Health Ombudsman v Asinas; Asinas v Medical Board of Australia
[2021] QCAT 306
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- Unreported Judgment
- Health Ombudsman v Asinas; Asinas v Medical Board of Australia[2021] QCAT 306
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Health Ombudsman v Asinas; Asinas v Medical Board of Australia[2021] QCAT 306
Health Ombudsman v Asinas; Asinas v Medical Board of Australia[2021] QCAT 306
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Asinas; Asinas v Medical Board of Australia [2021] QCAT 306 |
PARTIES: | HEALTH OMBUDSMAN (applicant in OCR151-20) v ADRIAN CRUZ ASINAS (respondent in OCR151-20; applicant in OCR383-20) v MEDICAL BOARD OF AUSTRALIA (respondent in OCR383-20) |
APPLICATION NO/S: | OCR151-20 and OCR383-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 29 September 2021 |
HEARING DATE: | 4 May 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President Assisted by: Dr E Chew OAM Dr A Thillainathan Ms J Stuckey |
ORDERS: | (OCR151-20)
(OCR383-20)
|
CATCHWORDS: | PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the medical practitioner holds general and specialist general practitioner registration – where the practitioner pleaded guilty to child exploitation material offences – where dispute regarding some facts asserted in mitigation of the practitioner’s conduct – what findings should be made regarding those factual disputes – whether the practitioner’s conduct should be characterised as professional misconduct – what sanction should be imposed PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – application by practitioner for review of decision of Board to refuse renewal of the practitioner’s registration after practitioner’s conviction of child exploitation material offences – Board decision stayed pending determination of application to review decision – what order should be made in light of stay and Tribunal decision in disciplinary proceeding to cancel practitioner’s registration |
LEGISLATION: | Health Ombudsman Act 2013 (Qld) s 4, s 103, s 104, s 107 Health Practitioner Regulation National Law (Queensland) s 82, s 112 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 55 |
CASES: | Asinas v Medical Board of Australia [2020] QCAT 490 Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia (2001) 79 SASR 545 In the Matter of Dr RM and the Medical Practice Act 1992, decision of the Medical Tribunal of New South Wales, No. 4013 of 1999, 31 July 2001 Leigh v Bruder Expedition Pty Ltd [2020] QCA 246 McBride v Walton [1994] NSWCA 199 Medical Board of Australia v Black (Review and Regulation) [2016] VCAT 892 Minister for Immigration and Ethic Affairs v Gungor (1982) 42 ALR 209 Queensland College of Teachers v Illingworth [2016] QCAT 309 RGM v Director-General Department fo Justice and Attorney-General [2017] QCAT 142 |
APPEARANCES & REPRESENTATION: | |
OCR151-20 | |
Applicant: | Mr C J Lloyd of the Office of the Health Ombudsman |
Respondent: | Mr M J McCarthy instructed by Brisbane Criminal Lawyers OCR383-20 |
Applicant | Mr M J McCarthy instructed by Brisbane Criminal Lawyers |
Respondent | Mr M J Lucey of Clayton Utz |
REASONS FOR DECISION
Introduction
- [1]In proceeding OCR151-20, the Director of Proceedings on behalf of the Health Ombudsman (Health Ombudsman) has referred a disciplinary complaint against Dr Adrian Cruz Asinas (practitioner) pursuant to sections 103(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The Health Ombudsman seeks orders that the practitioner has engaged in conduct that constitutes professional misconduct and orders by way of sanction pursuant to section 107 of the HO Act. Whilst the parties to the proceeding agree that conduct on the part of the practitioner should be characterised as professional misconduct, there is a dispute as to certain factual matters concerning the conduct and as to appropriate orders by way of sanction. Because of the nature of the proceeding and the consequences to the practitioner upon determination of matters in dispute, the Heath Ombudsman bears the onus of proof as to such matters upon the standard of proof enunciated by the High Court in Briginshaw v Briginshaw.[1]
- [2]In proceeding OCR383-20, the practitioner applies for a review of the decision of the Queensland Registration Committee of the Medical Board of Australia (Board) on 15 December 2020 to refuse the practitioner’s renewal for general and specialist registration as a medical practitioner pursuant to sections 112(2)(a) and 82(1)(c)(i)(C) of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [3]The two proceedings concern the same or related facts and circumstances and were heard and decided by the Tribunal together pursuant to section 55(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Background
- [4]The practitioner is aged 45 years and was aged 41 years at the time of the conduct the subject of the referral. The practitioner was born in the Philippines and obtained medical qualifications in that country in 2002. The practitioner immigrated to Australia in 2010. He obtained registration with the Medical Board of Australia on 9 October 2015.
- [5]At all relevant times, the practitioner was a registered health practitioner, holding both general and specialist general practice registration, and was employed to provide medical services in the residential aged care sector.
Conduct
Agreed facts
- [6]On 8 September 2018, police used BitTorrent software in the course of investigations into child exploitation material (CEM). Two CEM files were downloaded by police from the practitioner’s internet protocol address. The police were able to access the files because the practitioner was in the process of downloading the files at the time. There is no evidence that that practitioner intended to make the files available to other persons.
- [7]On 26 September 2018, police attended the practitioner’s residence to execute a search warrant. Police knocked on the front door of the residence. The practitioner verbally responded but did not open the door. The police walked to the rear of the residence and observed the practitioner crouching down near the front door. He told police that he did not have the key to the front door. The police asked the practitioner to open the rear door. The practitioner complied with that request.
- [8]The police conducted a search of the residence and located a number of electronic devices. A laptop computer was located under a mattress in the practitioner’s bedroom. A process of deletion of files was underway. Police stopped the deletion process.
- [9]The police conducted a preliminary review of the laptop computer and located CEM. The practitioner made admissions to using the internet to search and download CEM.
- [10]The police conducted a forensic review of the practitioner’s laptop computer which revealed that the practitioner had used the internet to access CEM on 8 September 2018. On 8 September 2018, the practitioner obtained CEM comprising two files titled “11 yo girl rides the cock and love it kiddy porn incest sex naughty little girl slut, princess, pussy, white ass, gang bang, fucked” and “Pedo Japanese woman sucking a Little boy1”.
- [11]Police located 20 CEM videos on the practitioner’s laptop computer. Those files included 17 in the most serious category 4 of the Oliver CEM classification system depicting adult males engaging in sexual intercourse with children as young as three years of age. The remaining three videos were in the lower scales of seriousness.
- [12]At the conclusion of the police search the practitioner was charged and transported to the Brisbane City Watchhouse. He declined to be interviewed by police.
- [13]On 11 February 2020 the practitioner appeared in the District Court at Brisbane and pleaded guilty to one count of using a carriage service to access child pornography contrary to section 474.19(1)A of the Criminal Code (Cth) and one count of possessing CEM contrary to section 228D of the Criminal Code (Qld). With respect to the Commonwealth offence, the practitioner was convicted and sentenced to 15 months imprisonment to be released forthwith upon giving security by recognisance in the sum of $2000 that he be of good behaviour for two years. With respect to the State offence, the practitioner was convicted and sentenced to 15 months imprisonment wholly suspended for an operational period of two years.
- [14]In the course of the sentence proceedings on 11 February 2020, counsel for the practitioner (who was not counsel for the practitioner in the Tribunal proceedings) tendered a report of Dr Gavan Palk, consultant and forensic psychologist, dated 11 October 2018. The report contained the following:
Dr Asinas’s Version of the Offences
2.4 Dr. Asinas told the writer that since immigrating to Australia in 2010 he commenced viewing adult pornography via the internet and this developed into a habit of viewing adult pornography about once or twice a week.
2.5 In recent times since moving to Brisbane with his wife and children in July of this year he viewed adult pornography more frequently, almost daily. He explained that he liked viewing role plays of models that were aged about 18 years. He says at first he did not know that the models were younger than 18 years but eventually realised that they were younger than 18 years. He says he became curious about younger girls and started searching for under-age girls via the net on his laptop. He says he never open [sic] the photos or has not viewed a single image but he admitted to viewing several mixed videos and around 20 video clips that involved pre‑pubescence [sic] and pubescence [sic] children. He stated that 3 or 4 of the videos involved really young children and the rest of the videos were teenagers.
2.6 When questioned about his masturbation in relation to the CEM he denied masturbating while viewing child pornography. He says he was interested in the CEM in a curious way but not sexually aroused to the CEM. He stated he was not sexually interested in children.
- [15]It was later stated in the report in paragraph 4.1:
He was adamant he only viewed child pornography over a 3 week period and only recently ventured into viewing child pornography out of curiosity.
- [16]The learned sentencing Judge expressed some scepticism as to the claim that the practitioner was motivated by curiosity and had no sexual interest in children.[2]
- [17]Counsel for the practitioner during the sentencing proceedings did not seek to qualify the history recorded by Dr Palk at paragraph 4.1 of his report that the practitioner “viewed child pornography over a 3 week period”. Indeed, the following exchange occurred between the learned sentencing Judge and counsel for the practitioner:
“HIS HONOUR: All right. Well, supposing it all came in one bundle, then your client’s looking at it on an unspecified number of occasions over three weeks.
[COUNSEL]: In that period of time.
HIS HONOUR: Over three weeks.
[COUNSEL]: Yes.
HIS HONOUR: He only viewed the pornography over a three-week period, so it’s not as though, even assuming it was in one download, and you seemed to be content to just leave it at that without elaborating, when your client would know exactly what the situation was, and I’m not suggesting he has any onus of proving exactly what he did, but when trying to tease out the mitigating factors that are being relied on, it is relevant to ask these questions. So, anyway, at the very least, over three weeks, he’s looking at it.
[COUNSEL]: Yes, that’s the extent of the schedule of facts, between the 8th of September and the 26th September, which is a period of just less than three weeks.[3]
Disputed facts
- [18]The Health Ombudsman and the Board disputed some assertions of fact by the practitioner during the proceedings in mitigation of his conduct. The Health Ombudsman and the Board put in issue the following assertions by the practitioner in the proceedings:
- (a)that the practitioner only viewed the CEM material on one occasion for about 20 minutes on 8 September 2018; and
- (b)the practitioner did not commence deleting the CEM material in response to the arrival of police but was already in the process of deleting the material prior to their arrival.
- (a)
- [19]A finding that the practitioner has lied about either of these matters in his sworn evidence is a serious finding that should only be made upon satisfaction of the Briginshaw standard of proof.
- [20]The Board submitted that, as a matter of law, it was not now open to the practitioner to make such assertions as they are inconsistent with the facts upon which the practitioner was sentenced in the District Court.[4] I do not accept such submission. The authorities relied upon in support of such submission are authorities for the proposition that the practitioner would be unable to assert factual matters inconsistent with his conviction of the offences. The assertions the practitioner now seeks to make are not inconsistent with his guilty pleas and conviction of the two criminal offences. He is not precluded, by reason of his pleas of guilty to and conviction of the offences, from making such assertions. Of course, any apparent inconsistency in the way factual matters were addressed on the practitioner’s behalf during the sentence proceedings and assertions he now seeks to make in these proceedings is properly to be considered when determining the credibility of such assertions.
- [21]The practitioner relied upon an addendum report from Dr Palk dated 17 June 2020 which included the following further history reported by the practitioner:
He viewed the CEM for about 20 minutes on only one occasion and did not further view it. He was aware it was on his computer and he sought to delete it as he wasn’t sure where on his computer it was located.
On the day police arrived he was home sick with the flu and took that opportunity to start the deletion process, which owing to the volume of adult porn, was going to take some time. His wife and the children were not at home when the deletion was in process and it occurred just prior to the police arriving.
- [22]Dr Palk was cross-examined by the legal representatives of the Health Ombudsman and the Board as to the apparent discrepancy between the practitioner’s reported history of viewing the CEM over a three week period (as per the report dated 11 October 2018, paragraph 4.1 and repeated in identical terms in a subsequent report dated 6 February 2020) and the subsequent reported history of viewing the CEM on only one occasion (as per the report dated 17 June 2020). Dr Palk was able to refer to his handwritten notes made during consultations with the practitioner, including a note made on 6 October 2018 including the following:
Offences —
Says 3 week period from date of download to police house raid — recall downloading & viewing on one occasion — lots of CEM downloaded but says did not view saw videos & clips — pre teen & teens — denies sexual arousal — main interest adult. Admits some children were young — no masturbation
- [23]Notwithstanding such note, Dr Palk’s impression gained from his consultations with the practitioner was that the practitioner had viewed the CEM on more than one occasion.[5] Dr Palk’s opinion seemed to be based upon an impression gained in the course of discussions with the practitioner rather than any admission to that effect by the practitioner. Indeed, Dr Palk also gave evidence during cross-examination:
But he has maintained to me, on a number of occasions, that he’s only looked at it once.[6]
- [24]Dr Palk also gave evidence that the practitioner had told him that he had started the process of deletion of the CEM before the arrival of police at his residence on 26 September 2018.[7]
- [25]The practitioner gave evidence in support of both the disputed assertions. He was cross-examined as to why he did not instruct his counsel during the sentencing proceedings to assert such matters. He was cross-examined as to the circumstances of the execution of the search warrant by police on 26 September 2018, including the inability of police to gain access to his residence through the front door and the location of the laptop computer under his mattress. The practitioner gave evidence of innocent explanations for these circumstances supported by an affidavit of his wife filed in the proceedings.
- [26]The practitioner was generally an unimpressive witness. He was evasive and demonstrated a lack of frankness when questioned as to the deliberateness of his search for and downloading of CEM[8] and the extent to which he viewed such material, and in his description of their contents.[9] His explanation for why he did not commence deletion of the material until 26 September 2018 was unconvincing.[10]
- [27]The practitioner’s assertion that he only viewed the CEM on one occasion over a period of about 20 minutes on 8 September 2018 is arguably inconsistent with the contents of paragraph 4.1 of the report of Dr Palk dated 11 October 2018 (and repeated in the report dated 6 February 2020). On the other hand, it is consistent with the history given by the practitioner to Dr Palk on 8 October 2018 as recorded in his notes. Of course, the mere fact that the practitioner may have asserted that to Dr Palk on 8 October 2018 does not prove that assertion. Dr Palk ultimately was left with the impression that the practitioner had viewed the material on more than occasion. However, the note on 8 October 2018 does record a prior consistent statement that rebuts the allegation of recent invention by the Health Ombudsman and the Board.
- [28]The assertion by the practitioner is inconsistent with the submissions made by his counsel during the sentence hearing in the District Court. However, I am hesitant to conclude that the understanding of counsel and the terms of submissions necessarily reflects specific instructions provided by the practitioner at that time.
- [29]After a consideration of all the material before the Tribunal, whilst I hold doubts as to the veracity of the practitioner’s assertion that he viewed the CEM on one occasion only, I am not satisfied to the requisite standard of proof that he did not do so. Consideration of the characterisation of the practitioner’s conduct and appropriate orders for sanction will proceed on the basis that the practitioner viewed the CEM on one occasion over a period of about 20 minutes on 8 September 2018.
- [30]Whilst Dr Palk has made no notes on any occasion of the practitioner asserting that he had commenced the process of deletion of the CEM prior to the arrival of police on 26 September 2018, and such fact does not appear in the history recorded in Dr Palk’s report of 11 October 2018 and first appears in Dr Palk’s addendum report on 17 June 2020, Dr Palk gave evidence of a clear recollection that the practitioner had told him of such fact at some times during their consultations. I accept Dr Palk’s evidence to that effect. Again, of course, the mere fact that the practitioner may have asserted so to Dr Palk during their discussions does not prove that assertion. It does however tend to rebut the allegation of recent invention made by the Health Ombudsman and the Board.
- [31]I infer that such assertion was not the subject of instructions to the practitioner’s counsel for the purpose of the sentence proceedings in the District Court. Otherwise, one would have expected such a feature of mitigation to be the subject of submissions by counsel for the practitioner at that time.
- [32]As earlier noted, the evidence of the practitioner as to why he delayed the process of deletion of the CEM for a period of three weeks ending, coincidentally, on the day of the police search was unconvincing. The observations of police officers on the day of the search raise suspicion as to whether the practitioner may have sought to delay the entry of police and may have been prompted to commence the process of deletion of the CEM immediately upon becoming aware of their arrival at his residence.
- [33]On all the material before the Tribunal, whilst I hold doubts as to the practitioner’s claim that he had commenced the process of deletion of the CEM prior to becoming aware of the arrival of police at his residence, I am not satisfied to the requisite standard that such assertion is false. Consideration of the characterisation of the practitioner’s conduct and appropriate orders for sanction will proceed on the basis that the practitioner had commenced the process of deletion of the CEM on 26 September 2018 prior to becoming aware of the arrival of the police.
Characterisation of conduct
- [34]The definition of “professional misconduct” is found in section 5 of the National Law:
professional misconduct, of a registered health practitioner, includes –
- (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
- (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; and
- (c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [35]The practitioner did not resist a finding of professional misconduct as defined by limb (a) of the definition but submitted that limb (c) was not applicable to the practitioner’s conduct “when due regard is had to the facts and circumstances of the conduct, and the steps taken by Dr Asinas since that time, … the offending arose in an unusual way and was not indicative of an ongoing risk or ongoing unfitness.”
- [36]I do not accept such submission.
- [37]The offending did not arise in an unusual way at all. The facts of the offending were, unfortunately, all too common for such types of offences.
- [38]Whilst I accept that the practitioner has taken appropriate steps toward rehabilitation since the conduct and that it is unlikely that the practitioner will re-offend in a like manner and that it is unlikely he has presented or will present any risk as a contact offender, such matters do not preclude a finding that the conduct fits limb (c) of the definition of “professional misconduct”. Subsequent rehabilitation and present risk will inform issues of present fitness but are not relevant to whether the conduct, at the time it occurred, demonstrated unfitness.
- [39]In my view, the conduct, given its nature and what it and other evidence reveals about the character of the practitioner at the time of that conduct, readily meets the definition of “professional misconduct” in limb (c) of that definition.
- [40]The practitioner sought and obtained CEM including videos of extremely depraved and disturbing violation of children, including video of a three year old child being vaginally and anally raped. The practitioner viewed such material over a period of about 20 minutes.
- [41]The offences the practitioner committed are not victimless crimes. Viewing and distributing CEM perpetuates abuse and exploitation of the victims. The videos depicted real children. Behind every image is a real child victim. Such would be immediately obvious to anyone of normal intelligence. Yet, the practitioner contends he did not comprehend that at the time of his offences.
- [42]In a letter written by the practitioner and tendered on his behalf during the sentence proceedings in the District Court, the practitioner stated:
I came to realise that CEM’s (sic) are not victimless crimes. That there are children all over the globe, may have or is currently experiencing this.
- [43]Not surprisingly, the learned sentencing Judge was somewhat perplexed by such statement:
You would think, to an intelligent man, a medical practitioner, that would be self-evident the moment he’s looking at a three-year old being raped. How is it he came to realise it’s not a victimless crime? … It would be readily apparent to any person of average intelligence.[11]
- [44]The practitioner gave evidence that he only came to such a realisation after the police examining his computer on 26 September 2018 told him that it is not a victimless crime:
I was pretty much to think of it as a, you know, like a video without thinking about, you know, who is on that video, so to speak, at that point in time. But after the police told me about that term, which honestly I only heard first time, and the dawned on me how serious, the seriousness of what I’ve done.[12]
- [45]Despite the practitioner’s evidence of a Damascene moment on 26 September 2018, Dr Palk perceived a need to address the practitioner’s apparent lack of insight during the course of subsequent counselling sessions.[13] Dr Palk referred to notes of a consultation on 19 August 2019:
… one of his initial justifications was – and I’ve got it written there … “Not harming anyone. They’re only pictures”
- [46]Either the practitioner is being disingenuous when he asserts a lack of realisation of the seriousness of his conduct at the time of his offending or the practitioner demonstrated an astonishing lack of empathy in failing to realise such.
- [47]I adopt the comments of the Medical Tribunal of New South Wales:
The Tribunal considers that for a person to be of good character for the purpose of the practice of medicine as a registered medical practitioner, it is imperative that his or her character be such that he or she will not deliberately do any harm to another person, at least without reasonable excuse, and that he or she will not commit major serious offences against the criminal law. After all, the practice of medicine is designed to prevent or alleviate suffering, not to inflict it.[14]
- [48]The conduct of the practitioner was conduct inconsistent with the practitioner being a fit and proper person to hold registration in a caring profession. It meets both limbs (a) and (c) of the definition of “professional misconduct” in section 5 of the National Law.
- [49]The Tribunal decides, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.
Subsequent events
- [50]On 31 October 2018, the Health Ombudsman took immediate registration action pursuant to section 58 of the HO Act and imposed conditions on the practitioner’s registration including prohibiting the practitioner from having contact with patients under 18 years of age and requiring that the practitioner practise only in employment and practice locations approved by the Health Ombudsman. Those conditions remain in place.
- [51]As all practitioners must, the practitioner applied for annual renewal of his general and specialist registration on 1 August 2020 pursuant to part 7, division 9 of the National Law. On 20 October 2020, the Board considered the practitioner’s registration and determined that the practitioner was not suitable to hold registration. On 21 October 2020, the Board wrote to the practitioner inviting him to show cause why his renewal ought not be refused. On 17 November 2020, the practitioner made submissions in respect of the proposed refusal. Those submissions were considered by the Board on 15 December 2020 and the Board determined to refuse the practitioner’s application for renewal for reasons expressed in a letter dated that same day. In summary, the Board decided that the practitioner’s criminal convictions meant he was not a suitable person to hold registration, was not a fit and proper person nor was it in the public interest that he practise the profession. The decision of the Board is the subject of the application to review a decision in proceeding OCR383-20.
- [52]As well as filing the application to review the decision of the Board, the practitioner filed an application to stay that decision. On 18 December 2020, the Tribunal ordered a stay of the decision of the Board.[15] That has had the effect that the practitioner has continued to hold registration, subject to the conditions imposed by the Health Ombudsman, to date.
- [53]The ex tempore reasons of the learned judicial member constituting the Tribunal in the stay proceedings included reference to:
- (a)the referral by the Health Ombudsman, the subject of proceeding OCR151-20, pending before the Tribunal;
- (b)the nature of the integrated legislative system in Queensland for dealing with health disciplinary matters provided by the HO Act and the National Law; and
- (c)evidence that the practitioner’s aged care employer had been unsuccessful in obtaining a replacement for the practitioner.
- (a)
- [54]The Tribunal’s reasons for granting the stay included:
- (a)ultimately the Tribunal, when determining an appropriate sanction in the referral proceedings, would be making a determination as to whether the practitioner was a fit and proper person to be registered and whether the practitioner’s registration should be cancelled;
- (b)the Board’s decision cut across the scheme of the legislation and usurped the function of the Tribunal in determining the referral proceeding;
- (c)the practitioner, in light of the conditions on his registration, did not present a risk to patients; and
- (d)the practitioner’s vulnerable patients were likely to be left without a treating practitioner over the Christmas period if a stay was not granted.
- (a)
- [55]The Board filed an appeal against the stay decision. I am advised by the parties that, on 5 May 2021, the Court of Appeal adjourned the appeal, pending the Tribunal’s determination of these proceedings.
Sanction
- [56]The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia[16], 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)
- [57]Mitigating factors in the practitioner’s favour include:
- (a)Prior to the conduct, the practitioner had no disciplinary or criminal history;
- (b)There is nothing to suggest that the practitioner is other than a competent and safe health practitioner and he is well regarded by his employer;
- (c)The practitioner sought and engaged in psychological counselling concerning his conduct;
- (d)The practitioner pleaded guilty to the criminal offences and co-operated in the conduct of the Tribunal proceedings;
- (e)The Tribunal accepts that the practitioner is remorseful for his misconduct and is unlikely to engage in similar conduct in the future; and
- (f)The practitioner has shown some insight into the seriousness of his misconduct.
- (a)
- [58]Both the Health Ombudsman and the practitioner agreed that the practitioner should be reprimanded. His conduct clearly deserves denunciation by the Tribunal. Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the practitioner.
- [59]The parties disagreed as to what further orders by way of sanction are required.
- [60]The Health Ombudsman submitted that the seriousness of the practitioner’s misconduct is such that cancellation of the practitioner’s registration and disqualification from re-applying for registration for a period of 2 years is required to meet the protective purposes of sanction. The Health Ombudsman referred to comparative decisions in support of such submission.[17]
- [61]The practitioner submitted that the Tribunal would not find present unfitness of the practitioner and would not cancel his registration. The practitioner presents no future risk to patients. His conduct was a brief and isolated aberration. Interruption of the continued care of the practitioner’s vulnerable patients would be contrary to the public interest in maintaining aged care services, particularly given the impact on those services of the current pandemic. The practitioner should be permitted to continue to practise subject to conditions prohibiting treatment of patients under 18 years of age for a period of 2 years and requiring continued psychological counselling for a further 12 months. A fine could also be imposed.
- [62]The public interest in the practitioner being able to provide valuable services in the aged care sector is a relevant factor in determining sanction, the health and safety of the public being the paramount consideration guiding the Tribunal’s determination.[18] But such factor cannot be permitted to overwhelm the consideration of other relevant factors.
- [63]In circumstances where the practitioner practises in aged care subject to conditions on his registration, and where the evidence suggests he is unlikely to present a risk to any patient, preclusion of the practitioner from practice is not required for immediate protection of patients. Considerations of general deterrence, denunciation and protection of the reputation of the profession are more important.
- [64]The Tribunal must determine whether the respondent is a fit and proper person to hold registration as a medical practitioner. A useful list of factors that might be considered is found in the judgments of the New South Wales Court of Appeal in McBride v Walton[19]:
To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine one must consider:
- (a)whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
- (b)the intrinsic seriousness of the misconduct qua fitness to practise medicine;
- (c)whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
- (d)the motivation which may have given rise to the proven episode of misconduct;
- (e)the underlying qualities of character shown by previous and other conduct; and
- (f)whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
- [65]Addressing those factors in this case:
- (a)The practitioner’s misconduct and his professed lack of recognition of its seriousness can only reasonably be viewed as showing a gross defect of character and lack of empathy and cannot satisfactorily be explained as an error of judgment;
- (b)The misconduct was very serious and its nature antithetical to that expected of a member of a caring profession;
- (c)Although the offences occurred on one day only, the practitioner deliberately sought out the CEM and the length of time he viewed the repugnant material, although only about 20 minutes, must be considered in light of the extremity of the contents of the CEM he was viewing;
- (d)The motivation for the misconduct was the practitioner’s perverted interest in the contents of the CEM – the Tribunal does not accept that it was motivated by idle curiosity;
- (e)There is no relevant previous conduct, which is in the practitioner’s favour; and
- (f)There has been no repetition of such or similar conduct and the practitioner has taken appropriate steps towards rehabilitation, but that does not demonstrate, in my view, that public and professional confidence may now be reposed in him to uphold and observe the high standards required of a medical practitioner.
- (a)
- [66]My impression, shared by the assessors assisting me, was that the practitioner, in his evidence in the proceeding, sought to minimise the seriousness of his misconduct as far as he saw possible and contrary to the objective evidence. He showed only limited insight into the seriousness of his misconduct. I agree with the submission by the Board:
I’d respectfully submit that in the course of his evidence here today, Dr Asinas presented as a practitioner who still has an element of coldness, who has still not engaged with the true gravity of his offending, who still presents as someone evasive when questioned in respect of the nature of the offending.[20]
- [67]The evidence before the Tribunal compels a conclusion that the practitioner is not presently a fit and proper person to hold registration in the medical profession. The protective purposes of sanction require that his registration be cancelled and he be precluded for a period of time before being permitted to attempt to satisfy the Board that he is fit to be re-registered. Consideration of the comparative cases referred to by the parties supports a conclusion that such period of preclusion be one of 18 months.
- [68]The practitioner submitted that the operation of any period of preclusion from practice should be delayed by about 2 months given the evidence of the past difficulty of finding a suitable replacement for the practitioner. The Health Ombudsman conceded that a period of delay, although shorter than 2 months, may be appropriate in the circumstances.
- [69]Pursuant to section 107(3)(e) of the HO Act, the Tribunal cancels the practitioner’s general and specialist registration with such cancellation to take effect on 31 October 2021.
- [70]Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months from 31 October 2021.
OCR383-20 – the application to review the decision of the Board on 15 December 2020 to refuse to renew the practitioner’s registration
- [71]In light of the orders the Tribunal has made in the referral proceeding, there is no utility in considering the merits of the application by the practitioner to review the decision of the Board to refuse to renew his registration.
- [72]On such a review, the Tribunal is required to conduct a fresh hearing on the merits and produce the correct and preferable decision.[21] Given the earlier stay of the decision and the Tribunal’s decision to now cancel the practitioner’s registration, the preferable decision is to set aside the decision of the Board. Such an order reflects the reality that, as a result of the stay order, the practitioner continued to be registered until the Tribunal cancelled his registration. Such an order does not suggest that the decision of the Board was in error. The Tribunal has not considered the merits of the Board’s decision. Neither does such order reflect any view as to the merits of the stay decision. That remains entirely a matter for the Court of Appeal should it proceed to hear and determine the appeal against that decision.
- [73]The decision of the Medical Board of Australia on 15 December 2020 to refuse the renewal of the respondent’s general and specialist registration as a medical practitioner is set aside.
Footnotes
[1] (1938) 60 CLR 336 at [361]-[363]; Leigh v Bruder Expedition Pty Ltd [2020] QCA 246 at [14]-[16].
[2] Transcript of sentence proceedings on 11 February 2020; pages 11-12.
[3] Transcript of sentence proceedings on 11 February 2020; page 13.
[4] Citing Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; Queensland College of Teachers v Illingworth [2016] QCAT 309 at [24], [28]-[32]; and RGM v Director-General Department of Justice and Attorney-General [2017] QCAT 142 at [34].
[5] Transcript of hearing on 4 May 2021; page 20, lines 20-25; page 23, lines 10-15; page 33, lines 1-8.
[6] Transcript of hearing on 4 May 2021; page 33, lines 9-10.
[7] Transcript of hearing on 4 May 2021; page 20, line 42 to page 21, line 10; page 22, lines 20-25.
[8] Transcript of hearing on 4 May 2021; pages 60-61.
[9] Transcript of hearing on 4 May 2021; pages 61-64.
[10] Transcript of hearing on 4 May 2021; page 65.
[11] Transcript of sentence proceedings on 11 February 2020; page 13.
[12] Transcript of hearing on 4 May 2021; page 49.
[13] Transcript of hearing on 4 May 2021; pages 43-44.
[14] In the Matter of Dr RM and the Medical Practice Act 1992, decision of the Medical Tribunal of New South Wales, No 4013 of 1999, 31 July 2001.
[15] Asinas v Medical Board of Australia [2020] QCAT 490.
[16] (2001) 79 SASR 545 at 553-555.
[17] In particular, Medical Board of Australia v Black (Review and Regulation) [2016] VCAT 892.
[18] HO Act, section 4.
[19] [1994] NSWCA 199, page 34 (quoting from the Medical Tribunal below).
[20] Transcript of hearing on 4 May 2021; page 82, lines 18-22.
[21] QCAT Act, section 20.