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- Unreported Judgment
Medical Board of Australia v XT  QCAT 274
Medical Board of Australia
Occupational Regulation Matters
On the papers
Dr Glenda Powell
Dr Margaret Turner
Mr Michael Halliday
2 August 2017
THE TRIBUNAL ORDERS THAT:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a specialist medical practitioner – where he commenced a personal and sexual relationship with a patient and continued to prescribe the patient medications whilst in a personal and sexual relationship – where the respondent failed to keep adequate records of prescription medication information – where the respondent failed to refer the patient to another practitioner after he became aware of the likelihood of a personal relationship with the patient – where the respondent lacked any prior history, provided full and frank admissions, demonstrated insight and the enduring relationship of mutual love and affection – where the parties agree a sanction of reprimanding and suspending the practitioner’s registration as a psychiatrist with a guaranteed conditional return to practice after 18 months will adequately meet the statutory regime – where consent orders are not binding – whether the tribunal is satisfied the proposed order will appropriately ensure the safety of the public and provide the appropriate level of general and specific deterrence
Health Practitioner Regulation National Law (Queensland) 2009 s 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Chandra v Queensland Building and Construction Commission  QCA 4
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate  HCA 46
Medical Board of Australia v Jansz  VCAT 1026
Medical Board of Australia v Martin  QCAT 376
Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1994.
Pharmacy Board of Australia v Arulogun  QCAT 685
Pharmacy Board of Australia v The Registrant  QCAT 477
Pharmacy Board of Australia v Thomas  QCAT 637
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 (Qld) (QCAT Act).
REASONS FOR DECISION
- The practitioner in this disciplinary proceeding admits he:
- (a)commenced, engaged in and maintained a personal and sexual relationship with the patient, whilst he continued to provide medical care to her;
- (b)continued to prescribe the patient medications, including some drugs of dependence, whilst in a personal and sexual relationship;
- (c)kept inadequate clinical records of his prescribing of medications to the patient;
- (d)did not adequately secure his prescriptions stationary which in turn enabled the patient to forge prescriptions for her own use; and
- (e)failed to refer the patient for further psychiatric treatment after he became aware of the likelihood of a personal relationship with the patient.
- The tribunal finds, based on these admissions and the filed material, that there are grounds for taking disciplinary action against the practitioner for professional misconduct.
- The tribunal regards his overall conduct as seriously corrosive. The only course of action to meet the functional purposes of the disciplinary jurisdiction is to ban him from practice. The sole question is for how long and on what terms?
- As well as being proportionate to the gravity of the breach any sanction must be calculated to deter, denounce and rehabilitate. Reduction of the risk of repetition is of central concern.
- A just sanction is not necessarily the harshest or most lenient available option. It will be no more or less than necessary to achieve the overarching objects of discipline. Even in a case where, as here, protective considerations predominate it is wrong in principle to opt for a more severe over a lesser penalty that is justified in the circumstances and is just as likely to meet the legislative ends; that is to say, the lesser effective sanction should be preferred to any more severe ones.
- In the joint submission of the parties the tribunal can be satisfied that a sanction of reprimanding and suspending the practitioner’s registration as a psychiatrist with a guaranteed conditional return to practice after 18 months will adequately meet the key policy goals of the statutory regime.
- The Board acknowledges at  that in many instances a departure from accepted professional standards would result in cancellation of registration but after the mitigating circumstances mentioned at - - including the lack of any prior history of what are euphemistically referred to in this realm as a “boundary violation”, full and frank admissions, demonstrating insight and the enduring relationship of mutual love and affection - submits at  that the agreed proposed sanction is “within the permissible range for the conduct”.
- Parties are, of course, always encouraged to try to reach agreement and avoid using the tribunals finite resources of deciding needless contested applications. However, as observed in Pharmacy Board of Australia v Arulogun, the tribunal has and must exercise an independent discretion and, therefore, “consent orders” are not binding.
- For the reasons set out in its primary submission, the Board submits that this is not the sort of case where nothing short of cancellation will:
a. ensure the safety of the public; and/or
b. provide the level of general, or specific, deterrence that is needed and the applicant considers that suspension, rather than cancellation is the appropriate sanction.
- Unconvinced, the tribunal called for additional submissions from the parties about why a finite suspension instead of indefinite disqualification provides the level of deterrence needed to effectively discourage similar breaches in comparable circumstances in the future and whether cancellation was outside the discretionary range.
- The Board responded as follows:
“5. The imposition of a suspension, with its ancillary conditions upon return to practise, will have a significant personal effect on the respondent. They include:
- the loss of income during the period of his suspension;
- the humiliation of the publication of his misconduct
- a formal reprimand which has, of itself, been observed to be a “serious form of censure and condemnation” and “has the potential for serious adverse implications for the medical practitioner.”
- These personal effects will be well appreciated by the respondent’s peers as a personal risk to them should they engage in similar conduct. As such, they act as a general deterrent as well as a personal deterrent.
- It is submitted that the Tribunal can be satisfied that the proposed 18 month suspension, coupled with ancillary conditions upon the respondent’s return to practise will appropriately ensure the safety of the public and provide the appropriate level of general and specific deterrence.
- The applicant highlights that the respondent has made full and frank admissions as to his misconduct. He has conceded his relationship was unethical and understands that it was a boundary violation. The applicant considers that the respondent has achieved insight into this conduct such that the risk of recidivism is low. These are factors which should be taken into consideration, in the applicant’s submission, in determining whether the purposes of the disciplinary action can be achieved through a sanction which includes a suspension and the imposition of conditions on return to practice.
- For all of the reasons set out in its primary submissions of 27 January 2017, as well as that stated above, the applicant submits that the proposed agreed sanction is appropriate having regard to the individual circumstances of this case – it is a sanction which is appropriate and necessary to meet the protection of the public and therefore meets the legislative purposes, as well as the objectives in s3(3)(c) of the National Law, that ‘restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality’.
- It is the applicant’s respectful submission that the question is not whether cancellation is within (or outside) the relevant disciplinary range, but rather whether the agreed proposed suspension falls outside the permissible range in all of the circumstances...
- The respondent’s continued practice to the date of hearing (without further incident or repeated conduct) is relevant to the extent that it demonstrates, or, at the least, supports the inference, that this was a single, isolated example of misconduct.
- The applicant considers that the Tribunal ought to approach the question as to whether cancellation or suspension is appropriate, by reference to a [sic] the characterisation of the two sanctions in Jansz:
‘…cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor’s future ability to practice once the period of suspension is served’.
- In reaching a view that the suspension is an appropriate sanction in this case, the applicant has given weight to those mitigating factors particularised at paragraphs 28-41 of its submissions dated 27 January 2017. Further, the education required by the proposed conditions, is such that (together with his demonstrated insight) the respondent should be able to safely return to practice, in the applicant’s submission.”
- The practitioner takes the same stance as the Board and substantially adopts its submissions.
- In Medical Board of Australia v Martin the Deputy President noted:
 In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission, Burchett and Kiefel JJ referred to the important public policy involved in a court (or tribunal) not departing from agreed sanctions which are within a permissible range in all the circumstances of the case. That public policy identified was in not jeopardising the beneficial consequences of potentially lengthy and complex litigation being concluded with an acknowledgement of wrong doing and agreement as to an appropriate sanction for the conduct. Their Honours observed that such beneficial consequences could be jeopardised if parties “…were to conclude that proper settlements were clouded by unpredictable risks”.
 Whilst those observations were made in the conduct of a consumer protection litigation, they are, in my opinion, apposite to disciplinary proceedings such as these. It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.’
- Martin has since been consistently applied by the tribunal.
- The parties also point out that the approach is strongly supported by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate in the following passages:
‘…there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers.
 … subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.
 It is also true … the regulator in a civil penalty proceeding is not disinterested… It is, therefore, naturally to be assumed that the Director will fashion penalty submissions with an overall view to achieving that objective and thus perhaps, if not probably, with one eye to considerations beyond the case in hand. That consideration, however, supports, rather than detracts from, the propriety of a court receiving joint (or separate) submissions as to facts and penalty and imposing the proposed penalty if persuaded that it is appropriate…
 In contradistinction to the role of the Crown in criminal proceedings, it is consistent…with the public interest, that the regulator take an active role in attempting to achieve the penalty which the regulator considers to be appropriate and thus that the regulator’s submissions as to the terms and quantum of a civil penalty be treated as a relevant consideration.’
- The tribunal has given anxious consideration to the sufficiency of the proposed sanction. It accepts that while it is permitted to depart from an agreed proposed sanction, it ought to do so cautiously, and only in circumstances where it is satisfied that the proposed sanction, offered in agreement by the parties, is outside of the permissible range.
- With some hesitation the tribunal is persuaded that the jointly proposed sanction adequately (but just) meets the legislative purposes and is otherwise appropriate in all the circumstances. A more onerous sanction is, therefore, not justified and imposing one would be contrary to settled principle.
- Accordingly, the tribunal orders –
- That there be a finding of professional misconduct;
- That the respondent be reprimanded;
- That the respondent’s registration be suspended for a period of 18 months;
- That upon the suspension being lifted, the following conditions be imposed on the respondent’s registration:
- (a)The respondent must undertake, within 6 months of returning to practice (or earlier), a course of education, approved by the Board or AHPRA in advance, that addresses:
(i) The maintenance of professional boundaries; and
(ii) Prescribing and clinical record keeping.
- (b)From the date of his return to practice, the respondent must undertake mentoring on a monthly basis consisting of no less than one hour on each occasion, for a period no less than 12 months.
- (c)The respondent is to nominate a person(s) to be approved by the Board or AHPRA to act as a mentor.
- (d)The respondent will provide written reports from his mentor as follows:
- (i)Within three, six, nine and twelve months from the Respondent’s return to practice, or at such other time or times as negotiated with an AHPRA representative or the Board;
- (ii)Whenever the mentor holds a concern about the respondent’s practise; and
- (iii)On receipt of a request, whether written or oral from the Board or AHPRA.
- (e)The respondent will provide a written authority to the mentor to report to the Board and AHPRA.
- (f)An AHPRA representative for the Board will contact and exchange information with the respondent’s mentor, at such time or times as the Board or its representative shall determine, for the purpose of monitoring the respondent’s conduct and performance and compliance with these conditions.
- (g)In the event an approved mentor is no longer willing or able to provide the mentoring required the respondent is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the respondent within 21 days of becoming aware of the termination of the mentoring relationship.
- (h)All costs and expenses in relation to compliance with these conditions are to be at the respondent’s expense.
- (i)The respondent will provide to the Board or its representative any documentary evidence required by these conditions, within the time frames specified.
- The review period for condition 4 (a) is 6 months from the respondent’s return to practise;
- The review period for all other conditions is 12 months from the date of the respondent’s return to practise.
- Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.
- The respondent is to pay the applicant’s costs of and incidental to these proceedings as agreed or assessed on the standard basis for matters in the District Court.
 Chandra v Queensland Building and Construction Commission  QCA 4.
 Pharmacy Board of Australia v Thomas  QCAT 637 at .
  QCAT 685.
 Medical Board of Australia v Jansz  VCAT 1026 at 373.
 Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1994.
 Pharmacy Board of Australia v The Registrant  QCAT 477 per Judge Horneman-Wren SC at 
 Medical Board of Australia v Jansz  VCAT 1026 at 427.
  QCAT 376 at -.
- Published Case Name:
Medical Board of Australia v XT
- Shortened Case Name:
Medical Board of Australia v XT
 QCAT 274
Carmody J, Glenda Powell, Margaret Turner, Michael Halliday
02 Aug 2017