Health Ombudsman v Moosawi (No 2)
[2020] QCAT 461
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- Unreported Judgment
- Health Ombudsman v Moosawi (No 2)[2020] QCAT 461
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Health Ombudsman v Moosawi (No 2)[2020] QCAT 461
Health Ombudsman v Moosawi (No 2)[2020] QCAT 461
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Moosawi (No 2) [2020] QCAT 461 |
PARTIES: | health ombudsman (applicant) v ali al moosawi (respondent) |
APPLICATION NO/S: | OCR026-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 December 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President Assisted by: Dr D Khursandi Dr D Ellwood Ms J Felton |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent medical practitioner denied allegations of professional misconduct – where the Tribunal decided that the respondent medical practitioner had behaved in a way that constitutes professional misconduct – where the professional misconduct involved boundary violations with a patient, including sexual relations and interfering with the patient as a witness in an investigation by the Office of the Health Ombudsman into his conduct – what sanction should be imposed for professional misconduct – whether the respondent’s registration as a health practitioner should be cancelled or suspended. ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the parties agree that the respondent should pay the applicant’s costs as agreed – whether the interests of justice require the tribunal to order that the respondent pay the costs of the applicant Health Ombudsman Act 2013 (Qld), s 4, s 107 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 127 Craig v Medical Board of South Australia [2001] 79 SASR 545 Health Ombudsman v Moosawi [2020] QCAT 391 Medical Board of Australia v Azam (No 2) [2017] QCAT 206 Medical Board of Australia v Gilliland (No 2) [2014] QCAT 699 Medical Board of Australia v Gilliland (No 3) [2014] QCAT 700 Medical Board of Australia v McCarthy [2020] WASAT 12 Medical Board of Australia v Stephens [2018] WASAT 13 Nursing and Midwifery Board of Australia v Isgrove [2015] QCAT 522 Psychology Board of Australia v Wakelin [2014] QCAT 516 |
REPRESENTATION: | |
Applicant: | M Nicolson instructed by the Office of the Health Ombudsman |
Respondent: | G W Diehm QC instructed by Avant Law |
REASONS FOR DECISION
Introduction
- [1]These reasons should be read in conjunction with the reasons for decision in Health Ombudsman v Moosawi [2020] QCAT 391.
- [2]The Tribunal has decided that the respondent has behaved in a way that constitutes professional misconduct by:
- (a)breaching the professional boundary between himself and a patient, including having sexual relations with the patient; and
- (b)interfering with the patient in her capacity as a witness in an investigation by the Office of The Health Ombudsman (OHO) into his conduct.
- (a)
- [3]The sexual contact was initiated by the respondent during a consultation at a general practice on the afternoon of 29 October 2014 and continued during an assignation at the domestic unit attached to the practice on the evening of the same date. The boundary violation continued to some extent by phone calls in November and December 2014. The content of some of those phone calls in December 2014 constituted the interference with a witness.
- [4]The respondent contested the referral, denying the conduct alleged against him, giving evidence that the sexual relations did not occur and accusing the patient of lying and fabricating evidence. He did not admit to professional misconduct or unprofessional conduct. He has not demonstrated remorse for his professional misconduct.
Respondent’s background
- [5]The respondent obtained medical qualifications in Iraq in 1983. He worked as a medical practitioner in hospitals in Iraq from 1984 to 1990 and in hospitals in Iran from 1991 to 1995. After immigrating to Australia in 1995, the respondent passed Australian Medical Council examinations and was registered as a medical practitioner. He was subsequently employed as a senior medical officer at Goulburn Base Hospital, Shepparton, a senior medical registrar at the Austin Medical Centre in Melbourne, an emergency registrar at Bendigo Hospital and a senior medical officer at St John of God Hospital in Bendigo.
- [6]In 2011 the respondent commenced undertaking locum work in rural Queensland. The patient the subject of the professional misconduct was the patient of a rural general practice during periods of the locum placement of the respondent in 2013 and 2014.
- [7]From 2012 to 2015 the respondent was involved in the supervision and teaching of medical students and postgraduate medical officers in Queensland.
- [8]The respondent was a member of the Royal College of Physicians in the United Kingdom from 2012 to 2019 and of the Royal Australasian College of
Physicians from 2015 to 2018. - [9]Since 2 April 2014 the respondent has practised in general practice at the Kilmore Medical Practice, Kilmore, Victoria. The respondent has not been subject to any restrictions on his practice because of the allegations of professional misconduct.
- [10]Other than an informal, irrelevant complaint that was resolved through communication with the patient, the respondent has not been the subject of any other informal or formal complaints to his practice or any regulatory authority.
Applicant’s submissions on sanction
- [11]The applicant submits that the respondent should be reprimanded, his registration cancelled and he be disqualified from applying for registration as a registered health practitioner for a period of 3 years.
- [12]The respondent’s conduct of the proceedings suggests a lack of remorse and insight and there is no evidence to the contrary.
- [13]Considerations of specific and general deterrence will best be addressed by cancellation of the respondent’s registration.
- [14]Given the Tribunal’s finding that the respondent’s conduct is inconsistent with him being a fit and proper person to hold registration,[1] the respondent is not suitable for registration as a medical practitioner and it is appropriate that his registration be cancelled rather than suspended. The respondent “lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner”[2] and the Tribunal cannot be confident that the respondent will be fit to resume practice upon completion of any period of suspension. The protection of the health and safety of the public require the cancellation of the respondent’s registration.
- [15]
Respondent’s submissions on sanction
- [16]The respondent submits that he should be reprimanded and his registration suspended for a period of 3 years.
- [17]The respondent refers to the decisions of this Tribunal in Medical Board of Australia v Gilliland (No 2)[6] and Medical Board of Australia v Gilliland (No 3)[7] in support of the submission that suspension, rather than cancellation, of his registration is appropriate. Dr Gilliland was a general practitioner who was found to have conducted a sexual relationship with a patient (whose husband and children were also patients) over a period of more than 3 years. The registrant contested the charges, including by cross-examination of the patient and running of an affirmative case, including urological evidence. The Tribunal made a finding of professional misconduct, including on the ground that the conduct was inconsistent with the registrant being a fit and proper person to hold registration. It was noted that the conduct of the registrant had had severe effects on the patient’s life. The Tribunal imposed a period of suspension of registration of 2 years. It specifically preferred suspension to cancellation of registration, which was sought by the Board, in circumstances where the registrant had continued to practise for several years after the events became known to the Board, without any suggestion that he was unfit to do so.
- [18]The circumstances of the respondent’s second charge warrant a distinction between this case and Gilliland resulting, consistent with those decisions referred to by the applicant, a period of suspension of registration of 3 years. A period of suspension of 3 years meets specific and general deterrence considerations.
- [19]The respondent’s misconduct occurred six years ago. The applicant has known of them for nearly all that time and had a strong case for proof of professional misconduct. The respondent has practised as a general practitioner since that time without any suggestion that it has endangered the public interest for him to do so.
- [20]Having regard to the respondent’s long history of practice, including 6 years without incident since the misconduct, the Tribunal’s findings are consistent with a conclusion that his conduct with respect to these specific matters was inconsistent with the conduct of a person fit to be registered as a medical practitioner, but do not show overall that he is a person who is not fit to be registered as a medical practitioner. It can be expected, in this particular instance, that after the period of suspension is completed, that the respondent will in fact be a person who is fit to practise as a medical practitioner, despite the particular conduct that he has been found in these proceedings to have engaged in.
Consideration of sanction
- [21]In considering the matter of sanction, the Tribunal must be mindful of the paramount guiding principle that the health and the safety of the public are paramount.[8] Purposes of sanction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,[9] the imposition of sanction may serve one or all of the following purposes:
- (a)preventing practitioners who are unfit to practise from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any future departures from appropriate standards;
- (f)deterring other members of the profession that might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
- (a)
- [22]Both parties submit that the respondent should be reprimanded. The respondent’s serious professional misconduct requires denunciation and he will be reprimanded.
- [23]The parties jointly submit that a period of 3 years preclusion from practice is appropriate to meet the protective purposes of sanction, including relevant considerations of specific and general deterrence. Such submissions are supported by the decisions referred to by the parties and the Tribunal accepts such submissions.
- [24]As to whether cancellation or suspension of registration should be ordered, the main, but not sole, consideration is whether the Tribunal can be confident that the respondent will be a fit and proper person to hold registration after the period of 3 years of preclusion from practice. Other considerations are those purposes of sanction discussed earlier, for example, whether suspension, rather than cancellation, sufficiently expresses denunciation of the respondent’s conduct and sufficiently addresses considerations of specific and general deterrence.
- [25]The reasoning of the Tribunal in Gilliland provides strong support for the respondent’s contention for suspension, rather than cancellation, of registration. The decision is not relevantly distinguishable. But it is not necessary to distinguish such decision to find to the contrary of the respondent’s contention. Gilliland is but one instance of a decision as to the appropriate sanction in the circumstances of a particular case. It is not an authority which binds the Tribunal as to the appropriate sanction in this case.
- [26]In considering whether suspension or cancellation of the respondent’s registration is appropriate, the Tribunal has regard to the seriousness of the misconduct. The sexual relations occurred on one day only but the boundary violation was a serious one. It involved the exploitation of a vulnerable patient for the respondent’s sexual gratification and left the patient feeling used by the respondent.
- [27]The misconduct continued with the respondent repeatedly attempting to influence the patient by playing on concerns for her privacy and reputation and empathy for the respondent and his family. Such deliberate course of conduct was designed to interfere with the investigation by the OHO of the respondent’s misconduct.
- [28]It is relevant to note the observations of the Hon J B Thomas AM QC in Psychology Board of Australia v Wakelin[10]:
The respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character and the sexual transgression. The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned. She was prepared to misrepresent the truth to the professional body, and made unsuccessful attempts to cover up her actions.
- [29]
The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the response of practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty and that sanctions for such conduct may well exceed that which will be imposed in this particular case.
- [30]Such comments apply equally to practitioners’ dealings with OHO investigations of their conduct.
- [31]The respondent’s professional misconduct involves an egregious departure from professional standards and demonstrates his present unfitness to practise.
- [32]The way the respondent conducted his response to the referral proceedings means there is no evidence of remorse or insight and confirms his present unfitness to practise.
- [33]The seriousness of the respondent’s professional misconduct is such that a suspension, rather than cancellation, of registration would be insufficient to express denunciation of the misconduct and address considerations of personal and general deterrence. Protection of the reputation of the medical profession also weighs in favour of cancellation.
- [34]The seriousness of the misconduct and the absence of any evidence of remorse or insight means that the Tribunal cannot be confident that, at the conclusion of a period of 3 years suspension, the respondent will be a person fit to practise the profession. His fitness to practise at such time should be determined by the regulatory authority.
- [35]Protection of the public requires cancellation, rather than suspension, of the respondent’s registration.
- [36]The parties both submit that the respondent’s preclusion from practice should commence on and from 25 December 2020 and the Tribunal will order accordingly.
Costs
- [37]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for the default position that parties to Tribunal proceedings will bear their own costs of the proceedings. Section 102(1) permits the Tribunal to order otherwise if “the interests of justice require it”.
- [38]The applicant submits that the following considerations mean that it is in the interests of justice to order that the respondent pay the applicant’s costs of the proceedings:
- (a)the public interest in a respondent contributing to the costs of a successful prosecution by the applicant of their misconduct;
- (b)the seriousness of the allegations made referral to the Tribunal appropriate;
- (c)it was an appropriate case for legal representation of both parties;
- (d)the proceedings were prolonged by the respondent’s denials of the misconduct; and
- (e)the applicant’s case was a strong one.
- (a)
- [39]The respondent does not contend against a costs order.
- [40]Both parties seek an order that the respondent pay the applicant’s costs as agreed.
- [41]In the circumstances, it is in the interests of justice that such an order be made.
Orders
- [42]Accordingly, the Tribunal orders as follows:
- Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration as a health practitioner is cancelled.
- Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of 3 years.
- Pursuant to s 127(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), orders 2 and 3 take effect on and from 25 December 2020.
- Pursuant to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent is to pay the applicant’s costs as agreed.
Footnotes
[1]Health Ombudsman v Moosawi [2020] QCAT 391 at [120].
[2]Medical Board of Australia v Stephens [2018] WASAT 13 at [70].
[3][2020] WASAT 12.
[4][2015] QCAT 522.
[5][2017] QCAT 206.
[6][2014] QCAT 699.
[7][2014] QCAT 700.
[8]Health Ombudsman Act 2013 (Qld), s 4.
[9][2001] 79 SASR 545 at 553-555.
[10][2014] QCAT 516 at [21].
[11]Ibid at [27].