Harirchian v Health Ombudsman (No 2)
[2020] QCAT 414
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- Harirchian v Health Ombudsman (No 2)[2020] QCAT 414
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Harirchian v Health Ombudsman (No 2)[2020] QCAT 414
Harirchian v Health Ombudsman (No 2)[2020] QCAT 414
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harirchian v Health Ombudsman (No 2) [2020] QCAT 414 |
PARTIES: | RAMIN HARIRCHIAN (applicant) v THE HEALTH OMBUDSMAN (respondent) |
APPLICATION NO/S: | OCR149-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 1 December 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, Assisted by: Dr D Khursandi, Dr D Bodner, Ms A Blair. |
ORDERS: | No order pending further submissions. |
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – immediate registration action – review by Tribunal – conviction of criminal offences – suspension imposed in the public interest – whether action taken least onerous to address the public interest – conditions substituted. Health Ombudsman Act 2013 s 58. CJE v Medical Board of Australia [2019] VCAT 178 Colagrande v The Health Ombudsman [2017] QCAT 107 Farshchi v Medical Board of Australia [2018] VCAT 1619 LCK v Health Ombudsman [2020] QCAT 316 Medical Board of Australia v Leow [2019] VSC 532 Pearse v Medical Board of Australia [2013] QCAT 392 Queensland Law Society Inc v Roche [2003] QCA 469 WD v Medical Board of Australia [2013] QCAT 614 |
REPRESENTATION: | |
Applicant: | J R Jones instructed by Avant Law |
Respondent: | C Templeton instructed by the Office of the Health Ombudsman |
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
- [1]On 19 October 2018 the respondent imposed conditions on the registration of the applicant, a medical practitioner. On 1 May 2020 the respondent varied that decision by removing the conditions, and instead suspending the registration of the applicant. This action was taken under the Health Ombudsman Act 2013 (“the Act”) s 58A, the conditions having been imposed under s 58 of the Act. The applicant has applied to the Tribunal to review that decision.
- [2]Recently, in LCK v Health Ombudsman [2020] QCAT 316 at [21] – [24] I reviewed the relevant provisions of the Act and the principles applicable to an application of this nature. I will not set out again the provisions of the Act. As to the approach to the review, as I said there, the Tribunal has all the functions of the respondent, and must hear and decide the application as a fresh hearing on the merits, to produce the correct or preferable decision.[1] The Tribunal takes into account the material before it, and makes the decision appropriate at the time of the review.[2] In accordance with the Act s 126, the Tribunal sat with assessors.[3]
Facts
- [3]The applicant is and has been since 2008 registered as a medical practitioner.[4] At the material time he practiced as a general practitioner at a suburban practice. On 18 October 2018 he was charged with offences of sexual assault and rape. The offences were alleged to have involved a female patient who attended that practice complaining of a medical condition, in the applicant’s consulting room. The respondent took action on the following day to impose conditions on the applicant’s registration. After the applicant sought a review of those conditions, and following some “without prejudice” negotiations, the conditions were varied in a minor way; other minor changes were made on 30 April 2019 and 10 July 2019.
- [4]Meanwhile, on 9 November 2018 the applicant sought to have filled two prescriptions for Schedule 8 drugs which were not in his name. This was reported to police, who investigated, and subsequently the applicant was charged with a number of fraud and similar offences, and possession of dangerous drugs. On 25 February 2019 a delegate of the Chief Executive of Queensland Health suspended his endorsement to prescribe Schedule 4 and Schedule 8 drugs. The same day the respondent referred the applicant to the National Board to consider if the applicant had an impairment.
- [5]On 30 July 2019 he pleaded guilty to 18 counts of fraud, two counts of attempted fraud, and possession of dangerous drugs. No evidence was offered of the other charges, which were dismissed. No conviction was recorded, and one fine of $6,000 was imposed for all offences. On 19 September 2019 a delegate of the Chief Executive of Queensland Health cancelled the applicant’s endorsement to prescribe Schedule 4 and Schedule 8 drugs, on the basis that he had contravened the earlier suspension.[5] On 18 March 2020, the Tribunal partly stayed the decision to suspend the endorsement, and stayed completely the decision to cancel the endorsement.
- [6]In December 2019 the charges of sexual assault and rape came on for trial in the District Court. During the trial, the jury was directed to acquit on the sexual assault charge, and the rape charge became one of sexual assault. The jury convicted the applicant of that charge. The judge in sentencing said that after the patient entered the consulting room the applicant made a number of comments indicating that he regarded her as sexy, that at some point her pants came down, and he then touched her on the labia and clitoris. He expressly did not find that the applicant pulled down the pants; the question of who did was left open. After the touching the applicant made another remark, and the patient moved away from him.
- [7]On 6 December 2019 the applicant was sentenced for the sexual assault to imprisonment for eight months, suspended after three months. He had been in custody since the jury verdict on 28 November 2019, and this was declared to be time served. He was therefore released on 26 February 2020.[6] On 28 February 2020, the Medical Board imposed conditions on the applicant’s registration, relating to the issue of impairment. On 3 March the respondent issued a show cause notice, and after receiving submissions on behalf of the applicant, imposed the suspension of his registration on 1 May 2020. The respondent alleged that there had been several material changes in circumstances, essentially the outcome of the criminal proceedings. In any case, the suspension was said to be based on the public interest ground. This is the decision which is the subject of this review.
- [8]The applicant did not submit that there should be no immediate action, but rather sought that there be conditions which limited him to male patients, or patients using telehealth. There has been no challenge to the conditions imposed by the Board under the National Law, which were directed to drug testing, supervision and a requirement that he take steps directed to his rehabilitation. The Board had concluded that he had become addicted to Schedule 8 painkillers following treatment of a genuine, painful medical condition, so that he had an impairment. There is expert evidence that his addiction is now in remission. It is not clear to me whether the effect of the suspension of his registration was to intercept these conditions, and this was not addressed in submissions, so I will not have regard to it.
Course of the proceeding
- [9]This matter was originally before the Deputy President, sitting with assessors, on 18 September 2020, when full oral submissions were presented. Subsequently a matter arose which led his Honour to disqualify himself and the assessors from dealing with the matter, and he listed it for hearing before me, sitting with different assessors, on the papers. I understand that he obtained the specific agreement of the parties to our reading and taking into account the transcript of the hearing on 18 September 2020, and we have done so. This avoided the need for oral submissions to be repeated.
Submissions for the applicant
- [10]The applicant’s case was essentially that the public interest did not require the further step of suspension of his registration, and that it was adequately met by the quite stringent conditions which had otherwise been imposed on him.[7] It was submitted that confidence in the profession did not require the conclusion that he was not fit to practice at all prior to the conclusion of the referral to the Tribunal, which had been filed but not heard, and that it was inappropriate to assume any particular outcome of that proceeding. Further, any immediate action should take a form which protects the public interest with as little damage to the practitioner as is consistent with the maintenance of that public interest.[8]
- [11]It was submitted that the well informed public would not be swayed against the medical profession by the applicant’s being allowed to continue to practice under stringent conditions prior to the determination of his referral. Such misbehaviour by the medical profession is rare, and the standing of the profession in Australia is high. There was a significant body of support for the applicant among his patients and colleagues, who were aware of the convictions, and spoke highly of him, the sexual offence was an isolated incident and the sentencing judge had described the offending as out of character. He had evidence from a number of people supporting the view that the sexual assault was quite out of character. It was also submitted that his rehabilitation would be assisted by his being able to salvage some practice, and would be damaged by a complete suspension of practice. Lack of income was making it difficult to comply with the drug testing conditions, and severely impacting on his family, since he was the only breadwinner. There is also an aspect of the public interest in competent doctors being deployed in the workforce, rather than wasting the time and effort put into their training.
Submissions for the respondent
- [12]It was submitted that the point of the public interest consideration in s 58 was to deal with a situation where a practitioner who had committed a serious criminal offence should not be allowed to continue practicing prior to the determination of the referral. Reference was made to the history of the legislation, and to the explanatory notes for the Bill that became the act which inserted the reference to the public interest in s 58.[9] It was submitted that the section as amended allowed consideration of a wider range of factors, and taking account of public expectations of the standards expected of health practitioners.
- [13]It was submitted that the public interest was a broad concept, and that its meaning depended on the context in which it was used, which is true. Reference was made to some authorities considering the similar provision under the National Law. It was submitted that it was relevant to consider the nature of the conduct itself, which struck at the core of the trust at the heart of the doctor patient relationship in the case of the sexual assault. In the case of the fraudulent prescribing, this was made to appear as genuine prescriptions for real patients, and in at least some cases, the medical records of such patients showed that the drugs had been prescribed when that was not the case. That could have misled another practitioner who was subsequently told that information in a way which was detrimental to the treatment of the patient, although that point was not averted to by the respondent. Both of these matters occurred in the context of his medical practice, and in each case the applicant had already been convicted of the relevant conduct.
- [14]It was submitted that the integrity of the system of regulation would be damaged if a practitioner who had been convicted was allowed to remain in practice after having been convicted of such offences, which it was submitted was clearly inconsistent with his being a fit and proper person to hold registration in the medical profession.[10] During the earlier oral argument, counsel for the respondent backed away from asking the tribunal for such a finding, but did submit that the conduct in which he had engaged was inconsistent with fitness to practice in the profession: Transcript p 1-32. Even if technically that is an anterior step to a finding that he is not a fit and proper person to be registered, it is a distinction without a difference. It was submitted that deregistration and a lengthy preclusion period was a likely outcome of the referral.
- [15]Reference was made to an academic report which reviewed the approach in various jurisdictions to “chaperone” conditions, and noted that in some countries, particularly the UK, a “precautionary” approach was adopted where stringent restrictions were imposed on practitioners on the basis even of allegations, simply because there have been in the past what were described as shocking cases of sexual abuse. This strikes me as a knee-jerk reaction to the excesses of tabloid journalism, rather than a rational approach. It was said that there was a background of concern that matters involving sexual misconduct in particular were not being adequately dealt with by the regulators, which carried the risk of loss of confidence by patients in both the profession and the regulators. That does not mean that it is a legitimate function of immediate registration action to protect regulators from criticism, even if ill informed. The primary focus remains on protecting the health and safety of the public, which is both the statutory paramount guiding principle under s 4 of the Act, and the whole point and purpose of regulation of the medical profession.
- [16]The Tribunal was referred to a passage in an academic report expressing concern about damage to public confidence if allegations turn out to be true and the practitioner has been permitted to continue in unrestricted practice in the meantime. But the issue is not whether the applicant should continue in unrestricted practice, it is whether there is any justification based on either the avoidance of a serious risk to the health or safety of the public, or the public interest, in not allowing the applicant to practice in the very limited way contemplated by his proposed conditions.
- [17]As to the submission that deregistration is the likely outcome of the referral, there are two difficulties with that approach. The first is that the Tribunal was not favoured with references to authorities plausibly supporting it. Three decisions were referenced, but two involved conduct which was clearly more serious,[11] and in the third, the practitioner was not deregistered.[12] I am aware of one decision involving a medical practitioner who had been convicted of sexual assault where the Tribunal on the referral did not even suspend his registration, let alone deregister him.[13] That outcome depended of course on the particular circumstances of that case, but they were circumstances established at the hearing of the referral, which brings me to the second difficulty with the submission.
- [18]It is not the function of the Tribunal on this review, or for that matter the respondent when considering action under s 58, to usurp the function of the Tribunal on a disciplinary referral. Immediate registration action is inherently temporary in nature, to deal with any serious risk to the health or safety of the public, or any considerations of public interest, until a matter has been properly investigated, and any disciplinary referral is brought and determined.[14] Hence the respondent, and the Tribunal, can act on what are still allegations, and do not need to make definite findings about what did or did not happen.[15] But it is not an exercise in working out what is likely to happen on a referral, and then putting that in place at once; a sort of “sentence first, trial afterwards” approach.[16] To be arguing back from a hypothetical outcome of a disciplinary referral, even if the essential conduct has been admitted in the response of the practitioner, is in principle the wrong approach. Immediate action is certainly not to be used by the applicant to cover a failure to bring disciplinary referrals to the Tribunal in a timely way.[17] The question is, what, if anything, is required immediately by the considerations referred to in the section.
- [19]That was a difficulty with much of the respondent’s submissions, which focused on the notion of reputational damage to the profession if a doctor convicted on sexual assault were allowed to remain in the profession; they were submissions more appropriate on the hearing of the referral. For example, reliance was placed on considerations of general deterrence, which was not supported by authority. The focus under s 58 should not be on what is ultimately appropriate, but on what is appropriate in the short term pending the determination of the referral. Indeed, I consider that one important difference between immediate action and the determination of a referral is that it is at the latter stage that considerations of general deterrence arise. Personal deterrence of course is in a different position.
- [20]The respondent referred to the decisions of the Victorian Tribunal in Farshchi v Medical Board of Australia [2018] VCAT 1619 and CJE v Medical Board of Australia [2019] VCAT 178, which contained some analysis of the concept of the public interest in the equivalent provision under the National Law. I need not detail the discussion in those cases, which were helpful, but note that in neither was the practitioner suspended, although facing serious criminal charges. The latter decision was upheld by the Supreme Court on appeal.[18] I considered the concept of public interest to some extent in LCK (supra) and will not repeat what I said there.
- [21]It was submitted that the views of the referees should be accorded little weight, on the basis that public interest and public confidence are matters of broad judgment and impression, and that the public are entitled to trust doctors not to use them for sexual pleasure. That the applicant can produce female patients who continue to trust him as their doctor despite knowledge of his conviction is to some extent inconsistent with the respondent’s argument. It is not obvious to me why considerations of public interest should be assessed by reference to the supposed views of the great mass of the public, who are never going to consult the applicant anyway, but the views of those whose confidence in him has not been shaken by his conviction, and want to return to him, should be disregarded.
- [22]The respondent was also critical of the notion that allowing the applicant to continue to practice would assist in his rehabilitation; but remaining in employment has always been regarded as improving prospects of rehabilitation in the context of criminal sentencing. To destroy the livelihood of a man who has been sentenced to a term of imprisonment, and has served his sentence, strikes me as more of a punitive measure than a protective one. Like so much of the respondent’s submissions, this was infused with hyperbole.
- [23]The submission was advanced that it was an aggravating feature that the applicant continued to dispute the facts of the charge. Given the conviction, it is appropriate for the Tribunal to proceed on the basis that the offence was committed in the way found for the purpose of sentencing, though if the applicant really is innocent, he is not be the first innocent person convicted by a jury. For a person to confess wrongdoing is commonly regarded as a mitigating circumstance, but in the context of the criminal law a failure to do so has never been regarded as an aggravating circumstance.[19] A practitioner subject to a disciplinary proceeding is entitled to defend himself or herself, and is not to be dealt with more severely on that account.[20] At most, it is merely the absence of a mitigating factor. What is important is an appreciation of the wrongfulness of the conduct, but in a matter such as this the denial of having committed the offence does not suggest any lack of appreciation of the wrongfulness of such offending conduct had it occurred. This submission was also inappropriate.
Analysis
- [24]No attempt was made to justify the suspension on the basis that it was necessary to protect the health or safety of the public. That would have been difficult in view of the decision of the Tribunal in Colagrande v The Health Ombudsman [2017] QCAT 107. In that case the applicant, a medical specialist, had been convicted of sexual assault on a patient, and sentenced to nine months imprisonment, suspended forthwith. The respondent imposed a condition that he have no contact with female patients, which on the evidence in that case effectively meant he was unable to work: [19]. On review, the Tribunal substituted conditions for chaperoning when seeing female patients.[21] That practitioner had no other criminal history, and had been convicted after a trial, where he denied the offence, as he did before the Tribunal. He had, many years earlier, been the subject of disciplinary proceedings in the UK, for forging evidence of a qualification he did not have, but the Tribunal rejected the proposition that this meant he was untrustworthy and that therefore chaperone conditions were inadequate.
- [25]Sheridan DCJ, the then Deputy President of the Tribunal, said that it was accepted that any immediate action taken ought to be the least onerous to address the relevant risk: [18], citing authority. She said that it was a question of what action was necessary to protect public health and safety: [19]. She noted at [46] that that was not a case where it was suggested that the practitioner was a sexual predator or had shown any tendency towards that type of conduct. That case was decided prior to the amendment of s 58 to insert the reference to the public interest, but so far as addressing a serious risk is concerned, it is not obvious why more stringent conditions than those imposed by her Honour were appropriate here.
- [26]The mere fact that that amendment has been made to the section does not mean, in my opinion, that conditions sufficient to protect the health and safety of the public need to “topped up” to some extent to cover considerations of public interest. The point is whether there are relevant public interest considerations which require more stringent restrictions on a practitioner. The public interest is likely to be most significant in cases where there is little or no justification for immediate action by reference to a serious risk to the public, so that otherwise a continuation of unrestricted practice would result.
- [27]In the present case, the conditions proposed by the applicant are quite restrictive, although I consider that there is room for some fine tuning. Although the offending was serious, there are many offences which are more serious, some much more serious. No particular reliance was placed on the issue of the drug offences and the impairment by the respondent; on the evidence this is no longer a problem, and does not require, or contribute to requiring, immediate action. I do not consider that there is any proper justification, by reference to considerations of the public interest, in the suspension of the applicant’s registration prior to the hearing of the referral. I do not propose to attempt to second guess that outcome. I consider that suspension is not the least onerous action necessary to address the considerations relevant to s 58.
- [28]I have had the benefit of the assistance of the assessors in this matter. Broadly speaking, I consider that the conditions proposed by the applicant are appropriate, although some fine-tuning is appropriate. I have some preliminary views. One matter of concern is that a situation could arise where a male patient is accompanied into a consultation room by a female, such as the mother of a male child, or the wife or daughter of an elderly patient, with perhaps some early dementia. In that situation, the patient himself could well not be a satisfactory chaperone. I consider that, in a case where a female accompanies a male patient into the consulting room, a chaperone should be present, although any competent adult could fill that role.
- [29]Another consideration is that working in a home doctor service is likely to take the practitioner into premises where one or more females are present, even if the patient is male. I expect home doctors are often called to see children, and attendance on a male child could well involve interaction with a mother, or other female. Other examples come readily to mind, and there could well be no other person available in the premises to act as a chaperone. Such females could understandably object to having a convicted sex offender in their home, even if he is not there to provide them with professional services. I consider however that the provision of a chaperone in such a situation adequately meets this concern.
- [30]A home doctor always takes a person, called a chaperone, to accompany the doctor, although ordinarily to drive, and to provide some security for, the doctor. It ought to be possible however for that person to act as a chaperone, in the sense relevant to a condition, whenever there is a female present in the premises. That would put a home visit in the same position as a surgery visit, as discussed above, and should permit the applicant to resume work in the home doctor service that he was doing before. That would both assist in rehabilitation, and enable his skill, training and experience to be put to good use, for the benefit of the community.
- [31]There was some discussion of telehealth, but this is not addressed in the proposed conditions. It would be preferable that there be no contact with female patients even by telephone or videolink, and that should be addressed, perhaps with a definition of “contact”.
- [32]Finally, in paragraph 13 of the proposed conditions, “they are” should be changed to “he is”. There is only one applicant.
- [33]The proposed conditions were provided during the earlier hearing, as agreed conditions if the applicant were successful. In the circumstances the parties have had no opportunity to provide submissions as to these proposed modifications to those conditions, and to assist in the formulation of proper wording for such conditions. Accordingly I propose to publish these reasons, and invite submissions as to the proposed modifications. Once any changes are decided, the parties will be invited to agree on the actual wording of the conditions, otherwise the matter will be relisted later in the year for a further hearing.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 s 19(c), 20.
[2]Pearse v Medical Board of Australia [2013] QCAT 392 at [36].
[3]For their function, see the Act s 127.
[4]He had previously practiced for a number of years in Iran. He was born in 1968.
[5]He had been writing prescriptions for Schedule 4 drugs other than drugs of dependence, and thought that the suspension related only to such drugs on Schedule 4.
[6]Affidavit of applicant filed 10 July 2020, paragraph 82.
[7]The effect of the evidence was that this would still allow him to practice, at least to some extent. That may be contrasted with the position of the applicant in LCK (supra), where the evidence that conditions like those the present applicant seeks to have continued had effectively prevented him from practicing at all. In that case the conditions had been imposed after LCK was convicted of a less serious offence of a sexual nature, and at the end of the review hearing the conditions were removed.
[8]WD v Medical Board of Australia [2013] QCAT 614 at [8]; CJE v Medical Board of Australia [2019] VCAT 178 at [25] – [29]; Colagrande v The Health Ombudsman [2017] QCAT 107 at [10], [11].
[9]Health Practitioner Regulation National Law and Other Legislation Amendment Act 2017.
[10]It may be noted that, despite this attitude, the “immediate “ action by way of suspension was not taken until more than five months after the applicant was convicted, and two months after he was released from prison.
[11]Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264 and Health Ombudsman v Arora [2019] QCAT 200.
[12]Pharmacy Board of Australia v Tan [2016] VCAT 1653: registration suspended for four years.
[13]Health Ombudsman v Matusa [2019] QCAT 315.
[14]Medical Board of Australia v Leow [2019] VSC 532 at [78]. See the Act s 64: if immediate registration action is taken, there must be either an investigation, a reference to a Board or a disciplinary referral.
[15]WD v Medical Board of Australia [2013] QCAT 614 at [8]; CJE v Medical Board of Australia [2019] VCAT 178 at [25] – [29].
[16]The only support for that approach I know of is the dictum “sentence first, verdict afterwards” of the Queen of Hearts in Lewis Carroll’s Alice in Wonderland, Chapter 12.
[17]I have come across matters this year where there has been a significant and unexplained delay in the filing of a referral. It is that conduct which is more likely to bring a regulator into disrepute.
[18]Medical Board of Australia v Leow [2019] VSC 532.
[19]The comment of the sentencing judge, that the applicant had “shown no remorse”, is very common after a trial, and merely reflects the absence of a mitigating circumstance. It is quite rare, but possible, for a matter to go to trial on a basis which is consistent with the existence of remorse.
[20]Queensland Law Society Inc v Roche [2003] QCA 469 at [38].
[21]In that case, the review was heard and decided within about two months of the imposition of the conditions by the respondent.