Health Ombudsman v Kootval[2020] QCAT 488

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 (“the Act”) s 103(1)(a), s 104.  In accordance with the Act, I am sitting with assessors Dr Petrina Bowden, Dr Peter Marshall, and Ms Wendy Grigg.^[1] The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”), being a dentist. The applicant alleges that the respondent engaged in professional misconduct, in that he was convicted of offences of stealing and attempted fraud, and that he failed to notify the Board of these and another charge, and of the convictions. 
2. [2]
   The parties have provided the Tribunal with an agreed statement of facts.  The respondent, who has not been legally represented in these proceedings, essentially admits the grounds alleged, but disputed that the conduct in question amounted to professional misconduct.  The parties have provided written submissions to the Tribunal,^[2] and there was a brief oral hearing, with the respondent appearing by telephone from the United Kingdom, during which he stressed his remorse for the offending, and that he was attempting to atone by being a good dentist.
3. [3]
   The Tribunal accepts the facts set out in the agreed statement of facts.  They, and some other information before the Tribunal, may be summarised as follows:  The respondent was born in 1962 and is now 58.  He was first registered as a dentist in the UK in July 1998.  In February 2009, following a hearing which he did not attend, his name was removed from the register of dentists for five years, on the ground that his fitness to practice was impaired by his misconduct.  This arose from a failure to maintain his professional indemnity insurance while he continued to practice for over a year, and his failure to respond to correspondence from the General Dental Council about this, and about a claim by a patient in relation to treatment.  He did not engage with the Council in relation to the hearing.  He had in the meantime obtained registration as a dentist in Norway in January 2006, and practiced there until mid-2011. 
4. [4]
   The respondent came to Australia in April 2013, and soon after obtained registration as a dentist.  He worked for an agency which in July 2014 placed him at a dental clinic in a provincial area.  While there he provided treatment for a patient and arranged for the patient to pay him directly, rather than paying the practice at which he worked.   After a discrepancy was detected on an audit, he disclosed what he had done.  His employment was terminated, the police were advised and he was arrested and charged.  This charge was not notified to the Board.  On 19 January 2016 the respondent pleaded guilty to the charge in a Magistrates Court. He was fined $1,500, no conviction was recorded, and no order was made for restitution as the money had already been paid to the practice, indeed before the complaint to police. The conviction was not reported to the Board. 
5. [5]
   On 16 July 2016 he was charged with two more offences, attempted fraud and possessing tainted property.  The attempted fraud related to a claim that his motorcycle had been stolen, when in fact he had left it with a friend.  The claim was not paid, but the insurer provided him with the use of a hire vehicle, at a cost to it of $576.  The offence of possession of tainted property, under the Criminal Proceeds Confiscation Act 2002 s 252(1), does not seem to me to have been committed, on the facts disclosed in the material before the Tribunal, but the matter was rushed through to avoid delaying the departure overseas of the respondent.  The applicant does not rely on that conviction in this proceeding.  On 18 July the respondent pleaded guilty to both charges in a Magistrates Court.  Fines totaling $3,000 were imposed, and he was ordered to pay $576 restitution.  In addition, the motorcycle, which had been insured for over $14,000, was forfeited.  Neither these additional charges nor the convictions were reported to the Board.  After the sentencing hearing, the respondent left Australia.   
6. [6]
   The respondent had worked in various locum positions until July 2016, when he left Australia to return to the UK.  On 27 May 2016 he regained registration in the UK as a dentist, and practiced from November 2016.  It appears from the terms of the decision of the Professional Conduct Committee that he did not disclose the conviction for the stealing offence when applying for re-registration.  At the end of November 2016, his Australian registration was not renewed, so he is no longer registered here.  The matter was referred to the Tribunal in December 2018.  Because the respondent is in London, the progress of the matter in the Tribunal has been delayed.  In his response to the referral, the respondent admitted all the allegations in the particulars of each of the three allegations. 
7. [7]
   The applicant claimed that the relevant conduct amounted to professional misconduct, under the definition in the National Law.  I am aware of that definition, and agree with that position.  This was dishonest conduct on two occasions, one engaged in by the respondent in the practice of his profession.  Although the amounts of money were not great, a willingness to engage in dishonest conduct is particularly concerning in a dentist, where the public expects a high level of trustworthiness.  Each conviction was within the express provision of the definition of unprofessional conduct, and the two are therefore capable together of falling within paragraph (b) of the definition of professional misconduct. 
8. [8]
   Offences of dishonesty have in the past been regarded as amounting to professional misconduct.  In Medical Board of Australia v Chandra [2014] QCAT 271 the practitioner had engaged in sexually inappropriate behavior, and had failed to comply with conditions imposed on his registration.  As well he had made a false declaration that the conditions had been complied with, and had forged two letters purporting to come from the patient or her solicitor.  He was reprimanded, and his registration was suspended for two years.  Farr DCJ said at [15]: “Dishonesty, there is no doubt, is a demonstration of significant misconduct in and of itself.”
9. [9]
   In Medical Board of Australia v Montero [2015] QCAT 316 a nurse employed to provide care to an elderly man involved herself improperly in his financial affairs, and was dishonest when questioned about this.  The Tribunal said at [13] that “honesty is a fundamental component of professional ethics.”  She was found to have engaged in professional misconduct, reprimanded and suspended for twelve months, with conditions imposed on her registration after the suspension. 
10. [10]
    In Health Ombudsman v Chaffey [2020] QCAT 54 a registered nurse was convicted of social security fraud, having failed to report significant amounts of income, resulting in an overpayment of over $60,000.  Allen DCJ, the Deputy President of the Tribunal, said at [12] that serious criminal offending, including offences of dishonesty, is quite clearly within the definition of professional misconduct.  The nurse was reprimanded, and had a condition placed on her registration. 
11. [11]
    I am also aware that findings of professional misconduct have been made in the case of stealing of drugs, even not drugs of addiction, from employers, for example in Health Ombudsman v Macdonald [2016] QCAT 473, Health Ombudsman v Jamieson [2017] QCAT 172, and Health Ombudsman v Bailey [2020] QCAT 161, the last involving only four tablets.  As well, in Health Ombudsman v Lemon [2020] QCAT 267 a registered nurse was convicted of fraud in circumstances not involving his profession, but the operation of a trust set up to run a business.  This was characterized as professional misconduct.  
12. [12]
    In Nursing and Midwifery Board of Australia v Hawthorne [2018] VCAT 890, the practitioner had been involved in two cases of insurance fraud, involving motor vehicles being insured for well above their true value.  She had been convicted and ordered to pay restation, which she was paying off, and had also failed to disclose the convictions to the Board.  The Tribunal reprimanded her, suspended her registration for four weeks, and imposed conditions for education and supervision.  All of the conduct was regarded as professional misconduct, and the suspension was imposed specifically because of the failure to report: [39].  The Tribunal said that it was satisfied there was no need for personal deterrence.  This seems an unusually lenient decision in the circumstances.   
13. [13]
    In Nursing and Midwifery Board of Australia v Everett [2018] QCAT 344 the respondent had been employed to administer flu vaccinations, and was to receive payment for these, and over a period of some months had siphoned off an amount of almost $9,000 to herself, falsifying documents for this purpose.  She had not been charged, but had agreed to repay the money to her employer.  This was characterised as professional misconduct, her registration was cancelled and she was disqualified from applying for registration for two years.  Until shortly before the hearing the respondent had disputed the allegations, when confronted with irrefutable evidence, and this was regarded as showing an absence of remorse or insight: [42].  This affected the sanction imposed, and distinguishes this from the present case. 
14. [14]
    The respondent opposed a funding of professional misconduct, because of the effect he says this will have on him.  His submissions assume that such a finding will lead to his being unable to practice in the UK.  Whether he is to remain registered in the UK is a matter for the General Dental Council, but a consideration of the consequences for the practitioner is not a matter which is relevant to the correct characterization of the relevant conduct.  I consider that the proper characterization of his conduct in allegations one and two is professional misconduct, in view of the terms of the definition, and the examples of other cases involving dishonesty. 
15. [15]
    Failure to report the charges and convictions generally leads to a finding of unprofessional conduct; indeed, as a breach of the requirements of the National Law, it is within the extended definition.  Allegation 3 is therefore appropriately characterized in that way.^[3] 
16. [16]
    In imposing a sanction, the health and safety of the public are paramount.^[4] Disciplinary proceedings are protective, not punitive in nature.^[5] Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[6] Insight and remorse on the part of the respondent are also relevant.^[7]  What matters is the fitness to practice of the respondent at the time of the hearing.^[8] 
17. [17]
    The respondent has not been registered in Australia for about four years: Exhibit 1.  During that time he was not away from practice, but registered and practicing in the UK, so this does not have its usual significance.  It does mean that it is not open for the Tribunal to cancel his registration.  It is not relevant to consider whether, had he still been registered, it would have been appropriate to cancel his registration. 
18. [18]
    The cooperation of the respondent in the criminal proceedings, and in these proceedings, are indications of remorse and insight, and he claims that he is remorseful, and that the offending was the product of considerable financial pressure he was under at that time, following the break-up of his marriage.  There is no independent evidence to confirm his financial circumstances, although he has provided two references. 
19. [19]
    The criminal conduct was now some time ago, as the applicant conceded.  It seeks a reprimand, and that the respondent be disqualified from applying for registration for a period of six months.  There are examples of other cases where criminal conduct involving dishonesty has resulted in short periods of suspension, and such an outcome would be consistent with those decisions.  To some extent a period of disqualification is nominal, since there is no reason to expect that the respondent will not stay in the UK.  It is imposed to emphasise the wrongfulness of his conduct, because of considerations of general deterrence. 
20. [20]
    Should the respondent seek to return to practice in Australia in the future, he would have to satisfy the Board that he was then fit to be registered under the National Law.  That also suggests that a lengthy period of disqualification is not necessary to protect the health and safety of the public. 
21. [21]
    I have had the advantage of discussing the matter with the assessors.  The order of the Tribunal will be that:

1. The conduct of the respondent the subject of allegations one and two in the referral amounted to professional misconduct, and the conduct the subject of allegation three in the referral amounted to unprofessional conduct;
2. The respondent is reprimanded;
3. The respondent is disqualified from applying for registration as a health practitioner for a period of six months. 
4. The parties are to bear their own costs.