Health Ombudsman v MKL[2022] QCAT 131

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld)(“the Act”) s 103(1)(a), s 104.  Under s 126 of the Act, I constitute the Tribunal, and am sitting with assessors Dr Eleanor Chew, Dr Glynn Kelly and Ms Carolyn Ashcroft in accordance with the Act.^[1] 
2. [2]
   The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in professional misconduct, in that he was convicted of four criminal offences in 2019 and one in 2018. 
3. [3]
   The Tribunal has been provided by the applicant with material about the matter, and submissions in writing.  The respondent is not legally represented, but has cooperated in this matter, so that the Tribunal has an agreed set of facts, and bundle of material.  He had filed evidence, and provided submissions, seeking that the relevant conduct be characterised as unprofessional conduct, and contesting the sanction sought by the applicant. 

Background

4. [4]
   The respondent was born in 1961 and is now 60 years old.  He was first registered as a medical practitioner in 1987.  He has had a significant disciplinary history.  On 12 August 1994 he was deregistered on the basis of drug addiction leading to self-prescribing and working while intoxicated.^[2]  On 23 December 1997 he was re-registered, subject to conditions, but there were breaches of the conditions, he was charged with criminal offences, and after an assessment by a psychiatrist his registration was suspended on 9 January 2001. 
5. [5]
   On 16 September 2002 the respondent was sentenced to terms of imprisonment of up to five years, suspended after 22 months, after he pleaded guilty to offences of rape, attempted rape, deprivation of liberty, assault occasioning bodily harm and common assault.^[3]  On 19 July 2005 the Health Practitioner’s Tribunal cancelled his registration, because of the convictions and failure to comply with the conditions, and because of impairment.^[4]  The Tribunal imposed conditions on any application for re-registration, On 27 June 2006 he was again re-registered, but subject to conditions.  There was some delay in getting medical employment, but he then worked in general practice until 2011 when, after strange behaviour at work, he was placed under an involuntary treatment order, and was an inpatient for some time.  On 12 December 2011 he gave the Board an undertaking not to practice. 
6. [6]
   On 27 March 2012 the Board, having received a medical assessment, determined that the respondent was suffering an impairment, and accepted an undertaking not to practice except under conditions involving scheduled drugs, supervision, treatment and drug screening.  In 2013 however there was a hypomanic episode, he was again placed under an involuntary treatment order, and his registration was suspended by the Board.  In September 2013 he was assessed as unfit to practise, but on 24 January 2014 he was assessed as fit for a graded return to practice on conditions, and on 4 March 2014 the suspension was lifted, and conditions imposed relating to supervision, treatment, drug screening and reporting. 
7. [7]
   On 30 April 2015 the Board again suspended the respondent’s registration, and required him to undergo a health assessment.  He was assessed as unfit to practise, and a further assessment on 7 August 2018 came to the same conclusion.  On 22 May 2019 he signed an undertaking not to practise.  He was granted non-practising registration on 2 September 2019, although the undertaking continues to apply, and it is more restrictive than ordinary non-practising registration.  He said that all he uses it for is to continue to subscribe to a couple of medical journals, so that he can keep up to date with developments.  It follows that at the time of the relevant offending he was not practising, and he still has not practised since April 2015. 

The Offending

8. [8]
   On 17 July 2019 the respondent pleaded guilty to offences of serious assault of a person over sixty, two counts of breach of a protection order, and unauthorized dealing with shop goods.^[5]  He was sentenced to two months imprisonment, suspended forthwith with an operational period of nine months, and fined $500.  Previously, on 8 October 2018, he had been convicted of a public nuisance offence, and was fined $400. 
9. [9]
   The first offending was on 15 October 2016.  His mother had collected him from the station at his request and was driving him home when he became angry and punched her twice in the face.^[6]  This breached a protection order to which he was subject.  Over the next three days he sent a number of threatening text messages to his brother, which also breached a protection order, and was the subject of the other breach charge.  On 6 November 2016 he took a sandwich and a soft drink from a convenience store and refused to pay for them, which was the next charge.  Finally, on 15 September 2018 at a Brisbane tourist site, he approached a family group, photographed the children, said to one child that he was a doctor and the child needed help, and when the parents objected, swore at them and threatened to punch them.  Although the most recent offence, this was the first dealt with. 

Medical evidence

10. [10]
    On 7 December 2000 a psychiatrist, Dr Reddan, reported on the respondent’s mental health at the request of the Queensland Medical Board.  She had available other reports dating back to 1988, and other material, and noted that the respondent’s substance abuse had been wide ranging and severe, leading to his being suspended or dismissed from health services, and coming to the attention of medical boards in two different states.^[7]  She gave a primary diagnosis of Personality Disorder, and said that in the past he would have met the criteria for substance abuse.  This she said was driven by his significant personality dysfunction, and expressed some concern about his willingness to cooperate with a monitoring process. 
11. [11]
    In a further report on 30 March 2005 Dr Reddan said that his personality problems had eased, and he had not reverted to substance abuse.  She considered he was no longer impaired, but said that very strict conditions should be imposed if he returned to practise.  A report dated 1 October 2006, after he was re-registered, was to similar effect.  A further report of 30 April 2007, after he started in practice, said he probably no longer met the criteria for Personality Disorder, but did not recommend any changes to his conditions.  A further report on 29 January 2008 said there was now no evidence of a psychiatric disorder, and recommended some easing of his conditions. 
12. [12]
    Dr Reddan provided a further report on 13 February 2012, which discussed the period in 2011 when, after some adverse newspaper publicity, he had what she characterized as an episode of mania, which led to hospitalization under an involuntary treatment order.  The respondent admitted to her that he was lacking insight at that time.  She considered that he did have an impairment, and that the appropriate diagnosis was Bipolar I Disorder, that there was no evidence of further substance abuse, and that he was fit to work under conditions. 
13. [13]
    On 27 September 2013 the Board obtained a report from Dr Prior, a psychiatrist who diagnosed a Bipolar I Disorder, and substance abuse, said to be in remission apart from an incident of cannabis abuse.  The report referred to another episode of mania which led to his further hospitalization under an involuntary treatment order in May that year.  At the time he was poorly compliant with the treatment given after his earlier episode, and was initially lacking in insight, and resistant to treatment.  He was eventually released, but Dr Prior regarded him as not then fit to return to practise.  On 22 October 2013 Dr Prior reported that hair testing had detected no substance abuse during the previous three months. 
14. [14]
    On 31 January 2014 Dr Prior reported that the respondent had improved and was now fit to return to practise, subject to conditions.  On 19 March 2014 Dr Prior advised that a hair drug screen did not show evidence of drug abuse.  In a report of 11 September 2015 Dr Prior dealt with another episode of hypomania in early 2015 which led to further hospitalization under an involuntary treatment order.  This was said to be another consequence of his Bipolar Affective Disorder Type I, precipitated by the use of a product suspected to be synthetic cannabis, and as a result he was not fit to practise.  On 28 September 2015 he advised that a hair test had again shown no drug abuse, but that synthetic cannabis was not detected by the test. 
15. [15]
    On 1 March 2017 Dr Relan, a psychiatrist, provided a report under the Mental Health Act 2000 (Qld) in which he stated a diagnosis of Bipolar Affective Disorder and Polysubstance abuse.  At the time the respondent was under an Involuntary Treatment Order, and Dr Relan considered that that should continue. 
16. [16]
    On 3 August 2018 Dr Prior reported on the further relapse which resulted in the offending in late 2016, and which led to further hospitalization from 9 November 2016; in August 2018 he was still under a community treatment order.  Dr Prior considered that he still had an impairment and showed evidence of both Bipolar Disorder and Substance Use Disorder, with limited insight and judgment relating to his disorders, and that he was vulnerable to a relapse of his Bipolar Disorder, so that he remained unfit to practise.  On 3 September 2018 he advised that drug screening tests identified diazepam, cannabis, amphetamine, and that the respondent was understating his usage of cannabis. 
17. [17]
    On 12 March 2019 Dr Butler, a psychiatrist, provided a report to the Mental Health Court on the respondent, with reference to his fitness to plead.  Dr Butler considered that the manic episodes were precipitated by use of cannabis, and non-compliance with medication.  At the relevant time his judgment was impaired, but not to the extent that he met the test for unsoundness of mind for the criminal law.  He considered the respondent liable to suffer further relapses into such episodes, particularly if he abused substances or was non-compliant with medication.  His diagnosis was consistent with that of Dr Prior. 
18. [18]
    On 6 April 2021 Dr Gundarpi, a psychiatrist, provided a report to the Tribunal at the instance of the respondent.^[8]  He had been treating the respondent since 2018, and identified his diagnosis as Bipolar Affective Disorder Type I and Substance Abuse Disorder, both said to be in remission.  He had attended all appointments and been compliant with treatment and the conditions of the forensic order, with no detection of illicit drugs on screening.  He was attempting to improve his physical health.  Dr Gunpardi did not give any prognosis for the respondent’s condition, or opinion on fitness to practise. 
19. [19]
    In April 2021 the Forensic Order was revoked by the Mental Health Review Tribunal, which made a Community Treatment Support Order.^[9] 
20. [20]
    Dr Prior saw the respondent on 25 May 2021 for the purposes of a report to the applicant.  Dr Prior considered that the respondent showed evidence of Bipolar Affective Disorder Type 1, and Substance Abuse Disorder, which he claimed was in remission.  He was then subject to a Treatment Support Order which was ensuring compliance with his treatment and avoiding the risk of relapse, although there remained a risk of relapse, said to be moderate if the order were removed.  He did not give an opinion on fitness to practice. 

Characterisation of conduct. 

21. [21]
    I am conscious of the definition of professional misconduct in the National Law.  Each of the convictions was unprofessional conduct as defined in the National Law.  The applicant submitted that the conduct in combination constituted professional misconduct under paragraph (c) of the definition.  Each of the offences was within the definition of unprofessional conduct, and together involved conduct which was significantly below the standard of behaviour reasonably expected by the public of a medical practitioner.  Although none occurred in the course of the practice of his profession, the public nuisance offence involved the use of his professional status to attempt to gain inappropriate access to a child, which I regard as a relevant circumstance. 
22. [22]
    Overall the conduct was significantly below the standard to be expected of a registered health practitioner.  For a medical practitioner to engage in domestic violence is a very serious matter, for reasons I gave in Health Ombudsman v HCG [2020] QCAT 166 at [15], where an incident of domestic violence was found to be professional misconduct.  As pointed out in the submissions of the applicant, it involved a breach of the Code of Conduct of the Medical Board of Australia. 
23. [23]
    The respondent had mental health problems at the time of the offending which led to the convictions.  As discussed in LCK v Health Ombudsman [2020] QCAT 316 at [39], the authorities support the view that mental illness does not excuse professional misconduct or unprofessional conduct, but it may be relevant to the sanction imposed.^[10]  The authorities are consistent with the characterisation of the respondent’s behaviour as professional misconduct, and that is the finding the Tribunal makes.  Indeed, I consider that it also satisfies paragraph (c) of the definition, being conduct inconsistent with the respondent’s then being a fit and proper person to hold registration in the profession. 

Sanction

24. [24]
    In imposing a sanction, the health and safety of the public are paramount.^[11]  Disciplinary proceedings are protective, not punitive in nature.^[12]  Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[13]  Insight and remorse on the part of the respondent are also relevant.^[14]  The fitness to practice of the respondent is to be assessed at the time of the hearing.^[15]  A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. 
25. [25]
    The conduct in this case was a very significant breach of the duties and responsibilities of the respondent.  It revealed a serious lack of understanding of appropriate behaviour for a health practitioner.  The applicant submitted that the respondent should be reprimanded and his registration should be cancelled.  The applicant noted that the respondent had a lengthy history of psychiatric problems, with repeated relapses, and the medical evidence supported the view that there was a real risk of further relapses.  Hence the significant disciplinary history.  The conduct here was serious, particularly the domestic violence, and inconsistent with the prospect that the respondent may have to deal with victims of domestic violence if he returned to practise.  He claims to be remorseful for his actions, and to have insight into both the wrongfulness of his conduct and the true nature of his psychiatric disorder, which will enable him to avoid future relapses, but he is still subject to a Treatment Support Order, showing a continuing need for treatment and supervision.  The submissions also referred to the need for specific and general deterrence.^[16] 
26. [26]
    The applicant referred the Tribunal to a number of earlier decisions, but in most the facts were too different for them to be of much use.  In HCG (supra) the practitioner was no longer registered, and following joint submissions the Tribunal imposed a preclusion period of eight months, with the result that he would be away from practice at least 2 years and 3 months. 
27. [27]
    There was no dispute that the respondent should be reprimanded by the Tribunal.  This has been said to be a significant penalty in itself, and is appropriate in this matter.  The next question is whether the registration of the respondent should be cancelled.  That usually depends on whether the respondent is not a fit and proper person to remain registered, and will be permanently or indefinitely unfit to practise.^[17] 
28. [28]
    The respondent’s case was that he had been compliant with treatment for some time and was managing well on it, and he now had greater insight into his psychiatric condition, so that the risk of future relapses was reduced.  Since late 2018 he has been receiving monthly Zyprexa injections, and he feels his attitude has changed, and he has acquired new insight into his Bipolar Disorder, and into the effect of substances on that disorder.^[18]  He is now quite remorseful about the offending, and has insight into the causes of it.  This was apparent from what he said to the Tribunal, and from the evidence before it.  His mother said that his behaviour and attitude had been better since late 2018, and she now feels safe with him and sees him regularly.^[19] 
29. [29]
    As presented by him, his case was similar to Legal Services Commissioner v XBN [2016] QCAT 471 and Medical Board of Australia v Wong [2015] QCAT 439, where quite serious misconduct occurred in circumstances where the practitioner was in the grip of untreated mental illness, and after the illness was brought under control, the practitioner was no longer unfit to practise, and the test for cancellation of registration was not met. 
30. [30]
    The applicant, on the other hand, submitted that cancellation was appropriate, because of the serious nature of the offending, the disciplinary history of the respondent which indicated that specific deterrence was particularly important, and the respondent was still subject to a Treatment Support Order which meant that there was still a risk of relapse, assessed as moderate without that order.  The applicant’s presentation of the case was similar to the situation in Medical Board of Queensland v DAP [2008] QCA 44, where a preclusion period of five years was on appeal made permanent.  Keane JA said at [26]: 

It may be that the respondent is not morally culpable for the consequences of his organic brain disorder, but the Act is concerned with whether the respondent is entitled to the confidence of the public, not whether he has forfeited that confidence through moral blameworthiness. 

31. [31]
    The applicant would distinguish XBN and Wong (supra) on the basis that in each case the impact on the offending of the psychiatric condition was greater,^[20] there was an absence of disciplinary history, and there was medical evidence that the practitioner was again fit to practice. 
32. [32]
    It is important to bear in mind that the Tribunal is concerned essentially with the protection of the public in the light of the offending of the respondent, rather than the issue of whether he has an impairment and if so, whether he is unfit to practice because of it.  That question is being managed by the Medical Board, and as a result at the moment the respondent’s registration is “non-practising registration,” and he is subject to an undertaking which is even more restrictive.  Whether or not the Tribunal cancels his registration, he will not be able to practise until he satisfies the Board that, notwithstanding his psychiatric condition, he is fit to do so. 
33. [33]
    The real issue is whether the offending rendered him unfit to be registered, and whether that unfitness persists until now.  It is not difficult to conclude that, at the time of the offending, the conduct involved rendered him unfit, in view of the serious nature of that conduct, and the need to maintain public confidence in the profession.  But the treatment he has received since then, and the lapse of time, have changed the situation.  The question is whether he is again entitled to the confidence of the public, so as to be fit to be registered apart from any continuing impairment.  This is not a matter where the referral seeks a finding of impairment, and hence for that to be part of the basis of any sanction. 
34. [34]
    The medical evidence is that his conditions are in remission, and have been for some time, that he is compliant with his treatment and avoiding substance abuse.  It is true that his treatment is continuing at a significant level, and that since the offending there has been no period when he has been released from any order under the Mental Health Act, so that he has not demonstrated a capacity to manage his condition without that.  As well, there is no expert evidence that he is fit to practise.  On the other hand, what the Tribunal is being asked to do is to cancel non-practising registration, so that the issue is whether he is a fit and proper person to have that registration. 
35. [35]
    The National Law deals with non-practising registration in Division 5 of Part 7.  Eligibility for it depends on s 73, which provides relevant that one requirement is that “the individual is a suitable person to hold non-practising registration in the profession.”  Some guidance about that requirement is provided by s 74, as follows:

A National Board may decide an individual is not a suitable person to hold non-practising registration in a health profession if—

1. having regard to the individual’s criminal history to the extent that is relevant to the individual’s practise of the profession, the individual is not, in the Board’s opinion, an appropriate person to hold registration in the profession or it is not in the public interest for the individual to hold registration in the profession; or
2. in the Board’s opinion, the individual is for any other reason not a fit and proper person to hold non-practising registration in the profession

36. [36]
    The wording of this section is a little curious, because, although paragraph (b) refers specifically to non-practising registration, paragraph (a) refers to “registration in the profession.”  Ordinarily the use of a different term would indicate a different meaning, although paragraph (a) is part of the test for suitability for non-practising registration.  I have not been able to find any authority on the operation of this provision, nor have I been referred to any by counsel.  It may be noted that the equivalent test for general registration is in s 52(1)(c): “The individual is a suitable person to hold general registration in the health profession.”  That is also in different terms, but the exposition of it in s 55 includes s 55(1)(b) in terms which match s 74(a), except that “to hold registration in the profession” is changed to “to practise the profession” in s 55(1)(b). 
37. [37]
    That is different, but for present purposes not very helpful.  To say that the test is by reference to holding registration rather than to practising the profession is understandable when one is concerned with non-practising registration, but it does seem to introduce almost a circular element into the test.  Doing the best I can, it seems to me that the point of s 74(b) is that there are some offences so heinous that conviction of them would mean that a person was not appropriate to have even non-practising registration in the profession, or that it was not in the public interest for the person to hold such registration.  I expect that this is a narrower, perhaps much narrower, category of offences than those which would fall within s 55(1)(b), particularly when one bears in mind the limitation by reference to the extent that is relevant to the practise of the profession. 
38. [38]
    Notwithstanding the serious nature of the relevant offending, it occurred some years ago: although the convictions were in 2018 and 2019, the relevant conduct was in October or November 2016, or September 2018; the most serious offence occurred at the beginning of that range of dates.  Since that time the respondent has developed insight into his conduct and the psychiatric conditions which contributed to it, and is remorseful for it, and there has been good progress with the treatment of those conditions.  The involvement of those conditions diminishes the significance of deterrence, both specific and general, and I do not consider that it can now be said that the respondent is unsuitable in terms of s 74 to hold non-practising registration.  The main principle for administering the Act and the National Law is that the health and safety of the public are paramount, and I cannot see how that principle is advanced by the cancellation of his non-practising registration. 
39. [39]
    There is also the consideration that, had the mental health issues not existed, it is likely that the respondent would have been dealt with some time ago, and, assuming his registration had been suspended soon after he was charged, it is unlikely that any suspension or preclusion period which would have been imposed would not have already expired.^[21]  To cancel his non-practising registration now would be to treat him more severely because of the psychiatric conditions, despite his non-practising registration.
40. [40]
    In all the circumstances therefore I consider that a case for cancelling the registration of the respondent has not been made out.  The issue of any preclusion period, which the applicant did not seek, does not arise.  It will remain a matter for the Board to consider whether, in view of his impairment and the progress of his conditions, he can be released from his undertaking, and, subject to completion of any recency of practise requirements, be again registered, no doubt subject to conditions.  That concerns his fitness to practise, not the issue with which the Tribunal is concerned, which is really his fitness to hold non-practising registration. 
41. [41]
    The applicant also fairly raised the question of whether a non-publication order should be made in this case.  Although this referral did not involve allegations of impairment, the offending the subject of the referral was closely associated with his impairment, and in such circumstances the Tribunal in the past has made non-publication orders, on the basis that, had issues of impairment arisen directly, there is a statutory requirement for confidentiality.  In Health Ombudsman v NLM (No 2) [2019] QCAT 366 Sheridan DCJ made a nonpublication order in a matter which involved an impairment of the practitioner which was closely bound up with the relevant misconduct, although it was not an impairment matter. She pointed out that there are special statutory provisions for confidentiality in the case of an impairment matter, and said at [10]:

These provisions indicate the importance which the legislature attaches to the need for privacy in matters relating to the impairment of practitioners. There is good social policy reasons for that approach which justify a restriction to openness in the administration of justice. Clearly, the aim of the legislative regime is to encourage impaired practitioners to fully disclose their condition without fear that it might prejudice their otherwise good standing in the community.

42. [42]
    The position is similar in this case.  I am conscious that the starting point is always that the Tribunal operates in public, and the power in the QCAT Act s 66(2) should be exercised sparingly.^[22]  Nevertheless I consider that it is appropriate to make a non-publication order in relation to the identity of the respondent. 
43. [43]
    I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is therefore as follows:

    1. The tribunal decides that the conduct in the referral constituted professional misconduct on the part of the respondent.
    2. The respondent is reprimanded.
    3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:

(a) the contents of any document or thing produced to the Tribunal; and

(b) the orders made and reasons given by the Tribunal; and

(c) evidence before the Tribunal

to the extent that it could identify, or lead to the identification of the respondent, any family member of the respondent, any professional colleagues of the respondent, any victim of the respondent's offending, save as ls necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding. 

4. There be no order as to costs.