Health Ombudsman v Kadrian[2022] QCAT 350

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent is a medical practitioner, first registered with the Medical Board of Australia (the Board) on 5 November 2001.  In a referral filed with the Tribunal on 30 April 2021, the applicant alleged that, in a number of respects, the respondent has engaged in professional misconduct by:

   1. (a)
      providing treatment to persons with whom he was in a close personal relationship contrary to the Good Medical Practice:  A Code of Conduct for Doctors in Australia (the Code of Conduct); 
   2. (b)
      failing to maintain professional boundaries with a patient, contrary to the Code of Conduct, and the Sexual Boundaries:  Guidelines for Doctors 2011 (the Guidelines); 
   3. (c)
      failing to make any or adequate records contrary to the Code of Conduct in relation to a number of patients; 
   4. (d)
      breaching undertakings given to the Board in 2012; 
   5. (e)
      breaching conditions imposed on his registration in 2015 by the Board; and
   6. (f)
      one allegation of inappropriate Botox treatment of a female patient with whom he had had a close personal relationship in April 2016. 
2. [2]
   The parties have reached agreement in relation to the facts and have filed a statement of agreed facts.^[1]  There are no material facts in dispute.  The respondent is represented by Mr Diehm KC who has filed a submission in which he agrees with the applicant’s submissions that his client’s conduct (either considered separately in relation to boundary violations and breaches of undertakings and conditions); or together as a whole, constitutes professional misconduct as defined by section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).  The parties have also reached agreement as to orders by way of sanction.
3. [3]
   The Tribunal retains an independent discretion both as to characterisation and sanction, however the respondent’s acceptance of the underlying facts and the applicant’s submissions as to characterisation and sanction are significant. 
4. [4]
   In relation to sanction, the effect of a joint submission was referred to by the then-Deputy President of the Tribunal, his Honour Judge Horneman-Wren, DCJ SC in the Medical Board of Australia v Martin,^[2]  where his Honour, in effect, stated that the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive. 

Background

5. [5]
   The respondent is 57 years of age.  His date of birth is the 31 of December 1964.  He holds a number of tertiary qualifications in arts and science.  In 1999, he was awarded a Bachelor of Medicine and a Bachelor of Surgery from the University of Newcastle. 
6. [6]
   He currently holds general registration with the Board, however, his registration is subject to conditions which were imposed by the Health Ombudsman on 23 December 2019 and amended on 27 July 2020. 
7. [7]
   From early January 2008 until early 2010, he held various positions as a neurological registrar in various hospitals in south east Queensland.  Relevantly to the conduct the subject of the referral, from about January 2012 to February 2015, he worked at the Chevron After Hours Medical Centre.  In July 2015, he relocated to New South Wales and commenced working as a general practitioner at the Ballina West Medical Centre.  He continued to work there from July 2015 to December 2017, and then from August 2018 until July 2019. 
8. [8]
   Between January 2017 and August 2018, he undertook cosmetic surgery rotations in Adelaide, Melbourne and Southport.  Between January 2018 to August 2018, and then from July 2019 until July 2020, he practiced as a general practitioner at the Chevron After Hours Medical Centre.  In accordance with the statement of agreed facts, dated 15 December 2021, he was last employed in July 2020 as part of a COVID­19 swabbing program with a company called Medi7 Pty Ltd as approved by the Health Ombudsman. 
9. [9]
   On 26 April 2016, the Office of the Health Ombudsman (the Office) received a complaint from Ms RA regarding the respondent’s conduct.  On 12 July 2016, following a request from the Australian Health Practitioner Regulation Agency (Ahpra), a complaint from Ms CKA made on 22 April 2013 was referred to the office. 
10. [10]
    The respondent has a relevant disciplinary history.  On the 30th of December 2009, Ahpra received a complaint regarding the respondent’s treatment of Ms WF at the Royal Brisbane and Women’s Hospital.  The complaint concerned the respondent’s neurological assessment of the patient following a motor vehicle accident. 
11. [11]
    On 11 July 2012, following an investigation, a Disciplinary Committee established by the Board, conducted a hearing in relation to the respondent’s treatment of patient WF.  On 20 September 2012, the Disciplinary Committee decided to reprimand the respondent and accepted undertakings signed by him on 9 September 2012 (2012 undertakings). 
12. [12]
    On 22 April 2013, Ahpra received a complaint from Ms CKA alleging the respondent was working in unapproved circumstances in breach of the 2012 undertakings, and raised concerns about inappropriateness with patients and breaches of conditionality. 
13. [13]
    On 20 October 2015, the Board decided to caution the respondent in relation to the breach of the 2012 undertakings on nine occasions during November 2012 and for inappropriately prescribing to a patient, Ms WB. 
14. [14]
    The respondent breached the 2012 undertakings by performing Botox injections on nine patients between 6 and 9 November 2012, under the supervision of a doctor who was not an approved supervisor. 
15. [15]
    The Board determined that the respondent had engaged in inappropriate prescribing to Ms WB by prescribing repeat prescriptions of schedule 4 medications, failing to document the quantity of medication, and not recording the patient’s weight and BMI despite prescribing phentermine, a weight-loss drug. 
16. [16]
    On 6 February 2014, the Board raised on its own motion a notification in relation to concerns arising from case reviews submitted by the respondent as required as part of his 2012 undertakings.  On 21 April 2015, the Board, following further submissions from the respondent, decided to impose conditions on the respondent’s registration and revoked the 2012 undertakings (2015 conditions). 
17. [17]
    On 27 August 2018, the Medical Council of New South Wales (the Medical Council) convened a hearing for the purpose of considering whether to take interim action under section 150 of the Health Practitioner Regulation National Law (NSW) (HPRNL NSW).  The issues the subject of the hearing, included boundary-crossing, sexual misconduct with a patient, and prescribing and providing medical treatment to family and friends during consultations outside of the clinical context. 
18. [18]
    On 22 August 2018, the Medical Council imposed interim conditions on the respondent’s registration.  These interim conditions lapsed in the circumstances which are set out below in relation to regulatory action taken by the Health Ombudsman. 
19. [19]
    The Medical Council referred the matters the subject of the convened hearing to the Health Care Complaints Commission to be dealt with as a complaint for investigation.  No final disciplinary action has been taken in New South Wales. 
20. [20]
    On 5 August 2019, the office received information from the Health Professional Councils Authority (NSW) (HPCA) relating to the conditions imposed on the respondent’s registration by the Medical Council on 17 August 2018.  The HPCA notified the office that the conditions on the respondent’s registration would lapse on or about 10 September 2019 due to the respondent’s relocation to Queensland. 
21. [21]
    On 25 October 2019, based on the grounds of the lapsing of the conditions by the Medical Council and otherwise in the public interest, the Health Ombudsman proposed to take immediate registration action by imposing conditions on the respondent’s registration. 
22. [22]
    He was notified and made written submissions and, on 23 December 2019, the Health Ombudsman decided to take immediate registration action and imposed conditions on the respondent’s registration. 
23. [23]
    In summary, the conditions provided that the respondent must not have contact with female patients aged 14 years of age and above except where the respondent practices as a surgical assistant under direct supervision, and where the respondent attends on patients at a residential aged care facility, accompanied by another registered practitioner. 
24. [24]
    On 27 July 2020, following the respondent’s request for approval of employment at a practice location in Victoria, the Health Ombudsman decided to amend the conditions to include a new condition approving the respondent’s employment with  Medi7 Pty Ltd in Victoria.  The conditions as amended on 27 July 2020 remain on the respondent’s registration. 

The Relevant Conduct

25. [25]
    The conduct is set out in some detail in the statement of agreed facts.  Much of the conduct occurred substantially in the period 2014-2016.  The referral contains six allegations. 
26. [26]
    Allegation 1 relates to providing treatment to persons with whom he had close personal relationships.  The respondent was in relationships with Ms RA (which was relatively brief), and Ms CKA (which was over a lengthier period 2008-2015 but intermediate and turbulent).  He provided treatment to Ms RA on five occasions and Ms CKA on 15 occasions.  Some of the treatments involved prescribing antibiotics and low-level painkillers, which is of lesser concern.  However, on multiple occasions, the respondent prescribed benzodiazepines, which were classed as restricted drugs of dependency.  The respondent also provided a referral for Ms CKA to a specialist in relation to issues of anxiety and depression. 
27. [27]
    The respondent also provided treatments to two friends, AP and HS and AP’s daughter, WS, on a total of 38 occasions.  Again, a portion of this treatment was for relatively benign issues, such as prescriptions for antibiotics and treatment of acne.  However, the respondent prescribed riskier medication, such as benzodiazepines, and provided treatment and/or advice for sensitive issues, such as anxiety and amphetamine dependency.  Additionally, the respondent provided treatment to four members of his family on a total of eight occasions and this was almost wholly for relatively minor issues. 
28. [28]
    Allegation 2 relates to failing to maintain professional boundaries.  The respondent engaged in two boundary violations.  The first with Ms MK (a student nurse), concerned a short sexual relationship of about three-four months which occurred in the context of Ms MK consulting the respondent on five occasions.  The second involved seeking out Ms CE after a single consultation, and engaging in a series of Facebook messages about Botox treatment that the respondent could offer and others which were social and somewhat flirtatious in nature. 
29. [29]
    Allegation 3 relates to failure to make or maintain medical records.  The respondent’s failure to make or maintain medical records arises, for the most part, from his treatment of personal relations or members of his family.  While this amounts to conduct below the expected standard in its own right, it is largely demonstrative of the problems associated with treating close personal relations. 
30. [30]
    Allegation 4 relates to his breach of the 2012 undertakings.  As noted earlier, the undertakings in part required that he practice under the supervision of another registered medical practitioner.  He breached the undertakings on 44 occasions.  Again, these breaches run parallel to the treatment, the subject of allegation 1, provided to close personal relations. 
31. [31]
    Allegation 5 relates to his breach of the 2015 conditions.  These conditions also required, in substance, that he practice under supervision.  He contravened the conditions on 10 occasions by providing unsupervised treatment to three of his close personal relations. 
32. [32]
    Allegation 6 relates to inappropriate Botox treatment in April 2016, administered to Ms RA.  The treatment was inappropriate for three reasons:

    1. (a)
       he was not appropriately qualified or experienced to provide such treatment; 
    2. (b)
       the manner in which he provided the treatment was not in accordance with the accepted standardised protocol; and
    3. (c)
       he provided the treatment in a private residence when it should have been provided in a professional setting. 

Characterisation

33. [33]
    The conduct summarised above is accepted by the respondent.  It is not necessary to separately characterise the conduct, particularly given that it is wide-ranging and, in many respects, interrelated in the sense that the same treatment constituted a contravention of both the Code of Conduct and also a failure to comply with undertakings and conditions.  
34. [34]
    The Code of Conduct deals with providing treatment to persons with whom the practitioner has close personal relationships informs 3.14, which states: 

“Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship.  In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the doctor and patient.  In some cases, providing care to those close to you is unavoidable.  Whenever this is the case, good medical practice requires recognition and careful management of these issues.”

35. [35]
    In his affidavit filed in the Tribunal proceedings, the respondent has recognised that providing treatment to partners or friends can compromise patient care on many levels. 
36. [36]
    In relation to allegation 2, the Code of Conduct provides that good practice involves “maintaining professional boundaries” and “never using your professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under your care”. 
37. [37]
    The conduct involving Ms CE is not so serious as to warrant a finding of professional misconduct.  The interactions with her occurred over a relatively short period of time, and while they may have had a flirtatious quality, they did not involve the expression by the respondent of personal feelings of desire or any sexual invitation or suggestion. 
38. [38]
    The boundary violation involving Ms MK was more serious as it followed several instances of treatment and evolved into a sexual relationship.  There was some degree of power imbalance between the patient and the respondent because, in addition to the inherent imbalance by virtue of the therapeutic relationship, the patient was a student nurse who likely looked up to the respondent (something which seems likely, given the respondent’s offer of assistance regarding the patient’s assignment). 
39. [39]
    It is well-established in the jurisprudence that the kind of boundary violation which occurred in this instance involving a sexual relationship, amounts to professional misconduct:  see, for example, Health Ombudsman v Gascard^[3] and the authorities cited therein. 
40. [40]
    The respondent’s failure to make or maintain medical records was substantial as he failed to record, for example, indications , or prescribing plans, for riskier drugs, such as benzodiazepines.  However, his failures were interrelated to  his error in treating persons with whom he had a  close personal relationship. 
41. [41]
    As to allegations 3 and 4, it is well-established that conditions imposed by the regulator, and by analogy, undertakings given to a regulator must be scrupulously observed by health practitioners.  The breaches here were not technical or fleeting, but occurred on numerous occasions over a lengthy period of time.  In its submission, the applicant accepts the respondent’s explanation that he did not appreciate that consulting with family members and friends was a breach of his undertakings or conditions.  In that sense, the breaches do not constitute a deliberate defiance of the authority of the regulator.  However, the respondent ought to have been aware that providing such treatment would have constituted a contravention of his undertakings and conditions, particularly on the few occasions which followed October 2015 when he was cautioned for a breach of the 2012 undertakings.  The imposition of conditions is an important tool used by regulators, and the failure to maintain strict adherence to such conditions undermines the regulator’s ability to maintain professional standards and to protect the health and safety of the public. 
42. [42]
    Finally, in relation to allegation 6, the administration of Botox to Ms RA is a relatively minor example of a practitioner going beyond his relevant training and experience and performing a procedure in a place in which it was inappropriate to do so.  It is a further demonstration of the respondent’s poor judgment in treating a person with whom he had had a close personal relationship. 
43. [43]
    The boundary violation involving Ms MK and the breaches of the undertakings and conditions are sufficiently serious to amount to professional misconduct when considered alone.  It is not necessary, however, to make that determination as I’m satisfied that the conduct as a whole represents several instances of unprofessional conduct which, when considered together, amount to professional misconduct. 

Sanction

44. [44]
    The paramount guiding principle in informing the discretion of this Tribunal to sanction health practitioners who engaged in professional misconduct is that the health and safety of the public are paramount.  The purpose of disciplinary proceedings such as these is to protect, not to punish. 
45. [45]
    A sanction in disciplinary proceedings is designed not only as a specific deterrent to the relevant practitioner but also as a general deterrent to practitioners, protecting the public from those who may consider behaving in a similar way.  It also is designed to maintain public confidence in health professionals by promoting proper ethical and professional standards.  When determining sanction, the Tribunal will take into account the particular facts of the case before it.  The Tribunal may consider matters such as:

    1. (a)
       the nature and seriousness of the practitioner’s conduct; 
    2. (b)
       insight and remorse shown by the practitioner, including steps taken to address his misconduct; 
    3. (c)
       the need for specific or general deterrence; 
    4. (d)
       mitigating factors such as evidence of matters which may give context to the conduct; and
    5. (e)
       other matters, including past disciplinary history character evidence and cooperation during disciplinary proceedings. 
46. [46]
    In relation to insight, the respondent has demonstrated significant insight into the shortcomings of his conduct by making complete admissions early in the proceeding.  He has also cooperated by engaging in the process of preparing a statement of agreed facts and agreed documents, thus allowing for a more efficient resolution of the proceeding. 
47. [47]
    Additionally, he has filed an affidavit in these proceedings which evidences his enhanced understanding of, for example, the rationale behind the restriction against treating close family members and people with whom you have a close personal relationship.  This understanding has been developed through the respondent’s preparedness to undertake further education and professional reading, as well as reflect upon the underlying causes of his conduct. 
48. [48]
    The many professional references filed on his behalf indicate that he has been prepared to disclose his shortcomings to his professional peers and that they remain supportive of him. 
49. [49]
    In relation to the seriousness of the conduct, I have referred to that earlier.  The conduct the subject of allegation 1 should be regarded as a relatively serious example of a failure to adhere to the professional standard of avoiding treating close relations.  It involved the respondent treating nine such patients on 66 occasions.  As mentioned earlier, many of the treatments involved prescribing restricted drugs of dependency and some consultations concerned higher risk issues, such as the treatment of anxiety or drug addiction.  The failure to make and maintain clinical records is also a relatively serious example for the same reasons. 
50. [50]
    As to the breach of undertakings and conditions, I accept the submission made on behalf of the applicant that the respondent’s conduct falls in the mid-range of seriousness for such misconduct.  It falls into that category because the breaches were substantial and not of a technical nature;  they were extensive, involving 54 breaches in total; and nine such occasions occurred after the respondent had been cautioned for breaching his undertaking.  However, the conduct does not represent the most serious example of this type of conduct because it did not involve a deliberate flouting of the regulator’s authority or a breach of conditions imposed by the Tribunal following a disciplinary hearing. 
51. [51]
    In relation to specific and general deterrence, given the multifaceted nature of the misconduct and the respondent’s past disciplinary history, there remains a need for the sanction to act as a deterrent to the respondent as well as a general deterrent to other practitioners that may be of a like-mind and engage in similar conduct. 
52. [52]
    Importantly, the Tribunal’s orders by way of sanction must serve to emphasise to other members of the profession, and to assure members of the public, that conduct such as the respondent’s is not acceptable.  The element of general deterrence required in relation to the breach of undertakings and conditions is particularly important, as these are important regulatory tools used to maintain professional standards and to ensure the safety of the public.  Non-compliance with some conditions may also be difficult to detect, with the consequence that the regulator is reliant on practitioners to maintain strict adherence. 
53. [53]
    Mr Diehm KC, on behalf of the respondent, accepts the submissions made on the behalf of the applicant.  He has made a brief submission in relation to the issue of delay.  As I understand his submission, the delay that has occurred in this matter can be regarded as a factor in mitigation.  As against that, Mr Templeton’s response that one of the contributors to the delay here is that there were a number of allegations involving regulatory agencies across jurisdictions that had to be synchronised. 
54. [54]
    Mr Diehm KC refers to the then-Deputy President of QCAT, his Honour Judge Allen KCs remarks in Health Ombudsman v Veltmeyer,^[4] which was a much more straightforward case factually than the present one.  The element of delay in that case was firstly between the notification to the OHO, and the respondent being notified of the complaint some 18 months later.  He was then interviewed by investigators in the OHO in 2017, and fully accepted the allegations.  The allegations were that he had engaged in a long-term romantic relationship with the complainant, who he had met as his patient. The matter was then not referred by the Director of Proceedings to the Tribunal until June of 2019, so two years after his interview.  The applicant in that case acknowledged that, in the operative period between the making of the complainant and the referral, there had been a significant backlog of matters both in the Office and in the applicant’s office; and the applicant expressed regret for the delay. 
55. [55]
    The conduct in this case spans the years 2013 to 2016, and the complaint the subject of allegation 6 was made on 26 April 2016.  However, relevant regulatory action was taken in New South Wales in 2018 and 2019, so the reasons for the delay are quite different, although it can be accepted that the issues identified Veltmeyer regarding resourcing in the OHO and the Director’s office may have been a contributing factor to the delay here.  Reference is made in Judge Allen’s reasons to Craig v Medical Board of South Australia^[5] where the Chief Justice of South Australia, on behalf of the Full Court, noted: 

“When the purpose of the order is the protection of the public, the main relevance of delay is that the absence of any complaint during the period of the delay might indicate that the public does not require protection from the practitioner.  But delay, and the fact that the practitioner may have had the matter hanging over the practitioner’s head for some time has no real weight in deciding what the public interest requires.” 

56. [56]
    The issue in this case is of little relevance except to the extent that the delay has allowed the respondent to demonstrate over a period of time that he can comply with professional standards which, in itself, is evidence of rehabilitation and insight which is reflected in  the agreed sanction. 
57. [57]
    The wide-ranging nature of the respondent’s conduct makes it difficult to identify cases which are true comparators.  The Medical Board of Australia v Griffiths (Review and Regulation)^[6] (Griffiths), involved a practitioner who was found to have engaged in inappropriate prescribing, provided treatment to close relations, failed to maintain adequate records, engaged in inappropriate prescribing to a drug-dependent person and breached permit obligations with respect to prescribing schedule 8 drugs.  The practitioner in that case had no disciplinary history.  He admitted the conduct which had occurred between 1999 and 2013.  He was found to have demonstrated insight and tendered a positive reference from a local police officer in the remote rural community where he practiced who he had treated for 20 years.  The Tribunal accepted the joint submission by the parties that Dr Griffiths be suspended for 12 months, although the Tribunal expressed concern that it might not be sufficient to address a number of factors, in particular general deterrence. 
58. [58]
    Medical Board of Australia v Sevdalis (Review and Regulation),^[7] was a case involving the provision of medical care to close personal relations when doing so was avoidable.  This occurred on 141 occasions involving two family members as opposed to 66 occasions here involving 9 patients.  Dr Sevdalis also inappropriately treated 23 patients with antibiotics intravenously in a residential setting, which is serious conduct.  However, none of the other features present in this case, such as boundary violations and breaches in undertakings and conditions were present in that case.  The practitioner admitted the conduct.  It was conduct that was a repetition of conduct for which he had previously been sanctioned.  The parties jointly proposed a sanction involving a three-month suspension and that was rejected by the Tribunal which then imposed a period of six months. 
59. [59]
    It can be accepted that providing treatment to close relations is a form of boundary violation but that species of conduct is treated differently in quite separate sections of the Code of Conduct.  As I have noted, treating persons with whom the doctor has a close personal relationship is covered by 3.14 of the 2014 Code of Conduct, whereas breaching professional boundaries by engaging in sexual misconduct is covered in 8.2.2 and specifically in the Guidelines.  The distinction here is academic, given the agreement reached by the parties. 
60. [60]
    The parties agree that the respondent should be reprimanded under section 107(3)(a) of the Health Ombudsman Act 2013 (the Act) and that his registration be suspended for a period of six months from today’s date. 
61. [61]
    In the view of the Tribunal, a reprimand coupled with a suspension of six months is a sanction which appropriately reflects the seriousness of the conduct, and the need for general deterrence and some element of specific deterrence, while recognising the degree of insight shown by the respondent and his cooperation.  There is no need for the imposition of further conditions, given the respondent’s lengthy compliance with the conditions imposed by immediate action. 

Orders

62. [62]
    In those circumstances, the Tribunal makes the following findings and orders: 

    1. (a)
       pursuant to section 107(2)(b)(iii) of the Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct; 
    2. (b)
       pursuant to section 107(3)(a) of the Act, the respondent is reprimanded; 
    3. (c)
       pursuant to section 107(3)(b) of the Act, the respondent’s registration is suspended for a period of six months from the date of these orders; 
    4. (d)
       pursuant to section 62(2)(a)(ii) of the Act, the immediate registration action taken by the Health Ombudsman on the 23rd of December 2019 and amended on the 27th of July 2020 is set aside; and  
    5. (e)
       there be no order as to costs.