Health Ombudsman v YPG[2022] QCAT 422

1. Burgess, L (legal officer) for the applicant Health Ombudsman

1. Wright, B instructed by Brassington & Partners Solicitors for the respondent dentist

REASONS FOR DECISION

1. [1]
   Pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act^[1] (HOA), the applicant has referred the respondent, a dental practitioner, to QCAT on the basis that the respondent engaged in professional misconduct.  Other alternative orders were sought but it is not necessary to go into them at this stage because it is conceded that the conduct did amount to professional misconduct. 
2. [2]
   The applicant seeks an order that the respondent’s registration as a dentist be cancelled indefinitely pursuant to the provisions of section 107(3)(e) and 107(4)(a) of the HOA.  The respondent accepts the characterisation of the conduct is professional misconduct, as I earlier said, but submits he should be disqualified from applying for registration only until the 21^st of April 2028 or some other definite period thereafter.  The significance of the April 2028 date is that is the full-time discharge date of a seven-year head sentence imposed on the respondent by her Honour Judge Clare SC DCJ for acts of domestic violence against his former partner.  That sentence was passed on the 22^nd of April 2021.
3. [3]
   The legislative framework in relation to the matter is set out in helpful written submissions of both parties.  It is, I think, unnecessary to set it out as there is little dispute about the correct legal approach.  At paragraph 42 of the applicant’s submissions it is said:

4. [4]
   At paragraph 46 of her submissions, the applicant’s counsel says:

5. [5]
   Finally, I set out paragraph 52 and 53 of the applicant’s submissions, namely:

6. [6]
   Those matters are not in dispute.  The respondent in his written submissions submits:

7. [7]
   I have carefully considered this matter and have concluded it is appropriate to disqualify the respondent indefinitely from practise as a dentist.
8. [8]
   The determination of the matter caused me some concern, especially having regard to the following: 

   1. The respondent has, other than the subject offences, no other relevant criminal history of history of relevance before the Tribunal.
   2. He has no prior history of domestic violence.
   3. His offending was in a relationship characterised by excessive alcohol and sporadic drug abuse although the respondent’s partner says in her victim impact statement used in criminal court proceedings that his abuse of her started “long before drugs were an issue”.  Furthermore, it seems to me his practice as a dentist over the period of his abuse of his partner is inconsistent with the view that his abuse can be seen as a by-product of his drug use.  It is, I have ultimately concluded, instead a result of his personality profile.
   4. The relationship in which he engaged in the appalling conduct dealt with by Clare SC DCJ has long ended.
   5. The conduct did not involve a patient or the conduct of his practice itself.
9. [9]
   I am satisfied that having regard to his history that it is relatively unlikely if he were again able to practise that he would offend in a violent way against clients.
10. [10]
    The respondent’s personality profile as outlined in a report of Dr Charam, psychiatrist, and used in the sentencing process before her Honour Judge Clare is a cause, however, of real concern.  Dr Charam saw the respondent in February 2021, at the request of the respondent’s solicitors, to provide a report addressing any underlying psychiatric conditions that had contributed to his offending, treatment options and an assessment of the risk of re-offending. 
11. [11]
    Dr Charam noted the respondent had seen a psychiatrist up until about 2012 or 2013 for depression, anxiety and ADHD.  He also saw another psychiatrist for depression in 2015 but it seems did not mention the domestic violence in which he had engaged.
12. [12]
    In interview, the respondent denied drug use, other than on two occasions, apart from his abuse of nitrous oxide for a six-month period.  This is in marked contrast to his partner’s statements.
13. [13]
    I cannot be certain of whether his statements in respect of drug use are truthful or not, but I do know he lied to Dr Milad, who also provided a report, because he told that doctor that all of the offences had been fabricated by his former partner.  That is inconsistent with his conviction, and that on a plea of guilty.  He told Dr Charam the same lie, namely that he absolutely denied any acts of physical violence.  That interview with Dr Charam was in February 2021 after he had pleaded guilty (which he attributed to the advice he received from his barrister) and the sentence by her Honour Judge Clare.
14. [14]
    Ultimately, Dr Charam’s conclusions about the respondent caused me serious concern about the risk of him engaging in conduct in the future inconsistent with that expected of a registered dentist.  Dr Charam doubts the diagnosis some had made of autism spectrum disorder, ADHD or at least until very recently even a serious depressive illness.  Instead, Dr Charam opines that his behaviour is entirely consistent with a person with narcissistic personality vulnerabilities.  I make no finding about those earlier conditions but do accept Dr Charam’s diagnosis of narcissistic personality disorder (NPD).
15. [15]
    Importantly, in the circumstances of the issues I am required to determine, Dr Charam opines:

1. becoming embroiled in pathological relationships is commonplace for those with NPD.
2. the brittle self-esteem of such persons means they find it difficult to accept responsibility for problems and feel anger when challenged.
3. people with NPD often have little regard for the rights and feelings of others allowing verbal and physical abuse to go unchecked.
4. especially with a partner suffering personality pathology, one can envisage how scenarios of conflict can easily escalate to situations of high emotion where angry feelings rise to the level of physical violence.
5. the risk of further violence within sustained interpersonal relationships would be “at least moderate”.
6. he takes little responsibility for the problems in the relationship.
7. he has not demonstrated any true insight nor sought help.
8. the personality vulnerabilities which led him to be embroiled in the toxic relationship and to react as he did are ingrained in who he is.
9. Some of the victim’s description of his behaviour imply a man quite psychopathic which is a risk of significant further violence.
10. Considering rehabilitation is difficult when the respondent denies the allegations and takes relatively little responsibility for his actions.  Furthermore, any therapeutic intervention requires long-term explorative psychotherapy and is no way guaranteed to be effective.
11. Successful rehabilitation requires admission of failings which is a capacity that those with NPD at their core lack.

16. [16]
    The report of Dr Charam is, as I said, of very serious concern, especially in circumstances where there is no material before me to indicate the respondent has any intention of undertaking rehabilitation or acknowledging his misconduct or indeed his NPD.  As Dr Charam said, this makes assessment of risk problematic.
17. [17]
    On behalf of the respondent, it is said that the seven-year jail term imposed upon him by Judge Clare will give him time to reflect and reconsider and will be likely to see him decide to undertake rehabilitative treatments. 
18. [18]
    But despite the charged offending starting from 12 July 2014, despite the gross and serious offending of late 2015, despite the issuing of a DVO, despite him being charged with serious offences and then being suspended from practice - all of which might be thought would give him cause to reflect and reconsider and to cause him to undertake rehabilitation - he did not do so. 
19. [19]
    In the decision of Medical Board of Queensland v DAP [2008] QCA 44, Keane JA (with whom Muir JA and Atkinson JA agreed), when considering a case involving inter alia incestuous sexual offending against girls aged 10 and 11, observed:

the organic origin of the respondent's conduct is no basis for concluding that the respondent may one day be fit to be registered as a medical practitioner: if anything the converse is the case. What is relevant is whether the condition which renders the respondent unfit to be registered is one which is likely to resolve over time

20. [20]
    His Honour also helpfully referred to what had been described at first instance in QCAT as “potential for rehabilitation”.  At paragraph 28 his Honour said:

The passages from the medical witnesses to which the Tribunal referred do not support the conclusion that there is a "potential for rehabilitation" which is likely to be realised in any practical way. The notion that every wrongdoer has the potential for personal redemption is deeply embedded in our cultural heritage,4 but the protective functions of the Act cannot be achieved by reliance on speculation which has no factual basis. The evidence before the Tribunal does not support an inference that there is a likelihood that the respondent will ever be able justifiably to command the confidence of the public in him as a medical professional

21. [21]
    Such matters are of very direct relevance in this matter where there is no material before me to indicate any plan or even intention of the respondent to admit his misconduct and seek treatment.
22. [22]
    Furthermore, I accept the submission of the applicant at paragraph 78 of its written submissions, namely:

23. [23]
    Of real concern are the risk of re-offending by the respondent, but ultimately if that were the only issue, that could perhaps be addressed by a lengthy but finite disqualification period after which he would have to demonstrate that he was then qualified for suitability for practice if he were to be re-admitted.  But, whilst important to my determination, that is not the only matter which drives me to the conclusion that he should be disqualified indefinitely. The critical issue in these matters, as I earlier set out, is the health and safety of the public.  The applicant bears the onus of proof to the usual standard. 
24. [24]
    I referred earlier to two decisions from other jurisdictions, namely Nursing and Midwifery Board of Australia v GMR (supra) and Health Care Complaints Commission v Do (supra).  These highlighted the Courts increasingly serious approach to domestic violence and of the need to protect the public extends in this case beyond protection from the respondent alone.  It includes protection of the public, including people’s domestic partners, from the misconduct of other professional practitioners by means of deterring all persons, including all health practitioners, from engaging in such conduct.
25. [25]
    Such considerations, alongside my serious concerns about the limited prospects of rehabilitation in this case, cause me to conclude the respondent’s disqualification should be indefinite.  Only in that way are the needs of public safety through both personal and general deterrence met.  That is especially so in this case, as the respondent’s own personality and his failure to seek rehabilitation against a background of limited insight and inability to admit wrongdoing makes reformation of his own character and personality very problematic.  One cannot assume in the circumstances of this case a positive change is likely merely from the passage of time.
26. [26]
    Professional persons who might engage in extreme and protracted violence and then refuse to address the issue causing their misconduct, bring discredit not only on themselves but on the professional body which might admit them to practice and so diminishes the standing of that body in the eyes of the public.  The respondent’s appalling misconduct, his refusal or extreme reluctance to acknowledge his behaviour, his refusal to get treatment to address the issue, the lack of any material from him before this tribunal to suggest any change in those matters and the need to demonstrate to practitioners generally who might engage in misconduct that they must seek positive change if they are to be given the opportunity for readmission to their profession cause me to conclude that the foreshadowed orders ought to be made.
27. [27]
    Whilst acknowledging that these proceedings are protective and not punitive, in my view it is only in that way that the paramountcy of the health and safety of the public can be properly protected.
28. [28]
    I do not accept the respondent’s submission that a disqualification up to or even beyond the full-time discharge date of the sentence imposed by her Honour Judge Clare in circumstances, where he would then need to apply to his professional body to satisfy them, he is then a fit and proper person to be registered as a dentist, would be appropriate.  I have indicated already my view that rehabilitation of the respondent in this case is merely speculative and even if undertaken is problematic and he would remain an ongoing risk.
29. [29]
    Put shortly, it is my view a risk not worth taking having regard to all of the circumstances of this case.  I was referred by counsel for the respondent to a number of cases said to be comparative from various jurisdictions across Australia.  Counsel submitted that indefinite disqualification had only been ordered in cases involving abuse of children or of consanguineal relatives or patients or in cases where there was a protracted history of such offending.  Whilst acknowledging the difficulty of using comparative cases in matters involving family violence, he submitted that this supported the view that indefinite disqualification was not appropriate in the circumstances of this case.
30. [30]
    It is my view, however, that in the particular circumstances of this case, the respondent’s character principally the underlying NPD, the abuse of his domestic partner, and his refusal to seek treatment means that he is so indelibly marked by his misconduct that he cannot be regarded as a fit and proper person to be registered as a dentist.  To allow him the opportunity to do so would, in my view, diminish public confidence in the profession.
31. [31]
    I therefore make the orders sought at paragraph [127] of the applicant’s submissions. It is the decision of the Tribunal that:

1. pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
2. pursuant to section 107(3)(e) of the Health Ombudsman Act the respondent’s registration is cancelled;
3. pursuant to section 107(4) of the Health’s Ombudsman Act, the respondent is disqualified from applying for registration indefinitely;
4. pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act, the immediate registration action is set aside; and
5. there be no orders to costs.