Medical Board of Australia v Duggirala
[2015] QCAT 557
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- Unreported Judgment
- Medical Board of Australia v Duggirala[2015] QCAT 557
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Medical Board of Australia v Duggirala[2015] QCAT 557
Medical Board of Australia v Duggirala[2015] QCAT 557
CITATION: | Medical Board of Australia v Duggirala [2015] QCAT 557 |
PARTIES: | MEDICAL BOARD OF AUSTRALIA v SUDHEER BABU DUGGIRALA |
APPLICATION NUMBER: | OCR77-14 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | 12 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Horneman-Wren SC, DCJ Deputy President Assisted By: Mr M Green Dr D Evans Dr H Moudgil |
DELIVERED ON: | 12 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DOCTORS – UNPROFESSIONAL CONDUCT- GROUNDS FOR FURTHER SANCTION ON MEDICAL REGISTRATION – where a medical professional breaches already enforced chaperone conditions – where there is agreement that the Medical Board of Queensland impose a further sanction – where the Applicant submitted that the preferred course was the granting of registration subject to supervision and sanction – Where consideration was given to public policy reasons for resolution – where the Tribunal ordered the Respondent to pay the Board’s costs of and incidental to the application proceedings – whether the decision to impose a sanction in respect of treatment to females was the correct and preferable decision |
- [1]On the 11 April 2014, the Medical Board of Queensland referred disciplinary proceedings to the tribunal against Dr Duggirala. The referral related to the examination by Dr Duggirala of a pregnant female patient at the practice where he then worked on 15 August 2013. On 10 October 2013, the Board acting through the Queensland Medical Interim Notifications Group had taken immediate action in respect of Dr Duggirala pursuant to section 156 of the Health Practitioner Regulation National Law. The immediate action taken was the suspension of Dr Duggirala’s registration. That suspension has been in effect since that date and remains so.
- [2]The patient had presented to Dr Duggirala at the practice on 14 August 2013 with a genital condition. Dr Duggirala performed an examination of the patient on that occasion. Importantly, on that occasion, he performed the examination in the presence of a chaperone, the significance of which was that conducting the examination in that manner was consistent with conditions which were then imposed upon Dr Duggirala’s registration.
- [3]The patient returned to the practice on 15 August 2013. A swab had been taken on 14 August 2013, the results of which the patient was awaiting. When she re-presented on 15 August 2013, she had a rash on her upper body and had suffered an exacerbation of her symptoms from the previous day when she had previously consulted with Dr Duggirala. When she presented on 15 August, she had a severe rash that was present over her body, and she was seeking treatment for the rash. Dr Duggirala performed an examination of the patient on that occasion but in the absence of a chaperone. The examination included an examination of the upper body of the patient, including her breasts, and of her genitals.
- [4]Dr Duggirala concedes that that examination was in breach of the chaperone conditions which were then imposed upon his registration. Dr Duggirala also concedes that the examination was conducted in the following way as particularised in the amended referral:
- During the course of the Treating Relationship the Health Practitioner examined the Patient by moving his bare hands over her belly and then up near her bra.
- The Patient asked the Health Practitioner whether she needed to remove her bra and the Health Practitioner replied that she did not.
- The Health Practitioner then moved his hands around the Patient’s neck and then put his hands under her top and down her bra.
- The Health Practitioner then looked down her top.
- The Health Practitioner then moved his hands and lifted her bra and touched her breasts with his hands.
- The Health Practitioner asked the Patient to pull her panties down.
- The Patient pulled her panties down to between her upper thigh and her knees. Her skirt remained in place.
- The Health Practitioner then put on some gloves.
- The Health Practitioner lifted the Patient’s skirt and began to feel around the Patient’s genitals. He palpated the mons pubis.
- These acts caused the Patient pain.
- The Health Practitioner then removed his gloves and placed them in a bin and used hand sanitiser on his hands.
- The Health Practitioner again asked if the Patient was itchy and sore, to which she replied that she was.
- [5]Dr Duggirala now concedes that the conduct of the examination in that manner and in the circumstances where it was in contravention of the conditions requiring a chaperone constitutes professional misconduct within the meaning of section 5 of the National Law. Section 5 of the National Law relevantly defines “professional misconduct” to include:
…unprofessional conduct by a practitioner 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. The concession by Dr Duggirala that his conduct constituted professional misconduct is well made. It is conduct which fell substantially below the standard to be expected.
- [6]The ability to practice a health profession is a privilege which is conferred upon persons qualified to do so but who also exhibit the requisite professional and personal standards which are necessarily demanded of persons who are afforded the privilege of conducting medical practice. Ultimately, it is the protection of the public as well as the reputation of the profession which is to be achieved through regulation of health practices or health practitioners. One means by which that protection of the public is achieved is through the capacity of a national board, in this case, the Medical Board of Australia, to confer upon a practitioner the privilege of practice subject to conditions. It is a very serious matter indeed when a person who is privileged to practice subject to conditions chooses to breach those conditions, no matter what the circumstances of the breach might be.
- [7]A medical practitioner who breaches conditions imposed, particularly conditions which are so evidently imposed to protect the public, must expect that sanctions will be imposed which severely affect the person’s capacity to practice in the profession. Here, Dr Duggirala has been suspended from practice for almost now 18 months. The parties have jointly proposed further sanction to be imposed upon Dr Duggirala which would involve a further actual period of suspension of five months. That is, Dr Duggirala would be suspended from actual practice for a period of approximately 23 months in total.
- [8]For reasons which I have developed in other cases, there are strong public-policy reasons why the tribunal ought not to depart from sanctions agreed between parties to disciplinary proceedings, provided that those sanctions jointly proposed are within appropriate limits for the conduct concerned. The public-policy reasons are, effectively, that parties are to be encouraged to try to resolve such matters. There are a number of benefits which flow from such resolution, including, as in the case here, that persons who would otherwise have to give evidence and be cross-examined, such as the complainant patient, are spared that experience. In my view, the further suspension of Dr Duggirala, together with further sanctions which I will shortly outline, do fall within appropriate limits in respect of this conduct.
- [9]The further sanctions jointly proposed by the party are that, upon resuming practice after the further period of suspension, Dr Duggirala’s registration would be burdened with the condition that he not treat any female patient for a period of 12 months. A further condition would be imposed that, at the expiration of that 12-month period, the chaperoning conditions which had previously been imposed upon Dr Duggirala’s registration would continue and would not be reviewed for a period of at least 2 years.
- [10]Those orders will be made.
- [11]It is also agreed between the parties that Dr Duggirala is to pay the Board’s costs of and incidental to the application to be assessed on the standard basis.
- [12]Upon review of the chaperoning conditions at the expiration of those further periods, if the chaperoning conditions are ultimately removed, it will then be a matter for Dr Duggirala as to whether or not he chooses to treat female patients in the absence of a chaperone. However, the circumstances of this case would suggest that Dr Duggirala should consider closely whether or not he would continue to treat female patients only in the presence of a chaperone, in any event, whether required to do so by conditions upon his registration or otherwise. This case highlights that there may be circumstances where intimate examinations conducted in a way which may be interpreted differently by patients to that of the medical practitioner. In the presence of a chaperone, the potential for such misinterpretation and misunderstanding may not be eliminated, but it is certainly diminished. Of course, if Dr Duggirala were to again conduct himself in a manner which was in breach or further breach of the conditions which are imposed upon his registration, that would be a very serious matter which must necessarily put in peril, one would think, his continued capacity to practice in the profession.