QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Health Ombudsman v Leinonen [2021] QCAT 263
PARTIES: HEALTH OMBUDSMAN
(applicant)
v
LEA STIINA MAARIT LEINONEN
(respondent)
APPLICATION NO/S: OCR412-19
MATTER TYPE: Occupational regulation matters
DELIVERED ON: 4 August 2021 (ex tempore)
HEARING DATE: 4 August 2021
HEARD AT: Brisbane
DECISION OF: Judge Allen QC, Deputy President
Assisted by:
Ms April Blair
Dr Petrina Bowden
Dr Chun-Ming Chang
ORDERS: Pursuant to section 107(2)(b)(iii) of the Health
Ombudsman Act 2013 (Qld), the Tribunal decides
that the respondent has behaved in a way that
constitutes professional misconduct.
Pursuant to section 107(3)(a) of the Health
Ombudsman Act 2013 (Qld), the Tribunal
reprimands the respondent.
Pursuant to section 107(3)(c) of the Health
Ombudsman Act 2013 (Qld), the respondent is to
pay a fine of $10,000 to the Health Ombudsman
within three (3) months.
Pursuant to s 66(1) of Queensland Civil and
Administrative Tribunal Act 2009, publication of:
(a) the contents of a document or thing filed in or
produced to the Tribunal;
(b) evidence given before the Tribunal; and
(c) any order made or reasons given by the
Tribunal,
is prohibited to the extent that it could identify or
lead to the identification of the patient or the2
complainant, save as is necessary for the Office of
the Health Ombudsman to provide information to
the Australian Health Practitioner Regulation
Agency in the exercise of the Health Ombudsman’s
functions under the Health Ombudsman Act 2013
(Qld).
Any material affected by the non-publication order
shall not be copied or inspected without an order
of the Tribunal, except by a judicial member,
Tribunal member, any assessor appointed to assist
the Tribunal, the staff of the Tribunal registry, the
parties to this proceeding, or the Registrar or
Judges of the Court of Appeal.
CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE
PROFESSIONALS – DENTISTS – DISCIPLINARY
PROCEEDINGS – where the respondent was a registered
dental practitioner – where the respondent engaged in a
relationship with a patient over the course of nine years –
whether the conduct amounts to professional misconduct –
what sanction should be imposed
Health Ombudsman Act 2013, s 4, s 103, 104
Health Practitioner Regulation National Law (Queensland),
s 5, s 226
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 66
Craig v Medical Board of South Australia (2001) 79 SASR
545
Health Ombudsman v BBH [2021] QCAT 197
Health Ombudsman v Dower [2021] QCAT 177
Health Ombudsman v Gillespie [2021] QCAT 54
Health Ombudsman v Veltmeyer [2021] QCAT 77
Medical Board of Australia v DEL [2019] QCAT 63
Medical Board of Australia v Jones [2012] QCAT 362
Medical Board of Australia v Leggett [2015] QCAT 240
Medical Board of Australia v Trewren [2015] SAHPT 5
Psychology Board of Australia v Cameron [2015] QCAT
227
Psychology Board of Australia v Garcia [2015] VCAT 128
APPEARANCES &
REPRESENTATION:
Applicant: C Templeton instructed by the Office of the Health
Ombudsman
Respondent: D Callaghan instructed by Hall & Wilcox3
REASONS FOR DECISION
Introduction
[1] This is a referral of a health service complaint against Lea Stiina Maarit Leinonen
(respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act
2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health
Ombudsman (applicant). The applicant seeks a finding that the respondent has
behaved in a way that constitutes professional misconduct and orders by way of
sanction.
[2] The respondent does not resist a finding of professional misconduct. The parties are
agreed as to the essential facts of the respondent’s conduct and its characterisation as
professional misconduct. The parties agree that the respondent should be
reprimanded. The applicant submits that the Tribunal should further order that the
respondent’s registration be suspended for a period of three to six months. The
respondent submits that the Tribunal would instead order that the respondent pay a
fine not exceeding $10,000.
Respondent
[3] The respondent is 55 years old and was aged 42 to 51 at the time of the conduct the
subject of the referral. The respondent has been registered and practising as a dental
practitioner since 1991. During and since the time of the conduct, the respondent has
practised as a sole practitioner and owner of the Carina Dental Practice.
Conduct
[4] The admitted conduct is a failure by the respondent to maintain professional
boundaries with a long-term patient of her practice. The patient was a mature man,
aged in his mid-50s to mid-60s at the time of the conduct. He was a patient of the
respondent receiving general dental treatment from 1998 to 2017. During the first
decade of the treating relationship, the relationship between the respondent and the
patient was entirely professional. In the first half of 2009, the patient asked the
respondent if they could meet socially and the respondent agreed. Over some months,
their relationship became intimate.
[5] Over the following eight years or so, there were periods when the respondent and the
patient were in an intimate relationship and some periods when they were estranged
personally. During that period of about eight years or so, the treating relationship
continued. In April 2017, both the personal and treating relationship ceased entirely.
[6] The Dental Board of Australia Code of Conduct for registered health practitioners
(March 2014) provides as follows:
8.2 Professional boundaries
Professional boundaries allow a practitioner and a patient/client to engage
safely and effectively in a therapeutic relationship. Professional boundaries
refer to the clear separation that should exist between professional conduct
aimed at meeting the health needs of patients or clients and a practitioner’s own
personal views, feelings and relationships which are not relevant to the
therapeutic relationship.
Professional boundaries are integral to a good practitioner–patient/client
relationship. They promote good care for patients or clients and protect both
parties. Good practice involves:4
(a) maintaining professional boundaries.
(b) never using a professional position to establish or pursue a sexual,
exploitative or otherwise inappropriate relationship with anybody under a
practitioner’s care…
(c) recognising that sexual and other personal relationships with people who
have previously been a practitioner’s patients or clients are usually
inappropriate, depending on the extent of the professional relationship and
the vulnerability of a previous patient or client…
[7] The respondent has deposed that she was not aware that it was unethical for her to
enter into a private relationship with the patient. 1 When interviewed by Office of the
Health Ombudsman investigators on 27 October 2017, the respondent admitted that
she knew she was not supposed to date a client but was unaware of the gravity of her
conduct. She stated that she had never read the Code of Conduct.
[8] The respondent accepts that ignorance does not excuse her behaviour. She had a
professional responsibility to be aware of the ethical requirements of a registered
dental practitioner. The respondent admits that her failure to maintain professional
boundaries with the patient breached the Code of Conduct and amounts to
“unprofessional conduct… 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 thus constitutes “professional misconduct” as defined
in section 5 of the Health Practitioner Regulation National Law (Queensland)
(National Law). The Tribunal agrees.
[9] Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the
respondent has behaved in a way that constitutes professional misconduct.
Sanction
[10] The purpose of sanction is to protect the public, not punish the practitioner. In
determining sanction, the main consideration for the Tribunal is the health and safety
of the public. 2
[11] As has been noted in many previous decisions, often citing Craig v Medical Board of
South Australia,3 the imposition of sanction may serve one or all of the following
purposes:
(a) preventing practitioners who are unfit to practise from practising;
(b) securing maintenance of professional standards;
(c) assuring members of the public and the profession that appropriate standards
are being maintained and that professional misconduct will not be tolerated;
(d) bringing home to the practitioner the seriousness of their conduct;
(e) deterring the practitioner from any future departures from appropriate standards;
(f) deterring other members of the profession that might be minded to act in a
similar way; and/or
1
Affidavit of respondent sworn 12 February 2021, paragraph 10.
2
HO Act, section 4(2)(c).
3
(2001) 79 SASR 545 at 553-555.5
(g) imposing restrictions on the practitioner’s right to practise so as to ensure that
the public is protected.
[12] Since the conduct, the respondent has taken steps to remedy the deficiencies in her
knowledge and understanding of her ethical responsibilities, particularly in relation to
maintenance of professional boundaries, by education and mentoring. The Tribunal
accepts that the respondent has gained insight into the seriousness of her ethical breach
and is genuinely remorseful for her behaviour. In those circumstances, the Tribunal
accepts that considerations of specific deterrence are of little significance in the case
of the respondent.
[13] The applicant correctly points to the extent of the boundary violation, continuing as it
did over a considerable number of years, as an aggravating factor. Given the on and
off nature of the intimate relationship, the respondent had a number of opportunities
to reflect upon her behaviour and choose not to resume the personal and/or treating
relationship. Her conduct thus involved a series of misjudgements.
[14] Both parties submit that the respondent should be reprimanded. The respondent’s
departure from acceptable professional standards deserves the denunciation of the
Tribunal.
[15] Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
[16] There are a number of factors which distinguish this case from more serious examples
of boundary violations by health practitioners.
[17] The relationship between the respondent and the patient was a mutual, mature and
genuine relationship. The relationship was initiated and encouraged by the patient.
There was no predatory exploitative behaviour by the respondent. The patient was a
mature man about a decade older than the respondent with no particular
vulnerabilities.
[18] The treatment provided by the respondent to the patient, being general dental
treatment, did not give rise to any specific vulnerability to harm by reason of the
boundary violation, as may be contrasted with cases where the treating relationship
involves psychotherapy, mental health issues and in-depth knowledge of personal
medical and family history.
[19] There is no evidence of any power imbalance between the respondent and the patient
over and above that inherent in a health practitioner/patient relationship.
[20] There is no evidence that the patient suffered any harm as a result of the relationship
or that the dental treatment provided by the respondent to the patient was in any way
compromised by the relationship.
[21] The respondent was vulnerable herself at the time that the patient initiated and pursued
the relationship by reason of a physical impairment affecting her ability to run her sole
practice, as well as being the sole carer for her children. Such physical impairment
was serious enough to require surgery shortly before the commencement of the
relationship with the patient and to require significant medication at around that time.
[22] The evidence of insight and remorse on behalf of the respondent has earlier been
noted. The respondent cooperated fully with the investigation into her conduct and the
conduct of the proceedings before the Tribunal.6
[23] Another significant mitigating factor is the matter of delay. The complaint was
received on 20 April 2017, the respondent was interviewed by investigators on 12
September 2017, and the investigation finalised by 29 November 2017, at which time
the matter was referred by the Health Ombudsman to the Director of Proceedings for
consideration. An unacceptable delay of over two years then occurred until the referral
of the matter to the Tribunal on 19 December 2019. The only explanation proffered
for that delay is the significant backlog of referrals in the Office of the Health
Ombudsman at that time. The applicant frankly admits that such a delay is
unacceptable and that it is reasonable to infer that the respondent would have been
burdened to some extent by the additional period of apprehension of the consequences
of her conduct as a result of such delay. In those circumstances, the factor of delay
becomes a significant mitigating factor. 4
[24] The applicant submits that a suspension of registration for a period at the lower end
of a range of three to six months is necessary to meet the important considerations of
general deterrence and public denunciation. The applicant submits that, whilst a fine
of $10,000 might have a significant financial impact on the respondent herself - the
evidence suggests that the nature of her practice and her family circumstances are such
that it would, it would not act as a sufficient deterrent to other registered health
practitioners of greater means.
[25] Dealing with that submission, it should be noted that the quantum of any fine imposed
by the Tribunal would be affected by the particular practitioner’s circumstances and
capacity to pay. The quantum of the fine in this case would not constrain the Tribunal
from imposing a greater fine in similar circumstances where a respondent’s financial
circumstances were better than this respondent.
[26] The applicant has referred to a number of comparative cases in support of the
submission that a period of suspension is required to adequately address
considerations of general deterrence. 5 The applicant has sought to distinguish
decisions of Health Ombudsman v Veltmeyer 6 and Health Ombudsman v BBH, 7 where
fines were imposed, rather than a suspension of registration, on their facts and
circumstances.
[27] Whilst considerations of consistency require consideration of all those decisions, there
is limited utility in seeking to compare and contrast the facts of those cases with that
of the respondent. However, the decision of Health Ombudsman v Veltmeyer could be
regarded as the most comparable and does support the contention of the respondent
that a substantial fine, rather than a suspension of registration, would be within a
proper range of orders for sanction.
[28] Ultimately it is a matter of judgment in the particular circumstances of this case. In
making that judgment, I have been greatly assisted by the views of all the assessors.
In reaching my decision, I have also had regard to the fact that a reprimand is not a
4
Health Ombudsman v Veltmeyer [2021] QCAT 77; Health Ombudsman v Dower [2021] QCAT 177.
5
Medical Board of Australia v DEL [2019] QCAT 63; Psychology Board of Australia v Garcia [2015]
VCAT 128; Medical Board of Australia v Trewren [2015] SAHPT 5; Medical Board of Australia v
Jones [2012] QCAT 362; Medical Board of Australia v Leggett [2015] QCAT 240; Health
Ombudsman v Dower [2021] QCAT 177.
6
[2021] QCAT 77.
7
[2021] QCAT 197.7
trivial penalty and has the potential for serious adverse implications to a professional
person. 8 It is a public denunciation of the respondent’s conduct and a matter of public
record. It will be recorded on the register until such time as the Dental Board of
Australia considers it appropriate to remove it. 9
[29] In the particular circumstances of this case, a reprimand and a substantial fine
sufficiently address the protective purposes of sanction. Given the nature of the
respondent’s sole practice, a suspension would likely have a punitive effect well
beyond what is required to meet those protective purposes and an unnecessary and
undesirable negative effect on patient care.
[30] Pursuant to section 107(3)(c) of the HO Act, the respondent is to pay a fine of $10,000
to the Health Ombudsman within three months.
[31] No non-publication order has been made at any stage in this matter. Pursuant to
section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
(QCAT Act), publication of
(a) the contents of a document or thing filed in or produced to the Tribunal,
(b) evidence given before the Tribunal, and
(c) any order made or reasons given by the Tribunal,
is prohibited to the extent that it could identify or lead to the identification of the
patient or the complainant, save as is necessary for the Office of the Health
Ombudsman to provide information to the Australian Health Practitioner Regulation
Agency in the exercise of the Health Ombudsman’s functions under the Health
Ombudsman Act 2013 (Qld).
[32] Any material affected by the non-publication order shall not be copied or inspected
without an order of the Tribunal except by judicial member, Tribunal member, any
assessor appointed to assist the Tribunal, the staff of the Tribunal registry, the parties
to this proceeding, or the Registrar or Judges of the Court of Appeal.
8
Psychology Board of Australia v Cameron [2015] QCAT 227.
9
Health Practitioner Regulation National Law (Queensland), section 226(3); and see Health
Ombudsman v Gillespie [2021] QCAT 54.You can also read
