Chiappalone v Medical Board of Australia [2012] QCAT 568

CITATION: Chiappalone v Medical Board of Australia [2012] QCAT 568 PARTIES: Dr Joseph Chiappalone v Medical Board of Australia APPLICATION NUMBER: OCR064-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kerrie O'Callaghan, A/Deputy President Assisted by: David Gill Dr Harpreat Moudgil Dr David Rosengren DELIVERED ON: 31 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Medical Board of Australia’s decision to place conditions on the registration of Dr Joseph Chiappalone is set aside. 2. All conditions placed on the registration of Dr Joseph Chiappalone by the Medical Board of Australia on 17 February 2012 be removed. 3. Until further order, publication is prohibited of any identifying information about the Complainant. CATCHWORDS: HEALTH – DOCTOR – REVIEW – review of decision to take immediate action – Board imposed conditions requiring a chaperone – where registrant is alleged to have sexually assaulted a patient – where Tribunal considered whether there was a treating relationship – where the Tribunal considered whether there was a power imbalance Criminal Law (Sexual Offences) Act 1978, ss 10, 11 Queensland Civil and Administrative Tribunal Act 2009, ss 20(2) 32, 66 Health Practitioner Regulation National Law Act -- 1 of 59 -- 2 2009, s 156 I v Medical Board of Australia [2011] SAHPT 18 Liddell v Medical Board of Australia [2012] WASAT 120 Lindsey v NSW Medical Board [2008] NSWSC 40 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Dr Chiappalone is a 67 year old general practitioner in a regional Queensland town. [2] He seeks to review a decision made by the Medical Board to impose a condition on his registration requiring the presence of a chaperone when examining female patients. [3] The Board’s decision was made pursuant to s 156 of the Health Practitioner Regulation National Law Act 2009 (‘National Law’) which enables the Board to take immediate action (including the imposition of conditions) in relation to a registered health practitioner. The Board may take action if it reasonably believes that because of the health practitioner’s conduct: a. the practitioner poses a serious risk to persons; and b. it is necessary to take immediate action to protect public health or safety.1 [4] The Board took action following the receipt of a complaint which involved an allegation of sexual assault. [5] In conducting this review, the Tribunal conducted a re-hearing on the material now available to the Tribunal.2 The Law [6] The question of what must be established to justify the taking of immediate action, under s 156 of the National Law, has been considered in other Tribunals.3 [7] In Liddell, Justice Chaney of the Western Australian State Administrative Tribunal, when dealing an application to review immediate action taken 1 Health Practitioner Regulation National Law Act 2009, section 156(1). 2 Queensland Civil and Administrative Tribunal Act 2009, section 20(2). 3 I v Medical Board of Australia [2011] SAHPT 18 and Liddell v Medical Board of Australia [2012] WASAT 120. -- 2 of 59 -- 3 under s 156, referred to the approach taken by the NSW Supreme Court, in a case concerning a similar provision in NSW legislation.4 He noted that Hall J had indicated that the process ‘may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints.’5 [8] Justice Chaney stated ‘…it would be impractical for s 156 to require the Medical Board make urgent findings of fact as to the practitioners guilt or innocence.’6 [9] He agreed with Hall J that the purposes of the Board (in determining whether to take immediate action) did not involve the making of findings of fact or determination of the merits of any complaint. [10] The same approach is taken here by the Tribunal. It is not necessary to make findings about whether the alleged incident of sexual assault actually occurred. The question is whether, on the evidence now before the Tribunal, is there enough to give rise to reasonable belief that there is a risk to public health and safety, such that chaperone conditions are required to be imposed on Dr Chiappalone. The Conduct [11] The alleged conduct which is said to give rise to the Board’s reasonable belief is disputed by Dr Chiappalone. [12] Both parties filed material and it was agreed that the hearing would be conducted by the Tribunal on the papers. [13] The Tribunal has granted a stay of the Board’s decision pending the determination of this review. [14] The following facts are not in dispute – a. Dr Chiappalone first became acquainted with the Complainant through his frequent attendances at the Complainant’s workplace. b. Dr Chiappalone was not her regular GP and that the ‘treating relationship’ between Dr Chiappalone and the complainant comprised of three attendances on 10 November 2010, 24 November 2010 and 15 December 2010. [15] There is some dispute on the subject of what health issues the Complainant consulted Dr Chiappalone about. [16] The Complainant provided no sworn evidence, however, in her notification to the Board she stated that she had consulted Dr Chiappalone in regards 4 Lindsey V NSW Medical Board [2008] NSWSC 40, cited in Liddell v Medical Board of Australia [2012] WASAT 120, [20]. 5 Lindsay v New South Wales Medical Board [2008] NSWSC 40, [77], as cited in Liddell v Medical Board of Australia [2012] WASAT 120, [20]. 6 Liddell v Medical Board of Australia [2012] WASAT 120, [21]. -- 3 of 59 -- 4 to ‘menopausal and mental health issues’ and he provided her with treatment in respect of this. Dr Chiappalone’s sworn evidence was that she saw him to get a second opinion with respect to abnormal vaginal bleeding. The evidence shows that he recommended and sent her for blood tests. He says upon receipt of the Complainant’s blood tests and scan results he recommended she have her IUD removed and suggested she see her regular GP to have that done. [17] He concedes that he referred her to a psychologist for counselling as he was aware she was suffering from depression. [18] There is some dispute about who initiated social contact. It is accepted that social contact began in June 2011 through text messaging and between July and August 2011 they had social contact on a number of occasions, mainly dinner at the Complainant’s house. [19] This is where any common ground comes to an end. [20] The Complainant’s position (which is expressed in the report of the Board’s investigator)7 is that she wanted and did indeed pursue a relationship with Dr Chiappalone, but in the end it was not reciprocated. She is reported as saying that he came to her home on at least eight occasions and that they had oral sex on all but one occasion. [21] Dr Chiappalone disputes that there was any physical relationship at all with the Complainant and maintains any relationship was purely platonic. [22] Both parties produced a record of the text messages they exchanged. The record of text messages taken from Dr Chiappalone’s phone is annexed to this decision and named ‘Annexure A’. The record of text messages taken from the Complainant’s phone is annexed to this decision and named ‘Annexure B’. The Complainant has been initialled as ‘M’ in the records. [23] The Board submits, and the Tribunal accepts, that Dr Chiappalone’s explanation of the context of the text messages attempts to downplay the sexual nature of the messages.8 [24] Whilst the Tribunal does not need to, and indeed does not, make findings on whether intimate physical relations did take place between Dr Chiappalone and the Complainant (for reasons given above), when the text messages are read from beginning to end it would not be difficult to come to the conclusion that some physical contact did take place between the parties. [25] The alleged assault which gave rise to the immediate action is alleged to have occurred on the 23 August 2011. The Board in looking to establish 7 Precis of Information – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. 8 Submissions on Behalf of the Respondent Medical Board of Australia, paragraphs 50- 51. -- 4 of 59 -- 5 the likelihood of the assault taking place relies on the Complainant’s interview with the Board’s investigator.9 [26] The investigator reports that the Complainant has said that on 23 August 2011 she invited Dr Chiappalone to her home. She stated that he came over that evening and they ended up in her bedroom and were intimate. She said that she performed oral sex on Dr Chiappalone before he stimulated her sexually with his fingers. She said she consented to this occurring initially however he began to increase the amount of fingers he was inserting to stimulate her and it began to become painful at which time she pushed his hand away. [27] Dr Chiappalone denies that any physical contact took place. The text messages support, to some extent, both Dr Chiappalone’s and the Complainant’s version of events. [28] The normal exchange of text messages between the two, seemingly without any ill feelings, immediately following the alleged assault and several days after favours the assertion that the Complainant was not the subject of any unwanted sexual contact. However, some text messages also indicate, despite Dr Chiappalone’s denial, that physical contact did take place.10 [29] The Complainant attended the hospital four days after the alleged assault and was examined. It was shown that she had sustained superficial bruising and abrasions to her vagina. [30] Following this initial visit to the hospital, the Complainant continued to suffer anxiety and depression. She made a complaint to police in September 2011.11 This was later withdrawn. She also consulted a Solicitor who sent a letter to Dr Chiappalone in October 2011 indicating that his client may proceed with criminal and civil action, however if the doctor wished to avoid such action, she was prepared to accept a payment of $100,000.00.12 Dr Chiappalone did not provide the Complainant with any money. [31] The Complainant lodged a complaint with the Board on 15 November 2011. [32] It is noted that Dr Chiappalone has provided evidence about and makes much of his physical ailments, which he says would have prevented him from engaging in the conduct the subject of the alleged assault. [33] The Tribunal agrees with the Board’s position that the physical ailments complained of, ie heart conditions and knee and back problems, would not 9 Precis of Information – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. 10 See Annexure A pages 24-28 and Annexure B text messages 1-35. 11 Precis of Information – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. 12 Precis of Information – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. -- 5 of 59 -- 6 have prevented him from undertaking the assault which is alleged to have occurred. Question for the Tribunal [34] Is there sufficient evidence to find that his conduct (as alleged) gives rise to a reasonable belief that he poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety? What is the evidence and other issues the Tribunal needs to have regard to in coming to this decision? [35] The Board’s position is that the evidence is sufficient to give to a reasonable belief that because of his conduct, Dr Chiappalone poses a risk to vulnerable female patients, in that they may be exploited by him, such that immediate action of the imposition of the conditions is necessary.13 [36] The Board submits that the Tribunal should have regard to a number of matters in coming to this conclusion: a. Dr Chiappalone’s social/sexual relationship with a former patient; b. Allegations of an assault made against Dr Chiappalone; and c. Policy considerations. The social/sexual relationship with a former patient [37] It is not in dispute that Dr Chiappalone and the Complainant knew each other before any clinical relationship commenced. [38] It is accepted that she consulted him on three occasions during the period November-December 2010. [39] It is accepted that the clinical relationship was very limited. The Complainant had a regular GP that she continued to consult in relation to her depression.14 [40] The Tribunal accepts that she spoke in general terms with Dr Chiappalone regarding her depression but it can not reach the conclusion that Dr Chiappalone ‘treated her’ for mental health issues. On the basis of the sworn evidence of Dr Chiappalone and other documentary evidence (referral for a blood test and scan), the Tribunal is unable to conclude that the nature of the treating relationship centred on mental health issues which would have exacerbated the inherent power imbalance between a doctor and a patient, thus making Dr Chiappalone’s conduct ‘predatory in nature’. 13 Submission on Behalf of the Respondent Medical Board of Australia filed 17 August 2012, 19 [91]. 14 Report of Dr Nila Hadden – Exhibit MBO-4 to the Affidavit of Matthew Bernard O’Donnell dated10 August 2010. -- 6 of 59 -- 7 [41] The Board submits that it is irrelevant that alleged assault occurred outside a clinical setting because the alleged conduct relates to a former and particularly vulnerable patient. This led the Board to the conclusion that he poses a risk to public health and safety. [42] The Tribunal does not consider the evidence before it establishes such a power imbalance or vulnerability as – a. The evidence is that until one week prior to the alleged assault, the Complainant was seeing a regular GP in relation to depression.15 b. The Tribunal accepts submissions of the Registrant that it was the Complainant who used the mobile phone number given to her by Dr Chiappalone in relation to her work.16 It was the Complainant who initiated the social interaction between the two by extending the invitation to the concert.17 c. It was the Complainant who was the pursuer and sought a more intimate relationship with Dr Chiappalone.18 d. In the record of her interview with the investigator in relation to what happened at the first social contact, it is recorded that she said ‘she was the one who initiated the contact he didn’t come onto me…it was actually the other way around’.19 [43] In summary, on the basis of all of the elements surrounding the relationship the Tribunal is not satisfied that it was predatory in nature and it does not provide evidence of a serious risk. The alleged assault [44] As stated above, this Tribunal need not make a finding as to whether or not the assault took place. It is only necessary to make a finding, on the basis of the allegations, whether a reasonable belief of serious risk is established. [45] The Board concedes that more enquiries need to be made for the issue to be determined. They submit that the Tribunal should have regard to the 15 Precis of Information, [9] – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. 16 Precis of Information, [9] – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. 17 Text message from the Complainant to Dr Chiappalone on 17 July 2011 at 8:34 am – ‘… Are you interested in a spot of lunch and a session of jazz at Robert channons today? I shant take umbrage if it is a negative. I am just at a loose end today and would enjoy some company…’ – see Transcript of Text Messages – Exhibit JCS-1 to the affidavit of Dr Joseph Steven Chiappalone dated 23 August 2012. 18 Text message from the Complainant to Dr Chiappalone on 22 August 2011 at 11:37 pm – ‘I curse myself Joseph Because things might have been different had I not charged at you like a bull in a china shop. Hindsight is a wonderful thing’ – see Transcript of Text Messages – Exhibit JCS-1 to the affidavit of Dr Joseph Steven Chiappalone dated 23 August 2012. 19 Precis of Information – Exhibit MBO1 to the affidavit of Matthew Bernard O’Donnell dated 6 July 2012. -- 7 of 59 -- 8 further information that has come to light in the investigation which they say vindicates its decision to take immediate action and further investigate the notification. [46] There was some apparent debate about the weight to be given to the material which has come to the Board in response to its investigation. Dr Chiappalone suggests that, as those submissions relate to the issue of whether disciplinary action should be taken after investigation, they are not relevant in relation to the issue for consideration in this review that is with whether immediate action should be taken. The Tribunal does not accept that argument. The Tribunal is entitled to have regard to all material available to it at the time of the hearing, regardless of the purpose of the creation of the material. [47] The Tribunal’s position is that on the material available, it was clear that contact was made between Dr Chiappalone and the Complainant on the night of the alleged assault. Text messages that follow the meeting support the suggestion that there was intimate relations between the parties that night, albeit consensual and not unwanted as alleged by the Complainant. [48] The Tribunal considers that even if the allegations of the Complainant are accepted in their entirety, when put in the context of all of the circumstances and the nature of the relationship Dr Chiappalone does not pose a serious risk to female patients. Therefore the grounds for the imposition of conditions are not established. Policy considerations [49] The Board says that the Tribunal should have regard to policy considerations in making its decision to take immediate action. This is a review proceeding and in such cases relevant policy can be taken into account in reaching the correct and preferable decision. The policies to which the Board refers, can be put into two categories: a. The Code of Conduct and Boundary Guidelines b. Internal Guidance: Board mandated use of chaperones following allegations of sexual misconduct. Code of conduct and boundary guidelines20 [50] The Tribunal accepts Dr Chiappalone’s submissions that these policies relate to the broader issue of whether the conduct should be the subject of disciplinary action, for example sexual misconduct can include a doctor engaging in sexual activity with a person formally under the doctor's care but have little relevance to the question whether there is a need to take immediate action. 20 Medical Board of Australia, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’; Medical Board of Australia, ‘Sexual Boundaries: Guidelines for doctors’ (28 October 2011). -- 8 of 59 -- 9 Internal guidance: Board mandated use of chaperones following allegations of sexual misconduct21 [51] This policy is more on point. [52] The purpose of the guidance is to clarify the circumstances in which the Board may use a chaperone as a temporary protective measure.22 [53] The Tribunal accepts Dr Chiappalone’s submission that the guidance does not change that the Board, or this Tribunal, is required to be satisfied that there is a reasonable belief that the Registrant poses a serious risk and the condition/s are necessary to protect public health and safety, before imposing the conditions under s 156. [54] The Tribunal accepts that the purpose of the guidance is to provide guidance as to the matters to be considered for inclusion in the doctor’s conditions/undertakings where the Board has already decided that it is appropriate to require a chaperone as a protective temporary measure.23 Findings [55] The Board contends that on the evidence now before the Tribunal the Board’s decision to impose conditions is to be affirmed. Relevantly they say the concern is in respect of Dr Chiappalone’s female patients. The Board submits that it holds a reasonable belief that Dr Chiappalone poses a risk to further possible exploitation of vulnerable female patients. [56] Dr Chiappalone makes the pertinent point that the decision under review must be distinguished from any decision by the Board to take disciplinary proceedings. The Board may well decide to take action at the conclusion of the investigation. [57] The Tribunal agrees with Dr Chiappalone’s submission that a lot of the material before the Tribunal (for example Policy Guidelines on Boundary Violation) goes to the issue of whether grounds exist to take disciplinary action. [58] The Tribunal has considered the following: a. The fact the alleged incident took place outside any clinical context. b. The doctor and patient relationship was very brief and is not satisfied that the relationship involved treatment with respect to mental health issues. 21 Record Book, 31-34. 22 Record Book, 71. 23 Record Book, 32-34. -- 9 of 59 -- 10 c. The evidence does not establish a power imbalance or that Dr Chiappalone’s conduct was predatory in nature, such to give rise to a concern about the safety of female patients. [59] The Tribunal does comment that on the evidence it is not convinced that no intimate relations took place to date. However these are issues to be determined at another time if disciplinarily proceedings are pursued. [60] The Tribunal does not find on the evidence that it is reasonable to conclude that there is a serious risk to female patients of Dr Chiappalone such that it is necessary to take immediate action to impose the chaperone conditions. [61] It follows that the application for review of the decision of the Board to take immediate action should be allowed and the condition on Dr Chiappalone’s registration should be removed. Non-publication order [62] Under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal may make an order prohibiting publication of information enabling a person appearing before the Tribunal or affected by a proceeding to be identified. Under s 66(2), an order prohibiting publication may be made if the Tribunal considers it is in the interest of justice. [63] The Criminal Law (Sexual Offences) Act 1978 provides for limitations on the publication of information about a complainant alleging a sexual offence. While publication of these reasons may not be directly prohibited by that Act, publication at this stage may tend to be inconsistent in my view, with the protections afforded by the Act. Therefore, I have initiated a non-publication order under section 66 of the QCAT Act as I am satisfied that it is in the interests of justice to prohibit publication of any information identifying the Complainant until further order. -- 10 of 59 -- -- 11 of 59 -- -- 12 of 59 -- -- 13 of 59 -- -- 14 of 59 -- -- 15 of 59 -- -- 16 of 59 -- -- 17 of 59 -- -- 18 of 59 -- -- 19 of 59 -- -- 20 of 59 -- -- 21 of 59 -- -- 22 of 59 -- -- 23 of 59 -- -- 24 of 59 -- -- 25 of 59 -- -- 26 of 59 -- -- 27 of 59 -- -- 28 of 59 -- -- 29 of 59 -- -- 30 of 59 -- -- 31 of 59 -- -- 32 of 59 -- -- 33 of 59 -- -- 34 of 59 -- -- 35 of 59 -- -- 36 of 59 -- -- 37 of 59 -- -- 38 of 59 -- -- 39 of 59 -- -- 40 of 59 -- -- 41 of 59 -- -- 42 of 59 -- -- 43 of 59 -- -- 44 of 59 -- -- 45 of 59 -- -- 46 of 59 -- -- 47 of 59 -- -- 48 of 59 -- -- 49 of 59 -- -- 50 of 59 -- -- 51 of 59 -- -- 52 of 59 -- -- 53 of 59 -- -- 54 of 59 -- -- 55 of 59 -- -- 56 of 59 -- -- 57 of 59 -- -- 58 of 59 -- -- 59 of 59 --