Chinese Medicine Board of Australia v Garvin
[2015] QCAT 244
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- Unreported Judgment
- Chinese Medicine Board of Australia v Garvin[2015] QCAT 244
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Chinese Medicine Board of Australia v Garvin[2015] QCAT 244
Chinese Medicine Board of Australia v Garvin[2015] QCAT 244
CITATION: | Chinese Medicine Board of Australia v Garvin [2015] QCAT 244 |
PARTIES: | Chinese Medicine Board of Australia (Applicant/Appellant) |
v | |
Graeme Lindsay Garvin (Respondent) |
APPLICATION NUMBER: | OCR087-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Horneman-Wren SC, Deputy President Assisted by: Dr Louis Cali Dr Samuel Zheng Ms Alison Christou |
DELIVERED ON: | 23 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – CONVICTION OF OFFENCE – where registrant indecently and unlawfully assaulted a patient during a message massage – where registrant convicted – where registrant showed remorse and insight into their offending conduct – where registrant voluntarily removed self from practice – whether registrant’s registration should be cancelled – where circumstances warrant cancellation – where registrant reprimanded Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Practitioner Regulation National Law Act 2009 (Qld) s 130, s 183, s 193, s 196(3). Chiropractic Board of Australia v Brubaker [2015] QCAT 30. Medical Board of Australia v Leggett (No 3) [2015] QCAT Medical Board of Australia v Putha [2014] QCAT 159. Psychology Board of Australia v GA [2014] QCAT 409. |
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
- [1]Graeme Lindsay Garvin was formerly registered as a Chinese Medicine Practitioner under the Health Practitioner Regulation (National Law). His registration lapsed on 30 November 2013 and has not been renewed. Indeed, Mr Garvin ceased practice in November 2012 and has stated that he does not wish to continue as a health practitioner, and would agree to the permanent cessation of his practice.
- [2]Notwithstanding the lapse of Mr Garvin’s registration in November 2013, the Board is able to bring these proceedings as if he were still registered.[1]
- [3]The Chinese Medicine Board of Australia referred disciplinary proceedings to the Tribunal pursuant to s 193 of the National Law alleging that Mr Garvin has engaged in conduct which amounts to professional misconduct. That misconduct is said to be constituted by Mr Garvin having indecently and unlawfully assaulted a female patient, on 30 November 2012, by holding her breasts without her consent. Mr Garvin was convicted of that offence, on his own guilty plea, in the Brisbane Magistrates Court on 7 June 2013. He was sentenced to 6 months imprisonment to be served as an intensive correction order in the community and not in a prison.
- [4]The second ground of misconduct is that Mr Garvin failed to notify the Board of his conviction within 7 days as required by s 130(1) of the National Law.
- [5]Mr Garvin admits the conduct and admits that it is professional misconduct. The admissions are well made. His conduct is certainly professional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. I would not, however, in the absence of full argument, find, as the Board alleges, that the conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [6]The conduct, as the Board fairly concedes, was opportunistic and not predatory. The female patient had removed her top and bra, in the absence of Mr Garvin. She lay face down on the massage table. He massaged her back, shoulders, arms and neck. When massaging her neck, the patient arched her back and Mr Garvin slipped his hands down and cupped both her breasts. He then massaged her breasts for about 1 minute before removing his hands and completing the massage.
- [7]The Board submits that Mr Garvin’s conduct was a criminal act, for which he has been convicted and punished, and a gross breach of his duty as a health practitioner. All of that is correct. However, the Board’s submission that “the only appropriate orders in such a case are a formal reprimand and cancellation of registration” is plainly wrong. Indeed, it is inconsistent with the Board’s own further submissions in which they advance three comparative cases. In two of those cases a three month suspension was imposed. In the third, chaperoning conditions were imposed.
- [8]In my view, were Mr Garvin currently registered, it is far from inevitable that his registration would have been cancelled. To do so would be inconsistent with the comparable cases advanced by the Board. There are a number of matters which would mitigate against that outcome. He admitted his conduct to police at the earliest time. He pleaded guilty. He acknowledged the inappropriateness of his conduct. He voluntarily removed himself from practice. All of those matters bespeak remorse for, and insight into, his misconduct.
- [9]The purpose of disciplinary proceedings and disciplinary sanctions is not to punish, or to further punish, a practitioner. The purpose is protective. Orders imposed should be those which the Tribunal considers necessary to protect the public and the reputation of the profession such that the public may maintain its confidence in the health professions. Personal deterrence will often play a role. If it is considered that a practitioner may in the future engage in similar misconduct, orders which deter him or her from doing so will be appropriate. In some cases, cancellation of registration will be appropriate to achieve those protective purposes. The extent to which the health practitioner had remorse for, and insight into, his or her past conduct will often be important considerations. Where considerable remorse and insight had been demonstrated those matters will be relevant to any consideration of whether the person, at the time that consideration is being given, is a fit and proper person to hold registration in the profession. Of course, it will not be determinative of that consideration.
- [10]There having been no full argument about these matters, it is inappropriate to express any concluded view upon them in this case.
- [11]Under s 196(4) of the National Law, if the person does not hold registration, the Tribunal may disqualify the person from applying for registration as a registered health practitioner for a specified period. The Board submits that an appropriate order in respect of the indecent assault ground is that Mr Garvin be reprimanded and disqualified for a period of 3 months from the date of the order. The Board made those submissions in August 2014. The Tribunal has been unable to deal with this matter until now. In my view, without in any way diminishing the seriousness of Mr Garvin’s conduct, given the passage of time since the Board made those submissions, and the substantial passage of time since Mr Garvin voluntarily ceased practice, it is not necessary to protect the public or to uphold the reputation of the Chinese Medicine profession, or the public’s faith in that profession, for a further preclusion period to be imposed.
- [12]In other cases the Tribunal has recognised that, in an appropriate case, a period during which a practitioner has voluntarily removed himself or herself from practice might be recognised and taken into account as equivalent to a de facto suspension. I consider this to be such an appropriate case.[2]
- [13]If Mr Garvin decides in the future to apply for registration, it will be for him to demonstrate to the Board’s satisfaction that he is then a fit and proper person to hold registration.[3] It will be for the Board to determine if he is suitable to again be registered and, if so, whether his registration should be subject to conditions.
- [14]It is appropriate that Mr Garvin be reprimanded. No other form of disciplinary sanction is being taken against him.[4]
- [15]Mr Garvin is reprimanded.
- [16]The board seeks its costs. Mr Garvin opposes that. He points to his impecuniosity. No doubt that is a result of his having lost his profession through these events. However, the Board brings proceedings such as these for the protection of the public. Importantly, it is wholly funded by the registration fees of the profession. It should have its costs of the proceedings as assessed on the standard basis for matters in the District Court.
Footnotes
[1] National Law s 138.
[2] Psychology Board of Australia v GA [2014] QCAT 409 at [39]-[40]; Medical Board of Australia v Leggett (No 3) [2015] QCAT.
[3] National Law s 55(1)(h)(i).
[4] Compare Medical Board of Australia v Putha [2014] QCAT 159 at [37]; Chiropractic Board of Australia v Brubaker [2015] QCAT 30 at [42].