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Medical Board of Australia v Valerie Cole[2019] QCAT 113

Medical Board of Australia v Valerie Cole[2019] QCAT 113

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Cole [2019] QCAT 113

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

VALERIE COLE

(respondent)

APPLICATION NO/S:

OCR114-15

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 May 2019

HEARING DATE:

2 November 2016

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:

Dr K Soh

Dr H Moudgil

Mr K Murphy

ORDERS:

  1. Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unprofessional conduct.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  3. Pursuant to s 196(2)(b) of  the Health Practitioner Regulation National Law (Queensland), the following conditions be imposed:
  1. The Practitioner is prohibited from participating, or continuing to participate in a plan or scheme in which she may, directly or indirectly, in her own name or through servants or agents, be or become entitled to receive any benefit or reward, financial or otherwise, as a result of the sale, by any person, of any products manufactured or distributed by USANA.
  2. Within 7 days of the notice of the imposition of these conditions, the Practitioner must provide a copy of these conditions to each and every current employer.
  3. Within 14 days of notice of the imposition of these conditions, the Practitioner must provide to AHPRA written confirmation that a copy of these conditions has been provided to each and every current employer.
  4. With any subsequent new place of employment, the Practitioner must:
  1. within 7 days of commencing that employment, provide a copy of these conditions to her new employer; and
  2. within 14 days of commencing that employment, provide to AHPRA written confirmation that a copy of these conditions has been provided to her new employer.
  1. The Practitioner must provide to the Board within 14 days of the Board’s request, any documents or information reasonably required to monitor compliance with these conditions, including financial documentation relating to her as an individual or for any company or trust structures for which she is a director or a beneficiary (e.g. income tax returns).
  2. All costs and expenses in relation to the terms set out in these conditions are to be at the Practitioner’s expense.
  3. The Practitioner will provide to the Board any documentary evidence required by these conditions, within the timeframes specified.
  4. Failure to comply with these conditions may be a ground for health, conduct or performance action against the Practitioner.
  1. Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is twelve (12) months from the date hereof.
  2. Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
  3. The Respondent pay the Applicant’s costs to be agreed or otherwise assessed on the District Court scale.
  4. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of: 
  1. the contents of a document or thing filed in or produced to the tribunal; and
  2. evidence given before the tribunal; is prohibited to the extent that it could identify or lead to the identification of any patient.
  1. Consistent with the terms of the non-publication order, any medical records of any patient included in the material shall be placed in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is ‘Not to be copied or inspected without an order of the tribunal.’

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where the practitioner admitted to conduct involving a conflict of interest – where the practitioner was subject to a previous caution arising from a conflict of interest – where the parties disagreed as to the categorisation of the conduct but were in agreement as to sanction– whether the conduct should be categorised as professional misconduct – whether the sanction agreed was appropriate

Health Practitioner Regulation National Law (Qld), s 3A, s 5, s 193, s 193B, s 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 102

Medical Board of Queensland v Raddatz, Health Practitioners Tribunal, decision delivered on 8 September 2000, considered

Psychology Board of Queensland v Cook [2008] QHPT 4, considered

APPEARANCES & REPRESENTATION:

 

Applicant:

A Forbes, solicitor with Lander and Rogers

Respondent:

S J Forrest, instructed by Meridian Lawyers

REASONS FOR DECISION

The Referral

  1. [1]
    On 16 July 2015 the Medical Board of Australia (Board) referred to the tribunal disciplinary proceedings against the respondent, Dr Cole, pursuant to s 193B(2) of the Health Practitioner Regulation National Law (Queensland) (National Law).  The Health Ombudsman had asked the Board to continue to deal with the matter pursuant to s 193(2)(b) of the National Law.
  2. [2]
    The grounds for the referral to the tribunal were said to be that the Board had formed a reasonable belief that the registrant had failed to disclose a conflict of interest by involving a patient in a business/financial relationship from which the registrant benefitted, and the registrant did so when the registrant had previously been cautioned in relation to her failure to advise a patient of her financial interest in similar circumstances.
  3. [3]
    The initial response filed on behalf of Dr Cole denied any conflict of interest in her treatment of patient CW or any failure to fully disclose such conflict.
  4. [4]
    Ultimately, the matter proceeded before the Tribunal by way of a statement of agreed facts and a statement of admissions by Dr Cole as to her conduct.  Affidavits from the registrant, the patient and an expert were tendered in evidence at the hearing.
  5. [5]
    The parties could not agree as to how the admitted conduct by Dr Cole should be characterised: the Board contended for a finding of professional misconduct and Dr Cole submitted the behaviour should be characterised as unprofessional conduct.
  6. [6]
    The parties reached agreement prior to the hearing as to sanction.  Both parties agreed Dr Cole should be reprimanded with conditions placed on her registration.  The precise terms of those conditions were a matter argued at the hearing, though ultimately the terms were agreed.
  7. [7]
    As part of the compromise, Dr Cole agreed to pay the Board’s costs in an amount to be agreed or otherwise assessed on the District Court Scale.

Background

  1. [8]
    Dr Cole holds specialist general registration as a medical practitioner, having first been registered in 1974.  Dr Cole is a member of the Australasian College of Nutrition and Environmental Medicine.  Dr Cole describes herself as a “nutritional holistic GP”.[1]
  2. [9]
    USANA Health Sciences is a US based manufacturer of health supplements that distributes its products through a network marketing scheme.  Associate members of the scheme can purchase products at special prices, earn commissions though a variety of ways including direct retail sales to customers and the recruitment of other members in the network marketing of the products. 
  3. [10]
    Dr Cole first became a member of the USANA network marketing scheme (the Scheme) in about 2000 and last reactivated her membership on or about 14 June 2006.  Dr Cole held continuous membership of, and an account with, USANA from that date until she cancelled her membership and account on 7 December 2015.[2] 
  4. [11]
    At the time she re-commenced her membership with USANA she was working at, and a member of, the Fountain View Complementary Medical Centre located in Victoria.  Dr Cole commenced the practice, National Vibrant Health Clinic, located on the Gold Coast in about August 2008.  Dr Cole was a sole trader at that practice and contracted with a number of practitioners who paid management fees but held no interest in the practice.  During the period from 1 July 2010 to 30 June 2015, some of the practitioners were members of the Scheme, as was an employee of the practice, Ms Noda, who worked as the receptionist in the practice.
  5. [12]
    In the 2010 and 2011 financial years, Dr Cole’s total earnings from her association with USANA were $73,431 and $71,457 respectively.
  6. [13]
    From the date of cancellation of her membership and account, Dr Cole states that she can neither buy nor sell USANA products and she has no continuing financial interest in USANA, either in USANA Australia Pty Ltd or any other USANA entity.
  7. [14]
    In or about September 2010, Dr Cole introduced a patient, CW, as an associate of USANA.  Dr Cole says that there were only ever two patients who were associates of the USANA networking business.
  8. [15]
    CW had first consulted Dr Cole on 20 September 2010.  CW went to see Dr Cole due to persistent fatigue she was suffering.  During that consultation, Dr Cole recommended USANA products to CW together with other products, including intravenous vitamin treatment.
  9. [16]
    At an appointment on 25 November 2010, Dr Cole recommended an increase in the amount of USANA supplements.  It was at the conclusion of that consultation, that:
  1. (a)
    Dr Cole facilitated CW joining the Scheme by arranging for her to complete the relevant paperwork with Ms Noda, the practice receptionist, who was a member of the Scheme;
  2. (b)
    CW signed USANA associate forms which were given to her by Ms Noda; and
  3. (c)
    The forms were signed by CW at the reception desk of the practice in the presence of the receptionist, Ms Noda.
  1. [17]
    Prior to leaving the practice that day, CW spoke to Ms Noda about the Scheme.
  2. [18]
    During a subsequent consultation on 19 January 2011, Dr Cole and CW further discussed the Scheme.  Dr Cole invited CW and her husband to meet with herself and her husband to discuss their views on the Scheme.  On 25 January 2011, the suggested meeting took place at the home of Dr Cole.
  3. [19]
    Various other meetings took place throughout 2011.  In particular, on 5 March 2011, at a function organised by CW and the receptionist, Ms Noda, Dr Cole gave a presentation about the Scheme.
  4. [20]
    It was after that event that CW, in an email dated 23 March 2011, raised some concerns with Dr Cole about their continuing to work together to promote USANA products and business opportunites.  In that email, CW stated that she wished to maintain the doctor/patient relationship.  Dr Cole, Ms Noda and CW met on 25 March 2011 to discuss CW’s concerns.  It was agreed CW and Ms Noda would continue to work together.
  5. [21]
    From April through to October 2011, Ms Noda and CW continued to work together but ultimately their working relationship ceased with CW stating that she felt Ms Noda was “failing to keep commitments to herself and other team members”.
  6. [22]
    After that time, CW attempted to change from the business association up line with Ms Noda but that request was refused by USANA.  On 26 October 2011, CW resigned from USANA.  In making her request to USANA, CW expressed the view that she had been “unethically induced” into joining USANA.
  7. [23]
    On 8 November 2011, CW received an email from Dr Cole as a result of the complaint she had made to USANA. 
  8. [24]
    CW did not see Dr Cole as a patient after 31 March 2011.

The first proceedings

  1. [25]
    By a decision dated 7 February 20018, the Medical Practitioners Board of Victoria referred Dr Cole to the Professional Standards Panel.  At the time, Dr Cole was working at a practice in Victoria. 
  2. [26]
    The referral arose as a result of a notification from a patient.  The notification had arisen out of the sale to the patient of USANA products.  The sale of the products was through an USANA representative but, it was accepted, Dr Cole had enthusiastically endorsed them.  The USANA representative had attended the practice while the patient was on an intravenous infusion without the patient’s prior knowledge or consent. 
  3. [27]
    The Victorian Board had identified the following allegations against Dr Cole:
    1. (a)
      Failed to maintain appropriate professional boundaries by:
      1. Pressuring MF to use particular products (USANA) in which [she] had a financial interest; and
      2. Allowing a sales representative to enter the room where MF was receiving treatment without her knowledge and consent; and
    2. (b)
      Sought to gain financial advantage by:
      1. Selling products directly to [her] patients; and
      2. Allowing [her] financial interests in particular products to affect the treatment she recommended.
  4. [28]
    By its decision dated 29 May 2008, the Panel concluded that there was no evidence that Dr Cole was selling products directly to the patients, even though she stood to benefit by the sale, nor that she had allowed her financial interest to affect the treatment that she was recommending.  The Panel concluded that Dr Cole had engaged in unprofessional conduct, namely conduct of a health practitioner occurring in connection with the practice of the practitioner’s health profession that is of a lesser standard than a member of the public or the health practitioner’s peers are entitled to expect of a reasonably competent health practitioner.
  5. [29]
    The Panel determined that Dr Cole:
  1. (a)
    be cautioned not to allow her passion for USANA products to result in inadvertent pressure being placed on patients to purchase expensive products from an organisation with which she has a financial relationship; and
  1. (b)
    undergo counselling by her medical defence organisation, at her expense, regarding the most appropriate process for recommending treatments provided by an organisation with which she has financial involvement, such as USANA.

The second notification

  1. [30]
    On 17 November 2011, patient CW made a formal complaint to the Australian Health Practitioners Regulation Authority (AHPRA).  The nature of the complaint was described as “recruiting patients for a network marketing business”.
  2. [31]
    The relevant conduct of Dr Cole as categorised in the Referral can be summarised as:
  1. (a)
    A conflict of interest, particularised as treating CW with USANA and asking, facilitating or otherwise allowing CW to join the USANA network business.
  1. (b)
    A failure to disclose, particularised as:
  1. (i)
    failing to identify and fully disclose her conflict of interest in treating the patient with, and/or recommending, USANA products;
  1. (ii)
    failing to fully disclose her interest in USANA and/or USANA networking business.
  1. (c)
    Exploiting the treating relationship with a patient, particularised as:
  1. (i)
    asking, facilitating or otherwise allowing CW to join the Scheme;
  1. (ii)
    giving a presentation at a function organised by CW and Ms Noda; and
  1. (iii)
    on various occasions, by discussing the Scheme with CW.
  1. (d)
    Failing to act, particularised as:
  1. (i)
    failing to act on concerns expressed by CW;
  1. (ii)
    failing to cease, or to facilitate ceasing, the USANA networking business for CW; and
  1. (iii)
    failing to cease the treating relationship with CW.
  1. [32]
    By reason of that conduct, Dr Cole was alleged to be in breach of the Board’s Code[3] and the AMA Code[4] and to have failed to adhere to the caution given by the Panel and the counselling received.
  2. [33]
    In a statement of admissions, Dr Cole admitted to most of the conduct as categorised in the referral, including admitting to having breached the Board’s Code and the AMA Code.  Dr Cole did not admit to having failed to adhere to the previous caution given by the Panel.

Characterisation of the conduct

  1. [34]
    The Board says the conduct of the respondent amounts to professional misconduct as defined under s 5 of the National Law.  Sub-paragraphs (a) and (b) of the definition are defined by reference to unprofessional conduct, and sub-paragraph (c) defines the term as being conduct “inconsistent with the practitioner being a fit and proper person to hold registration”.  The latter category is the most serious and any finding in that regard would result in the cancellation of the practitioner’s registration.
  2. [35]
    The Referral alleged that the conduct could fall within all three categories.  It was not until the filing of the submissions on behalf of the Board in September 2016 that it was said the conduct fell within either sub-paragraphs (a) and/or (b) of s 5, namely:
  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; …
  1. [36]
    Any suggestion that Dr Cole was not a fit and proper person to remain registered was not pursued. 

Submissions by the Board

  1. [37]
    In support of a finding of professional misconduct the Board referred in particular to Dr Cole having formed a financial business relationship while remaining in a treating relationship with CW.  The Board referred to the comments by the expert, Dr Joyner, who opined:

I do not believe that Dr Cole has behaved at the expected professional level of GP’s in Australia at that time.  It is not her medical care that creates the problem but her actions in specifically forming a complex legal defined financial business relationship with her then patient CW.  Failure to recognise the inherent “conflict of interest” involved in this action created a long term adverse limitation to her providing the level of professional care expected of a GP in Australia.[5]

  1. [38]
    The Board refers to the fact that the conduct was not a “fleeting error”. The Board said several aspects of the conduct occurred over many months, including failing to recognise and fully disclose a conflict of interest and exploitation of CW which included the use of confidential information as part of the “pitch” to entice CW into joining USANA, and the holding of meetings with CW. 
  2. [39]
    It was said the financial interest of Dr Cole in USANA was not insignificant.  Dr Cole had earned amounts in excess of $70,000 in the relevant financial years; though it was accepted any financial gain from Dr Cole’s association with CW was indirect. 
  3. [40]
    Further, the Board said an aggravating feature supporting a finding of professional misconduct is that Dr Cole had been given a “clear warning or caution by the Panel and required to undertake counselling”.  During the counselling, Dr Cole was referred to the Code of Ethics and other relevant publications.  The Board said Dr Cole’s indemnity organisation expressed, at the end of the counselling, confidence that Dr Cole understood the problem.  The Board said that Dr Cole has conceded she has again breached the Code, and in fact breached the “Medical Board’s Good Medical Practices Code of Conduct for Doctors in Australia”.
  4. [41]
    The Board relied on the decisions in Psychology Board of Queensland v Cook[6] and Medical Board of Queensland v Raddatz[7]. Cook involved a psychologist who requested and accepted loans of $7,000 from his patient and offered his patient a share of his practice for $75,000.  Cook was found to have engaged in unsatisfactory professional conduct, a definition which in the relevant legislation at the time included a reference to misconduct.  The Health Practitioners Tribunal stated that:

The use of current or former patients as a source of loans, or to conduct private enquiries…is a serious exploitation of the relationship which should exist between psychologist and patient.[8]

  1. [42]
    Raddatz involved a medical practitioner recommending nutritional products which were not a proven or accepted form of treatment.  The Tribunal commented that in instances where a practitioner stands to gain a financial benefit from recommending a specific product:

There is a strong risk that the registrant will consciously or unconsciously recommend a product in which he has a financial interest direct or indirect in favour of a better product in which he has no such interest.  A better product in the sense that it would be more beneficial in the treatment of the patient.

It is the potentiality of this sort of interest based preference that is also to be avoided.  There is no validity in the argument that an interest of this kind is permissible and that one only offends ethical standards if one actually prefers one’s own product against the patient’s best interests.  Interests of this kind which open the way for potential adverse preference are and should be frowned upon as unethical.  In that regard, the Tribunal believes it expresses the views of the vast majority of registrants.[9]

  1. [43]
    The Tribunal found Dr Raddatz had engaged in unsatisfactory professional conduct and cancelled his registration.

Submissions by Dr Cole

  1. [44]
    Dr Cole concedes that her conduct satisfies the definition of unprofessional conduct; unprofessional conduct being defined as:

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, and includes –

  1. (h)
    referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
  1. [45]
    Dr Cole said it mischaracterizes the position to say the conduct occurred over several months.  It was said that there are really only two aspects to the conduct, a failure to identify and disclose and the exploitation of the relationship.  On behalf of Dr Cole, it was said the particulars of those complaints should not be separated out as if they constituted distinct infringements of Dr Cole’s ethical obligations.  It was said they form a course of conduct.
  2. [46]
    It was further said that the failure to identify and disclose can only relate to the treating of the patient with USANA products on two occasions, 20 and 23 September 2010.  Given what occurred on 25 November 2010, it was said Dr Cole’s conflict must have become “patently obvious” to CW because she would have been fully apprised of the nature of the Scheme by completing the forms.  It was said, Dr Cole’s failure to fully disclose at that point had no serious practical consequences.
  3. [47]
    Dr Cole accepted that her conduct involved an exploitative element, and in that sense, accepted her conduct was more serious but says “at the less serious end of the spectrum of cases”.  It was said Dr Cole’s conduct was only exploitation to the extent of the power imbalance that exists in any therapeutic relationship.  In particular, it was said:
  1. (i)
    there was no direct contractual or commercial relationship;
  1. (ii)
    whilst Dr Cole stood to gain by the patient’s involvement, so did the patient;
  1. (iii)
    the context in which the discussions ensued in relation to the patient’s circumstances were more commercial and not therapeutic;
  1. (iv)
    the meetings occurred not at Dr Cole’s place of practice;
  1. (v)
    the presentation of which Dr Cole spoke was organised by CW, and not Dr Cole; and
  1. (vi)
    the power imbalance was not such that the patient thought the relationship could not be severed.

Consideration

  1. [48]
    The misconduct of Dr Cole was multi-faceted.  There were clearly failures to identify and disclose in recommending treatment using USANA products.  There were also failures to fully explain the nature of the Scheme prior to having CW sign the forms.  The Tribunal does not accept that the nature and extent of the conflict must have been “patently obvious” to CW once she signed the forms “because at that time she became fully apprised”. At the time of signing the forms, CW clearly did not fully understand the Scheme.  At that time, she did not understand she was signing to become an associate of the Scheme, as distinct to a preferred customer.  In fact, the need for the holding of subsequent meetings which were at the instigation of Dr Cole would suggest to the contrary. 
  2. [49]
    There was a power imbalance because of the therapeutic relationship and there was exploitation from the treating relationship.  In her email to Dr Cole dated 24 March 2011, CW refers to having been vulnerable at the relevant time, being stressed by her continuing fatigue and upset by the fact that her husband was living away from home for work.  CW acknowledged that the USANA business presented an opportunity to change CW’s circumstances and she did acknowledge that for that she was grateful.
  3. [50]
    Whilst there was a vulnerability and a power imbalance, CW was not so overpowered that she did not feel able to sever the business relationship.  The Tribunal accepts that the exploitation should be regarded as being “at the less serious end of the cases”.
  4. [51]
    There was a clear conflict of interest and Dr Cole’s conduct was unethical, which Dr Cole accepts. However, the conduct is more properly viewed as a course of conduct; rather than being analysed as separate instances of misconduct.
  5. [52]
    However, there was no suggestion that the treatment provided was inappropriate.  In his report, whilst acknowledging that he does not totally agree with the “science of the tests, nutritional significance and indicated medications”, Dr Joyner accepts the assessment and recommended treatments seem consistent through the time of Dr Cole’s medical care of CW.  Dr Joyner states that, “There is no defined evidence of any effect on the medical care CW received from Dr Cole relating to their business relationship.”
  6. [53]
    In her email dated 23 March 2011, CW had commented that Dr Cole’s “medical care has been outstanding” and that her improved health is “directly attributed to your professional care.”
  7. [54]
    The Tribunal does not accept, as was contended by the Board, that the fact of the previous caution by the Panel and the subsequent counselling undertaken should be treated as aggravating features supporting a finding of professional misconduct.  Even if the Tribunal were to find there was a similarity, such similarity cannot be treated as an aggravating circumstance in defining the seriousness of the conduct the subject of the Referral, but rather a potentially relevant factor in determining sanction.
  8. [55]
    Even for the purpose of sanction, the reasons of the Panel dated 29 May 2008 found that “Dr Cole did not attempt to sell [MF] USANA products directly however, she stood to benefit financially from the sale of these products by the USANA representative and the extent to which she stood to benefit was not made clear to [MF].”  To the extent that it is relevant, it was a failure by Dr Cole to disclose her conflict clearly, rather than a failure to disclose at all.  At the time, it is clear that the Panel’s view was that Dr Cole did not fully understand the boundary. 
  9. [56]
    It is difficult to gain much guidance from past authorities.  There is no doubt the conduct in Cook and Raddatz had elements making the conduct in those cases worse.  Dr Cook had entered into a direct contractual relationship with his patient, whereas any association here was indirect.  There was also evidence of the establishment of a social relationship which confused and complicated the treating relationship.  In Raddatz, the practitioner had offered a range of unconventional medicines, the efficacy of which was not proven or accepted.  The complaint was focused on the offering of the unconventional medicines, rather than having involved the patient in a business relationship. There is no suggestion here that Dr Cole’s treatment of the patient was not therapeutically sound.
  10. [57]
    On balance, the Tribunal finds that the conduct is more properly characterised as unprofessional conduct.

Approach to sanction

  1. [58]
    Having found that the conduct amounts to unprofessional conduct, in accordance with s 196(2) of the National Law, the Tribunal must decide the appropriate sanction to be imposed.  When addressing sanction, the tribunal must approach each case afresh and consider the particular circumstances of the case before it.[10]
  2. [59]
    The parties have proposed an agreed sanction comprising a reprimand and the imposition of conditions on the registration of the respondent.  The conditions were directed at removing the possibility of ongoing conflict by prohibiting Dr Cole’s continuing participation in the Scheme and monitoring of compliance by the Board.
  3. [60]
    The determination of sanction in disciplinary proceedings remains a discretionary matter for the Tribunal, notwithstanding any agreement between parties.[11] Nevertheless, where parties have reached an agreed position that agreement should only be disturbed if it “falls outside the permissible range of sanction for the conduct”.[12]
  4. [61]
    The paramount guiding principle for administering the National Law is that the health and safety of the public are paramount.[13]  The purpose of the disciplinary proceedings is protective, not punitive.[14]
  5. [62]
    Protection of the public requires the maintenance of professional standards, which includes both personal and general deterrence. 
  6. [63]
    Central to any determination of sanction must be an assessment of whether the practitioner presents an ongoing risk to the public of similar misconduct.  The degree of insight demonstrated by the practitioner will be relevant.[15] 
  7. [64]
    Here, it is an aggravating feature that Dr Cole had been previously dealt with by the Panel for not having fully disclosed her conflict of interest in recommending treatment involving the use of USANA products.  Dr Cole had received counselling and is now before the Tribunal for conduct involving a failure a fully disclose her conflict of interest.  Her further conduct is suggestive that she still failed to understand the appropriate boundaries.
  8. [65]
    However, shortly after the filing of the Referral in these proceedings, Dr Cole cancelled her membership and account and required those working at her practice, including the receptionist at the practice, to likewise cancel their memberships.  The taking of that step is evidence of Dr Cole gaining insight into the difficulties. 
  9. [66]
    In circumstances where there was never any suggestion in relation to the standard of care provided, the agreement reached between the parties seems entirely appropriate.
  10. [67]
    Given the conduct, it is appropriate that Dr Cole receive a formal reprimand.  The need for disengagement and the Board’s desire to monitor Dr Cole’s commitment to remaining disengaged, as required by the conditions as agreed between the parties, is also appropriate. 
  11. [68]
    The parties had proposed a review period of two years for the conditions and for the conditions to be reviewed by the Board, rather than the tribunal. 
  12. [69]
    Since the hearing of this matter on 2 November 2016, there has been an unfortunate delay in the Tribunal’s decision for which the Tribunal apologises.  As a result, in finalising these reasons the Tribunal considered it appropriate to ask the parties to confirm whether, in the intervening period, Dr Cole had stayed unassociated with USANA and whether Dr Cole had been monitored by the Board.
  13. [70]
    The parties have provided to the Tribunal a letter from USANA Health Sciences dated 16 April 2019 which confirms that “effective 7 December 2015, Dr Valerie Cole has not earned an income from USANA and has no financial interest in USANA.”  The Board has indicated that they accept what is stated in the letter. 
  14. [71]
    The parties confirmed that in the period since the hearing of this matter, however, Dr Cole has not provided any information to the Board and has not been subjected to any monitoring by the Board.
  15. [72]
    In those circumstances, the Tribunal considers it is still appropriate, consistent with the agreement reached between the parties, that all the conditions as agreed be imposed but that, given the passage of time, a review period be set at 12 months from the date of this order, not two years as proposed.  At that time, the Board can consider which of the conditions should remain.

Costs

  1. [73]
    In reaching a joint position, the parties agreed that Dr Cole should pay the Board’s costs in the sum agreed.
  2. [74]
    Since the introduction of the Health Ombudsman Act 2013 (Qld), the issue of costs falls to be determined under the QCAT Act.  Pursuant to s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the parties must each pay their own costs, unless “the interests of justice require” the Tribunal to make a costs order against a party.
  3. [75]
    Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order, including the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant.
  4. [76]
    The Court of Appeal in Medical Board of Australia v Wong[16] described it as “a basis for departing from the default position.”[17]  Judicial Member the Honourable James Thomas AM QC in Health Ombudsman v Antley[18] said the proper approach for the Tribunal is whether there are “countervailing considerations”.[19] 
  5. [77]
    The parties have reached an agreed position, and in the circumstances of this case, it is appropriate that the Tribunal have regard to that negotiated position.  The Tribunal considers it is appropriate to make the order as to costs as submitted by both parties.

Non- Publication Order

  1. [78]
    The Referral filed arose from the complaint made to the Board by a former patient of Dr Cole and the evidence given to the Tribunal referred to prior proceedings also involving the complaint of a former patient.
  2. [79]
    Section 66 of the QCAT Act prescribes the limited circumstances in which the Tribunal can make an order prohibiting the publication of the contents of any documents produced to the tribunal, and evidence given before the tribunal that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.  Those circumstances include the publication of confidential information or information whose publication would be contrary to the public interest.[20]
  3. [80]
    It is accepted that, in the exercise of those powers, the Tribunal should make an order prohibiting the publication of any of the medical records filed in the proceedings, including those attached to any affidavits.  In addition, the Tribunal should make an order protecting the identity of the patients.  Such orders will be made and the Tribunal will publish these reasons in a form which protects the integrity of the non-publication order.

Orders

  1. [81]
    Accordingly, the Tribunal makes the following orders:
  1. Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unprofessional conduct.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  3. Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), the following conditions be imposed:
    1. The Practitioner is prohibited from participating, or continuing to participate in a plan or scheme in which she may, directly or indirectly, in her own name or through servants or agents, be or become entitled to receive any benefit or reward, financial or otherwise, as a result of the sale, by any person, of any products manufactured or distributed by USANA.
    2. Within 7 days of the notice of the imposition of these conditions, the Practitioner must provide a copy of these conditions to each and every current employer.
    3. Within 14 days of notice of the imposition of these conditions, the Practitioner must provide to AHPRA written confirmation that a copy of these conditions has been provided to each and every current employer.
    4. With any subsequent new place of employment, the Practitioner must:
      1. within 7 days of commencing that employment, provide a copy of these conditions to her new employer; and
      2. within 14 days of commencing that employment, provide to AHPRA written confirmation that a copy of these conditions has been provided to her new employer. 
    5. The Practitioner must provide to the Board within 14 days of the Board’s request, any documents or information reasonably required to monitor compliance with these conditions, including financial documentation relating to her as an individual or for any company or trust structures for which she is a director or a beneficiary (e.g. income tax returns).
    6. All costs and expenses in relation to the terms set out in these conditions are to be at the Practitioner’s expense.
    7. The Practitioner will provide to the Board any documentary evidence required by these conditions, within the timeframes specified.
    8. Failure to comply with these conditions may be a ground for health, conduct or performance action against the Practitioner.
  4. Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is twelve (12) months from the date hereof.
  5. Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
  6. The Respondent pay the Applicant’s costs to be agreed or otherwise assessed on the District Court scale.
  7. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of: 
    1. the contents of a document or thing filed in or produced to the tribunal; and
    2. evidence given before the tribunal;

is prohibited to the extent that it could identify or lead to the identification of any patient.

  1. Consistent with the terms of the non-publication order, any medical records of any patient included in the material shall be placed in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is ‘Not to be copied or inspected without an order of the tribunal.’

Footnotes

[1]Affidavit of Dr Cole.

[2]Affidavit of Dr Cole.

[3] Medical Board of Australia’s Good Medical Practice Code of Conduct for Doctors in Australia.

[4] Australian Medical Association Code of Ethics 2006.

[5]Report dated 23 May 2016; Exhibit PJ-4 to the affidavit of Dr Joyner sworn 30 May 2016.

[6][2008] QHPT 4.

[7]Health Practitioners Tribunal, decision delivered on 8 September 2000.

[8]Supra, [44].

[9]Supra, p 17.

[10]Psychology Board of Australia v Duangpatra [2012] QCAT 514, [18] (Duangpatra).

[11]See, for example, Medical Board of Australia v Martin [2013] QCAT 376 and Medical Board of Australia v Fitzgerald [2014] QCAT 425.

[12]Medical Board of Australia v Fitzgerald [2014] QCAT 425, [17].

[13]National Law, s 3A.

[14]Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183; Medical Board of Australia v Dolar [2012] QCAT 271, [30].

[15]Medical Board of Australia v Blomeley [2018] QCAT 163, [142].

[16][2012] QCA 42 (Wong).

[17]Wong, [35].

[18]Health Ombudsman v Antley [2016] QCAT 472 (Antley).

[19]Antley, [61].

[20]QCAT Act, s 66(2)(d)

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Valerie Cole

  • Shortened Case Name:

    Medical Board of Australia v Valerie Cole

  • MNC:

    [2019] QCAT 113

  • Court:

    QCAT

  • Judge(s):

    Judge Sheridan, Dr K Soh, Dr H Moudgil, Mr K Murphy

  • Date:

    01 May 2019

Appeal Status

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

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