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Health Ombudsman v DKM[2021] QCAT 50

Health Ombudsman v DKM[2021] QCAT 50

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v DKM [2021] QCAT 50

PARTIES:

health ombudsman

(applicant)

v

DKM

(respondent)

APPLICATION NO/S:

OCR056-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 February 2021

HEARING DATE:

2 April 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr T Chamberlin

Dr E Chew OAM

Dr V Thorley OAM

ORDERS:

  1. With respect to charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. With respect to charge 2, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.
  3. With respect to charge 3, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct. 
  4. 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 indefinitely. 
  5. Each party must bear the party’s own costs for the proceeding.

CATCHWORDS:

PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent held specialist registration as a general practitioner – where the respondent was convicted of a serious sexual offence unrelated to his practice of his health profession – where the respondent was sentenced to a term of imprisonment for his serious sexual offending – where the respondent’s registration as a health practitioner subsequently lapsed and the respondent is currently not registered  – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what sanction should be imposed for the respondent’s professional misconduct – whether the respondent should be disqualified from applying for registration as a registered health practitioner indefinitely or for a specified period. 

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent failed to provide notice of the relevant events of being charged with criminal offences and being convicted of a criminal offence contrary to section 130 of the Health Practitioner Regulation National Law (Queensland) – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what, if any, sanction should be imposed for the respondent’s unprofessional conduct.

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent made a false statement in an online application for renewal of his registration as a medical practitioner contrary to section 109 of the Health Practitioner Regulation National Law (Queensland) – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct – what, if any, sanction should be imposed for the respondent’s unprofessional conduct. 

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 109, s 130

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66

Briginshaw v Briginshaw (1938) 60 CLR 336

General Medical Council v Spackman [1943] AC 627

HCCC v Do [2014] NSWCA 307

Health Ombudsman v Chaffey [2020] QCAT 54

Health Ombudsman v GCV [2020] QCAT 30

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 Legal Services Commissioner v Randall [2019] QCAT 217

McBride v Walton [1994] NSWCA 199

Medical Board of Queensland v DAP [2008] QCA 44

Nursing and Midwifery Board of Australia v Burrows [2020] QCAT 164

Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241

Nursing and Midwifery Board of Australia v FH [2010] QCAT 675

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES &

REPRESENTATION:

Applicant:

S Robb instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    The respondent, now in his mid-50’s, was born overseas and obtained his medical qualifications overseas before emigrating with his family to Australia in 2004.  The respondent was granted limited registration as a medical practitioner in 2004 and continued to hold limited registration until granted specialist registration as a general practitioner in 2013.  The respondent last applied to renew his registration in August 2014 and his registration lapsed in September 2015.  He is not currently registered as a health practitioner. 
  2. [2]
    This matter relates to serious sexual offending by the respondent against his daughter during from 2005 to 2012.  Such conduct was unrelated to the respondent’s practice as a medical practitioner.  The respondent was charged with sexual offences against his daughter in late 2013.  In May 2015, following a trial, the respondent was found guilty by a jury of the serious sexual offence of maintaining a sexual relationship with a child under 16 years.  The respondent was sentenced to five years imprisonment and served two years and nine months of that term in prison before being released on parole.  The respondent has now served that sentence in full. 
  3. [3]
    The Director of Proceedings on behalf of the Health Ombudsman (the applicant) has referred the respondent to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).  The referral particularises three charges.  Charge 1 relates to the respondent’s conviction for the offence of maintaining a sexual relationship with a child under 16 years.  Charge 2 alleges breaches of section 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) by failure to notify the Medical Board of Australia (Board) of relevant events of being charged with criminal offences and being convicted of a criminal offence.  Charge 3 alleges a false statement on renewal of registration in 2014, contrary to section 109 of the National Law.  It is for the Tribunal to determine whether such charges are made out, whether such conduct as is proved should be characterised as professional misconduct or unprofessional conduct and what, if any, sanction should be imposed for such professional misconduct or unprofessional conduct that is proved.

Admitted facts

  1. [4]
    The following facts were admitted by the respondent. 
  2. [5]
    Between 1 August 2005 and 7 March 2012 the respondent maintained a sexual relationship with his biological daughter.  His daughter was nine years of age when the offending began. 
  3. [6]
    In 2013, the victim made a statement to the police about the respondent’s conduct. 
  4. [7]
    On 12 December 2013, the respondent was charged with 11 counts of indecent treatment of a child under 16 years with a circumstance of aggravation, three counts of rape and one count of sexual assault. 
  5. [8]
    Section 130(1) of the National Law provides that a registered health practitioner must, within seven days after becoming aware, give written notice to the National Board of a “relevant event” as defined in section 130(3)(a) of the National Law, which includes:
    1. (a)
      being charged with an offence punishable by 12 months imprisonment or more (section 130(3)(a)(i) of the National Law); and
    2. (b)
      being convicted of or subject of a finding of guilt for an offence punishable by imprisonment (section 130(3)(a)(ii) of the National Law). 
  6. [9]
    The respondent did not notify the National Board or the Australian Health and Practitioner Regulation Agency (AHPRA) of being charged within seven days (or at all). 
  7. [10]
    On 5 August 2014, the respondent submitted a registration renewal application for his registration as a medical practitioner.  To the question “During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?”, the practitioner answered “no”. 
  8. [11]
    On 18 May 2015, following a trial, the respondent was found guilty by a jury of one count of maintaining a sexual relationship with a child under 16 years. The same day the respondent was sentenced to five years imprisonment.  His Honour Judge Rafter SC, the sentencing Judge, made the following comments:

Over a seven-year period between 2005 and 2012, you sexually violated your own daughter for your own sexual gratification.  There are a number of aggravating features.  Your daughter was nine years old when you commenced to sexually interfere with her.  There was a lengthy period during which the relationship continued.  The period was seven years.  You violated your parental role.  Also that was physical violence, which led to the complainant acquiescing in the offences and remaining silent. 

The sexual acts included touching the complainant on the vagina, toughing her breasts, having her massage your penis, licking her on the vagina and clitoris, grinding your penis against her buttocks while you were both clothed, rubbing on the vagina and clitoris, squeezing her breasts, rubbing your penis against her vagina while you had your pants on, rubbing her clitoris, rubbing and sucking her breasts and grinding your penis between her buttocks.

  1. [12]
    The respondent did not notify the National Board or AHPRA of his conviction within seven days as required by the National Law. 
  2. [13]
    In August 2015, AHPRA received a letter from the respondent stating that he had been convicted and imprisoned for five years.  The letter did not state what offence the respondent had been convicted of.  The letter stated that the respondent intended to resume practice as a medical practitioner upon his release.
  3. [14]
    In September 2015, AHPRA received a further letter from the practitioner containing the same information as the first letter. 

Charge 1

  1. [15]
    In this proceeding the respondent admitted the serious sexual offending of which he was convicted by a jury in 2015.  That is to be contrasted with the approach taken by the respondent in his defence of the charge during his trial in the District Court at Brisbane in 2015.  Whilst the facts of the criminal offending are not in dispute in this proceeding, a factual dispute did arise regarding the way in which the respondent conducted his defence during the criminal proceedings in 2015.  The Tribunal heard evidence adduced by both parties in the proceeding relevant to this factual dispute. 
  2. [16]
    The factual dispute arose because of the assertions made by the respondent in material he filed in the proceeding that he wished to plead guilty to the offence with which he was charged, but was persuaded to plead not guilty by his legal representatives to which he “eventually agreed… against (his) conscience”.[1]  The respondent filed an affidavit sworn on 21 March 2019[2] in which he deposed that:
    1. (a)
      at an early stage in communications with his solicitor after being charged by police, he told his solicitor that he had committed the offence;
    2. (b)
      that by his word and body language, at times he gave his solicitor cues that he was open to plead guilty;
    3. (c)
      “I also had shown my intention at times during the preparation of my criminal proceedings – to plead guilty – to my solicitor”; and
    4. (d)
      “I am equally remorseful for not listening to my conscience and pleading not guilty in the primary charge proceedings in the Court.”
  3. [17]
    The respondent gave evidence before the Tribunal.  He confirmed the accuracy of his affidavits he had filed in the proceeding.  During cross-examination, the respondent backed away from his assertion that his legal representatives had persuaded him to plead not guilty, conceding that his solicitor never said, “Don’t plead guilty.”[3]  The respondent however maintained that, from the first time he spoke to his solicitor about the charges he said, “I committed offence.  What should I do?”[4]
  4. [18]
    The applicant filed an affidavit from the solicitor who had acted for the respondent during the criminal proceedings. The solicitor deposed as follows:

Although I have no independent recollection at this stage, I can confidently say that, given the matter went to trial, at no stage did (the respondent) intimate that he had intended to plead guilty to this offence. The discounts associated with an early plea of guilty (particularly in sexual offences where the victim is thusly spared the trauma of reliving the events in a trial setting) would have been routinely explained to him several times – by Counsel as well.  I am quite certain that if he had expressed any desire to plead guilty the matter would have proceeded as a sentence.  I have never (and would never) advise a client to plead not guilty if they wanted to plead guilty.

  1. [19]
    The solicitor confirmed his affidavit evidence in evidence before the Tribunal.  The solicitor identified correspondence between himself and counsel enclosing typewritten instructions from the respondent in which the respondent categorically denied all allegations of criminal behaviour against him.[5]  During cross-examination by the respondent, the solicitor disagreed with the suggestion that the respondent expressed a willingness to plead guilty.[6] During re-examination, the solicitor explained that, if the respondent had told him that he had committed the offence, that he and counsel would have been ethically precluded from conducting a positive defence as was in fact done at the trial.[7]
  2. [20]
    The respondent did conduct a positive defence at the trial as opposed to simply putting the prosecution to proof of the charge.  Defence counsel, following the instructions of the respondent, put to the victim that there was no truth in the allegations she made against the respondent.  The victim and other family members were cross-examined as to the circumstances in which the victim’s complaint came to be made.  The respondent gave sworn evidence denying the allegations made by his daughter.
  3. [21]
    The way the respondent conducted his defence during the trial led the learned sentencing judge to comment:

… you have shown absolutely no remorse.  You are not being punished for having gone to trial, you were quite entitled to do that.  However, in view of the way in which the trial was conducted, which involved grave accusations against your daughters and their mother of being involved in some sort of conduct designed to fabricate these allegations, I do not think that it is an appropriate case to partially suspend the sentence.

  1. [22]
    The resolution of this factual dispute relied in no part upon any assessment of the demeanour of witnesses.  Such would have been practically impossible given the limitations involved in the receipt of the respondent’s evidence by video-link and the evidence of his defence solicitor by telephone.  Issues of credibility of evidence were easily resolved by reference to the content of the witnesses’ evidence, the documentary evidence admitted in the proceeding and an application of logic and common sense.  The way in which witnesses gave evidence did not assist in determining issues of the credibility of their evidence.
  2. [23]
    I have no hesitation in accepting the evidence of the respondent’s defence solicitor that the respondent at no time indicated that he was guilty of the offending and at no time expressed an interest in pleading guilty to the offence with which he was charged.  I note the detailed written instructions of the respondent as to his innocence and the fact that the respondent gave sworn evidence as to his innocence at trial.  The respondent’s legal representatives would have been ethically precluded from conducting a positive defence at trial by cross-examining prosecution witnesses in the way which counsel did and in calling such evidence from the respondent if the respondent had indicated to his legal representatives that he was in fact guilty of the offending behaviour.  I do not accept the assertions of the respondent that he indicated to his solicitor his guilt or expressed any interest in pleading guilty to the offence.  The respondent’s false assertions to that effect were an ill-advised attempt to minimise his moral culpability for the way he conducted his defence of the criminal proceedings and to suggest a degree of remorse on his part for his offending behaviour which he did not honestly have at the time of trial.  The respondent’s false assertions in the proceedings before the Tribunal demonstrated a lack of frankness in facing the charge brought against him.  The respondent’s lack of frankness reflected poorly upon his personal character and adversely affected the credibility of his evidence concerning charges 2 and 3.
  3. [24]
    The heinous sexual offending by the respondent against his vulnerable daughter undoubtedly fits the definition of professional misconduct in limb (c) of that definition in section 5 of the National Law, being “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.”
  4. [25]
    Charge 1 is proved to the satisfaction of the Tribunal and 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.

Charge 2

  1. [26]
    Charge 2 alleges that the respondent failed to give the Board written notice of a relevant event, in breach of section 130 of the National Law. The particulars of charge 2 refer to the requirement, pursuant to sections 130(1) and 130(3)(a)(i) of the National Law, for the respondent to notify the Board within seven days of being charged with the criminal offences of indecent treatment of a child under 16 with the circumstance of aggravation, rape and sexual assault and the respondent’s failure to do so within seven days or at all.  The charge is also particularised with reference to sections 130(1) and 130(3)(a)(ii) of the National Law and the requirement of the respondent to notify the Board within seven days that he had been convicted of a criminal offence.  The respondent did not give such notice to the Board within seven days and in his subsequent correspondence in August 2015 failed to give full details of the offence of which he had been convicted.
  2. [27]
    The respondent asserted, in material filed in the proceeding and his evidence before the Tribunal, that he had sought advice from his defence solicitor as to any obligation on his part to notify regulatory authorities of the charges against him and had been advised that he need not do so.[8]  In a subsequent affidavit[9] the respondent backed away from his assertion that his solicitor told him that he should not report being charged to AHPRA but instead deposed to a failure on the part of the solicitor to advise him that he should do so.
  3. [28]
    The defence solicitor deposed that he had no recollection of being asked by the respondent about the need to notify AHPRA about the charges and that, if asked, he would have ensured that the respondent complied with his legislative obligations.[10]  During his evidence before the Tribunal, the solicitor identified the terms of his written retainer agreement[11] and testified that he was never engaged by the respondent to give advice to him as to his reporting obligations as a medical practitioner under the National Law.[12]
  4. [29]
    I prefer the evidence of the solicitor to that of the respondent.  I do not accept the initial assertion by the respondent that he sought advice from the solicitor and was advised not to notify AHPRA of being charged. I regard the respondent’s false assertions to such effect as dishonest attempts to minimise his culpability for his own failure to comply with the statutory requirement. I prefer the evidence of the solicitor that advice on the issue was neither sought nor given. That is consistent with the respondent’s ultimate assertion which is to the effect that he failed to notify AHPRA of the charges because he was not advised by his solicitor to do so.  The absence of advice from his solicitor to do so in such circumstances does not excuse the respondent from his professional obligation to comply with the requirements of section 130 of the National LawThe respondent had a professional obligation to be aware of, and to comply with, such reporting obligations. 
  5. [30]
    As to the contravention of the National Law by lack of a timely notification of his conviction of the charge, I accept the evidence of the respondent that the initial period of his imprisonment was a difficult and distressing period.[13] Given those circumstances and his belated notification, albeit incomplete, I am not satisfied to the requisite standard[14] that the respondent’s failure in this regard should be characterised as unprofessional conduct.[15] This particular of charge 2 is not made out.
  6. [31]
    The Tribunal does find that charge 2 is made out in respect of the contravention of sections 130(1) and 130(3)(a)(i) of the National Law and that such conduct should be characterised as unprofessional conduct as defined in section 5 of the National Law. The Tribunal decides, pursuant to section 107(2)(b)(ii) of the HO Act, that the respondent has behaved in a way that constitutes unprofessional conduct.

Charge 3

  1. [32]
    Charge 3 alleges that in August 2014 the respondent made a false statement in his online application for renewal of his registration as a medical practitioner contrary to section 109 of the National Law.  The online application form contained the question “During your preceding period of registration, has there been any change to your criminal history that you have not declared to AHPRA?”  The respondent answered “no” to that question.  The respondent’s answer was false as the respondent had by that time been charged with the offences of indecent treatment, rape and sexual assault and section 5 of the National Law defines the criminal history of a person as including “every charge made against the person for an offence…”
  2. [33]
    In material filed before the Tribunal, the respondent asserted that he answered the question in such a way because he had been advised to do so by his then solicitor.[16]  The respondent also filed affidavits from other persons deposing as to contemporaneous assertions by the respondent to them to that effect.[17]
  3. [34]
    In his evidence before the Tribunal, the respondent maintained that he acted on the advice of his solicitor in answering the question during his application for reregistration.[18]
  4. [35]
    As noted during the discussion regarding charge 2, the solicitor testified that he was never retained to advise the respondent as to his reporting obligations to AHPRA. During cross-examination by the respondent, the solicitor categorically denied advising the respondent in the way the respondent asserted.
  5. [36]
    Notwithstanding the hearsay assertions of the respondent’s deponents in support of his contention, I prefer the evidence of the solicitor to that of the respondent.  I accept the evidence of the solicitor that he was not retained to advise the respondent as to his reporting obligations.  I accept the evidence of the solicitor that he would not, if asked, have given the advice the respondent asserts he was given.  I do not accept the evidence of the respondent that, in answering the question during the online renewal application, he acted upon the advice of his solicitor. I regard the respondent’s false assertions to such effect as dishonest attempts to minimise his culpability for his own failure to comply with the statutory requirement.
  6. [37]
    I should say that it would not be immediately apparent to a lawyer, let alone a non-legally qualified health practitioner, that the term “criminal history” in the question includes charges of criminal offences that have not yet been the subject of conviction.  Nevertheless, the respondent had a professional obligation to ensure that the information he provided to AHPRA in his application for re-registration was accurate.  That professional obligation extended to informing himself as to whether the charges were required to be disclosed in response to such question.  The respondent failed to discharge that professional obligation and his failure to do so constituted a contravention of section 109 of the National Law and should be characterised as  unprofessional conduct as defined in section 5 of the National Law. 
  7. [38]
    I find that charge 3 is proved to the requisite standard. The Tribunal decides, pursuant to section 107(2)(b)(ii) of the HO Act, that the respondent has behaved in a way that constitutes unprofessional conduct.

Conclusion re conduct

  1. [39]
    The serious sexual offending by the respondent against his young daughter over a seven year period constitutes a most serious case of professional misconduct. Such professional misconduct is aggravated by the respondent’s unprofessional conduct in failing to disclose to AHPRA and the Board that he had been charged with serious criminal offences. The attempts by the respondent in these proceedings to deflect blame for the way he conducted his criminal defence and for his unprofessional conduct onto his former solicitor demonstrates a continued lack of frankness with regulatory authorities, a failure by the respondent to accept full responsibility for his own actions and omissions, and reflects poorly on his present character and fitness to practise.

Sanction

  1. [40]
    The respondent maintained his registration as a medical practitioner up until the time of his imprisonment on 18 May 2015. His registration subsequently lapsed and he remains unregistered.
  2. [41]
    The respondent’s preclusion from practice following his imprisonment up until the present is as a consequence of his criminal offending that has been found to constitute professional misconduct. It is appropriate to have regard to the period of over five years preclusion from practice as a mitigating factor in determining an appropriate sanction. That is because it has met, to some extent, the deterrent aspects of sanction. If the Tribunal was to determine that a finite period of preclusion from practice was appropriate, regard would be had to such past period of preclusion from practice in determining what, if any, further period of preclusion is required.
  3. [42]
    The real question to be determined so far as sanction is concerned is whether the Tribunal should, pursuant to section 107(4)(a) of the HO Act, disqualify the respondent from applying for registration as a registered health practitioner for a further specified period of time and, if so, for how long, or whether the Tribunal should disqualify the respondent from applying for registration as a registered health practitioner indefinitely. 
  4. [43]
    The applicant submits that maintenance of professional standard and preservation of public confidence in the medical profession require the permanent disqualification of the respondent who has been shown to possess a character inconsistent with that required of a medical practitioner.
  5. [44]
    The respondent submits that he should be permitted to resume practice as a medical practitioner. He stresses that there is no doubt as to his professional skills or his probity in the practice of his profession. He has valuable skills that he can utilise for the benefit of the community. He deposes to never having been the subject of controversy or allegations of misbehaviour with patients during his lengthy time in practice.[19] His passion is to work in the health profession and help patients. If given the chance, he will prove himself competent and trustworthy.[20]
  6. [45]
    The respondent refers to steps taken towards his rehabilitation by completion of sex offender treatment programs and other education whilst imprisoned and after his release. He submits that he is now truly remorseful for his misconduct. He and his family are suffering severe financial consequences of his inability to practise as a medical practitioner.
  7. [46]
    The respondent refers to numerous letters of support from members of his family and the wider community submitted to the Parole Board in support of his application for parole.[21]
  8. [47]
    I have considered a body of documentary evidence relating to the respondent’s completion of sex offender treatment programs whilst imprisoned and after his release.[22] Counsel for the applicant made submissions, with reference to the contents of such documents, as to the true extent of the respondent’s rehabilitation as a sex offender. I do not consider I need to address such submissions. There are no grounds to believe that the respondent presents a future risk of sexually offending, and certainly not against patients, so as to make the completeness of his rehabilitation as a sex offender a relevant consideration as to sanction.
  9. [48]
    Indeed, there are no grounds to believe that the respondent would, after addressing any issues as to recency of practice upon return to practice, present any immediate risk of any type to patients. Further preclusion from practice is not required to meet an immediate protective purpose.
  10. [49]
    I do not consider that further preclusion from practice is required to meet deterrent aspects of sanction. I expect that the criminal punishment suffered by the respondent would have had a salutary effect and, as noted earlier, there are no grounds to believe that the respondent presents a future risk of sexually offending so as to properly raise considerations of personal deterrence. Given the nature of the professional misconduct, considerations of general deterrence of other medical practitioners are of limited relevance.
  11. [50]
    That there is no need for further preclusion from practice for immediate protection of future patients of the respondent or to address considerations of deterrence is significant. The main consideration in determining sanction is the health and safety of the public.[23] The purpose of sanction is protection of the public and the profession. The purpose of sanction is not to further punish the respondent for his criminal conduct or to punish him for his unprofessional conduct. The sanction should be no more severe than is required to adequately meet the protective purposes of sanction.
  12. [51]
    The protective purposes of sanction include the maintenance of professional standards and the preservation of public confidence in the medical profession. In order to achieve such objectives it may be necessary to cancel the registration of practitioners who are not fit to practise, including those who have been guilty of serious misconduct. This serves to maintain public confidence by signalling that those whose conduct does not meet required standards will not be permitted to practise.[24]
  13. [52]
    Although dated, the following judicial comment is no less true today:

The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour.[25]

  1. [53]
    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.[26]

  1. [54]
    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[27]:

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:

  1. (a)
    whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
  2. (b)
    the intrinsic seriousness of the misconduct qua fitness to practise medicine;
  3. (c)
    whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
  4. (d)
    the motivation which may have given rise to the proven episode of misconduct;
  5. (e)
    the underlying qualities of character shown by previous and other conduct; and
  6. (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.
  1. [55]
    Addressing those factors in this case:
    1. (a)
      The respondent’s professional misconduct can only reasonably be viewed as showing a gross defect of character and cannot satisfactorily be explained as an error of judgment;
    2. (b)
      The misconduct was extremely serious;
    3. (c)
      The misconduct was maintained over a period of seven years;
    4. (d)
      The motivation for the misconduct was the respondent’s gratification of his own sexual desires;
    5. (e)
      There is no relevant previous conduct but the respondent’s subsequent unprofessional conduct and his lack of frankness in his conduct of proceedings in the Tribunal adversely reflect upon the respondent’s character; and
    6. (f)
      It cannot be said that the respondent’s conduct post his sexual offending demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards required of a medical practitioner.
  2. [56]
    The evidence before the Tribunal compels a conclusion that the respondent is not presently a fit and proper person to hold registration in the medical profession. At the very least, the protective purposes of sanction require that he be precluded for a further period of time before being permitted to attempt to satisfy the Board that he is fit to be re-registered.
  3. [57]
    I have considered previous decisions of the Tribunal where professional misconduct constituted by serious sexual offending by nurses, unrelated to the practice of their profession, resulted in sanctions involving lengthy finite periods of preclusion from practice.[28] Those decisions lend support to my assessment that, if a finite period of preclusion was appropriate, a total period of preclusion of at least 10 years, so a further period of at least five years, would be necessary to meet the purposes of sanction in this case.
  4. [58]
    A finite period of preclusion would be appropriate if the Tribunal concluded that, upon the end of that period, there is a real prospect that the respondent would then be a fit and proper person to practise his profession. On the other hand, an indefinite disqualification is required if the Tribunal concludes that there are no grounds to believe that the respondent may become fit to practise as a medical practitioner.[29] 
  5. [59]
    To adopt a turn of phrase used in decisions relating to legal practitioners,[30] a test of probable permanent unfitness is whether “the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person” to be registered as a medical practitioner.
  6. [60]
    Consistent with the standard of proof required[31] and the catastrophic consequences to the practitioner of such a finding, a finding of permanent unfitness should not be lightly made.[32]
  7. [61]
    Bearing in mind all these matters and all the evidence before the Tribunal, and after considering the advice of the assessors, I have concluded that the heinous conduct of the respondent in his sexual exploitation of his daughter so indelibly marks the respondent’s character as to compel the conclusion that he cannot properly be regarded, now or in the future, as a fit and proper person to hold registration as a medical practitioner. The respondent’s professional misconduct was of such a nature and extent that it is incompatible with the personal qualities essential to practise a caring profession. The words of the President of the Tribunal, in the context of serious sexual offending by an enrolled legal practitioner, are no less apt in reference to the respondent:

By engaging in this conduct, the respondent effectively forfeited the privilege of ongoing membership of an honourable profession.[33]

  1. [62]
    Given the nature and extent of the respondent’s professional misconduct, affording the respondent the opportunity of re-registration would be likely to erode professional standards and diminish public confidence in the profession.
  2. [63]
    I would have reached such conclusion having regard to the extent of the respondent’s professional misconduct alone. Further regard to the respondent’s unprofessional conduct and his lack of frankness in his conduct of the proceedings before the Tribunal serves to reinforce such conclusion.
  3. [64]
    The Tribunal orders that, pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner indefinitely. 
  4. [65]
    Given that the respondent will remain unregistered, there is no utility in a reprimand, whether for the professional misconduct or in respect of the findings of unprofessional conduct. The findings and orders of the Tribunal serve as denunciation of the respondent’s conduct.
  5. [66]
    The applicant did not seek costs and the orders of the Tribunal will confirm that the default position as to costs pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies.

Footnotes

[1] Exhibit 4, affidavit of the respondent, para 3; letter of respondent dated 9 May 2018 annexed to response dated 9 May 2018. 

[2]Exhibit 5.

[3] T1-47-48. 

[4]T1-47.20-30.

[5] Exhibits 18, 19, 20, 21 and 22.

[6]T1-37.5-15.

[7] T1-42.1-10.

[8] Letter from respondent dated 9 May 2018, annexed to response dated 9 May 2018; Exhibit 4, Affidavit of respondent, para 4.

[9] Exhibit 5, para 7.

[10]Exhibit 2, paras 6 and 7.

[11] Exhibit 23.

[12] T1-26.

[13]T1-57-58.

[14] Briginshaw v Briginshaw (1938) 60 CLR 336.

[15] See Health Ombudsman v Chaffey [2020] QCAT 54, [22]-[24].

[16] Response; Exhibit 4, affidavit of the respondent, para 4; Exhibit 5, affidavit of the respondent, para 8.

[17]Exhibits 6, 7, 8 and 9.

[18] T1-55.5-15.

[19] Exhibit 4, affidavit of respondent, para 7.

[20]Exhibit 4, affidavit of respondent, para 8.

[21] Annexed to response dated 9 May 2018.

[22] Exhibits 13, 14, 15, 16 and 17.

[23]HO Act, s 4.

[24] HCCC v Do [2014] NSWCA 307, [35].

[25]General Medical Council v Spackman [1943] AC 627 at 634 per Viscount Simon LC.

[26]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.

[27] [1994] NSWCA 199, page 34 (quoting from the Medical Tribunal below).

[28] Nursing and Midwifery Board of Australia v FH [2010] QCAT 675; Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241; Health Ombudsman v GCV [2020] QCAT 30; Nursing and Midwifery Board of Australia v Burrows [2020] QCAT 164.

[29] Medical Board of Queensland v DAP [2008] QCA 44.

[30] See Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66, [57], subsequently applied in QCAT decisions.

[31] Briginshaw v Briginshaw (1938) 60 CLR 336.

[32]Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 296 per Fullagar J.

[33]Legal Services Commissioner v Randall [2019] QCAT 217, [8].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v DKM

  • Shortened Case Name:

    Health Ombudsman v DKM

  • MNC:

    [2021] QCAT 50

  • Court:

    QCAT

  • Judge(s):

    Allen QC J

  • Date:

    19 Feb 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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