Health Ombudsman v HCG[2020] QCAT 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a) and s 104.  Under s 126 of that Act, I constitute the Tribunal.  I am sitting with assessors, Dr Chew, Dr Khursandi and Mr Halliday in accordance with the Act, s 126.  Their function is to advise me in relation to questions of fact.  The respondent was, at the relevant time, a registered medical practitioner, and, hence, a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Queensland).
2. [2]
   The applicant alleges that the respondent engaged in professional misconduct in that, while registered and practising as a medical practitioner, he behaved in such a way that he was convicted of two indictable offences, assault occasioning bodily harm and wilful damage, both domestic violence offences, and a summary offence, a breach of a domestic violence order.  It was alleged that this conduct was inconsistent with the respondent’s being a fit and proper person to hold registration in the profession.  The parties have provided the Tribunal with an agreed statement of facts.  The respondent, who has been legally represented in these proceedings, admits the grounds alleged and that the conduct in question amounts to professional misconduct.  

1. [3]
   The parties have provided joint written submissions to the Tribunal.  The hearing proceeded on the papers in accordance with the Queensland Civil and Administrative Tribunal Act 2009, s 32.  The Tribunal accepts the facts set out in the agreed statement of facts.  They may be summarised as follows:  the respondent was born in 1983 and is now 36.  He was first registered as a medical practitioner in December 2008.  He was, at the relevant time, working as a general practice trainee at a medical practice in a provincial centre.  The complainant was a person with whom he had been in a relationship for about two years at that time.
2. [4]
   On 31 May 2016, a Magistrates Court had issued a domestic violence order to the respondent requiring him to be of good behaviour to the complainant and not to commit domestic violence.  While that order was in force, on 22 July 2017, an altercation developed between the parties at their residence in the course of which, the respondent head-butted the complainant causing a laceration over her left eyebrow which bled.  When the complainant telephoned for assistance, the respondent took and smashed her phone.  Police attended and arrested the respondent after he returned to the residence the next day.  He declined to be interviewed and was released on bail on 24 July 2017.
3. [5]
   He notified AHPRA of the charges, as required by the National Law.  On 10 September 2018, in the District Court, the respondent pleaded guilty to two indictable offences and to the summary offence.  On each indictable offence, he was sentenced to 12 months imprisonment suspended after two months with an operational period of two years.  The respondent’s lawyers notified AHPRA of the outcome of the criminal proceeding, as required by the National Law.  The respondent has a history of psychiatric issues causing health impairment, for which his registration has been subject to undertakings and a condition, and he has been subject to comprehensive monitoring.
4. [6]
   In July 2009, the then Medical Board of Queensland was advised the respondent was on sick leave and directed that he undergo a health assessment. Following this, the Board found he had an impairment due to cannabis abuse and a possible major depressive disorder. The respondent, in September 2009, undertook not to practice. That undertaking was released in February 2010 after he had given a number of healthrelated undertakings for a period of three years. He was allowed to practice subject to a drug-screening program and supervision, and required to refrain from selfprescribing. In August 2012, following a further report from an independent health assessor and a report from the respondent’s supervisor, the undertakings and condition were removed.
5. [7]
   In November 2016, the applicant received an anonymous complaint about the respondent which was referred to AHPRA. It obtained a submission from the respondent and a report from his treating psychiatrist in February 2017. That report stated that the respondent had a history of emotional trauma and showed some features of cluster B traits and of post-traumatic stress disorder. He was said not to be suffering from a mental illness so as to impair his ability. The drug screening did not indicate any problems. His supervisor had found no evidence of alcohol interfering with his work and had no concern for patient safety and advised, prophetically, that: “He would make a good general practitioner if he could prevent his personal life from causing his professional life to unravel.”

8. [8]
   In May 2017, AHPRA obtained a further health assessment of the respondent, which showed evidence of recurrent episodes of major depressive disorder, personality vulnerabilities and substance use disorder, said to be in remission. The Board made a finding of impairment in June 2017, and the respondent gave health-related undertakings for a period of 12 months. The offences were committed soon after the period of the undertakings began. In January 2019, the Board refused the respondent’s application, made in October 2018, to renew his registration as a medical practitioner on the ground that he was not an appropriate person to practice the profession under the National Law, s 55(1)(b) because of the conduct leading to the conviction.
9. [9]
   The Board indicated that it might consider a further renewal application after the sentence had been served and there was sufficient evidence of rehabilitation. The Board noted evidence that the respondent was deeply remorseful for his actions, and showed insight into his offending conduct, and that his treating practitioners considered that he had reasonable prospects of maintaining long-term stability in his psychiatric problems. After being released from custody, the respondent obtained work outside the health field.

10. [10]
    The Tribunal has also been provided with two affidavits, one by the respondent and one by his solicitor. The former speaks of his remorse and advises that the relationship with the complainant ceased at the time of the offending and has not resumed. He has paid the complainant a sum by way of compensation. He is continuing to receive psychiatric treatment and considers that it has been and is helpful. He hopes to return to the medical profession.
11. [11]
    The second affidavit exhibits a report from the treating psychiatrist given in December 2019. He has been treating the respondent since June 2015. At his latest appointment, he was prescribed an antidepressant, but is no longer in need of anti-anxiety medication. His mental state has improved although subject to the stress of being unable to practice medicine, and he is continuing to respond to treatment. He displays good insight and a willingness to address his concerns.
12. [12]
    Also exhibited is a report from a treating psychologist who advised that the respondent has attended for treatment since his release from custody and engages openly and honestly in sessions with a high level of insight, and has expressed remorse and responsibility for his actions. The psychologist expressed the opinion that he was very unlikely to reoffend. Finally, the affidavit exhibits a letter from the principal GP at the practice where the respondent worked, provided for use when the respondent was sentenced. He wrote in very positive terms about his ability and behaviour as a medical practitioner.
13. [13]
    I accept there is no reason to doubt his professional competence and that earlier concerns have been overcome. I am conscious of the definition of professional misconduct under the National Law, section 5. The relevant part is paragraph (c): “conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession.” The respondent does not dispute the characterisation of his conduct in this way, and I find that the relevant conduct did amount to professional misconduct on this basis. I have been referred to a number of decisions of this and other Tribunals where such conduct has been characterised in that way.

Analysis

14. [14]
    In imposing a sanction, the health and safety of the public are paramount.  Disciplinary proceedings are protective, not punitive in nature.  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.  Insight and remorse on the part of the respondent are also relevant, and are shown here by the respondent.  The respondent has taken steps to rehabilitate himself.  
15. [15]
    Domestic violence is a matter of serious community concern, as has been noted by the Court of Appeal, for example in R v MDB [2018] QCA 283 at [44], [45].  An aspect of the particular significance of domestic violence in the case of a general practitioner was discussed in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [93].  These factors make considerations of general deterrence, the maintenance of professional standards and public confidence matters of importance in this proceeding.  
16. [16]
    Ultimately, it is a matter for the Tribunal to determine what sanction to impose.  The effect of a joint submission as to sanction was discussed was by Judge HornemanWren in the Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree.  I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59] and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31].  

17. [17]
    The respondent is no longer registered and has not been for some time.  To the extent that there has already been a suspension of practice since 2018, that is a relevant factor when determining what order the Tribunal should make.^[1]  The respondent was initially prevented from practicing by his imprisonment and subsequently by the refusal of the Board to renew his registration.  What is proposed in the joint submission is that the respondent be reprimanded and disqualified from applying for registration until 10 December 2020.  That is two years since the respondent was notified of the decision of the Board not to renew his registration and two years and three months since he ceased to practice on his being sentenced.  It will be three months after the expiration of the operational period of the suspended portion of the term of imprisonment.  
18. [18]
    In all the circumstances, taking into account the content of the agreed statement of facts and the joint submissions and with the benefit of the advice of the assessors, and bearing in mind the evidence of rehabilitation of the respondent and of the low risk of further offending, I accept that it is an appropriate sanction to impose in the circumstances of this case.
19. [19]
    The Tribunal notes the reference by the treating psychiatrist that he, the respondent, has long-term vulnerabilities. It would be desirable for the respondent to have up-todate reports from the treating psychiatrist, psychologist and his general practitioner at the time when he reapplies for registration, particularly in relation to his undertaking continuing treatment and complying with any medication prescribed. It would be desirable to ensure that he has an appropriate medical support in place when confronting the stress associated with returning to practice. The Board should consider a condition that he continue to receive medical supervision to ensure that he remains stable.
20. [20]
    The decision of the Tribunal is, therefore:

1. The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct.
2. The Tribunal reprimands the respondent.
3. The respondent is disqualified from applying for registration as a medical practitioner until 10 December 2020.
4. The parties bear their own costs of this proceeding.