Consequences of breaching professional boundaries as a health practitioner

Introduction

Every health practitioner who is registered with the Australian Health Practitioner’s Agency (‘AHPRA’) are also governed by the board of their respective profession. For example, the Psychology Board of Australia governs psychologists.

Each of these boards has its own standards, including ethical standards and code of conduct requirements for health practitioners. Some bodies share the same code of conduct with each other, whilst others have their own code of conduct. A commonality with the codes of conduct across all the bodies which govern the health professions is the concept of ‘professional boundaries’.

This article will provide a general overview of what happens when a person is alleged to have breached their professional boundaries, particularly as it relates to sexual relationships with patients.

If it has been alleged that you have breached professional boundaries, we recommend that you obtain independent legal advice as soon as possible. Our firm has a wealth of experience in assisting clients with their disciplinary matter.

We offer a no-obligation twenty (20) minute consultation to discuss your matter generally.

You can contact our firm on 07 5532 3133 to speak with one of our firm’s litigation lawyers.

 

What are professional boundaries?

While each board’s code of conduct differs, the shared notion is that professional boundaries are necessary to allow both the patient and practitioner to engage safely and effectively in a therapeutic relationship in a way that there is a clear separation between professional matters and personal matters which aren’t relevant to the therapeutic relationship.

More specifically, among other things, health practitioners are not permitted to use their position as the treating health practitioner to pursue a sexual, exploitative or otherwise inappropriate relationship with their patient.

 

What happens if there is a breach of professional boundaries?

A complaint is usually made to AHPRA or to the Office of the Health Ombudsman (‘OHO’) who then conduct their own investigation and gathers information and evidence.

AHPRA and OHO may decide to refer the matter to the other for various reasons, although usually, one body will then be in charge of determining what action to take against the health practitioner after conducting an investigation.

It is important that if you are a health practitioner who is being investigated that you seek independent legal advice as soon as possible.

 

What happens after the investigation by AHPRA or OHO?

Depending on the outcome of their investigation, AHPRA or OHO will usually commence proceedings against the health practitioner in the Queensland Civil Administrative Tribunal (‘QCAT’).

AHPRA or OHO will file and serve a document called an application or referral that sets out the allegation(s), the particulars of the allegation(s) and whether the alleged conduct constitutes professional misconduct or unprofessional conduct.

 

What is professional misconduct or unprofessional conduct?

Professional misconduct and unprofessional conduct refer to the characterization of the alleged conduct. Both are very serious characterizations, but professional misconduct is much more serious.

These terms of are defined under section 5 of the Health Practitioner Regulation National Law (Queensland) 2009 (Qld).  This legislation is commonly known as the ‘National Law’.

 

What is the ‘National Law’?

The National Law defines professional misconduct of a health practitioner to include:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

The National Law defines unprofessional conduct of a health practitioner as:

professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

(b) a contravention by the practitioner of—

(i) a condition to which the practitioner’s registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and

(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; and

(e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and

(f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and

(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and

(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

 

What happens in QCAT?

Once proceedings have been commenced, QCAT will generally make directions about the next steps the parties must take.

Usually, the process looks like this:

1. The health practitioner files and serves a response to AHPRA’s/ OHO’s application or referral;
2. The parties must file and serve a statement of agreed and disputed facts;
3. The parties must file and serve an index to a brief of documents provided to QCAT;
4. The parties must file and serve any further evidence they wish to rely upon;
5. The parties must notify each other and QCAT about any witnesses they wish to examine at the hearing;
6. The parties must file submissions;
7. The parties must file a physical copy of the brief of documents; and
8. The matter is then set down for a hearing time and date.

 

Next steps

It is critically important that if you are the subject of an investigation or if disciplinary proceedings have been commenced against you that you obtain independent legal advice as soon as possible.

We offer a non-obligation twenty (20) minute consultation to discuss your matter generally and have a law office on the Gold Coast and a legal office in Brisbane.

You can contact our firm on (07) 5532 3133 to speak with one of our firm’s experienced litigation lawyers.