Health Ombudsman v Raniga[2022] QCAT 438

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent was born on the 7^th of September 1975.  He completed a Bachelor of Dental Science at the University of Queensland in 1998.  In December of that year, he was registered as a dental practitioner and established his own practice in 2003.  He has no relevant past disciplinary history and no history of complaints against him. 
2. [2]
   On the 16^th of February 2017, a former employee of the practice complained to the Office of Health Ombudsman (OHO) about the respondent’s infection control practices.  As a result, the Health Ombudsman, on the 23^rd of March, suspended the respondent’s registration under section 59(4) of the Health Ombudsman Act.^[1]  The respondent was invited to make submissions about that decision.
3. [3]
   There then followed correspondence between the Health Ombudsman and the respondent.  Ultimately, on the 7^th of September 2017, after five and a half months, his suspension was revoked and conditions on his registration were imposed.  On the 6^th of November 2017, the compliance team of the Office of Health Ombudsman advised the respondent he had fulfilled the audit conditions and could resume practice, although he was precluded from treating patients in nursing homes, as he had done up to March 2017.  This condition was finally revoked in December 2018.
4. [4]
   After the suspension in March 2017, the Health Ombudsman conducted a search of the respondent’s practice pursuant to a warrant.  Two specialist dentists, Dr Kelsey and Dr Mahoney, were present.  The search revealed numerous problems with the respondent’s infection control practices and with the adequacy of his clinical records.  The inadequacies in the respondent’s practice have been agreed and are set out in the statement of agreed facts filed in the tribunal, and are summarised in the applicant’s written submissions as follows:

  …

  …

5. [5]
   The parties are agreed the totality of the respondent’s conduct constitutes professional misconduct; I agree.  Professional misconduct is defined in section 5 of the National Law,^[2] and under section 107(2)(b)(iii) of the Health Ombudsman Act, the Tribunal may decide the practitioner has behaved in a way that constitutes professional misconduct.
6. [6]
   In support of that conclusion and in relation to penalty, I was referred to a number of New South Wales tribunal decisions, namely:  Healthcare Complaints Commission v Chan [2017] NSWCATOD 66, Healthcare Complaints Commission v Starkenburg [2017] NSWCATOD 22, and Healthcare Complaints Commission v Somaey [2021] NSWCATOD 91.
7. [7]
   It is important to note that the term “professional misconduct” is somewhat differently defined in the New South Wales legislation in that to meet the definition of professional misconduct, the conduct must be such as to justify suspension or cancellation.
8. [8]
   Those cases are nevertheless instructive. The respondent, in his solicitor’s submission, says that he agrees that the decision of Health Ombudsman v Gupta [2022] QCAT 160 is an analogous decision in terms of the practitioner’s shortcomings and infection control insight and remorse demonstrated by the practitioner, and the substantial steps taken by the practitioner to ensure there is no repeat of the misconduct the subject of the disciplinary proceedings.  The respondent also submits that, unlike Gupta, the parties in this matter are not seeking costs as part of the sanction, and that costs should proceed on the normal basis with each party requiring to bear their own.
9. [9]
   The applicant submits that when determining the sanction the tribunal may take into account the facts of each case, including:  (a) the nature and seriousness of the practitioner’s conduct; (b) insight and remorse shown by the practitioner; (c) the need for specific or general deterrence; (d) any evidence of steps taken by the practitioner to mitigate the risk of recurrence of the conduct, which is relevant to both insight and the tribunal’s assessment of future risk; (e) mitigating factors such as evidence of matters which may give context to the conduct, for example, mental health issues; (f) other matters, including past disciplinary history, police history, character evidence, periods of preclusion/non‑practice and co‑operation during the disciplinary proceedings.
10. [10]
    In this case, the respondent’s conduct was of serious concern, but he has shown significant improvement in clinical practice since the first visit of the OHO, has been compliant with all audit requirements, suffered from suspension from his practice for some five and a half months and further conditions imposed thereafter.  The steps he has taken to mitigate the risk means that future patients are unlikely to be at risk.
11. [11]
    In the circumstances, I accept the joint submission of the parties in respect of penalty.  In doing so, I am mindful of observations of Horneman‑Wren SC DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93].  In short, the tribunal ought not to 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. 
12. [12]
    In the circumstances, I will make orders that: 

    1. pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;
    2. pursuant to 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded; and
    3. pursuant to 107(3)(c) of the Health Ombudsman Act 2013, the respondent is to pay a fine of $25,000 to the Health Ombudsman.