Medical Board of Australia v Maharajh
[2015] QCAT 504
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- Unreported Judgment
- Medical Board of Australia v Maharajh[2015] QCAT 504
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Medical Board of Australia v Maharajh[2015] QCAT 504
Medical Board of Australia v Maharajh[2015] QCAT 504
CITATION: | Medical Board of Australia v Maharajh [2015] QCAT 504 |
PARTIES: | Medical Board of Australia (Applicant) |
| v |
| Manilall Maharajh (Respondent) |
APPLICATION NUMBER: | OCR143-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 3 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
DELIVERED ON: | 3 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where registrant a former psychiatrist in New Zealand – where registrant made false declaration on employment application whilst being investigated in New Zealand – whether decision or findings of another jurisdiction may be adopted – where registrant found guilty of professional misconduct in New Zealand – where professional misconduct by registrant – whether the registrant be disqualified from applying for registration for a period – where registrant was disqualified for applying for registration for a period Health Practitioner Regulation National Law (Queensland) s 3, s 3A, s 5, s 138(2), s 193, s 196(4)(a), s 256 Health Practitioners Disciplinary Proceedings Act 1999 (Qld), s 398Z Health Ombudsman Act 2013 (Qld), s 4(1)(2)(c), s 314 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b)(c), s 66 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr A Forbes of Lander and Rogers Lawyers |
RESPONDENT: | Manilall Maharajh (self represented) |
REASONS FOR DECISION
- [1]On 1 July 2014, the Medical Board of Australia (Board) referred, to the Queensland Civil and Administrative Tribunal, disciplinary proceedings against Mr Manilall Maharajh, pursuant to section 193 of the Health Practitioner Regulation National Law (Queensland) which I shall refer to as the National Law. The grounds for the disciplinary action concerned, first, findings, which had been made by the New Zealand Health Practitioners Disciplinary Tribunal, on 20 September 2013, and a consequent cancellation of Mr Maharajh’s registration as a medical practitioner in that country on 12 November 2013, with effect from 16 November 2013. Secondly, the grounds concerned a false declaration, made by Mr Maharajh, in an application for delineation of scope of clinical practice, which he made to the Metro North Health Service District, in Queensland, on 3 February 2011.
The False Declaration
- [2]Dealing first with the false declaration; the allegation is that on that date, then Dr Maharajh (as he then was) completed an application in which he had answered as true the following questions:
My right to practice and/or scope of clinical practice: is not under investigation; and/or
has never been denied, restricted, suspended, terminated, or otherwise modified, in or by any other health care organisation, including overseas organisations, health facilities, learned colleges, or other official bodies; and
I am not, and have never been, the subject of investigation by the Health Rights Commission, Health Quality Complaints Commission, or other similar bodies, interstate or overseas.
- [3]Dr Maharajh also declared in that application that the statements contained in the application were correct.
- [4]At the time of answering those questions, and making that declaration, Dr Maharajh had been given notice, by letter dated 28 September 2010, that he was under investigation by the Health and Disability Commissioner in New Zealand, with respect to a complaint by a former patient. He had also, by that time, provided a submission, dated 28 October 2010, to the Commissioner in New Zealand, with respect to the complaint made by the former patient about him.
- [5]The complaint by the former patient is the matter, which formed the basis for the proceedings in the New Zealand Health Practitioners Disciplinary Tribunal, is the matter to which ground 1 in these proceedings relates. Dr Maharajh admits that the declaration in the application was false.
- [6]In relation to the first ground, concerning the proceedings in the New Zealand Health Practitioners Disciplinary Tribunal, the tribunal found that Mr Maharajh was guilty of professional misconduct. That ultimate finding was based upon the tribunal having been satisfied of the charges laid against Mr Maharajh:
- that while caring for a patient between 18 April 2008 and 18 August 2008 he had failed to set and/or maintain professional boundaries, allowing a relationship of friendship and/or; dependency to develop between him and the former patient; and/or
- that he had entered into a sexual relationship with the former patient; and
- that he had discharged the former patient by telephone, on 18 August 2008, that being an inadequate discharge, given the former patient’s personality, characteristics and vulnerabilities; and
- that after terminating the therapeutic relationship with the former patient by transferring her care to another doctor, on 18 August 2008, he failed to set and/or maintain appropriate professional boundaries with the former patient, and engaged in a sexual relationship with her; and
- that between 14 February 2009 and 4 October 2010 he made a payment of $900, on or about 14 or 15 February 2009, to the patient;
- that when the former patient approached him with a request that he pay her compensation for injury to her feelings and loss she had suffered as a result of his actions he failed to seek guidance or support from an appropriate peer and/or professional body in relation to her request; and
- that after a complaint that had been made to the Health and Disability Commissioner, about his relationship with the former patient, he made payments to the former patient of $5,000 on or about 1 April 2009, and $15,000 on or about 4 May 2010; and
- that while subject to a complaint by the former patient, to the Health and Disability Commissioner, and, after having been advised by the Medical Council that it was unwise to provide moral support and material assistance to a person whom he had been treating, he made payments to the former patient of $4,985 on 15 February 2010, and $9,985 on 16 February 2010; and
- that he encouraged the former patient to mislead the Health and Disability Commissioner about the nature of the relationship with the former patient; and
- that he sent an email to the former patient’s father on 4 October 2010 for the purposes of arranging a discussion about the former patient, without her consent.
- [7]It had been alleged in the New Zealand proceedings that the conduct alleged in those particulars, separately or cumulatively, amounted to professional misconduct. The matter before the New Zealand Health Practitioners Disciplinary Tribunal proceeded by way of a contested hearing, throughout which Mr Maharajh was represented by Queen’s counsel. Both he and the former patient gave evidence. In the event the tribunal was satisfied of those matters which formed the charge as I have set out above.
- [8]The patient concerned was a young woman in her early to mid-twenties. Dr Maharajh, at the time, was in about his mid-fifties. The patient saw Dr Maharajh in his professional capacity as a psychiatrist. She was, on all the evidence, clearly vulnerable from the outset of the treating relationship.
- [9]The New Zealand tribunal found that a sexual relationship commenced between Mr Maharajh and the patient on 15 June 2008, at which time she was a patient of his, and she remained a patient of his until her inappropriate discharge on 18 August 2008. After the commencement of the sexual relationship in mid-June 2008 there had been subsequent regular interactions between the patient and Dr Maharajh until early July 2008 when he had travelled to South Africa for a month. When he subsequently returned he and the patient had travelled together to Tasmania in September 2008. Dr Maharajh, himself, moved to Tasmania at or about that time, and the patient subsequently moved to Tasmania in November 2008, and, for a period, moved into the home of Dr Maharajh and his wife, and sexual activity resumed between Dr Maharajh and the then former patient during that time.
- [10]In its findings the tribunal referred to the following aggravating factors. It found that the patient was very vulnerable. She had a history of anxiety, depression, and suicidal ideation, low self-esteem, and relationship problems, and she had sought psychiatric care from Dr Maharajh to assist with those issues. He abused his position of trust as her psychiatrist for his own sexual gratification. This included using knowledge of her particular vulnerabilities to exploit her, for example, her anxiety about relationships with men.
- [11]The tribunal found that he had taken improper advantage of his position of power and authority, in order to procure her denial of her general practitioner’s complaint, and, later, the withdrawal of a complaint she made to the Health and Disability Commissioner. The earlier complaint of the GP refers to the fact that the GP had made a notification, there having been disclosure by the patient to that GP of a relationship with her psychiatrist.
- [12]The tribunal also found that he had made payments to protect his own interests, in what was an attempt to interfere with the Commissioner’s investigation, and to keep his relationship with the patient a secret. The tribunal found that this occurred even after the Medical Council had written to him, stating that it was unwise to provide moral support and material assistance to a former patient.
- [13]The tribunal considered the duration of the relationship, which was over eight months, during which Dr Maharajh had fostered an emotional relationship of dependency, as well as a sexual relationship, which was detrimental to the patient. It also considered the nature of the sexual relationship, which was the first such relationship for the patient, was one whereby Dr Maharajh had exploited the power imbalance which existed, and had taken advantage of her lack of sexual experience to engage in sexual activity that she found upsetting, and later regretted having consented to.
- [14]The tribunal took into account that he had failed to hand over care of the patient before any relationship developed, and at a time when he should have realised that there was a risk of the relationship becoming inappropriate.
- [15]It also considered Dr Maharajh having communicated with the patient’s father, stating that he needed him, ‘to know some details that may be detrimental to all of us’, which it considered entirely inappropriate for someone in his professional position.
- [16]The tribunal did take into account, as mitigating factors, that there was no evidence of previous complaints or prior professional issues, and that there were many positive references and testimonials, from persons who spoke favourably of Dr Maharajh’s practice.
- [17]The tribunal concluded that the cancellation of his registration was the only responsible penalty which could be imposed.
- [18]Dr Maharajh became registered in Australia in 2008 it would seem shortly prior to commencing practice in Tasmania, to which I have already referred. After the findings were made by the New Zealand tribunal, or after the cancellation of his registration took effect, the Medical Board of Australia took immediate action, pursuant to section 156 of the National Law, in the form of suspending Dr Maharajh’s registration. That registration has subsequently lapsed, I am told at the end of 2013, such that Dr Maharajh is no longer a registered medical practitioner in Australia.
- [19]Notwithstanding that his registration lapsed, and was not renewed after 2013, section 138(2) of the National Law provides that:
A notification may be made, and proceedings may be taken under part 8 of the National Law, in relation to a person’s behaviour while that person was registered, if the person was still registered under the law by the national board, established for the health profession, in circumstances where the person is no longer registered.
Section 138(3) provides that:
For the purposes of subsection 2 part 8 of the Act applies, with any necessary changes to the person, as if a reference to a registered health practitioner included that person.
- [20]That means that the action which might be taken by the tribunal, pursuant to section 196, is able to be taken with appropriate modification.
- [21]For the purposes of these proceedings, Dr Maharajh has signed an agreed statement of facts, in which he has admitted the findings made by the New Zealand tribunal, and that the conduct to which those proceedings related amounted to a breach of the World Medical Association International Code of Medical Ethics, the Australian Medical Association Code of Ethics 2004, and the Medical Board of Australia, A Good Medical Practice: A Code of Conduct for Doctors in Australia. He also admits that his conduct amounts to professional misconduct, as defined by section 5 of the National Law.
- [22]In the course of the proceeding today I have asked Dr Maharajh whether he was content for the tribunal to proceed on the basis of all the facts, as found by the New Zealand tribunal. He has indicated that he is content for the tribunal to proceed on that basis. That is a concession which goes to his credit. Section 398Z of the now repealed Health Practitioners Disciplinary Proceedings Act 1999 specifically provided that in a case such as this the tribunal could adopt, as it considered appropriate, decisions, findings, judgments, or reasons for judgment of a disciplinary body, court, tribunal, or other entity that may be relevant to the hearing. The operation of section 398Z is preserved in respect of matters commenced in the tribunal before the Health Ombudsman Act 2013 commenced.
- [23]That preservation is effected by section 314 of the Health Ombudsman Act 2013. However, that does not apply to these proceedings, as they were commenced on 1 July 2014, the day of commencement of the Health Ombudsman Act 2013. It may well be that the tribunal’s powers, under section 28 of the Queensland Civil and Administrative Tribunal Act 2009, particularly subsections 28(3)(b) and (c), the latter of which permits the tribunal to inform itself in any way it considers appropriate, would permit the tribunal to act upon the findings of a tribunal such as the New Zealand tribunal, in a matter such as this, in any event. However, that issue need not be finally determined in these proceedings, given Mr Maharajh’s concession that he is content for the proceedings to be conducted in that way.
- [24]Given that Dr Maharajh concedes that his conduct constitutes professional misconduct, a concession which in the tribunal’s view is properly made, the tribunal must consider what action it would take, pursuant to section 196 of the National Law. Section 196(4) provides that if the person the subject to the proceedings does not hold registration under the law the tribunal may decide to disqualify the person from applying for registration as a registered health practitioner, for a specified period. In essence, that is what this proceeding has come down to.
- [25]The Board seeks that the registrant be disqualified from applying for registration as a registered health practitioner, for a period of five years from the date of the cancellation of his New Zealand registration: 16 November 2013. Dr Maharajh, in his submissions, has submitted that the tribunal consider a period of three years or less, inclusive of the period of suspension and deregistration, or, alternatively, that he be permitted to practice, subject to appropriate conditions, in areas of need. He makes the latter submission on the basis that he understands that the role of such proceedings is not only punitive, but also rehabilitative, and that such an order would be in the interests of the greater community, given the lack of psychiatric specialist services in areas of need.
- [26]Section 3(2)(a) of the National Law provides that the objectives of the national registration and accreditation scheme for the regulation of health practitioners, which scheme it is the object of the National Law to establish, is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
- [27]The protection of the public is advanced by sanctions being imposed, which not only act to remove, in appropriate circumstances, a former registrant from the practice of the profession for a period or absolutely, but by providing specific deterrence to that registrant from engaging in such conduct again in the future, and, more generally, to deter other members of the profession from conducting themselves in a like manner.
- [28]Insofar as Mr Maharajh seeks, effectively, an order that he be permitted to practice in a limited way, that is not relief, which is able to be granted in these proceedings, pursuant to section 196. In my view, in any event, even if it were available it would not be appropriate in these circumstances.
- [29]In my view, it is appropriate that an order pursuant to section 196(4) disqualifying Mr Maharajh for applying for registration for a period be made.
- [30]In submitting that an appropriate period of disqualification is five years the Medical Board has referred to a number of previous decisions of this tribunal, and of the Queensland Health Practitioners Tribunal in respect of one matter.
- [31]In the matter of the Medical Board of Australia v Love (2013) QCAT 608 the tribunal disqualified Dr Love from applying for registration for a period of six years. The tribunal found that Dr Love had conducted himself in a way which it described as being ‘exploitative in the extreme’ of, a patient, who he well knew to have been highly vulnerable.
- [32]It was a conduct of the most reprehensible kind. It was conducted over a considerable period of time, being five years, throughout which time the patient remained highly vulnerable, and a patient of Dr Love. It included Dr Love collecting the patient from the New Farm clinic, where she was undergoing treatment, in a condition where she had obviously self-harmed, taking her to a location where he had sexual intercourse with her, and returning her to the clinic.
- [33]The tribunal describe Dr Love as having ‘shamelessly exploited this vulnerable patient, and his conduct was reprehensible in the extreme’. Dr Love showed absolutely no insight or remorse. He did not participate in the proceedings. It is to be noted, however, that the period of disqualification which was imposed, of six years, was, in fact, three times that which had been sought by the Board in the proceedings; the Board having only sought a period of disqualification of two years.
- [34]In the Medical Board of Queensland v Alroe (2005) QHPT 4 the Queensland Health Practitioners Tribunal ordered the cancellation of the practitioner’s registration and prohibited him from being registered for a period of four years. There, the doctor had engaged in sexual intercourse with a former patient on four occasions, between January 1999 and April 2000. The tribunal had described Dr Alroe’s conduct as being a very serious example of exploitation of the significant power imbalance that existed between the therapist and a patient in a position of particular vulnerability. Dr Alroe was also a psychiatrist.
- [35]In more recent times there have been a number of cases in which the tribunal has considered sexual misconduct by practitioners, and has conducted an analysis of the sanction imposed in earlier cases. In the Medical Board of Australia v Blomeley (2014) QCAT 160 the Honourable Mr J B Thomas AM, sitting as a supplementary judicial member of the tribunal, having reviewed a number of cases, observed that these cases show a range of suspensions between three months and two years, with the suspensions themselves being suspended after various periods, along with operational periods of the most part between two years and five years. He observed that in that matter the Board had sought a suspension of two years, to be suspended after 18 months, with an operational period of a further two years.
- [36]For reasons which had been developed in Psychology Board of Australia v Cook [2014] QCAT 162 and Pharmacy Board of Australia v Tavakol [2014] QCAT 112 the judicial member found that the suspension of a suspension was not available under the National Law. However, the range which was observed is material to the considerations in the present case. In the event, Dr Blomeley was suspended for a period for 15 months. In Dr Blomeley’s case, he had engaged in a sexual relationship with a female patient, between November 2010 and July 2012. When, in July 2012, the patient complained to the Board, Dr Blomeley promptly admitted the relationship, acknowledged its inappropriateness, and confessed his shame, and offered an apology to the patient.
- [37]The Medical Board of Australia v Yasin (2011) QCAT 300 also involved an inappropriate sexual relationship between a psychiatrist and a female patient, whom the psychiatrist had been treating for bipolar effective disorder. The sexual relationship between them was not of long duration, and involved sexual intercourse on only one occasion. Dr Yasin was suspended for a period of two years, again with the suspension suspended after 12 months.
- [38]These cases, in particular the analysis performed by the Honourable Mr Thomas in Blomeley, identify that the outcome concerning sanction, as one would expect in cases such as this, varies considerably, depending upon the particular circumstances found.
- [39]I have already referred to the aggravating and mitigating factors, as were found by the New Zealand tribunal. In his submissions to this tribunal Mr Maharajh has referred to the humiliation which he has suffered as a consequence of these matters, and to the effect which it has had on not only his life, but that of his wife, and children. Those matters are, no doubt, correct.
- [40]However, they say little of the effect which these events have had upon the former patient. Mr Maharajh has made the admissions which he has, but in his written submissions described them having been made for ‘deeply personal and pragmatic reasons’. This, no doubt, is a reference to the ongoing difficulties that these matters cause for himself and his family. It is only in the course of the hearing today that he has indicated that he accepts the findings as made by the New Zealand tribunal as being the basis upon which he was content for the tribunal to deal with this matter.
- [41]In the tribunal’s view these matters do not demonstrate great insight on the part of Dr Maharajh, although, it must be accepted that he does express remorse for his conduct.
- [42]In a report from his treating psychologist, dated 15 January 2015, the psychologist refers to having had a detailed discussion of the events relating to Dr Maharajh’s misconduct with him. The psychologist states that:
Dr Maharajh demonstrated understanding of the harm caused to the complainant, and expressed what appeared to be a genuine sense of remorse for his conduct.
- [43]He said that Mr Maharajh provided a detailed account of his behaviour, in regard to the complainant, where he accepted responsibility for breaching professional boundaries.
- [44]He said, however, that Mr Maharajh expressed confusion as to how he could have allowed this to happen, given his considerable level of experience in the psychiatric field. He said that over the course of his contact with him, Mr Maharajh demonstrated an increasing degree of insight into how his judgment had become affected by complacency, his reluctance to take assertive action that might cause offence, and an underlying attraction towards the complainant, which he had not been able to acknowledge at the time.
- [45]The psychologist went on, however, to note that:
A significant gap remained between the extent of the behaviour reported by Mr Maharajh and that found to have occurred by the tribunal.
- [46]When questioned about that in the course of the hearing Mr Maharajh told the tribunal that there were certain matters which he just couldn’t admit to. In light of the psychologist’s findings one is left with some residual concern as to the level of insight which Mr Maharajh has respecting these matters.
- [47]To his credit, however, is the fact that he has participated cooperatively in these proceedings, since the time at which the Board brought them. He has, in admitting the conduct and accepting the findings of fact made by the New Zealand tribunal, removed the need for there to be a contested hearing, and, particularly, for the former patient to, again, to give evidence.
- [48]It must be observed, however, that that is in stark contrast to how the matter proceeded before the New Zealand tribunal, with a full hearing, and cross-examination of the former patient. There were, in those proceedings, not only a denial of any of the conduct on the part of Mr Maharajh, but allegations concerning the fabrication of evidence by the former patient, in the nature of a video said to have been of her engaging in sex with Mr Maharajh, which it was said involved another, with the suggestion that that had been for the purposes of supporting her complaint against him.
- [49]In the tribunal’s view, it is appropriate that a period of disqualification, pursuant to section 196(4)(a) of the National Law, of three and a-half years be imposed on Mr Maharajh.
- [50]There is agreement between the parties that Mr Maharajh pay the Board’s costs of the proceedings, in the agreed amount of $20,000 on or before 1 January 2019.
- [51]The formal orders will be that:
- The former registrant has engaged in professional misconduct;
- The former registrant is disqualified from applying for registration as a registered health practitioner for the period of three years and six months, from 16 November 2013;
- The former registrant is to pay the Board’s costs of and incidental to the proceedings, in the sum of $20,000 on or before 1 January 2019;
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 I order that:
- a.The contents of any document or other thing produced to the tribunal, or any evidence given before the tribunal is prohibited, insofar as it might identify any family member of Mr Maharajh, the former patient, the subject of the proceedings, or any family member of the former patient; or
- b.The Medical Board of Australia file, a redacted copy of documents 14, 15 16, and 17 of the agreed bundle, which removes any references to the persons referred to in the earlier order.
- a.