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Medical Board of Australia v Davis[2018] QCAT 215

Medical Board of Australia v Davis[2018] QCAT 215

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Davis [2018] QCAT 215

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

NEVILLE GOODWIN DAVIS

(respondent)

APPLICATION NO/S:

OCR282-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Deputy President Brown

Assisted by:

Mr M Halliday

Dr H Moudgil

Dr G Powell

ORDERS:

  1. Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Qld) 2009, Neville Goodwin Davis is found to have behaved in a way that constitutes unprofessional conduct.
  2. Neville Goodwin Davis is reprimanded.
  3. There is no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where the medical practitioner consulted with a patient – where the patient was tied up by the medical practitioner – whether the practitioner engaged in unsatisfactory professional performance – whether the practitioner engaged in unprofessional conduct – where a statement of agreed and disputed facts is submitted – where joint submissions on sanction are submitted – whether the proposed sanction is appropriate

Health Practitioner Regulation National Law (Queensland), s 5, s 136, s 156, s 196(1)(b)(i), s 196(1)(b)(ii), s 196(1)(b)(iii)

Attorney-General v Clough [2002] 1 Qd R 116, cited

Health Ombudsman v Barber [2017] QCAT 431, cited

Health Ombudsman v Chambers [2017] QCAT 362, cited

Medical Board of Australia v Andrew [2015] QCAT 94, cited

Medical Board of Australia v Alroe [2014] QCAT 677, cited

Medical Board of Australia v Bourke [2015] QCAT 400, cited

Medical Board of Australia v Dr FA (No 2) [2012] QCAT 288, cited

Medical Board of Australia v Hocking [2015] ACAT 44, cited

Medical Board of Australia v Jones [2012] QCAT 362, cited

Medical Board of Australia v Kanyowa [2016] QCAT 450, cited

Medical Board of Australia v Martin [2013] QCAT 376, cited

Medical Board of Australia v Roberts [2014] WASAT 76, cited

Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419, cited

Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627, cited

Nursing and Midwifery Board of Australia v Natziuk [2012] SAHPT 6, cited

Peeke v Medical Board of Victoria [1994] VicSC 7, cited

Sharma v Medical Board of Australia [2015] QCAT 86, cited

Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203, cited

REPRESENTATION:

Applicant:

Lander & Rogers, Lawyers

Respondent:

Ashurst Australia

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

  1. [1]
    The Board has referred to the Tribunal certain matters relating to the conduct of Dr Neville Davis. The conduct occurred in 2012 when Dr Davis was a practising medical practitioner. Dr Davis is no longer in practice. The Tribunal must decide:
    1. (a)
      Whether Dr Davis behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct; and
    2. (b)
      If so, what is the appropriate sanction.
  2. [2]
    The parties have agreed that the referral is to be determined on the papers and on the basis of a statement of agreed and disputed facts,[1] joint submissions on sanctions[2] and in reliance upon the Amended Application or Referral,[3] an Affidavit of Neville Goodwin Davis[4] and an Affidavit of Audrey Jane Lacey.[5]

The agreed facts

  1. [3]
    On 31 October 2012 Dr Davis consulted with a patient, AM, who was accompanied by his mother.[6] AM was 7 years old and had been a patient of Dr Davis since April 2011.[7] AM presented to Dr Davis upon referral from his general practitioner with: complex difficulties; coeliac disease; combined-type Attention Deficit Hyperactive Disorder; focal epilepsy with secondary impairment of consciousness.
  2. [4]
    Dr Davis says that AM’s behaviour during the consultation was disruptive. In the course of the consultation Dr Davis tied a rope around AM’s hands and feet. AM became free of the rope. Dr Davis then tied AM’s hands and feet together behind his back using a rope. AM again became free of the rope. Dr Davis then asked AM to lie on his stomach and proceeded to squat over the child such that AM could not move and was required to remain lying on his stomach. The Tribunal notes here that the Board does not press the original allegation regarding the squatting over conduct and does not seek a finding in relation to the allegation (including whether the squatting over conduct was a medical procedure) although the facts relating to the squatting over conduct are not in dispute.[8]
  3. [5]
    Dr Davis agrees that his conduct in tying rope around AM’s hands and feet was not: appropriate; done as a diagnostic tool; a medical treatment; a medical procedure; a test for Autism Spectrum Disorder.[9]

The material relied upon by the parties

  1. [6]
    Dr Davis says that AM had been his patient between 19 April 2011 and 31 October 2012.[10] Dr Davis had, before commencing treating AM, treated AM’s sister. Dr Davis undertook a total of six consultations with AM with the final consultation taking place on 31 October 2012. Leading up to that consultation AM’s mother described an escalation of troubling behaviour by AM[11] resulting in AM’s siblings being ‘set off’.[12] AM’s mother reported that the medication being taken by AM did not last long enough and that his behaviour included running through the house with knives and scissors.
  2. [7]
    Dr Davis says that following a consultation with AM’s mother on 12 June 2012 he formed the view that her patience and resources were being worn down, that she was not being successful in controlling AM’s behaviour and that she was increasingly desperate.[13]
  3. [8]
    AM’s mother telephoned Dr Davis before the 31 October 2012 appointment requesting an emergency consultation.[14] Dr Davis says that AM presented as very restless and hyperactive while AM’s mother was angry and exasperated.[15] Dr Davis says that it became increasingly difficult during the consultation to have a discussion with AM’s mother as a result of the child’s disruptive behaviour. Dr Davis’s attempts to divert AM through the use of puzzles were unsuccessful.[16]
  4. [9]
    Dr Davis says that after approximately 20 minutes he said to AM, ‘would you please sit down, if you don’t sit down, I’ll tie you up.’ According to Dr Davis, AM replied, ‘Yeah, do that, that’d be fun’. Dr Davis says that he asked AM’s mother her thoughts about the proposed course of action and she replied, ‘Yes, anything to keep him quiet’.[17]
  5. [10]
    Dr Davis says that his reasoning for tying up AM was to distract him to enable Dr Davis and AM’s mother to discuss her concerns.[18]
  6. [11]
    Dr Davis asked AM to sit in an armchair. Dr Davis then proceeded to loosely tie AM’s wrists and ankles to the chair. After readily freeing himself, AM said to Dr Davis, ‘Do it again, make it harder’.[19] Before proceeding, Dr Davis asked AM’s mother whether she was agreeable. AM’s mother replied ‘Yes, and I’d also like to take some photos to see how you do the knots so I could do this at home’. Dr Davis says that he responded to AM’s mother by saying, ‘I don’t think you want to do this at home’.[20]
  7. [12]
    AM was asked by Dr Davis to lie on the ground on his stomach. After AM lay down, placed his hands behind his back and drew his ankles up, Dr Davis proceeded to tie AM’s wrists and ankles together – commonly what is referred to as being ‘hogtied’. Dr Davis says that the tying up of AM was not intended as a form of restraint but rather ‘something to puzzle over’ and to get out of, which he did within one to two minutes.[21]
  8. [13]
    After freeing himself, AM became impatient at the continuing dialogue between Dr Davis and AM’s mother. After AM exhibited further negative behaviour including punching his mother on the arm, Dr Davis says that he demonstrated a technique to restrain AM to allow him time to calm down. This involved Dr Davis standing over AM who was lying face down on the floor, and squatting over AM. As has been noted, the Board does not press the allegation regarding the squatting over conduct.
  9. [14]
    Dr Davis acknowledges that his actions during the consultation on 31 October 2012 were ill advised and inappropriate and that he exhibited poor judgement.[22] Dr Davis apologises for any distress experienced by AM or his mother.
  10. [15]
    Dr Davis was charged with a number of offences arising out of the consultation on 31 October 2012. The charges relating to the tying up of AM were not proceeded with and Dr Davis was ultimately acquitted of the remaining charge relating to the ‘squatting’ episode. 
  11. [16]
    Exhibited to Dr Davis’s affidavit is a summary of extracts of the evidence received in the Magistrates Court proceeding, jointly prepared by the Director of Public Prosecutions and Dr Davis’s solicitors.[23] It is relevant to note the following contained in the summary:
    1. (a)
      After being tied to the chair, AM was able to extricate himself after one minute at most.[24]
    2. (b)
      After having his wrists and ankles tied behind his back, AM was able to extricate himself after a minute or two (the summary refers to the ‘distraction technique’ only working for two to three minutes).[25]
    3. (c)
      AM soon became disruptive again and Dr Davis had ‘run out of strategies’.[26]
    4. (d)
      After a further 10 minutes, during which Dr Davis continued discussions with AM’s mother, AM punched his mother on the arm prompting Dr Davis to ask AM’s mother about the strategies she adopted when AM’s behaviour was ‘out of control’.[27]  It was this exchange that led to the demonstration by Dr Davis of the ‘squatting’ technique to control AM’s behaviour.
    5. (e)
      Shortly after concluding the demonstration of the squatting technique, AM’s mother terminated the consultation.[28]
    6. (f)
      Dr Davis accepted that his behaviour in tying up AM was an ‘aberrant lapse of judgement’.[29]
    7. (g)
      As to why he agreed that tying up AM was inappropriate, Dr Davis said that it failed to achieve the purpose for which it was intended, that is for Dr Davis to ‘buy some time’ with AM’s mother.[30]
  12. [17]
    Before the Tribunal is a report by Dr Michael McDowell.[31] The report was submitted by Dr Davis in response to an immediate action notice[32] issued by the Board after it became aware that Dr Davis had been charged with the offences. Dr McDowell’s report refers to his having been briefed ‘with a broad set of background documents’. Dr McDowell was asked to, among other things, address specific conduct of Dr Davis as referred to in correspondence from Avant Law (for Dr Davis) to the Australian Health Practitioner Regulation Agency. The specific conduct is referred to in Dr McDowell’s report as ‘the impugned conduct’. The documents referred to in Dr McDowell’s report are not before the Tribunal. Accordingly, when Dr McDowell refers in his report to the ‘particular item of behaviour’ as constituting unsatisfactory professional behaviour and not suggestive of unprofessional conduct, it is unclear what behaviour Dr McDowell is actually referring to.
  13. [18]
    Dr McDowell refers to a number of possible factors contributing to the stress experienced by Dr Davis at the time of the consultation on 31 October 2012:
    1. (a)
      The consultation took place at the end of the day and Dr Davis was running late;
    2. (b)
      AM was unco-operative, interfering with the success of the consultation;
    3. (c)
      There was a ‘background level of frustration’ as a result of the less than successful outcomes treating AM;
    4. (d)
      Because it was the end of the day, the ‘usual mechanisms’ for managing AM (including settling AM in the waiting area) may not have been available to Dr Davis.[33]

Further submissions by the parties

  1. [19]
    The Tribunal directed the parties to file additional submissions addressing:
    1. (a)
      whether the conduct of Dr Davis constitutes unsatisfactory professional performance or unprofessional conduct; and
    2. (b)
      sanction, should the conduct of Dr Davis be found to constitute unprofessional conduct.[34]
  2. [20]
    The Board says that Dr Davis acknowledges that he exhibited poor judgement during the consultation.[35] The Board says that the concept of unprofessional conduct is broader than, but not necessarily more serious than, unsatisfactory professional performance. The Board refers to the decision of the Supreme Court of Western Australia in Solomon v Australian Health Practitioner Regulation Agency[36] and the decision of the State Administrative Tribunal of Western Australia in Medical Board of Australia v Roberts.[37] The Board acknowledges that it is open to the Tribunal to find that the actions of Dr Davis amount to either unprofessional conduct or unsatisfactory professional performance. Having regard to the admissions by Dr Davis that his actions were ill advised and inappropriate and the evidence of Dr Davis that he did not intend to restrain the child, the Board says that the better view is that the poor judgement displayed by Dr Davis supports a finding of unsatisfactory professional performance.[38]
  3. [21]
    In his further submissions, Dr Davis says that from the types of specifically listed exemplars included in the definition of unprofessional conduct, the tenor of the conduct included within the meaning of the term is akin to intentional wrongdoing or unlawful conduct. Dr Davis says this is to be contrasted with the definition of unsatisfactory professional performance which is more directed to actions falling under expected performance standards.[39]
  4. [22]
    Dr Davis refers to a number of decisions in which findings of unsatisfactory professional performance have been made as a result of a lapse of judgement.[40] Dr Davis’s further submissions repeat what is contained in the Statement of agreed facts: that the tying up of AM was an attempt to distract the child rather than being a diagnostic tool, medical treatment, a medical procedure or a test for Autism Spectrum Disorder. Dr Davis says that his actions were motivated by a lapse of judgment, not an improper motive or intentional wrongdoing. Dr Davis says that an unsatisfactory exercise of judgment falls squarely and naturally within the concept of unsatisfactory professional performance.[41]

Categorising the conduct of Dr Davis

  1. [23]
    Professional misconduct is defined[42] as:

professional misconduct, of a registered health practitioner, includes—

  1. (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; and
  1. (b)
    more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1. (c)
    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
  1. [24]
    Unprofessional conduct of a registered health practitioner means:

… professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers ...[43]

  1. [25]
    Unsatisfactory professional performance of a registered health practitioner means:

… the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.[44]

  1. [26]
    The definition of unprofessional conduct in the Health Practitioner Regulation National Law (Queensland) (National Law) includes a number of specific circumstances which, inclusively, are defined to satisfy the definition.[45]
  2. [27]
    The specific circumstances contained in the definition of unprofessional conduct are not exhaustive. In Medical Board of Australia v Andrew the Tribunal held:

If the conduct of the health practitioner can be characterised as being of a lesser standard than that which might reasonably be expected by the public or the practitioner’s professional peers, it will satisfy the definition of unprofessional conduct, whether or not it can be fitted into any subparagraphs (a) to (h).[46]

  1. [28]
    In Solomon v Australian Health Practitioner Regulation Agency,[47] where the Supreme Court of Western Australia considered the meaning of unprofessional conduct and unsatisfactory professional performance, Mitchell J held:

[126] What then is the difference between 'unsatisfactory professional performance' and 'unprofessional conduct'? It seems to me that the concept of unprofessional conduct is broader than, but not necessarily more serious than, unsatisfactory professional performance. Unsatisfactory professional performance seems to be a subset of unprofessional conduct. If a practitioner behaves in a way that shows their knowledge etc in the practice of the health profession to be below the standard reasonably expected of a practitioner of an equivalent level of training or experience (unsatisfactory professional performance), it is difficult to see why he or she has not also engaged in professional conduct that is of a lesser standard than that which might reasonably be expected by the public or his or her peers (unprofessional conduct). However, the concept of unsatisfactory professional performance is focused on the capacity of the practitioner 'in the practice of the health profession', which seems to be a narrower concept than 'professional conduct'. The phrase 'in the practice of the health profession' is apt to denote the actual delivery of health services, rather than administrative, regulatory and other matters associated with the delivery of health services.

[127] The focus of the definition of 'unsatisfactory professional performance' is on the knowledge etc of the practitioner, whereas the focus of 'unprofessional conduct' is on the conduct of the practitioner. However, under s 191(1)(b) of the National Law, it is necessary to find that a practitioner 'behaved in a way' that constitutes  unsatisfactory professional performance. This reference to behaviour indicates that the concept of unsatisfactory professional performance is not divorced from the practitioner's conduct.

[128] The concept of 'unprofessional conduct' is also broader than 'unsatisfactory professional conduct' in that a number of matters, such as contravention of the National Law, are expressly included in the former but not the latter.

  1. [29]
    In Medical Board of Australia v Hocking and Hocking v Medical Board of Australia (Occupational Discipline)[48] the ACT Civil and Administrative Tribunal held:

The definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.

  1. [30]
    In Hocking, the decision in Medical Board of Australia and Roberts[49] was cited with approval. In Roberts the State Administrative Tribunal of Western Australia held:

The definition of the term 'unsatisfactory professional performance' is also an exhaustive statement of that term. It refers to a medical practitioner's performance as a practitioner rather than his or her conduct.

As McLure P noted in Bernadt v Medical Board of Australia [2013] WASCA 259 at 23, professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).

The definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.

Unsatisfactory professional performance, on the other hand, has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience). It is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs…It is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.

  1. [31]
    In Jemielita v Medical Board of Australia[50] Owen J held, in considering the meaning of ‘incompetency’ under the (repealed) Medical Act 1894 (WA):

In my view, the Board has correctly identified the appropriate meanings of those phrases as they apply to disciplinary proceedings and to standards of professional conduct required of medical practitioners. I should add one small point. The concept of "carelessness" may not be endemic to the practitioner's affairs generally. It may be limited to individual, perhaps sporadic, incidents. However, the concept of incompetency seems to suggest a more generalised deficiency in the way in which a practitioner handles his professional affairs.

  1. [32]
    In Sharma v Medical Board of Australia[51] the Tribunal, in considering the characterisation of conduct relating to the maintenance by a practitioner of adequate records and providing an account of a medical procedure to colleagues, found that the practitioner had:

… behaved in a way that constituted unsatisfactory professional performance and that the grounds upon which that finding would be made were that Dr Sharma had failed to maintain adequate records and had failed to provide a full and accurate account of the procedure to colleagues.

  1. [33]
    There can be no doubt that the type of conduct that may properly be categorised as professional misconduct is conduct of a lesser standard than that which may be categorised as unprofessional conduct. However, there is a significant overlap between unprofessional conduct and unsatisfactory professional performance. Unsatisfactory professional performance is concerned with the knowledge, skill or judgement possessed, or care exercised by, a practitioner in the practice of their health profession. It relates to performance by the practitioner in their profession rather than conduct more generally. Unprofessional conduct is, on the other hand, concerned with both conduct that is of a lesser standard than that which might reasonably be expected of the practitioner by the public or the professional’s peers and the performance of a practitioner in the delivery of health services. The potential for overlap between offences is clearly evident. As Muir J observed in Attorney-General v Clough, albeit in the different statutory regime applying in respect of solicitors’ conduct:

It is perhaps worth observing that even if the three “offences” are ranked on a descending scale of seriousness, starting with “malpractice”, there may well be areas of overlap between offences. And, of course, practitioners’ conduct will fall short of the requisite standards of professional conduct in various ways and in differing degrees of seriousness.[52]

  1. [34]
    As observed by Mitchell J in Solomon, unsatisfactory professional performance might be seen as a subset of unprofessional conduct. Unprofessional conduct is not necessarily more serious than unsatisfactory professional performance. Rather, it is broader in terms of the behaviour it captures going, as it does, to conduct. 
  2. [35]
    Ultimately, each matter must turn on its own facts, and attempts to define what conduct falls within each of the definitions in the National Law, beyond the definitions set out in s 5, should be avoided. 
  3. [36]
    How then should the conduct of Dr Davis be categorised?
  4. [37]
    In Medical Board of Australia v Bourke[53] the failure by a practitioner to appropriately clinically manage and treat a patient before and after surgery was found to constitute unsatisfactory professional performance.  In Medical Board of Australia v Davies[54] an error in the administration of drugs contributed to the death of a patient. The practitioner failed on two occasions to report the error. The practitioner was found to have behaved in a way that constituted unsatisfactory professional performance. 
  5. [38]
    In both Health Ombudsman v Barber[55] and Health Ombudsman v Chambers[56] the failure by a practitioner to disclose criminal convictions was found to constitute unprofessional conduct. In Medical Board of Australia v Dr FA (No 2)[57] a practitioner who established and promoted a website containing inappropriate material including providing instructions for medically unsupervised pregnancy terminations and the use of drugs without a lawful prescription was found to have engaged in unprofessional conduct. The inappropriate prescribing of drugs of dependency, deficiencies in endorsing prescriptions with adequate directions and failing to comply with reporting requirements was found in Medical Board of Australia v Alroe[58] to constitute unprofessional conduct. In Medical Board of Australia v Kanyowa[59] a practitioner was found to have behaved in a way constituting unprofessional conduct when he issued a patient with a medical certificate stating the patient had no psychological or physical problems that would prohibit him from holding a firearms licence in circumstances where the practitioner failed to have reference to documents held by the Queensland Police Service and failed to realise he had not been provided with a weapons licence suspension notice and QCAT information notice. The Tribunal found that those notices ought to have put the practitioner on notice of concerns regarding the patient’s mental health.
  6. [39]
    Two decisions of the tribunal in cases involving injury to patients caused by the actions of a practitioner illustrate that each case must be assessed on its own facts and circumstances. In The Health Ombudsman v David John Levick[60] a practitioner who slapped the face of a child during a consultation was found to have committed professional misconduct. In Nursing and Midwifery Board of Australia v Hughes-Fischer[61] the practitioner fractured a patient’s jaw when attempting to extricate himself from the patient’s grip. The conduct was found by the tribunal to constitute unsatisfactory professional performance.
  7. [40]
    In Nursing and Midwifery Board of Australia v Natziuk[62] the practitioner, with the assistance of another nurse, dragged an unco-operative patient (being treated for mental illness) across the floor of a ward then leaving the patient on the floor. The patient sustained no injury. The practitioner acknowledged that his actions were in disregard for the well being of the patient and undermined the relationship of trust between nurse and patient. The practitioner was found to have engaged in professional misconduct and reprimanded in strong terms.
  8. [41]
    At the time of the conduct in question, Dr Davis was a highly experienced paediatrician of some 26 years standing. Patient AM was 7 years old and had a range of complex medical and behavioural issues. Dr Davis had consulted with AM on five (5) occasions prior to the consultation on 31 October 2012. The consultation notes are not before the Tribunal. It is however readily apparent that AM was displaying extremely challenging behaviour and that his behaviour had been deteriorating during the period prior to the consultation. It is also readily apparent that AM’s mother was finding it increasingly difficult to manage AM’s behaviour.[63]
  9. [42]
    At the penultimate consultation with AM, Dr Davis discussed with AM’s mother the possibility of an emergency review four weeks later. Dr Davis anticipated that, having regard to the complexity of AM’s case, a “significant sit down and talk about what was happening” with AM’s mother would be required.[64]
  10. [43]
    The final consultation by Dr Davis with AM was arranged at short notice and ‘tacked on at the end of the day at 4 or 4.30pm’.[65] Dr Davis was ‘as is common by that time of the day’ running late and the consultation was delayed by at least half an hour.[66] Dr Davis acknowledges that, prior to the consultation, he could hear from his office AM’s mother in the reception area calling out to AM attempting to get him to behave.[67] Dr Davis acknowledges that from the outset of the consultation AM was restless and hyperactive. It was apparent that AM’s mother was angry and exasperated and was flushed in the face as a result of having to deal with AM’s behaviour.[68] The consultation was clearly a very difficult one as a result of AM’s disruptive behaviour. Dr Davis says that he needed to have ‘some quiet space’ with AM’s mother. Dr Davis persisted with the consultation for some 20 to 25 minutes before first raising the suggestion of tying AM up.
  11. [44]
    There is before the Tribunal evidence from other health professionals in relation to Dr Davis’s conduct. In his report Dr John Varghese, a psychiatrist, refers to Dr Davis’s conduct as not appropriate.[69] Associate Professor Kerry Sullivan is a child protection paediatrician. Dr Sullivan’s view is that there would not be circumstances in which it would be appropriate for a doctor to tie up a child.[70] Dr Sullivan expresses the view that it is critical to set up circumstances where a parent is as undistracted as possible if the parent is having trouble taking information in.[71]  Dr Michael McDowell, a paediatrician, expresses the view that Dr Davis’s conduct constitutes unsatisfactory professional behaviour[72]. Dr McDowell also expresses the view that Dr Davis was stressed at the time of the consultation for a number of reasons including: Dr Davis was running late for the consultation; the child was uncooperative and interfering with the success of the consultation; a background level of frustration as treatment of the child had been less successful than hoped; Dr Davis’s usual mechanisms for managing the child, including removing him from the consultation, may not have been available.
  12. [45]
    There are a number of troubling aspects to the way in which the consultation unfolded and the actions of Dr Davis. These are of particular concern given the seniority of Dr Davis, his lengthy history of practice as a paediatrician and his specific interest in developmental and behavioural conditions of children, specialising in the assessment of children with learning difficulties, social and emotional disorders and attention and pervasive developmental conditions of children including ADHD and ASD.[73]
  13. [46]
    Dr Davis was familiar with AM’s condition and behaviours, having consulted with him on several occasions. Dr Davis was aware that AM’s behaviour had been deteriorating over time and that AM’s mother was finding it increasingly difficult to cope with the child’s behaviour. The consultation with AM was scheduled to take place at the end of the day. It was apparent before the consultation commenced that AM was exhibiting very challenging behaviours and that his mother was angry and exasperated. After the consultation had been progressing for a period of 20 to 25 minutes it was obvious to Dr Davis that he was unable to meaningfully discuss with AM’s mother the issues concerning the child. Dr Davis then proceeded to embark upon the course of conduct leading to the present disciplinary action.
  14. [47]
    The decision by Dr Davis to embark upon a course of conduct culminating in his tying up AM is, as has been observed, difficult to reconcile with the conduct expected of a medical practitioner, particularly one of Dr Davis’s seniority and experience. Dr Davis could have sought to remove AM from the consultation and if he could not do so (as would appear to have been the case),[74] he could have re-scheduled the consultation to enable him to speak with AM’s mother in the absence of the child. These observations are reinforced in the context of the types of behaviours exhibited by AM, being well known to Dr Davis, and that Dr Davis was highly experienced in managing children with such behaviours.
  15. [48]
    As observed by Dr Sullivan, if a medical practitioner is unable to secure and maintain the focus of the parent during a consultation (as a result of the behaviour of the child), there is no effective treatment being provided to the child. Rather than remove AM from the consultation or reschedule the consultation to enable more appropriate arrangements to be made enabling him to have an uninterrupted discussion with AM’s mother, Dr Davis proceeded to tie AM up on two separate occasions.
  16. [49]
    Dr Davis says that tying up AM was an attempt to distract the child to enable Dr Davis to engage with his mother.  Dr Davis characterises the tying up of AM as:

… a distraction technique (which) was, it is accepted, an abject failure – but it is more properly characterised as a failure in decision-making – a failure in judgment, than the type of matter that the unprofessional conduct definition which the examples seem primarily directed to.[75]

  1. [50]
    The definition of unprofessional conduct encompasses any conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers.
  2. [51]
    It is clear from the opinions expressed by Dr Varghese, Dr Sullivan and Dr McDowell that the conduct of Dr Davis was of a lesser standard than might reasonably be expected by his peers. It was clearly inappropriate for Dr Davis to tie up AM. Dr Davis appeared to acknowledge the appropriateness of his conduct during the consultation when he told AM’s mother that he did not think she should considering tying up AM at home.
  3. [52]
    The Tribunal is satisfied that the conduct of Dr Davis does not fall within the definition of professional misconduct. In the Tribunal’s view, the conduct of Dr Davis is properly categorised as unprofessional conduct.

Sanction

  1. [53]
    The parties have made joint submissions on sanction. As was observed in Medical Board of Australia v Martin:

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.[76]

  1. [54]
    The parties rely upon the joint submissions on sanction irrespective of whether the Tribunal finds that the conduct of Dr Davis constitutes unprofessional conduct or unsatisfactory professional performance.[77]
  2. [55]
    The parties jointly submit that the appropriate orders in relation to sanction are:
    1. (a)
      Dr Davis be reprimanded;
    2. (b)
      Each party bear its own costs.[78]
  3. [56]
    The parties jointly submit that the following factors are relevant:
    1. (a)
      The community places trust in medical practitioners to place the interest and well being of a child or young person first;
    2. (b)
      Dr Davis’s conduct during the consultation was isolated and there is no on-going harm or current risk to public safety;
    3. (c)
      Dr Davis has been forthcoming in his admissions and co-operative with the Board since being notified of the complaint made against him;
    4. (d)
      The joint position on finding and sanction avoids the need for vulnerable witnesses to give evidence in person before the Tribunal in a contested hearing;
    5. (e)
      Dr Davis acknowledges his actions were ill advised and inappropriate. Dr Davis says that at the time of the consultation, while not an excuse, he was also going through a very stressful period in his life due to a divorce;
    6. (f)
      Dr Davis has expressed his apology for any distress his conduct may have caused to AM and his mother;
    7. (g)
      Dr Davis complied with the conditions imposed upon his registration by the Board when it decided to take immediate action on 16 August 2013. These conditions involved peer support, personal health review, and a chaperone condition;
    8. (h)
      Dr Davis says the ancillary aspects on him of having engaged in this conduct include aggressive, repeated, and at times inaccurate media, including being pursued by media, together with his legal representatives, across streets, down steps, and through car parks, with photographs of the ‘tying up’ featured in print, electronic and television media repetitively over the years. This, dropped patient numbers, and the financial impact of the chaperone conditions, led Dr Davis to early retirement. Dr Davis accepts without reservation that these circumstances are not mitigating factors but a consequence of his conduct;
    9. (i)
      Despite the fact that Dr Davis engaged in unsatisfactory professional performance, many people of high regard and standing in the medical and allied health community are still willing to speak to his otherwise good character.
  4. [57]
    Dr Davis has retired from medical practice. He is no longer registered as a medical practitioner. There would be no utility in ordering the imposition of conditions. Is a reprimand an appropriate sanction?
  5. [58]
    In Peeke v Medical Board of Victoria[79] Marks J held:

I have mentioned that the Board referred to a reprimand as trivialising a serious lapse in professional standards. I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has the potential for serious adverse implications.

  1. [59]
    In Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation)[80] it was held:

A reprimand should not be considered a ‘slap over the wrist’ for Dr Swieca. In this regard, we adopt and endorse the views of Marks J in Peeke v Medical Board of Victoria. A reprimand certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner. A finding of professional misconduct, combined with the reprimand, is a serious form of censure and condemnation for Dr Swieca’s conduct. The purpose of sanctioning is not to punish the practitioner but to protect the public and the integrity of the profession.

  1. [60]
    Then QCAT Deputy President Kingham DCJ observed in Medical Board of Australia v Jones:[81]

Dr Jones will be reprimanded. This is not a trivial sanction. It is a public denunciation of his conduct, which is recorded on the public register of practitioners.

  1. [61]
    The Tribunal accepts that the conduct of Dr Davis was isolated and that he acknowledges the inappropriateness of his actions. Dr Davis has at all times co-operated with the Board, including compliance with conditions imposed upon his registration subsequent to the complaint being made against him. There is no evidence before the Tribunal that the actions of Dr Davis caused injury to AM, physical or otherwise. 
  2. [62]
    A reprimand for a medical practitioner of Dr Davis’s standing is a serious matter. It conveys to the profession and to the public, the Tribunal’s condemnation of Dr Davis’s conduct. The conduct of Dr Davis was inappropriate and should be considered the more serious given his training, qualifications and expertise in the treatment of behavioural disorders in children. The proposed reprimand is not a ‘slap over the wrist’. It carries with it implications in respect of Dr Davis’s standing and reputation with his peers and the public. The reprimand also serves to maintain appropriate standards within the medical profession by sending a very clear message to medical practitioners that conduct such as that engaged in by Dr Davis will be met with severe opprobrium.
  3. [63]
    Accordingly, the Tribunal finds that the appropriate sanction is that Dr Davis be reprimanded.
  4. [64]
    The parties submit that there should be no order as to costs and it is appropriate to so order.

Footnotes

[1]Statement of agreed and disputed facts filed 2 May 2017.

[2]Joint submissions on sanction filed 29 June 2017.

[3]Amended Application or Referral filed 1 June 2017.

[4]Affidavit of Neville Goodwin Davis filed 12 June 2017.

[5]Affidavit of Audrey Jane Lacey filed 22 June 2017.

[6]Statement of agreed and disputed facts filed 2 May 2017 at [2].

[7]Ibid at [3].

[8]Joint submissions on sanction filed 29 June 2017 at [15].

[9]Statement of agreed and disputed facts filed 2 May 2017 at [13].

[10]Ibid at [3].

[11]Affidavit of Neville Goodwin Davis filed 12 June 2017 at [10].

[12]Ibid.

[13]Ibid.

[14]Ibid at [13].

[15]Ibid at [15].

[16]Ibid at [18].

[17]Ibid at [19].

[18]Ibid at [20].

[19]Ibid at [21].

[20]Ibid.

[21]Ibid at [23]-[24].

[22]Ibid at [31]-[32].

[23]Ibid, exh ND2.

[24]Ibid at [38].

[25] Ibid at [41], [44].

[26]Ibid at [46].

[27]Ibid at [52]-[53].

[28]Ibid at [61].

[29]Ibid at [73].

[30]Ibid at [84].

[31]Ibid, exh ND3.

[32]Health Practitioner Regulation National Law (Queensland) (National Law), s 156.

[33]Affidavit of Neville Goodwin Davis filed 12 June 2017, exh ND3 at [6.1].

[34]Directions made 7 July 2017.

[35]Applicant’s submissions filed 20 July 2017 at [6].

[36][2015] WASC 203.

[37][2014] WASAT 76.

[38]Applicant’s submissions filed 20 July 2017 at [10].

[39]Respondent’s submissions filed 3 August 2017 [8].

[40]Aziz v Medical Board of Australia [2015] QCAT 99, [6]-[8]; Medical Board of Australia v Bourke [2015] QCAT 400; Medical Board of Australia v Davies VR 152/2016 (referred to in the respondent’s submissions as Medical Board of Australia v Eddy VR 152/2016).

[41]Respondent’s submissions filed 3 August 2017 at [12].

[42]National Law, s 5.

[43]Ibid.

[44]Ibid.

[45][2015] QCAT 94 at [67]-[69].

[46]Ibid at [70].

[47][2015] WASC 203.

[48][2015] ACAT 44 at [200].

[49][2014] WASAT 76.

[50](Unreported, Supreme Court of Western Australia, Owen J, 13 November 1992) 19.

[51][2015] QCAT 86.

[52][2002] 1 Qd R 116 at 138.

[53][2015] QCAT 400.

[54]State Administrative Tribunal, VR 152/2016. Referred to in the respondent’s submissions filed 3 August 2017 as Medical Board of Australia v Eddy VR 152/2016.

[55][2017] QCAT 431.

[56][2017] QCAT 362.

[57][2012] QCAT 288.

[58][2014] QCAT 677.

[59][2016] QCAT 450.

[60][2017] QCAT 88.

[61][2011] QCAT 627.

[62][2012] SAHPT 6.

[63]Affidavit of Neville Goodwin Davis filed 12 June 2017, exh ND2 at [28].

[64]Ibid at [32].

[65]Ibid at [33].

[66]Ibid.

[67]Ibid.

[68]Ibid at [34].

[69]Affidavit of Audrey Lacey filed 22 June 2017, exh AJLA1.

[70]Affidavit of Neville Davis filed 12 June 2017, exh ND2.

[71]Ibid.

[72]Ibid, exh ND3.

[73]Ibid, exh ND1.

[74]Ibid, exh ND2 at [36].

[75]Respondent’s submissions filed 3 August 2017 at [12], the examples being referred to are those found in the definition of unprofessional conduct.

[76][2013] QCAT 376.

[77]Applicant’s submissions filed 20 July 2017 at [11]; Respondent’s submissions filed 3 August 2017 at [16].

[78]Joint submissions on sanction filed 29 June 2017 at [32].

[79][1994] VicSC 7.

[80][2009] VCAT 419.

[81][2012] QCAT 362 at [14].

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Neville Goodwin Davis

  • Shortened Case Name:

    Medical Board of Australia v Davis

  • MNC:

    [2018] QCAT 215

  • Court:

    QCAT

  • Judge(s):

    A/Deputy President Brown, Mr M Halliday, Dr H Moudgil, Dr G Powell

  • Date:

    09 Jul 2018

Appeal Status

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

Cases Cited

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1 citation
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1 citation
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Clough v Queensland Law Society Inc; A-G v Clough[2002] 1 Qd R 116; [2000] QCA 254
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Health Ombudsman v Barber [2017] QCAT 431
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Medical Board of Australia v Alroe [2014] QCAT 677
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Medical Board of Australia v Andrew [2015] QCAT 94
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Medical Board of Australia v Bourke [2015] QCAT 400
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Medical Board of Australia v Dr FA (No 2) [2012] QCAT 288
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Medical Board of Australia v Hocking [2015] ACAT 44
2 citations
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Cite 1 - [2015] ACAT 44
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Medical Board of Australia v Jones [2012] QCAT 362
2 citations
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Cite 1 - [2012] QCAT 362
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Medical Board of Australia v Kanyowa [2016] QCAT 450
2 citations
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Medical Board of Australia v Martin [2013] QCAT 376
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Medical Board of Australia v Roberts [2014] WASAT 76
3 citations
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Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419
2 citations
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Cite 1 - [2009] VCAT 419
Cite 2 - [2009] VCAT 419
Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627
2 citations
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Cite 1 - [2011] QCAT 627
Cite 2 - [2011] QCAT 627
Nursing and Midwifery Board of Australia v Natziuk [2012] SAHPT 6
2 citations
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Cite 1 - [2012] SAHPT 6
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Peeke v Medical Board of Victoria [1994] VicSC 7
2 citations
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Cite 1 - [1994] VicSC 7
Cite 2 - [1994] VicSC 7
Sharma v Medical Board of Australia [2015] QCAT 86
2 citations
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Cite 1 - [2015] QCAT 86
Cite 2 - [2015] QCAT 86
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203
3 citations
Jump To
Cite 1 - [2015] WASC 203
Cite 2 - [2015] WASC 203
Cite 3 - [2015] WASC 203
The Health Ombudsman v Chambers [2017] QCAT 362
2 citations
Jump To
Cite 1 - [2017] QCAT 362
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The Health Ombudsman v Levick [2017] QCAT 88
1 citation
Jump To
Cite 1 - [2017] QCAT 88

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1

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