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The Health Ombudsman v Levick[2017] QCAT 88

The Health Ombudsman v Levick[2017] QCAT 88

CITATION:

The Health Ombudsman v David John Levick [2017] QCAT 88

PARTIES:

The Health Ombudsman

(Applicant)

v

David John Levick

(Respondent)

APPLICATION NUMBER:

OCR085-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

20 February 2017

HEARD AT:

Brisbane

DECISION OF:

Hon J B Thomas, Judicial Member

Assisted by:

Ms A Christou

Dr G Powell

Dr M Turner

DELIVERED ON:

5 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Under s 107(2) of the Health Ombudsman Act 2013 (Qld), findings are made that:
    1. The respondent has behaved in a way that constitutes professional misconduct as alleged in “charge 1” in the form 22 application filed in QCAT on 22 June 2016; and
    2. The respondent has behaved in a way that constitutes unprofessional conduct as alleged in “charge 2” in the form 22 application filled in QCAT on 22 June 2016.
  2. The respondent’s registration is suspended for a period of 2 months, commencing 1 May 2017.
  3. The respondent is ordered to pay the applicant’s costs of these proceedings as assessed on the District Court scale or as agreed between the parties following assessment.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – where the respondent medical practitioner was convicted of 1 count of assault occasioning bodily harm contrary to subsection 339(1) of the Criminal Code (Qld) – where the conduct giving rise to the offence occurred during a patient consultation – whether the practitioner engaged in professional misconduct – level of sanction appropriate

Health Practitioner Regulation National Law Act 2009 (Qld), s 5

Health Ombudsman Act 2013 (Qld), s 3, s 107(2)

Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20

Health Care Complaints Commission v Woods [2016] NSWCATOD 52

Medical Practitioners Board of Victoria v Kelly (Occupational and Business Regulation) [2009] VCAT 2109

Medical Board of Australia v Roberts [2014] WASAT 76

Nursing and Midwifery Board of Australia v Nyaruwuata (Western Australian State Administrative Tribunal, File VR 91/2015), heard 29/09/2015

APPEARANCES:

 

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

Jurisdiction

  1. [1]
    This is a disciplinary referral concerning the conduct of a registered medical practitioner.
  2. [2]
    The respondent, Dr Levick, is a health service provider and health practitioner under both the Health Ombudsman Act 2013 (Qld) (“The HO Act”) and the Health Practitioner Regulation National Law Act 2009 (Qld) (“The National Law”).
  3. [3]
    The matter is within the original jurisdiction of QCAT under ss 9 and 10(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”).  Section 103(1)(a) of the HO Act empowers the Director of the Health Ombudsman to refer a complainant to QCAT, and ss 94(1)(b) and 104 of that Act confirm QCAT’s original jurisdiction upon such a referral.
  4. [4]
    The matter is therefore to be determined in QCAT’s original jurisdiction under ss 10-16 of the QCAT Act.
  5. [5]
    The orders that QCAT may make upon such a referral are contained in ss 96 and 106-111 of the HO Act.

Proceedings

  1. [6]
    The incident leading to the present proceedings occurred in Dr Levick’s consulting room on 12 December 2013 when he slapped the face of a child patient.  The child’s mother informed the police who charged Dr Levick with assault occasioning bodily harm.
  2. [7]
    On 26 March 2014 the Australian Health Practitioner Regulation Agency (“AHPRA”) notified Dr Levick of the Board's “immediate action”[1] in relation to the situation, namely the imposition of conditions upon his registration requiring him to secure the services of a chaperone for any patient under 18.
  3. [8]
    No other disciplinary proceeding was thereafter pursued by AHPRA or the Medical Board.
  4. [9]
    On 14 October 2014 Dr Levick pleaded guilty to the charge in the Magistrates Court and was fined.
  5. [10]
    Subsequently the Office of the Health Ombudsman decided to recommence investigation into Dr Levick’s conduct, and eventually, on 22 June 2016, referred the matter to QCAT.
  6. [11]
    In the present matter there are three allegations which constitute two charges against Dr Levick of professional misconduct or unprofessional conduct , the first of which in substance consists of items 1 and 2 hereunder, and the second of which is contained in item 3 hereunder, namely:
  1. On 12 December 2013, during a consultation with a child patient (…) and his mother (…) the respondent slapped the child patient across the face with an open hand and with such force as to cause a linear bruise; and that during the same consultation the respondent:
  1. Verbally threatened the child patient;
  2. Whilst wearing shoes, intentionally stood on the child patient’s bare feet; and
  3. Squeezed the child patient’s cheeks.
  1. On 14 October 2014, the respondent was convicted of 1 count of assault occasioning bodily harm contrary to subsection 339(1) of the Criminal Code (Qld), in respect of slapping the child patient across the face with an open hand causing a linear bruise; and

3. a)  On 27 February 2014, the respondent was served with a notice to appear in the Brisbane Magistrates Court for the charge of assault occasioning bodily harm contrary to subsection 339(1) of the Criminal Code (Qld);

b)  On or about 12 March 2014 the respondent made a false declaration on his application for specialist registration to the board in that he answered “no” to the question “do you have any criminal history in Australia?”; and

c)  “Criminal History” is defined in the application form to include “every charge made against the person for an offence”.

Facts

  1. [12]
    Dr Levick is 68 years old.
  2. [13]
    He currently holds specialist registration as a medical practitioner following his obtaining a Fellowship of the Royal Australian College of General Practitioners in 2014.
  3. [14]
    Dr Levick originally qualified in South Africa in 1976 and practised medicine extensively in that country, especially in paediatrics, casualty and emergency and general practice until relocating to Australia in January 2008.
  4. [15]
    Since then he has worked as a general practitioner at a medical centre in Bowen Queensland.  He was initially granted limited registration to fill an area of need under level 4 supervision (independent minimal practice) with supervision by Dr Cairncross.
  5. [16]
    As indicated above, chaperone conditions were imposed on him in March 2014 in consequence of the Board becoming aware of the charge against him. 
  6. [17]
    Those conditions remain, notwithstanding the recent upgrading of his registration to that of specialist medical practitioner.
  7. [18]
    Unrelated to the incident upon which the present proceedings are founded, Dr Levick was given a “caution” in 2012, in respect of an error in the course of his practice. In a referral letter he had identified a patient’s right instead of left breast.  He was advised by the Board that the use of the initials “R” and “L” is an “indefensible practice that leads to error”.  Also unrelated to the present matter, he was required by the Board to undertake education on ethical decision-making and sexual boundaries for medical practitioners.  The reason for this was that in 2011 he had engaged in a social relationship with a patient which later turned into a sexual relationship after the doctor-patient relationship had ended.
  8. [19]
    The child in question had been a patient of the respondent for 5 years and 5 months, and he and his mother had previously enjoyed a good relationship with him.
  9. [20]
    In 2013, Dr Levick referred the child to a paediatrician who diagnosed attention deficit hyperactivity disorder, opposition defiance disorder and conduct disorder.  The paediatrician placed the child on medication to assist with these disorders, namely a drug with the brand name “Ritalin” which came in tablet form.
  10. [21]
    The child expressed an inability to swallow tablets, and his mother for a time administered the Ritalin by crushing the tablet and mixing it with Nutella.
  11. [22]
    On 5 December 2013, on the paediatrician’s advice, the child’s medication was changed to “Concerta” which comes in a small capsule form.  The child again expressed inability to swallow the capsule.
  12. [23]
    The paediatrician informed Dr Levick of his diagnosis in respect of the child.
  13. [24]
    At about 8:15am on 12 December 2013 the child and the child’s mother attended the medical centre for an appointment so that Dr Levick might try to help the child swallow the medication.
  14. [25]
    At about 9:00am on that day the consultation began.  The child was sitting in a chair and the practitioner positioned himself in a chair in front of the child with his feet in the same area as the child.
  15. [26]
    Over a period of about 50 minutes, Dr Levick attempted to teach the child how to swallow the medication by instruction.  During that time the child refused to take the capsule and fidgeted in his chair.
  16. [27]
    At one stage during the course of the consultation Dr Levick placed his feet on top of the child’s feet.  The child was wearing thongs and the partitioner was wearing shoes.
  17. [28]
    The child continued to refuse to attempt to swallow the medication.  Following this Dr Levick said words to the effect of “I’m going to wallop you”.  The child responded with “what does that mean?” to which the respondent replied “smack”, he also said words to the effect of “I’ll strap you to the bed and force you to take it”, and forcefully squeezed the child’s cheeks together with his hand.
  18. [29]
    During the consultation the child and his mother had heated words with each other and Dr Levick had to intervene between the two.
  19. [30]
    After approximately 50 minutes of trying to get the child to swallow the capsule, the child threw the medication across the room, landing in the right hand corner of the room.
  20. [31]
    At that moment the respondent reacted by slapping the child on the right cheek with an open hand.
  21. [32]
    The slap caused a red mark to appear on the child’s face and the child began crying.
  22. [33]
    The respondent immediately apologised for his actions.
  23. [34]
    The child and the child’s mother left the consultation crying and in a distressed state.
  24. [35]
    At about 10:00am that day they attended the Bowen police station and made a complaint.
  25. [36]
    Later that day the child and his mother attended Bowen hospital where a Doctor noted a linear bruise on the right cheek, about 1cm from the right ear, continuing horizontally across the face to a length of 7cm and a width of 2mm.  No other injury mark was seen.  The child was allowed to go home without further treatment.
  26. [37]
    On 14 October 2014 the respondent pleaded guilty to assault occasioning bodily harm.  He was fined $2,500 and it was ordered that a conviction be not recorded.
  27. [38]
    The Magistrate’s sentencing remarks included:

There’s no previous at all, and that, together with all of the reference material clearly establishes a finding that this is something very very much out of character.  It is an action that you…perpetrated, or in respect of an assault.  Clearly a reflex action and as pointed out by Ms Freeman, it could only have been that because the mother of the child was present.  Now, the facts that have been agreed indicate to me that you were struggling with this patient for some 50 minutes.  I can only infer that you showed a lot of patience, in my view, for it to be something that you were attempting to achieve with the child who was obviously very difficult and very difficult for the reason that he was there anyway.  So you did display, in my view, a fair degree of patience in respect of the child and obviously, well, you reacted in the way you did as a reflex action to strike the child on the cheek.

  1. [39]
    As required by s 130 of the National Law, Dr Levick notified AHPRA of the police charge against him, doing so by letter of 6 January 2014.[2]
  2. [40]
    Not long after this, Dr Levick submitted an application to AHPRA for specialist registration with the Board. 
  3. [41]
    His correspondence with the Board on this issue overlaps with the pendency of the proceedings against him following the relevant incident.
  4. [42]
    On the application form for specialist registration he answered “no” to the question “do you have any criminal history in Australia?”
  5. [43]
    “Criminal History” is defined in the registration renewal application form to include “every charge made against the applicant for an offence”.  His answer “no” above was therefore false.
  6. [44]
    When later asked to explain his error he stated:

When completing this application I did not pay careful enough attention to the definition of ‘criminal history’ contained in page 13 of the application...

Without properly reading the definition of ‘criminal history’ I incorrectly assumed that, because no conviction had yet been entered against me on this charge, I did not have to disclose this matter…

I did not answer ‘no’ to question 13 in an attempt to be deliberately misleading...

  1. [45]
    These explanations are credible in light of the fact that he had in any event disclosed the charge to AHPRA in his letter of 6 January 2014.
  2. [46]
    In the course of correspondence concerning the application for specialist registration, Dr Levick’s solicitors attached a letter from him seeking deletion of the chaperone conditions that had been imposed in March 2014.[3]
  3. [47]
    It included the following statement:

What actually occurred in the consultation in question I do not consider to be an assault…after I handed the tablet to the patient, the patient made a violet lunge forward, with an upraised arm, which was heading in the direction of my face.  And in a reflex, protective action, I raised my arm in a defensive gesture and, because of his forward lunge, his face made contact with my hand leaving a small mark.

  1. [48]
    The chaperone conditions still apply to his practice, and have been in force for about three years. They remain to some extent an impediment to his practice and his availability to patients, especially out of hours.
  2. [49]
    No further disciplinary action was taken by AHPRA or the Medical Board. However on 22 June 2016 the Office of the Health Ombudsman prepared charges and on 22 June 2016 referred the matter to QCAT.  This was two and a half years after the relevant event, and two years and three months after the "immediate action" had been taken to impose conditions.

Discussion

  1. [50]
    Dr Levick accepts that his conduct during the consultation on 12 December 2013 amounts to “professional misconduct” within the meaning of the HO Act. The relevant limb of the definition of that term for present purposes under that Act and under the National Law is:

a) Unprofessional conduct by the 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.[4]

  1. [51]
    With the advice of the assessors, and for reasons stated hereunder, I think that is a correct concession.
  2. [52]
    Dr Levick’s conduct during the consultation may be described as an outrageous overreaction to a trying situation.
  3. [53]
    The second ground (failure to disclose each charge as a “conviction”) is also made out, but was in the circumstances an error for which a credible explanation has been given. It satisfies the definition of "unprofessional conduct" but is a factor that merely aggravates the overall case against him to a minor extent.
  4. [54]
    The fact that he chose to proceed with a consultation for 50 minutes on the issue of getting the child to take a pill is itself extraordinary.  In one sense it might be said that he was over-conscientious, but the overwhelming inference is that he became involved in a power struggle and finally lost self-control.  He lost his professional detachment and became personally involved.
  5. [55]
    The confrontation and oppressive conflictual behaviour was by no means momentary and included verbal threats and physical restraint prior to the culminating act.
  6. [56]
    Counsel on behalf of the applicant Health Ombudsman submitted that Dr Levick lacks remorse and insight, contending that his statement to AHPRA on 12 February 2015[5] subsequent to his conviction, was a denial of responsibility, and that his claim that it was a “reflex action” is inconsistent with the basis of his conviction.
  7. [57]
    I see no inconsistency between his use of the term “reflex action” and the way in which the matter was presented to the magistrate or as described in the admitted statement of facts.  The two persons were adjacent, and his slap was an immediate reaction to the  child throwing the medication across the room.  However other statements in his letter include an allegation that the boy’s face “made contact with my hand, leaving a small mark" and could fairly be described as white-washing. Those statements in his letter of 12 February 2015 were discreditable.  It does not follow however that he is devoid of remorse or insight.  For a period of more than three years he has practised in a relatively small community under the cloud generated by this incident. There are strong reasons for accepting that he is remorseful, that he has learned a very serious lesson, and that there is scant chance of any recurrence of like conduct.
  8. [58]
    I observe in passing that submissions of “lack of remorse” tend to be made almost as a matter of course in disciplinary cases whenever an erring practitioner attempts to defend or mitigate his or her conduct.  Exercise of the right to a fair defence, including the right to challenge details and inferences, does not necessarily point to a lack of remorse.  Those charged with misconduct should not be entirely hamstrung in the presentation of their version and of arguable details of mitigation.
  9. [59]
    That said, in the present case, Dr Levick’s overstatement goes to his discredit, but there is no sufficient reason to think that he is devoid of remorse or insight, or to regard the prospect of repetition as other than very low.
  10. [60]
    There was a considerable delay in the bringing of the present disciplinary proceedings, and it is relevant to note that this has occurred in the twilight of a long medical career. 
  11. [61]
    Dr Levick has undergone the humiliation of conviction in a small community. It is also relevant to note that one of the main areas of his practice has been hampered by the imposition of chaperone conditions for the last three years.
  12. [62]
    His conduct occurred following a background of financial and personal problems that have now been successfully addressed.
  13. [63]
    The references tendered on his behalf from a wide range of people are impressive.  They attest to his character, dedication, skill, general care of patients.  It seems clear that he enjoys the strong support of his colleagues and of his community.

Sanction

  1. [64]
    The main issue that remains between the parties is the level of sanction appropriate for the conduct in question.  The Health Ombudsman’s submission is that there should be a suspension of registration for six months.  Dr Levick’s submission is that there should be a reprimand and a fine of the order of $10,000.
  2. [65]
    There is also the question of costs.  The applicant Health Ombudsman seeks an order against Dr Levick that he pay the costs of these proceedings, and Dr Levick has not opposed the making of such an order.  The costs will obviously be quite substantial and very likely greater than the amount that Dr Levick suggests should be imposed by way of fine.

Comparative cases

  1. [66]
    Some past decisions were referred to as a guide to an appropriate level of sanction in a case of this kind, they include:
    1. Millikan;[6]
    2. Woods;[7]
    3. Kelly;[8]
    4. Roberts;[9] and
    5. Nyaruwuata.[10]
  2. [67]
    Those cases provided instances where some kind of physical violence was inflicted by a practitioner upon a patient following an incident or frustration. Three of them (Millikan, Woods and Nyaruwuata) concerned nurses, and the other two (Kelly and Roberts), medical practitioners.
  3. [68]
    Some assistance can be found in Kelly, in which a female doctor who had been practice for 40 years assaulted the 4 year old daughter of a patient by slapping her twice on the bottom.  No physical harm was caused, and no criminal charges were brought.  The doctor was in consultation with a patient in October 2007 when a 4 year old girl commenced banging continuously on the door, disturbing the consultation.  Dr Kelly was unaware that the child was the patient’s daughter and that she was autistic.  Dr Kelly assumed that the child’s mother was the lady sitting outside the consultation room with her.  She denied the charges and the matter was heard over two days.  The Tribunal found that when Dr Kelly opened the door she took the child by the arm and slapped her twice on the bottom.  It identified Dr Kelly’s conduct as “summary discipline” and “to stop the child interfering with the consultation”.[11]
  4. [69]
    The Tribunal reprimanded Dr Kelly and further ordered that should she decide to return to practice she must at her own expense undergo anger management counselling, attend two counselling sessions and report to the Board.
  5. [70]
    The report does not reveal the circumstances of Dr Kelly’s cessation of practice, which clearly influenced the terms of the sanction imposed. The panel recognised that her conduct was “not an appropriate response to resolving disruptive behaviour”.  Notwithstanding this it did not consider that the conduct fell within the spectrum of conduct that should be regarded as “professional misconduct”, commenting that it did not lie “at the extreme end” of unprofessional behaviour.  Accordingly its finding was limited to one of “unprofessional conduct”.
  6. [71]
    The conduct in the present case however crossed a higher line than that in Kelly.  It was more protracted, violent and caused actual physical harm.  It was preceded by escalating physical confrontation and verbal threat.  The whole scene in the present case, especially its climax can best be described as “over the top”, culminating in the antithesis of doctor-patient care.  As earlier indicated it justifies a finding of professional misconduct and a more substantial sanction than that considered appropriate in Kelly.

Conclusions

  1. [72]
    The order in this case should include at least a period of suspension to mark the seriousness of the respondent’s lapse.  It is not imposed in order to prevent further endangerment, because there is a very limited prospect of that.  It arises from the need to emphasise disapproval of his actions, as a general deterrence to all other practitioners.[12]
  2. [73]
    In all the circumstances, a lengthy suspension is not called for.  Factors supporting this view include that it was an isolated stressful incident, the unexplained substantial delay which has been to Dr Levick's disadvantage, the fact that he practises in an area of need where persons will be disadvantaged by his unavailability, the fact that he has been punished in the criminal court, the continuing existence of the impediment already imposed on his practice by the Board following its "immediate action" three years ago, and the fact that he has not opposed the costs order sought by the applicant which will render him liable to pay substantial costs of the present proceedings, all contribute to a decision that the suspension should be limited to a period of two months.
  3. [74]
    A further date, approximately a month hence, will be set for commencement of the suspension to enable appropriate arrangements to be made before it commences.

Orders

  1. [75]
    The following findings and orders will be made:
  1. Under s 107(2) of the Health Ombudsman Act 2013 (Qld), findings are made that:
  1. (a)
    The respondent has behaved in a way that constitutes professional misconduct as alleged in “charge 1” in the form 22 application filed in QCAT on 22 June 2016; and
  2. (b)
    The respondent has behaved in a way that constitutes unprofessional conduct as alleged in “charge 2” in the form 22 application filled in QCAT on 22 June 2016.
  1. The respondent’s registration is suspended for a period of 2 months, commencing 1 May 2017.
  2. The respondent is ordered to pay the applicant’s costs of these proceedings as assessed on the District Court scale or as agreed between the parties following assessment.

Footnotes

[1] National Law, ss 155-159.

[2] AHPRA’s records contain a letter from the respondent of that date, but date stamped by AHPRA on 10 March 2014.

[3] Letter dated 13 February 2015 – tab 29 in agreed bundle of documents.

[4] National Law, s 5 (definition of ‘professional misconduct’); HO Act, s 3 (definition of ‘professional misconduct’).

[5] See [46] above.

[6] Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20.

[7] Health Care Complaints Commission v Woods [2016] NSWCATOD 52.

[8] Medical Practitioners Board of Victoria v Kelly (Occupational and Business Regulation) [2009] VCAT 2109.

[9] Medical Board of Australia v Roberts [2014] WASAT 76.

[10] Nursing and Midwifery Board of Australia v Nyaruwuata (Western Australian State Administrative Tribunal, File VR 91/2015), heard 29/09/2015.

[11] Kelly, [47]-[48].

[12] Millikan, [18].

Close

Editorial Notes

  • Published Case Name:

    The Health Ombudsman v David John Levick

  • Shortened Case Name:

    The Health Ombudsman v Levick

  • MNC:

    [2017] QCAT 88

  • Court:

    QCAT

  • Judge(s):

    Member Hon J B Thomas J, Ms A Christou, Dr G Powell, Dr M Turner

  • Date:

    05 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Health Care Complaints Commission v Woods [2016] NSWCATOD 52
2 citations
Jump To
Cite 1 - [2016] NSWCATOD 52
Cite 2 - [2016] NSWCATOD 52
Medical Board of Australia v Roberts [2014] WASAT 76
2 citations
Jump To
Cite 1 - [2014] WASAT 76
Cite 2 - [2014] WASAT 76
Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20
3 citations
Jump To
Cite 1 - [2011] SAHPT 20
Cite 2 - [2011] SAHPT 20
Cite 3 - [2011] SAHPT 20
Victoria v Kelly (Occupational and Business Regulation) [2009] VCAT 2109
3 citations
Jump To
Cite 1 - [2009] VCAT 2109
Cite 2 - [2009] VCAT 2109
Cite 3 - [2009] VCAT 2109

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Carter [2019] QCAT 522 citations
Health Ombudsman v McDonald [2019] QCAT 2872 citations
Medical Board of Australia v Davis [2018] QCAT 2151 citation
1

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