it seemed that she was able to do this because a desire (sic) to help others. Given my life experience, I strongly identified with this. I felt like we understood each other. 66. It was my impression that the disclosures we made to each other about our personal lives were quite natural given the course our friendship was taking. 67. As far as I could gather, there was nothing about (Patient A) or her conduct that caused me any concern, rather, I look forward to seeing her and speaking with her. 68. At paragraph 9 of the Notification Form, I reported as follows: We struck up an immediate friendship as (Patient A) is training to become a Naturopath and we discussed allied health and alternative medicine. Our relationship blossomed outside of clinic (sic) over the following months, whilst both ensuring a purely professional relationship within the clinic and workplace. We were both private people and kept our personal relationships to ourselves…. 69. My relationship with (Patient A) did not “blossom outside the clinic” until 12 April 2016. In specific terms, I had not seen (Patient A) at all until outside the Centre until this date. I tried to keep the telling of events in the Notification Form general in order to preserve privacy. 70. At this point there had been no intimate or any physical contact. [46] He goes into great detail about their encounter on 12 April 2016 and what he says was the first sexual encounter on 20 April.19 On many occasions he records actual conversations (with Patient A, Ms McDonnell and Scott Taylor) in the first person. This can be contrasted with his much earlier statement in August 2019 when he prefaced reference to recalled conversations on many occasions with the expression “words to the effect”.20 He was not cross-examined about this issue by Mr Power KC, however there is no suggestion that when he spoke with these various people, he took contemporaneous notes. As a matter of ordinary human experience and common sense it seems extraordinary to me that he is now apparently able to remember actual conversations after such a long period of time, but because he was not cross-examined about this, I will take that matter no further. [47] I agree with Mr Power KC that the respondent’s attempts to explain his evidence in paragraph 69 of his trial statement was unimpressive and unconvincing. Generally, he did not impress me as a witness who was generally reliable. [48] He argued with counsel and at times did not answer questions. Again, as a matter of ordinary human experience and common sense, his memory of the nature of the relationship and the interactions between himself and Patient A in particular, would 19 HB, Volume 3, pages s7 to s10. 20 HB, Volume 2, page 215. -- 13 of 23 -- 14 have been much clearer in his mind in April 2016 as opposed to 26 February 2021. After some pushing from Mr Power KC, he agreed that what he said about the relationship in his notification to the regulator in April 2016 was not true. His explanation that he said this “in order to preserve privacy” is entirely unconvincing. [49] The respondent’s account accepts that he was aware from contact during work hours that Patient A had personal and financial vulnerability. He stated that Patient A had revealed to him “that her mother had committed suicide, her father had been absent throughout her life, her engagement had fallen over, she still lived with her [ex] fiancé due to extenuating financial reasons, her financial difficulties generally, problems with “on off” anxiety and many other things.”21 [50] It is also clear from the respondent’s trial statement that the notification he made on 26 July 2016 was not voluntary (as he asserted). As noted above, he was by then being advised by a lawyer, and it is clear from his trial statement that he well knew by 26 April, that others in the Centre including the owner, Dr X were aware of the relationship between him and Patient A. [51] The respondent would not accept that it was inappropriate to talk about professional treatment immediately after he had sex with Patient A for the first time as he asserts. As noted in his statement to the Board in November 2019, he thought this was no more than an error in judgement. [52] In his trial statement,22 he states: 102. On or about 27 April 2016, but before 29 April 2016, whilst I was at work, (Patient A) came into my consultation room and we had a conversation which I record relevantly and in part as follows: Patient A: Hi Sean, I thought I would let you know that I have accepted your invitation and I’ve booked in as a new patient on Friday… ST: That’s good to hear, as long as you are happy to be treated as I would treat any other patient walking in my door, professional, a full history, examination, and notes. Patient A: Yep, I understand, same as if you came to see me as a nurse. 103. After (Patient A) left, I considered the implications of treating her as a patient, I remembered my risk management course, and that it was okay to treat family and friends but advised against it for reasons of noncompliance by the Patient And that you should try and get them to see another practitioner. (sic) [53] He told Mr Power KC that he was thinking about the code of conduct when he agreed to treat her. I think that is highly unlikely as a matter of human experience and common sense, particularly given his position that he did not think there was any ethical or professional problem with undertaking treatment with a patient with whom he says, he was in an intimate relationship. 21 HB, Volume 1, page 20. 22 HB, Volume 3, pages 11 and 12. -- 14 of 23 -- 15 The evidence of Patient A [54] Patient A has provided a number of statements that are relevant to the central issue.23 Her first statutory declaration is dated 7 October 2016, and her second is dated 17 October 2019. Both are very short, but consistently she describes a normal working relationship with the respondent until after her first consultation with him in April 2016. In her second statement she states:24 8. Some time between this first consultation and 24 May 2016 when we began our relationship, I dropped some food off for Sean at his house. Sean used to have fresh meals delivered to the clinic, and on one occasion I offered to drop his meals to him when it had been delivered but he was not working. I’m pretty sure I called him and offered, he agreed and gave me his address. 9. I dropped his food off to him, and I think that I did this at least one other time. From this point we went on a couple of social dates. For example, we went for a coffee or I went to his house for a social drink. This evolved into dating, and we commenced a sexual relationship on 24 May 2016. I am sure of this date as at the time of making my statement on 7 October 2016 I looked through my text messages and my telephone call log. 10. Throughout this time, I continued working in the same workplace as Sean and booking in for chiropractic treatments. Sean was always professional, and we separated our personal life from our professional life. At some point in our relationship, I instigated a conversation with Sean about not seeing him as a Patient Anymore. I raised it but it was a mutual decision. Sean and I agreed that it was more appropriate now that we were romantically involved that I not see him as a Patient Anymore. This conversation happened outside of the workplace. 11. The last consultation I had with Sean was on 8 July 2016. 12. I had asked Sean not to speak to anyone at work about our relationship as I wanted to keep it private. However, Sean informed me he told a work colleague. I was really upset about this and I spoke to Sean about it. We broke up on 21 July 2016 due to relationship breakdown. We continued to work professionally together until my employment departure. [55] It is clear that Patient A holds no grudge against the respondent. She did not notify the regulator, and in the interactions since that the Tribunal knows about, she showed a balanced approach – not blaming the respondent or criticising him or even believing that he has done anything wrong. The respondent’s counsel tendered an email from her to the respondent dated 29 January 2021.25 The forensic purpose was not clear to me at the time, but its contents are important in resolving the major factual issue in dispute. [56] It is (relevantly) in these terms: Hi Sean, Just wanted to let you know I’ve been contacted re: ongoing case. 23 HB, Volume 1, page 29; HB, Volume 1; page 227. 24 HB, Volume 2, pages 227 and 228. 25 Exhibit 1. -- 15 of 23 -- 16 I’m doing what I can to see that the case closes with a positive outcome, because in my opinion, you have not done anything wrong, you have not breached your professional conduct. I’m saying that we might have different perspectives as to what constitutes a set beginning of a relationship; but ultimately the relationship between us was a flirtatious manner and a “more than friends” basis prior to my initial consult. Eg. males might see the start of a relationship being from when people start socialising more than friends (eg between Nov 2015 & Mar 2016) Eg. females might see the start of a relationship from the first intimate/sexual encounter I’m saying that the relationship had already evolved prior to initial consult. We were two work colleagues who developed a relationship together. [57] Coupled with my poor impression of the respondent as a witness, and the consistency of Patient A as to when the intimate relationship commenced, and bearing in mind the applicant’s responsibility of proving relevant facts where they are contested, I am satisfied that the first sexual encounter occurred after the first consultation on 29 April 2016 namely on 24 May 2016. The Experts [58] As I have noted, despite trenchant criticism of him in Mr Judd’s trial submission, Dr Burrell was not required for cross-examination whereas Dr Eaton was. Given my primary finding of facts set out above, it is really not necessary to tease out multiple criticisms of Dr Burrell made by Counsel. In my view, most were unfounded and demonstrated a lack of understanding of the nature of expert evidence, and the procedural requirements for receiving such evidence in this jurisdiction. [59] Dr Burrell’s approach, as dictated by the Board and then its lawyers was, in my opinion entirely conventional. To submit that his first report is “not relevant” because it proceeded on the basis that sex occurred after the first consultation, simply ignores the fact that Dr Burrell was expressing his opinion based on the material before him at that time. In his second report Dr Burrell is criticised on the basis that he commences his report by referring to the requirement that he assume a “key new fact”, and that is that the sexual relationship commenced before the treating relationship. He did consider that scenario in his first report, but, conventionally, the Board was seeking his opinion based on what the Tribunal might find on the critical disputed issues. [60] Once again, he was responding to the brief he had been given on the basis of the alternative bases pleaded by the Board in ground one in the referral. [61] The third report from Dr Burrell is dated 4 August 2021, and in that report he clarified that in providing his addendum report of 27 July 2021, he intended that it be understood that it reflected his opinion that the respondent’s conduct as a whole was substantially below the standard reasonably expected of a practitioner. [62] Dr Burrell indicated that, even based on the respondent’s account, his conduct fell substantially below the standard expected of him when “he first invited (Patient A) to consult him in his capacity as a chiropractor at the conclusion of their first sexual encounter.” Dr Burrell opined that “[T]he extending of such an invitation at that -- 16 of 23 -- 17 juncture in time was conduct substantially below the standard expected of a registered health practitioner.” [63] The respondent relies upon the Eaton Report. It can be accepted that Dr Eaton is a senior chiropractor who possesses the necessary expertise to provide an opinion to the Tribunal. I agree however with the submission that there are flaws in both the premises of Dr Eaton’s opinion and the conclusions themselves. [64] Dr Eaton commences her opinion by making a characterisation of the sexual relationship between the respondent and Patient A. I agree with the Board’s submission that some of the bases for her characterisation are based on stereotypes about the way power dynamics exist between individuals engaged in sexual relationships (and the relevance of lack of complaint by one party) which the Tribunal does not accept. Such characterisation in any event is well beyond any expertise that Dr Eaton could claim. [65] It is simply irrelevant that Patient A was not the notifier. Dr Eaton should understand this and yet she seems to regard this as important in characterising the relationship between the respondent, a professional chiropractor and Patient A, his patient. She also seems to regard the fact that the intimacy was consensual as being a decisive and important fact in supporting her opinion that there was no unprofessional conduct by the respondent in maintaining the relationship. [66] She opines in her report, by reference to Table 1 as follows:26 For reasons stated above in Table 1…there is no evidence that the sexual encounter, whether it be prior or after the commencement of therapeutic treatment was associated with sexual exploitation and abuse of power in the practitioner-patient context. There is more evidence to suggest a longer-term relationship took place…. Dr Dillon was not the initiator of the sexual encounter. It would be safe to conclude that whether the sexual encounter occurred before or after the commencement of care, in my view, is irrelevant as the personal/emotional relationship between Dr Dillon and (Patient A) started prior to the commencement of therapeutic care. It is noteworthy that (Patient A) was not the notifier. In my experience, the notifier is the person that has the grievance. It could be assumed and that if there was sexual abuse of power by Dr Dillon, then the grievance might have come from (Patient A) herself, particularly after the relationship had ended. Instead, (Patient A) counselled and supported Dr Dillon on ways the notification should be handled… Additionally, (Patient A) was reported to be upset for Dr Dillon when she was informed of the notification. Regardless of whether Dr Dillon and (Patient A) were involved in an emotional/sexual relationship prior, during and after therapeutic treatment, it would still be considered high risk for (Patient A) to receive appropriate therapeutic care due to the likelihood there would be a lack of objectivity in clinical decision-making. Personal knowledge of the patient may cloud objective clinical decisions. Due to this high risk, Dr Dillon did refer (Patient A) to a trusted colleague… however, it is clear (Patient A) insisted on being treated by Dr Dillon due to her work schedule. As a result of Dr Dillon’s caring 26 HB, Volume 3, page 68. -- 17 of 23 -- 18 nature, complying with (Patient A’s) request for therapeutic care would not be considered in his best interests. [67] There are many non-expert opinions made in the course of those paragraphs. They conclude that based on Dr Eaton’s “experience” that a person such as Patient A should not be considered to have a grievance unless she made a complaint to the Health Ombudsman, and that the respondent has “a caring nature”. Neither of these contentions are proper matters for Dr Eaton to give an opinion upon and there is no proper factual basis for either contention. [68] Most importantly, however Dr Eaton’s opinion that it would be “irrelevant” whether sex took place before or after the first clinical appointment as “the personal/emotional relationship between Dr Dillon and Patient A started prior to the commencement of the therapeutic care.” This contention ignores the fact that even on the respondent’s account there had been only a small number of occasions of contact outside of work prior to the commencement of treatment. [69] The correctness of the submission relating to Dr Eaton’s impermissible characterisation based on stereotypes about the way power dynamics exist between individuals engaged in sexual relationships was emphasised by Mr Power KC in his cross-examination of Dr Eaton by reference to the summary statement in Dr Burrell’s 27 July 2021 report:27 The ways in which Dr Dillon’s conduct and judgement departed from the standard expected and his obligations under the Code are: • Inviting Patient A to consult with him in his professional capacity as a chiropractor in the moments immediately after their first sexual encounter. (Code 9.2 Professional Boundaries) (this is based on the respondent’s evidence). • Accepting Patient A as a new patient in light of the close relationship they shared. (Inappropriate due to risk to practitioner or patient, Code 3.15 Personal Relationships). • Upon accepting Patient A as a new patient, Dr Dillon failed to acknowledge and declare his conflict of interest in treating her to the Centre (Code 3.15 Personal Relationships, a) the conflict of interest is acknowledged and declared). • Agreeing to truncate the health history record at the suggestion of Patient A and not offering an alternative way to both fully record her health history record and protect her confidential information from the other staff at the Centre. (Code 3.15 Personal Relationships b) adequate records are kept & code 9.4 Health Records) I rate the degree of Dr Dillon’s departure from the standard expected and his obligations under of the Code as significant, it was more than trivial but less than the worst case. [70] This report was predicated on the Tribunal accepting the respondent’s version as to when sexual intercourse first took place. [71] In relation dot point one, Mr Power KC asked Dr Eaton if she would tell a student that was okay to behave in that manner, to which she replied, “God no”. In relation to dot 27 HB, Volume 2, page 370. -- 18 of 23 -- 19 point two, because of the close proximity (nine days) between what the respondent says was the first sexual encounter, and the first therapeutic consultation, Dr Eaton agreed that his conduct departed from 3.15 of the Code. In relation dot point three, she said she saw this i.e. his failure to make notes of their dual relationship, as being a business problem, not in the professional sphere. [72] Clause 3.15 of the Code provides that in relation to people such as Patient A (a work colleague with whom on the respondent’s version he had recently established an intimate relationship), “Good practice requires that the conflict of interest is acknowledged and declared, and adequate records are kept.” I reject Dr Eaton’s opinion in this regard. She did agree that this provision in the Code was (in part) designed to protect against exploitation given the power imbalance between health care provider and patient. [73] It is not alleged that the respondent’s conduct was exploitative or predatory, however he admits he was aware of her vulnerabilities following her mother’s suicide, that she was seeing a counsellor, and was having difficulties with her ex-partner. I disagree with Dr Eaton that the clear conflict of interest that existed here did not have to be disclosed. [74] The professional assessors and I all formed the view that Dr Eaton’s approach generally was to be quite subjective in her approach (examples are set out above, rather than to remain objective as an expert is required to be). [75] In relation to dot point four, she reluctantly agreed that the respondent should have referred her on, despite her wishes, and remarkably she seemed to regard his desire to help her as being an important factor in agreeing to take her on as a patient. She said that in her opinion, privacy trumps the need to disclose. Of course, this is not what the Code says. It refers to the importance of maintaining confidentiality, but it also requires adequate records to be kept and any conflicts of interest to be acknowledged and declared. [76] In relation to her own report, she was asked to consider that the Tribunal would accept that the sexual relationship commenced on 24 May i.e., after the therapeutic relationship had commenced. This is dealt with in part above. In her report,28 she set out another passage recorded above.29 [77] This is contrary to Dr Burrell’s opinion, and in my view (assisted by the advice of the professional assessors), Dr Eaton’s opinions in this regard cannot be accepted. In this part of her report, unlike Dr Burrell, she does not reference 9.2 of the Code. I prefer Dr Burrell’s opinion on the issue expressed thus in his report dated 18 June 2019:30 The key point as to why healthcare practitioners are obligated to not enter into sexual relationships with their patients is because of the obvious power imbalance between the two parties. Patients place a high level of trust in their healthcare practitioners and it is imperative that this trust is not exploited for the emotional or sexual wants and needs of the practitioner. [78] Where the opinions of Dr Eaton deferred from those of Dr Burrell, I prefer Dr Burrell’s opinion. 28 HB, Volume 3, page 68. 29 [65] of these reasons. 30 HB, Volume 2, page 202. -- 19 of 23 -- 20 [79] In the circumstances set out above, the Tribunal is satisfied that the respondent’s conduct when viewed as a whole constitutes unprofessional conduct that is substantially below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.31 Sanction [80] In Medical Board of Australia v Nguyen [2021] QCAT 346, Judicial Member McGill SC conveniently summarised the general principles and considerations that underpin the discretion of the Tribunal to discipline the health practitioner who has engaged in unprofessional conduct and/or professional misconduct. The Tribunal said at [18]: In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant. A list of factors which may, in a particular case, be relevant was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. [81] Arising out of the Tribunal’s conclusions of fact, for the purpose of considering sanction in this case, the following matters are relevant: (a) Although in his trial statement, but more particularly in his statement in response to the Board’s proposal to take immediate registration action, the respondent showed some insight into the seriousness of his conduct, he understates his behaviour as a mere “error of judgement”; (b) He still fails to understand that the Code (in particular 3.15 and 9.2) is strongly against the maintenance of a personal intimate relationship with a patient, and it is professionally and ethically wrong, whether or not the patient was a work colleague and/or a friend; (c) As an aside, on this point, the Medical Board of Australia (and its Queensland counterpart before it) has probably had more experience than this Board with its registrants falling into inappropriate relationships with patients or former patients. To that end, specific guidelines have been promulgated to address sexual boundaries to supplement that Board’s Code of Practice which is expressed in similar (but not the same) terms as provisions of the Code of Conduct applicable here; (d) For the reasons stated, I am not satisfied that the relationship was exploitative, in the sense that the respondent took advantage of Patient A’s known vulnerabilities to engage in a relationship. It was clearly consensual, and of reasonably short duration. There is no evidence of any harm to Patient A, apart from the loss of a job soon after the end of the relationship which had nothing to do with the respondent; and (e) The respondent does not present in any way as a danger to any patient. He has never had any other disciplinary complaint either before or since, and his present 31 See definition of “professional misconduct” in section 5 of the National Law. -- 20 of 23 -- 21 colleagues speak highly of him. His limited insight can be appropriately addressed by the condition proposed by the Board. [82] I have referred earlier to the delay in the investigatory stage. It seems to have been as a result of prioritising of investigative staff at Ahpra. It is not a complex matter. Ordinarily delay in proceedings of this nature is not a mitigating factor in relation to sanction: Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553 – 555. However, in some cases: see Health Ombudsman v Veltmeyer [2021] QCAT 77, delay can be so considered in this way. The facts here are different, however some allowance should be made for the identified delays. Of course, conventionally the long delay between notification and now, indicates that the respondent during that period has behaved professionally in an exemplary manner. [83] The cases relied upon by the Board, support Mr Power KC’s submission that a reprimand and condition is an appropriate response in the circumstances of the case. Chiropractic Board of Australia v Allen (Review and Regulation) [2018] VCAT 1772 is a more serious case, and a reprimand, a month’s suspension and various conditions were imposed on the respondent in that case. Dental Board of Australia v Gazelakis (Occupational and Business Regulation) [2011] VCAT 726, and Health Care Complaints Commission v Dr Small [2012] NSWMT 18, are also more serious cases where reprimands; (and in Gazelakis a fine) and conditions were imposed. I have considered the other authorities annexed to Mr Power KC’s submission,32 and the orders made in those cases confirm the appropriateness of the orders proposed here by the Board. Mr Judd’s submission on sanction, was not helpful to the Tribunal. [84] Throughout his submission, he has appropriated the phrase “grave moral delinquency” from Dixon J’s iconic statement from Briginshaw and applied that descriptor to the Board’s allegations in the referral. For example, in his submission on sanction,33 he writes: …originally, the investigation was framed around serious allegations concerning sexual and moral delinquency founded on the opinions expressed in the First Burrell Report. [85] Such inflammatory rhetoric is unhelpful to the Tribunal. [86] A reprimand is not a trivial penalty. It acts as a public denouncement of the respondent’s conduct. A reprimand remains on the National Register, subject to a decision of the Board to remove it under section 226(3) of the National Law. The Tribunal has no power to make any order as to how long the reprimand should remain on the Register. As I have not raised this with the Board, and subject to any contrary submission from the Board within 14 days, given the delay here, I would recommend that the Board consider removing the reprimand from the Register within two years of today’s date. Findings and Invitation for Submissions on Sanction [87] The only form of order submitted by the Board is in terms of paragraph 71 of Mr Power KC’s trial submission. The Tribunal finds that pursuant to section 196 32 HB, Volume 1, page 29. 33 HB, Volume 1, page 42 at [72]. -- 21 of 23 -- 22 (1)(b)(iii) the respondent has behaved in a way that constitutes professional misconduct. [88] On 29 November 2022, I circulated a draft set of reasons and made the following findings and directions: (a) Pursuant to section 196 (1)(b)(iii) of the National Law, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct. (b) The applicant will provide a draft order reflective of the orders sought by the Board in paragraph 71 of its trial submission. (c) Unless written submissions by a party seeking an order for costs are filed in the Tribunal and served within 14 days from the date of this decision, the parties bear their own costs of the proceeding. (d) If such submissions are filed and served, the other party may file and serve any submissions in response within 14 days thereafter. (e) In that event the issue of costs will be determined by the Tribunal on the papers. [89] I invited the Board (subject to any input from the respondent) to submit a set of orders reflective of the submission in 71 of the applicant’s trial submission, but with more particularity in relation to the education condition such as time and structure. At the time, I expressed my opinion that a short period of education approved by the Board would be sufficient, but I would be assisted by draft orders agreed by the parties. [90] On 15 December 2022, the Board confirmed that it would not be seeking costs in the proceeding. [91] On 16 January 2023, the Board provided a suite of draft condition. The Board’s solicitors noted that “the appropriate formulation of conditions has been the subject of discussions between [it] and [the respondent’s solicitor]. [The Board] confirm[s] that [the respondent’s solicitor] has received a copy of the attached draft order and proposed conditions and is seeking instructions.” [92] On 18 January 2023, the respondent’s solicitors advised the Associate to the Deputy President that due to a medical condition experienced by the respondent, they were experiencing difficulties obtaining instructions. [93] On 19 January 2023, I advised the respondent’s solicitors via the Associate to the Deputy President that the Tribunal would welcome a response within 14 days, after which, the Board’s proposed conditions would be imposed. No response was received. Final Orders [94] In the circumstances, I made the following final orders on 13 March 2023 and amended the orders to include order 6 on 4 May 2023: 1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. 3. Pursuant to s 196(2)(b) of the National Law, the respondent’s registration is subject to conditions in the terms set out in annexure A to these orders -- 22 of 23 -- 23 4. Pursuant to section 196(3) of the National Law the review period for the conditions imposed pursuant to s 196(2)(b) of the National Law and annexed at annexure A is 8 months. 5. Each party bear its own costs. 6. Pursuant to s127(3)(b) of the National Law, Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions imposed on the respondent’s registration. -- 23 of 23 --