Professional conduct; maintaining boundaries between health professionals and patients

The professional relationship between a health professional and a patient is not a friendship; it is a therapeutic relationship directed by the patient’s health needs. The community entrusts health practitioners to act in the best interest of those in their care, and that their care will be based on an assessment of their specific needs.

In this blog, we look at the professional boundaries expected of Australia’s health professionals and the consequences of a breach of those boundaries.

Who regulates Australia’s health professionals?

Health professionals are some of the most trusted and respected people in the community. Roy Morgan’s regular Image of Professions Survey results consistently show that Australians hold health professionals such as nurses, pharmacists, doctors and dentists in high regard. This is due to the high standard such professions are held to as part of obtaining and maintaining their professional registration.  

In Australia, health professionals are regulated by a network of National Boards. The peak body for these Boards is the Australian Health Practitioner Regulation Agency (Ahpra). In addition to the National Boards and Ahpra, many states and territories also have statutory complaints bodies which cover people in these professions, as well as other kinds of health workers, which are not required to be registered with Ahpra (for example, disability support workers, counsellors or massage therapists).

Ahpra and these other complaints bodies are empowered to receive and act on complaints about health professionals.

Patients expect health professionals to act in their best interests and to respect their dignity. A breach of professional boundaries in many cases will also be a violation of the practitioner’s professional responsibility (see Codes of Professional Conduct and Code of Ethics). It does not matter if the boundary violation was inadvertent or on purpose, thoughtless or altruistic.

What are professional boundaries for health practitioners?

Professional boundaries are where a health practitioner creates a clear separation between their duties to a patient to meet their health needs and the professional’s own personal views, experiences, feelings and relationships.

Creating this defined separation protects the space between the professional’s power and the patient’s vulnerability. They are the borders that mark the edges between a professional, therapeutic relationship and a non‑professional or personal relationship between a health professional and a person in their care.

When a health practitioner crosses a boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship.

What is a boundary violation between a health practitioner and patient?

Boundary violations occur when the practitioner behaves in a way which undermines or blurs the separation between the professional and personal in a relationship with a patient.

Conduct on the part of a health professional that will be considered to be a boundary violation can include:

• engaging in a romantic or sexual relationship with a patient or former patient;
• breaches of patient confidentiality or privacy;
• following a patient or engaging with a patient on social media or through personal telephone communication;
• accepting gifts or benefits from patients or their families;
• lending money to or borrowing money from a patient;
• excessive personal disclosure to a patient;
• sexual harassment; and
• flirtatious communication, employing sexual innuendo, off‑colour jokes or offensive language.

Conduct of this kind can be considered professional misconduct or unprofessional conduct.

There is a public interest in investigating and punishing health professionals for conduct which violates professional boundaries. This is because there is an inherent power imbalance between vulnerable patients and the practitioner providing care.

If there is a breach, each circumstance would need to be assessed on the gravity of the departure from expected professional standards. The investigating body or a disciplinary tribunal will also consider mitigating circumstances and the professional’s insight into their conduct.

What can happen if a health practitioner breaches professional boundaries?

In serious cases, health practitioners may be liable for disciplinary action brought by the relevant National Board or regulators, such as the Queensland Office of the Health Ombudsman or New South Wales Health Care Complaints Commission for unprofessional conduct or professional misconduct.

Regulators bring such ‘charges’ in a tribunal which has the power to:

• suspend or cancel a practitioner’s registration;
• impose a fine; and
• leave the health practitioner liable for legal costs in some cases.

Where adverse findings are made against a practitioner following a tribunal hearing, those findings will ordinarily be public. The public nature of these findings can make them very disruptive to a professional’s career and can even be career-ending.

Any reprimand, suspension or condition placed onto a professional’s Ahpra registration will also be visible to anyone searching the professional’s name on the publicly available register.

Case review – health professional has registration suspended

In Health Ombudsman v O’Reilly [2021] QCAT 362, the health professional developed a friendship with one of her patients. That friendship was a longstanding one, and the patient eventually instructed a solicitor to make the health professional the sole beneficiary of his will.

The health professional was informed of this by the patient. Upon learning this, she attempted to dissuade the patient from making her a beneficiary of his estate.

There were also attempts by the health professional to end the treating relationship, however, the treating relationship resumed based on an assurance by the patient that he had decided to remove her as a beneficiary.

The Tribunal decided to impose a reprimand against the health professional and to suspend her registration for three months.

This case illustrates that it is not just sexual conduct or conduct where a practitioner deliberately attempts to gain a benefit from their relationship with a patient that will attract the imposition of a penalty against a practitioner.

Subject to an Ahpra notification or complaint?

If you’ve received an Ahpra notification or complaint, do not delay seeking advice!

Hall Payne Lawyers has a team of experienced lawyers who can provide advice and representation to you and help you get through the stressful process following an Ahpra notification or complaint.

We see too many health practitioners who have tried to go it alone before seeking advice and suffer adverse outcomes. Health practitioners who get advice early on have the best outcomes.

If you are facing disciplinary action for actions which constitute a breach of professional conduct or code of ethics, it is vital you seek early assistance from your union or a lawyer experienced in health law.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

Further reading – Health Law articles

• Immediate action against health practitioners
• Ahpra framework to manage vexatious complaints against health practitioners
• Making statements over the phone to Ahpra