Medical Board of Australia v Kelly
[2016] QCAT 35
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- Unreported Judgment
- Medical Board of Australia v Kelly[2016] QCAT 35
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Medical Board of Australia v Kelly[2016] QCAT 35
Medical Board of Australia v Kelly[2016] QCAT 35
CITATION: | Medical Board of Australia v Kelly [2016] QCAT 35 |
PARTIES: | Medical Board of Australia v Dr Mark Dennis Kelly (respondent) |
APPLICATION NUMBER: | OCR125-15 |
MATTER TYPE: | Occupational Regulation Matter |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne C Sheridan DCJ assisted by: Dr E Chew Dr B Kable Mr R Dance |
DELIVERED ON: | 9 February 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – issuing a medical certificate where the practitioner was not in a professional or treating relationship with the patient. HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – issuing a prescription to a patient where the practitioner was not in a professional or treating relationship with the patient and in circumstances where no records were kept of any clinical findings for the issuing of the prescription. HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant admitted conduct – where the parties agreed on the appropriate sanction – whether the Tribunal should impose the agreed sanction. Health Practitioner Regulation National Law Act 2009 (Queensland), ss 193, 196, 225, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 32, 66 Medical Board of Australia v Martin [2013] QCAT 376. |
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 (QCAT Act).
REASONS FOR DECISION
- [1]The Medical Board of Australia (the Board) referred a disciplinary proceeding to the Tribunal on 31 July 2015 against the practitioner, Dr Kelly.
- [2]The referral was made under the Health Practitioner Regulation National Law (Queensland) (National Law). Pursuant to the National Law, the Board must refer a matter to the Tribunal if it reasonably believes the practitioner has behaved in a way that constitutes professional misconduct.[1]
The conduct
- [3]The grounds relate to conduct engaged in by the practitioner whilst he was employed as a Senior Medical Officer of the Aids Medical Unit of the Prince Charles Hospital Health Services District.
- [4]The conduct was in relation to a patient, NT, who was not a patient of Prince Charles Health Services at the relevant time and with whom the practitioner did not maintain a professional or treating relationship at the relevant time.
- [5]It is admitted by the practitioner that he provided NT a medical certificate, in circumstances where NT informed him he required the certificate to excuse him from attendance at a parole or probation reporting appointment, and a prescription for Diazepam. The certificate and prescription were dated 14 June 2010 and 23 June 2010 respectively. An agreed fact is that the registrant felt under significant duress to provide the medical certificate and prescription to NT.
- [6]It is accepted by the practitioner, as appears from the statement of agreed facts, that the conduct amounts to unprofessional conduct, as that term is defined in the National Law. Despite the circumstances surrounding the conduct, there can be no doubt the conduct amounted to unprofessional conduct.
Sanction
- [7]Having determined that the practitioner’s conduct constituted unprofessional conduct, in accordance with s 196(2) of the National Law, the Tribunal must now decide the appropriate sanction to be imposed.
- [8]The parties have jointly proposed a sanction. In a previous decision of the Tribunal given by Deputy President, Judge Horneman-Wren SC, his Honour stated that:
“The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.”[2]
- [9]His Honour further stated that:
“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.”[3]
- [10]The sanction jointly proposed was that the registrant be reprimanded and required to pay the Board’s costs of and incidental to the disciplinary proceeding.
- [11]The Tribunal has considered the helpful analysis of past authorities included in the joint submissions and agrees with the comments there made. In the circumstances, the Tribunal is satisfied that the sanction proposed falls within the appropriate range and serves the purpose of disciplinary proceedings.
- [12]A reprimand should not be considered a trivial sanction as it will be recorded on the public register of practitioners.[4] Given the nature of the conduct, it would seem to the Tribunal appropriate for such record to remain on the register for a period of no more than 12 months, though ultimately that is a question for the National Board.[5]
Non publication
- [13]Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act, the Tribunal may make an order prohibiting the publication of information that may enable a person who is affected by a proceeding to be identified. The Tribunal may make such an order if the Tribunal considers it necessary for some reason in the interests of justice; or to avoid the publication of information whose publication would be contrary to the public interest.[6] The Tribunal may make the order on the application of the party or on its own initiative.[7]
- [14]A formal application for the non-publication of the name of NT as disclosed in the form 36 response has been made by the Board. In its submissions, the Board refers to the fact that the order is necessary to ensure NT’s confidentiality is maintained and that disclosure would be contrary to the public interest in that NT’s circumstances, as detailed in the referral and the response, are of a private and sensitive nature and disclosure would impede the right of privacy and confidentiality. The Tribunal agrees with those submissions and a non-publication order is made in regards to NT.