Hermann v Medical Board of Australia (No 2)
[2023] QCAT 162
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- Hermann v Medical Board of Australia (No 2)[2023] QCAT 162
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Hermann v Medical Board of Australia (No 2)[2023] QCAT 162
Hermann v Medical Board of Australia (No 2)[2023] QCAT 162
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hermann v Medical Board of Australia (No 2) [2023] QCAT 162 |
PARTIES: | Robert Louis Hermann (applicant) v Medical Board of Australia (respondent) |
APPLICATION NO/S: | OCR092-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 28 June 2023 |
HEARING DATE: | 17 April 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member R Jones |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the past conduct of the applicant within their work environment was aggressive and intimidatory – where the applicant had a history of serious psychiatric difficulties – where the applicant made a deliberately misleading statement – where the applicant failed to disclose the psychiatric report – where the future risk of relapse remains unmitigated – whether the applicant is a fit and proper person for provisional registration in the profession – where the Tribunal is not satisfied that without ongoing treatment the applicant is fit for provisional registration Health Practitioner Regulation National Law (Qld), s 55(1)(h)(i), s 62(1)(c), s 63, s 82(1)(c)(i)(C) Alroe v Medical Board of Australia [2015] QCAT 482 Craig v The Medical Board of South Australia (2001) SASC 169 Health Ombudsman v Farrar [2021] QCAT 78 McBride v Walton [1994] NSWCA 199 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | MM Minucci, instructed by MinterEllison Lawyers |
REASONS FOR DECISION
- [1]This proceeding is concerned with an application brought by Dr Robert Hermann (‘the applicant’) to review the decision of the Medical Board of Australia (‘the respondent’) to refuse the applicant’s provisional registration as a medical practitioner under the Health Practitioner Regulation National Law (Qld) (‘National Law’). For the reasons set out below, the application is refused.
Background
- [2]The following matters seem uncontroversial. The applicant is a Canadian citizen and has never held registration as a medical practitioner in Australia. He successfully completed a Bachelor of Medicine, Bachelor of Surgery at the University of Queensland in 2011. However, he undertook his internship in the United States of America (USA), and held registration as follows:
- (a)Physician and surgeon licence, Washington State, United States, 27 February 2017 to 19 June 2023; and
- (b)Physician, Louisiana State, United States, from 27 September 2016 to 1 July 2021.
- (a)
- [3]He last practised as a general practitioner in the USA at the Universal Men’s Clinic on 21 May 2019. Since 31 October 2019 he has lived in China, where he practises as an English teacher, apparently quite successfully.
- [4]He initially applied for provisional registration with the Board on 16 June 2020. That application, as I understand it, was withdrawn, waiting the resolution of a pending complaint with the Washington Medical Commission. Subsequently, the applicant made a new application to the Board for provisional registration as a medical practitioner for Australian and New Zealand medical school graduates on 11 May 2021.
- [5]On 21 December 2021, the Board considered the application and decided to propose to refuse the application pursuant to s 82(1)(c)(i)(C) of the National Law on the grounds that:
- (a)The applicant was not a fit and proper person for provisional registration in the profession pursuant to section 55(1)(h)(i) of the National Law; and
- (b)As a result, the applicant is not a suitable person to hold provisional registration as a medical practitioner.
- (a)
- [6]The applicant then made written submissions in response. He also made oral submissions to the Board on 15 February 2022. The applicant then provided further written submissions, and on 15 March 2022, the Board considered the application and the applicant’s written and oral submissions and decided to refuse the applicant provisional registration (‘Registration Decision’). The Registration Decision was made pursuant to s 82(1)(c)(i)(C) of the National Law on the same grounds as particularised in the decision notice of 21 December 2021.
- [7]On 30 April 2021, the applicant was offered employment at the Ingham Family Medical Practice in North Queensland. The applicant wishes to take up that offer and move to Australia with his wife and practise as a general practitioner within that medical practice. On 25 October 2022, the offer from that medical practice was confirmed. In that letter, it is stated, in part:
Our practice is in urgent need of his services, as we have recently lost permanent GP’s who have moved for family reasons to other states. These resignations have left well-equipped practices in both Ingham and Cardwell, which is very well staffed in terms of nursing and other support staff (as may be seen on our website www.inghammedical.com.au ), critically short staffed of doctors. We may have to close our Cardwell practice until we are able to obtain further doctors.
Our practice in Ingham provides a six day a week service for the Ingham District, and our Cardwell practice at full capacity provides a five day a week service for the Cardwell district, but now is only able open two days a week due to the abovementioned shortage.
Cardwell has only two practices; the other practice is staffed by a solo locum GP, so if we were to close completely it would leave a large gap in service delivery in Cardwell. There is no hospital located in Cardwell and limited transport options for those who do not have their own transport.
The practice at Mission Beach has recently closed and the practice in Tully is no longer accepting new patients, hence our Cardwell and Ingham Practices are seeing in influx of patients from further north.
Significant fatigue and overwork issues are eroding medical workforce endurance and burn out may result in further doctors exiting the practice, and closure of both services. (emphasis added)
- [8]The emphasised part of that correspondence referencing significant fatigue and overwork issues has relevance when considering the evidence of Dr Larder, a consultant psychiatrist with the Australian Health Practitioner Regulation Agency (‘AHPRA’).
Some general principles
- [9]The following general principles are uncontroversial. The object of the National Law is to establish a National Registration and Accreditation Scheme for the registration of health professions. Section 3A of the National Law provides the paramount guiding principle for the administration of the National Registration and Accreditation Scheme is that the health and safety of the public are paramount.
- [10]The objectives of the National Law include, in s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. Part 7 of the National Law deals with applications for registration. The application on review was made under s 62 of the National Law, which relevantly provides:
- (1)An individual is eligible for provisional registration in a health profession to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession, if –
- (a)The individual is qualified for general registration in the profession; and
- (b)The individual is a suitable person to hold provisional registration in the profession; and
- (c)The individual is not disqualified under this law or a law of a co- regulatory jurisdiction from applying for or being registered in the profession; and
- (d)The individual meets any other requirements for registration stated in an approved registration standard for the health profession.
- (2)Without limiting subsection (1), the National Board established that the health profession may decide the individual is eligible for provisional registration in the health profession by doing either or both of the following—
- (a)Imposing conditions on the registration under section 83;
- (b)Accepting and undertaking from the individual under section 83A.
- [11]The provisions in s 62 enable an individual, not otherwise eligible for general registration, to complete a period of supervised practice to establish eligibility for general registration under the National Law, provided he is able to satisfy the criteria outlined above.
- [12]The applicant completed a relevant qualification at an Australian university but subsequently completed an internship in the USA. Consistent with the Board’s registration standard, the applicant, as part of his application, is required to undertake 12 months of approved supervised practice to familiarise himself with the Australian healthcare system.
- [13]The applicant’s employment, supervised practice plan and compliance with the Board’s registration standards are prerequisites to his eligibility for provisional registration. Sections 55 and 63 of the National Law identify the statutory basis that the Board must consider when determining if an individual is not a suitable person to hold provisional registration in the profession. This can be, amongst other reasons, if:[1]
- (h)In the Board’s opinion the individual is for any other reason –
- (i)not a fit and proper person for [provisional] registration in the profession; or
- (ii)Unable to practise the profession competently and safely.
- [14]Section 82 of the National Law gives the Board authority to decide applications for registration, including provisional registration. For any application lodged under the National Law, the Board must decide to either:
- (a)Grant registration if the applicant is eligible; or
- (b)Refuse to grant registration if the applicant is ineligible, or if it would be improper to grant the application because the applicant or someone else gave the National Board information that was false or misleading in a material particular.
- (a)
- [15]While not defined in the National Law, the meaning of “fit and proper person” was considered by Carmody J in Alroe v Medical Board of Australia [2015] QCAT 482 at [19]-[20]:
The phrase “a fit and proper person” is a commonly used one but incapable of precise definition. It has been held to mean that an applicant must show not only that he or she has the theoretical knowledge and practical proficiency to practice competently and safely but also has the professionalism – that is, moral integrity and character – to keep proper standards and meet public expectations in discharging professional duties and responsibilities.
In other words the concept is both character and competence based. A person can meet the character and fitness requirement notwithstanding previous bad behaviour if he or she can demonstrate genuine rehabilitation or reformation. Remorse may be indicative of either but only where it is sincere and manifest rather than merely professed. A true understanding and acknowledgement of past misdeeds and its consequences is usually more trustworthy and persuasive that expressed regret. …
- [16]In McBride v Walton [1994] NSWCA 199 at [34], Handley JA quoting from the tribunal below, set out a list of factors which the New South Wales Medical Tribunal directed itself toward in deciding whether the relevant practitioner was not of good character in the context of fitness to practise medicine. Those factors included:
- (a)whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
- (b)the intrinsic seriousness of the misconduct qua fitness to practise medicine;
- (c)whether the misconduct should be viewed as an isolated episode and hence atypical of or uncharacteristic of the practitioner’s normal qualities of character;
- (d)the motivation which may have given rise to the proven episode of misconduct;
- (e)the underlying qualities of character shown by previous and other conduct;
- (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.
- (a)
- [17]
It is important that members of the public be able to approach and work with registered health practitioners confident that those practitioners are people who are not only skillful, knowledgeable and competent in practising their professions but whose standards of personal behaviour and professionalism are universally high. Public confidence in the health professions can only be maintained by an insistence by the professions themselves on their members upholding their standards of professionalism.
- [18]Finally, the applicant does not dispute that he bears the onus of satisfying the Tribunal that he is a suitable candidate for provisional registration.
The reasons for refusal
- [19]The notice to refuse to grant registration extends over some eight pages.[3] Under the heading Decision it is stated therein:
- (1)The Board refused to grant you registration, pursuant to section 82(1)(c)(i)(C) of the National Law on the grounds that:
- (a)in the Board’s opinion you are not a fit and proper person for provisional registration in the profession pursuant to section 55(1)(h)(i) of the National Law; and
- (b)as a result, and at this time, you are not a suitable person to hold provisional registration as a medical practitioner.
- [20]
The Board has decided that you are ineligible for provisional registration because you are not a suitable person to hold provisions registration in the medical practitioner under section 62(1)(c) of the National Law. In the Board’s opinion, you are not a fit and proper person for provisional registration for the reasons set out below.
- [21]The decision notice then goes on to deal with a number of issues under the heading Conclusion, and concluded as follows:[5]
On the basis of the material before it, the Board remains of the view that you have not demonstrated that you are possessed of sufficient moral integrity, so that you may be safely accredited to the public.
If the Board were to register you at this time, it is the Board’s view that there would be a significant impact on public confidence in the National Scheme in the health profession.
The Board’s principal interest is to protect the public and to do so, it must maintain the public’s trust in the health profession. It is the Board’s opinion that you are not fit and proper to be held out to the rest of the medical profession and to the community as a person worthy of its confidence…
Should you wish to reapply for registration in Australia in the future, the Board would expect to see evidence of you having taken active and remedial steps to address your current unsuitability for registration, beyond your own written and verbal submissions. In this regard, the Board encourages you to seek behavioural and psychological treatment and education for what it regards as serious communication and behaviour deficits. Once it can be properly assured and satisfied that these issues have been adequately addressed, the Board may be open to reconsidering your suitability to hold registration. (emphasis added)
The past conduct of the applicant
- [22]In dealing with this aspect of the application, I propose to proceed on the basis of a number of matters that favour the applicant. These include, first, that a number of allegations of misconduct at various medical practices where the applicant practised are unsubstantiated and, in some instances, likely exaggerated. Second, notwithstanding extremely troubling correspondence, which is addressed below, the applicant is neither racist nor homophobic, as was suggested to him during cross-examination. Third, the applicant is genuinely remorseful and ashamed of his past conduct. Finally, that the relevant conduct occurred when the applicant’s mental and physical state at the time was seriously vulnerable and troubled.
- [23]That said, it is undeniable that the applicant had an extremely volatile relationship with a number of institutions where he practised and where his employment was terminated. The applicant’s conduct in this regard was not a one-off event. It involved a number of incidents over a seven-year period which Dr Larder described as a “Cycle of conflict from 2012 to 2018”.
- [24]In this regard, Dr Hermann did not dispute that at times his conduct within his work environment was aggressive and intimidatory and, on more than one occasion, referred to his conduct as “past misconduct”.
- [25]A particularly troubling aspect of the applicant’s conduct towards his peers and others involved in practices where he worked is the language he directed towards other persons in correspondence. In respect of the Universal Men’s Clinic, recipients of his correspondence were subject to the following abuse and threats via email.[6] On 21 May 2019, the following correspondence was addressed to a single recipient:
Got fired today. Thanks, buddy. Tell Dupree I hope he enjoyed his vacation, and tell him he’s a cunt and that you are gay as AD (sic). Fuck dude. Gay is fucked.
- [26]Then later:
Hey, cunt, thanks for stealing my last paycheque.
- [27]Then later:
Got fired today. Peace man. Nice knowing you. You all bitches are fake arse. Fuck you, Izabel, lying piece of shit.
- [28]And later:
You two-faced little bitch.
You have Klinefelter’s syndrome.
Lutz told me that they fired me because of your complaints about me, you little two-faced bitch.
I was your friend. You fucked over a friend. You little RAT.
Watch your back for the next 20 years, idiot.
You don’t think the KKK is real. I would recommend you move back to Mexico now.
- [29]And then:
Why are you being so cunty, man? I’m the best employee you idiots have. Do you have any idea what those fucktards are doing all week. Come on, dude, grow a brain.
I thought you were Japanese.
They aren’t usually retards at running business.
But that’s how you are acting.
You don’t want to make money?
Prick.
You live in Tacoma.
This is sexual discrimination because I’m the only heterosexual that works in these offices.
Surrounded by a bunch of closet homosexuals.
Every last one of them.
And you too.
You can offer a settlement if you like, otherwise I’ll see you in court.
I was homeless and I asked for a little help for a colleague and you fire me. You are fucking pathetic, honourless, coco (sic) sucking Chinese boy.
Do the world a favour and kill yourselves.
Let’s see how I can destroy your life moving forward, as you are doing to me.
You like law enforcement.
I could run your entire organisation, you little cunt.
But you too stupid to see.
Keep earning less money, dummy.
You must literally have dogshit between your Chinese ears.
You pricks at least hit me up with some cash and a new supply of testosterone and boner pills.
I hope God destroys everything about you and yours.
And the karma from this follows your family for eternity.
You all should reconsider.
I’m a born gangster.
And you arseholes are sloppy.
Hey, cocksucker, I need my termination in writing.
- [30]On 22 May 2019, the applicant sent an email to yet another recipient at the Men’s Clinic. This correspondence stated:
I need my termination notice, including the exact reason why I’m being fired, and I want it fucking now, you greasy cunt.
- [31]By late 2018, it seemed that the applicant was seeking new employment through a professional employment recruiting agency. The recruiter was one Mr Kirby. In a fit of clearly uncontrolled rage on 12 December 2018, the applicant emailed Mr Kirby as follows:
Your lack of human compassion is why I feel sorry for me.
Your inability to accept reality is why I feel sorry for you.
Please kill yourself.
I said please kill yourself.
- [32]In correspondence to AHPRA on 16 July 2021, the applicant stated in respect of that correspondence:
As shameful as it was that I did actually tell the recruiter to please kill himself, regardless of the perilous position I was in, that was inappropriate behaviour on my part and I regret it.
- [33]Referencing McBride, the applicant’s conduct in the USA is reflective of a defect of character rather than an error of judgement. It also involved a number of episodes which could not be excused as a one-off incident being otherwise out of character. Finally, it involved conduct that clearly went to his fitness of character and capacity to practice medicine.
- [34]Aspects of the applicant’s conduct came to the attention of the Washington Department of Health (‘WDH’) in early 2018. The WDH also became aware that on 4 October 2017, the applicant had been found guilty after a plea to a charge of reckless driving. On December 2019, based on materials that the WDH had gathered about the applicant, the Washington Medical Commission (‘WMC’) requested an order for investigative mental and physical examination be issued to the applicant because it believed the evidence, “…establishes a reasonable basis to believe that the respondent may not be able to practice as a physician and surgeon with reasonable skill and safety.”
- [35]On 6 March 2020, a “Findings of Fact, Conclusions of Law and Order for Investigative Medical Examination” was made in relation to the applicant, requiring him to make an appointment for a mental examination within seven days of receipt of that order. At the end of the seven days, the applicant had not scheduled any such examination.
- [36]On 7 May 2020, the WMC determined that the applicant’s licence to practise as a physician and surgeon in the State of Washington ought be indefinitely suspended. On 14 May 2020, the applicant sent a letter to the WMC apologising for not responding to the initial notice of intent and explained that he had been in China since 31 October 2019 and had no reliable way of receiving mail.
Dr Larder’s report
- [37]Belatedly, arrangements were made for the applicant to be interviewed and examined by Dr Larder. This occurred via two Zoom interviews on 15 January and 12 February 2021. The applicant was in China and Dr Larder in Australia. At page 3 of his report, the doctor stated,[7] “I believe appropriate and sufficient clinical examination and/or testing to fully evaluate mental and behavioural status of the respondent has been achieved.”
- [38]
This evaluation reveals that Mr Hermann has a history of serious psychiatric difficulties.
I will outline the issues of importance to the Washington State Department of Health based on a chronology of Mr Hermann’s life history.
He first developed the symptoms of a psychiatric condition in his life in his early 30s.
This was a depressive illness which arose insidiously in 2012 and 2013.
This condition was assessed and treated by a psychiatrist in Shreveport at the beginning of the second year of residency. He outlined the timeline of assessment and treatment for these conditions.
It arose as a result of the following issues:
- The physical and mental trauma and psychosocial issues concerning his medical studies in Australia, and MVA, in which he was hit by a car in 2011 (and in which he could have been seriously injured and/or killed).
- Chronic neck pain and back pain arising from chronic physical injury sustained in the MVA.
- Severe neck pain led to his inability to continue his medical work in Shreveport.
- He took medical leave at the end of the first year for neck surgery and to have the diagnosis tests done for hormone issues, which interrupted his work duties.
- During the post-operated phase of the neck surgery, he had the provocation test to assess pituitary function. Found almost no growth hormone production detectable and he was initiated on growth hormone therapy.
- Stresses concerning headaches of the nature of a pituitary tumour and neurosurgery for the tumour in 2012 (which was found to be benign).
- Stresses linked to the lifelong need for hormone replacement therapy resulting from surgery.
- Marital relationship difficulties leading to marital separation at the end of 2012 (his first wife left him).
- He hated living and working in Shreveport.
- Living in Shreveport was bad for his mental health and depression.
I note that assessments at the time raised the potential for the diagnosis of an order of cognition concerning attention and concentration.
I do not agree with the diagnosis of inattentive-type ADHD. This is because the diagnosis in an adult aged 32 must have been preceded by those sort of symptoms of a child and adolescent. (emphasis added)
- [39]The doctor then went on to state the following:
I have formed the view that Mr Hermann developed a syndrome of embitterment and chronic conflict with the bureaucracy in Shreveport and left that work and study experience with unresolved issues, which he carried into the next phase of his work experience.
I have formed the view that the depressive illness did not achieve remission during the period 2012 – 2015.
- [40]Under the heading Function, Dr Larder concluded that at the time of being assessed, the applicant’s mental health state was “now normal” and that:
This evaluation results in my opinion that there is no active mental illness or psychiatric diagnosis affecting the respondent that could impede his function to practice as a physician without posing an unreasonable risk of harm to patients.
I believe the respondent has a full capacity to participate in the treatment recommended.
- [41]The applicant’s current mental state, according to Dr Larder, was to a very significant extent influenced by his move to China, which the doctor described as “geographic therapy”.
- [42]The reference to the treatment recommended is a reference to conditions imposed on the applicant’s reinstatement to practice medicine in Washington. Of particular relevance in the context of this proceeding is condition 4.5, which provided:
Monitoring and reports. If the respondent returns to the United States to practice medicine, he must be monitored by a psychiatrist approved in advance by the Commission. The respondent must meet with the psychiatrist at least once a month for at least 12 months. After the initial 12-month period, the respondent may petition, in writing, to reduce the frequency of the sessions to once every three months, if recommended by a psychiatrist, in writing.
He must also engage in psychotherapy with a practitioner approved in advance by the Commission. Respondent must have psychotherapy sessions at least once a week for at least six months. After the initial six-month period, respondent may petition, in writing, to reduce the frequency of the sessions to once every other week, if recommended by the psychotherapist, in writing. If the above modification is granted, after an additional six months, respondent may petition in writing to reduce the frequency of the sessions to once a month, if recommended by the psychotherapist, in writing.
The Commission will send a copy of the respondent’s psychiatric evaluation to both practitioners. Respondent will authorise both practitioners to submit quarterly reports to the Commission addressing respondent’s ability to practice medicine with reasonable skill and safety and addressing the treatment 20 recommendations in the evaluation. (emphasis added)
- [43]The terms of that condition were clearly influenced by the opinions expressed by Dr Larder under the headings Treatment and Prognosis. It is useful to set out the matters addressed therein in some detail. Under the heading Treatment, Dr Larder opined:
I believe Mr Hermann needs to obtain a referral to have an assessment with a medical specialist consultant psychiatrist.
This assessment should consider the material in this report.
The assessment should consider the following issues:
His compliance with management and long-term relapse prevention of Major Depressive Disorder. This is because I have concern that life issues and work-related stresses could result in a recurrence of the sort of depressive issues that have marked Mr Hermann’s life experience from 2012 to 2019.
This management may require antidepressant and mood stabilising medication. It is a biopsychosocial plan of mood monitoring which must consider relapse prevention over at least a five-year period, given that the mental health issues of concern span a seven-year period.
Management must address metabolic issues and be mindful of the need to monitor hypertension.
Management must also consider a plan to monitor alcohol use, so that any pattern of alcohol use is of low risk mode.
Management must also promote a plan to continue to not use illicit drugs ever.
Current guidelines for the management of Major Depressive Disorder in Australia do not support the use of medical cannabis as treatment. This area is evolving and needs to be considered in future management.
Mr Hermann completed some 90 per cent or so of a course of training for a specific medical speciality in Shreveport, Louisiana. He needs a psychotherapy approach to address embitterment and unresolved angst that he did not finish the course of training…
Mr Hermann has been married twice, relationships which ended after a few short years.
He needs a psychotherapy approach to address embitterment and unresolved angst that those relationships ended in the manner that they did and how the post-separation process has unfolded… (emphasis added)
- [44]Under the heading Prognosis, the doctor reported:
The prognosis is unclear. Mr Hermann has plans to move to another country (Australia) and embark on a course of work in the medical field.
His efforts to plan to function in this manner are laudable.
It remains to be seen if he can construct a working relationship with staff, patients and the bureaucracy in any future workspace, and stresses from the work issues do not trigger a relapse of the depressive illness from which he has suffered.
It remains to be seen if he can commence and maintain a healthy conflict-free personal life and build social supports in another country, and any stresses that might arise in his personal life, do not trigger a relapse of the depressive illness from which he has suffered. (emphasis added)
The prognosis could reasonably be reviewed at six-monthly intervals for at least two years...
- [45]Before proceeding further, I would make the following observations. First, the practice in Ingham will clearly be a busy one and likely to be a stressful one at times. No doubt, if the applicant were to join that practice, the workload and work-related stress would likely be alleviated, at least to some extent. However, on its face, the practice would likely remain a busy one and, at times, a stressful one. Second, apart from his working colleagues and, arguably, their partners, there is no evidence that the applicant and/or his wife would have any meaningful support network available to them. Third, as is discussed in more detail below, notwithstanding Dr Larder’s clearly grave concerns regarding the applicant’s future mental health, should he return to practice, the applicant considers any further intervention is unnecessary.
- [46]In regard to the last of those matters, the applicant states that he agreed to the conditions set out above in respect of practice in Washington not because he recognised the need for any ongoing assessment and treatment but that he felt he had no other choice but to agree to it so he could return to practice. In response to an allegation that his rejection of Dr Larder’s opinions reflected a lack of insight, the applicant responded by saying in his reply, “Not agreeing with a therapeutic recommendation is entirely different from refusing to adhere to it.”
- [47]In the absence of any medical evidence to the contrary, I can see no reason why Dr Larder’s concerns and recommendations to address those concerns do not remain valid and operative as at the date of the hearing of this application.
The applicant’s case
- [48]As already stated, I am satisfied that the applicant is neither racist nor homophobic. I am also satisfied that the conduct of the applicant was the result of a number of factors. His unfortunate childhood, his mental and physical wellbeing at the relevant times and, in some instances, having to practise in a toxic work environment. I am also satisfied that the applicant recognises just how reprehensible his past conduct was and is genuinely ashamed of that conduct. The applicant is clearly a highly intelligent person and references speak of him in very favourable terms.
- [49]It can also be accepted, given the unchallenged evidence of Dr Larder, that at the time of examination, to use the doctor’s terminology, the applicant’s mental state was “now normal”. Dr Larder’s assessment occurred in February 2021 but I can see no reason, and none were advanced, not to proceed on his observations and opinions as expressed in his report.
- [50]The applicant also gave evidence that his rehabilitation was due to a number of factors. These included his recognition and acceptance of his past conduct. He also says that his lifestyle choices have led to his recovery. These involve regular exercise, yoga, meditation and reading self-help books. He also emphasised the important role his recent marriage has played in his current mental stability. I accept that evidence. I do not accept, however, the applicant’s explanation about why he did not disclose his criminal history or Dr Larder’s report, or at least the important details thereof, to the Board, and in this regard, that includes the conditions imposed by the WMC. That said, those matters of themselves would not warrant a finding that the applicant was not a fit and proper person for registration.
- [51]In respect of Dr Larder’s concerns about returning to medical practice, in his reply, the following allegations and responses were set out:
Allegation:
Seeks to rely solely on his recent experience in China as an English teacher, failing to show insight into why this experience is not analogous to the rigours of medical practice in Australia and so carries very little weight. In the material before the Tribunal, it appears that the applicant has been able to appropriately regulate his conduct and behaviour only when he was not employed as a medical practitioner.
Response:
The respondent’s assertion is false. Firstly, the positive reviews and reference letters from Shreveport indicate that when I have been healthy, I have been no problem handling the rigours of medical practice…
Further, I was never asked to explain my insight as to the ways teaching English in China is not analogous to the rigours of practising medicine in Australia. Again, the respondent is speculating, and the respondent is now passing blame for an instance where they failed to request information, and are now proceeding on the basis of a perceived lack of information to defend a refusing of registration.
- [52]Finally, the applicant drew the attention of the Tribunal to a number of cases where it was found that, notwithstanding the seriousness of the conduct that brought those practitioners before the Tribunal, they were nonetheless found to be suitable for registration. Save for one case, it is unnecessary to go into the details of those cases. That is so because they are of little assistance. Even accepting that the relevant conduct was worse than that of the applicant, that is not to the point. It is not the applicant’s past conduct that is the real or critical issue in this proceeding. It is, as Dr Larder explained, the future risk of relapse.
- [53]The one case to which I will refer is that of Health Ombudsman v Farrar [2021] QCAT 78. In that case, the practitioner was a very experienced medical practitioner who obtained his qualifications in Australia but at the relevant time was practising in the USA. On 15 March 2013, he pleaded guilty to two counts of assault and battery and two counts of violation of an abuse prevention order. The victim in all instances was a woman known to him. Farrar was sentenced to two and a half years’ imprisonment, to be released after serving one year, subject to an extensive probation order. Unsurprisingly, his right to practise was suspended.
- [54]Even accepting that the acts of violence in that case involved more serious conduct than that on the part of the applicant, it is important to bear in mind that the conduct complained of by the Ombudsman in Farrar, was the failure to disclose that criminal history in his application for registration, not the criminal conduct itself. It was also accepted on the part of the Ombudsman that the conduct was reckless, rather than intentionally dishonest. It was also agreed between the parties that there were a number of mitigating elements in favour of Farrar. In this regard, the Tribunal observed:
That agreed position was reached having consideration to a number of factors, including:
- (a)The inordinate delay in the investigation of the matter by the OHO, which has had the consequence that the respondent has suffered the uncertainty of delay in the resolution of the matter.
- (b)The lack of any prior disciplinary history.
- (c)The respondent voluntarily seeking appropriate psychiatric treatment in 2014 upon his return to Australia and continuing to obtain appropriate treatment.
- (d)The respondent continuing to practice over the intervening period without complaint or concern; and
- (e)The respondent’s cooperation in the conduct of the proceeding before the Tribunal.
- [55]The Tribunal then went on to make findings and impose sanctions that were again agreed between the parties. It can be seen that there are a number of features that distinguish that case from the one before me. Most significantly, in my view, is that in that case, the doctor immediately sought ongoing psychiatric treatment on his return to Australia.
Consideration and conclusions
- [56]Notwithstanding the existence of a number of factors favouring the applicant, the unchallenged concerns expressed by Dr Larder are grave, and, in the absence of independent medical evidence to the contrary, there is no reason to believe that those concerns are not still valid today. As has already been stated, the applicant’s mental health is now described as “normal”, and apparently stable. However, Dr Larder’s concerns, given the extent of the applicant’s previous history of mental health, are that the stresses associated with a return to medical practice, absent appropriate mental health intervention, might trigger a relapse.
- [57]As to the applicant’s evidence that his teaching role is evidence that he is not only now mentally healthy but is also unlikely to relapse, I am unable to accept that evidence. To reach such a conclusion would require the opinion of an appropriate expert and no such opinion exists. In this regard, I would also observe that notwithstanding Dr Larder having knowledge of the applicant’s teaching role, he nonetheless went on to expressly direct his attention and concerns about the applicant potentially returning to medical practice. On balance, I am not satisfied that without ongoing treatment of the type identified by Dr Larder that the applicant is now fit for provisional registration.
- [58]In his report, Dr Larder expressed the opinion that the applicant had the capacity to participate in a treatment program of the type set out in the abovementioned conditions imposed by the WMC. On more than one occasion, the applicant expressed the view to the effect that he would abide by any conditions the respondent considered appropriate. There are, however, two major difficulties with those assertions. First, as already referred to above, the applicant is adamant that he no longer needs any such treatment or assistance. That is, not only is his mental health sound but, also, there is no genuine risk of relapse.
- [59]Second, clearly associated with the first issue, is that, on the material before me, I am not able to be satisfied that even if conditions were imposed and abided by the applicant, that there would be any genuine participation and engagement on the part of the applicant. It would more likely be merely a “tick the box” exercise on his part. In this regard, it is worth repeating that in respect of the WMC conditions, the applicant’s own evidence was that he did not need any psychiatric assistance and agreed to those conditions only because he had no choice, and if he did not agree to those conditions, then he would not be able to return to practice.
- [60]On balance, I am left with the strong impression that the applicant remains in a state of denial in respect of the underlying state of his mental health and the risk of a relapse should he return to medical practice. The applicant is of the view that Dr Larder’s assessment of the issues underlying his mental health are no longer valid and does not agree with the Doctor’s “therapeutic recommendation”.
- [61]In this regard, it is to be noted that during the application process not only did the applicant fail to disclosure Dr Larder’s report but also advised the respondent that the reinstatement of his licence was because “there were no issues with my physc (sic) evaluation …”. As the applicant accepted during his cross-examination, this was clearly a misleading statement. In this regard, the Tribunal is of the view that the statement was deliberately misleading.
- [62]Proceedings such as this are not for the purpose of deciding whether a practitioner is to be punished or not. The primary concern is the protection of the health and safety of the public and, as a part of that, the public’s trust and confidence in the medical profession must be maintained. As was observed in McBride and Walton, public trust in the medical profession requires the observance of the high standards of moral rectitude required of a medical practitioner. As the applicant accepted in cross-examination, many aspects of conduct fell well below that standard.
- [63]I found this to be a difficult case. At one stage, the applicant said to the effect that if his application was refused, his medical career would be forever ended. That is not the case, as is evidenced by the last paragraph in the reasons for refusal given by the respondent. That to satisfy the respondent about the matters addressed in the reasons for refusal would involve the applicant in considerable inconvenience and/or cost are not sufficient reasons to put them aside. The respondent quite properly requires independent cogent advice to the effect that a return to medical practice, if appropriately conditioned, would be unlikely to result in a relapse of the applicant’s behaviour and, that he would participate in a frank and genuine way in any reasonable conditions imposed on his registration.
- [64]The difficulty for the applicant though is that, as things presently stand, in the absence of independent expert evidence that a relapse of his mental health is unlikely or that he was willing to genuinely participate in appropriate treatment, the risk of a relapse cannot be ignored. The risks of a relapse here, as the evidence establishes, cannot be underestimated. A relapse might result in the applicant falling into an unstable and toxic relationship with his professional colleagues, other staff, and potentially, patients.
- [65]In this regard, the respondent accepted that conduct of the type he was guilty of in the USA had the potential to put at risk the health and safety of patients. During cross-examination the following exchange took place:
Now, you would accept that the way you interact with colleagues, senior doctors, administrative staff, and patients is critically important --- Yes, sir.
Poor interpersonal relationships with colleagues and senior doctors has the potential to jeopardise patient’s safety, doesn’t it? --- Yes, sir.
And you being in conflict with colleagues at work has the potential to jeopardise patient safety? --- Yes, sire.
You need to treat everybody with respect and dignity? --- Yes, sir.
Doesn’t matter what they’ve done to you either, does it? --- That’s correct, sir.
And aggressive, violent, and homophobic conduct shouldn’t be tolerated in the medical profession, should it? --- I agree, sir.
And that’s particular so when that conduct is directed towards your colleagues? --- I would disagree with that. I think patients are very important in that conversation.
Okay. Well, you’ve suggested with me a moment ago that being in conflict whilst at work with your colleagues would jeopardise patient safety? --- Right.
And so I would suggest to you that you expressing aggressive, violent, and homophobic behaviours or conduct against your colleague shouldn’t be tolerated? --- I’ve never expressed any violent conduct towards anyone.
- [66]Given the consequences for the application, one must feel a degree of sympathy. That said, as was observed in somewhat strident language in Craig v The Medical Board of South Australia,[9] the paramountcy of the need to protect the public will usually override the consequences for the practitioner however harsh they might be.
- [67]On all the material put before me, I am left unsatisfied that the applicant has demonstrated that the respondent’s finding that he is not a fit and proper person to hold registration was wrong and ought to be overturned. Accordingly, the application is dismissed, and I will hear from the parties as to any consequential orders, if necessary.