Medical Board of Australia v TXA (No 3)
[2023] QCAT 261
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- Unreported Judgment
- Medical Board of Australia v TXA (No 3)[2023] QCAT 261
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Medical Board of Australia v TXA (No 3)[2023] QCAT 261
Medical Board of Australia v TXA (No 3)[2023] QCAT 261
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v TXA (No 3) [2023] QCAT 261 |
PARTIES: | medical board of australia (applicant) v txa (respondent) |
APPLICATION NO/S: | OCR346-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 26 July 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, assisted by: Professor J Searle, Dr G Kelly, Ms C Ashcroft |
ORDERS: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – UNPROFESSIONAL CONDUCT – practitioner accepted as patient husband of close friend of practitioner’s wife, friend of practitioner – breach of Code of Conduct – found to be unprofessional conduct – registration of practitioner suspended by Board – sanction Health Practitioner Regulation National Law (Qld) ss 193B(2), 196(2)(a) Health Ombudsman v De Celis [2019] QCAT 140 Health Ombudsman v Gillespie [2021] QCAT 54 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 Psychology Board of Australia v GA [2014] QCAT 409 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Wilson, instructed by King & Wood Mallesons, solicitors |
Respondent: | S Robb, instructed by Meridian Lawyers |
REASONS FOR DECISION
- [1]This is a referral by the applicant of a disciplinary matter against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). Under s 126 of the Health Ombudsman Act 2013 (Qld) (“the Act”), I constitute the Tribunal, and am acting with assessors Professor J Searle, Dr G Kelly and Ms C Ashcroft in accordance with the Act.[1]
- [2]On 31 March 2023, the Tribunal decided that the respondent’s conduct, in accepting as a patient a person with whom he had a personal relationship, amounted to unprofessional conduct, but otherwise took no action on the referral.[2] At the request of the parties, the question of sanction was adjourned to await further submissions, in the light of the findings of the Tribunal.
- [3]Both parties have now provided submissions in writing to the Tribunal in relation to sanction. The submissions were made in the context that, as noted in the earlier reasons of the Tribunal, the registration of the respondent was suspended by the applicant, and it remained suspended for over five months before the suspension was set aside on review by the Tribunal. That the respondent has already suffered this consequence of his conduct is something to be taken into account in arriving at a sanction.[3]
Submissions
- [4]The applicant submitted that the respondent should be reprimanded. Because of the conduct, the patient’s relationship with his treating practitioner had been disrupted, and the conduct involved a failure to prioritise good medical care over the respondent’s friendship and interests. The respondent lacked adequate awareness of his professional obligation to maintain boundaries between his treating relationships and his personal relationships. General deterrence was relied on.
- [5]The respondent submitted that no further sanction should be imposed, and that he should not be reprimanded. He submitted that a reprimand was a serious sanction, citing Health Ombudsman v Gillespie [2021] QCAT 54 at [21], and relied on the period of suspension already experienced. It was submitted that there was no need for further sanction to protect the public or to ensure public confidence in the profession, or for specific or general deterrence.
Consideration
- [6]In imposing a sanction, the health and safety of the public are paramount.[4] Disciplinary proceedings are protective, not punitive in nature.[5] Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[6] Insight and remorse on the part of the respondent are also relevant.[7] Where fitness to practise is in issue, what matters is the fitness of the respondent at the time of the hearing rather than at the time of the relevant conduct.[8] A list of factors which may, in a particular case, be relevant was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].
- [7]As noted in the previous reasons, since returning to practise the respondent has on his own initiative reduced his workload, and has undertaken further education on professional ethics and boundaries.[9] I accept that he has now shown remorse for his conduct, and insight into why it was unprofessional. There is no need for personal deterrence. As I said in the earlier reasons, I do not regard this as a serious example of unprofessional conduct. It is appropriate to take into account the period of suspension as a result of the decision of the applicant as a sanction already served. This is a more severe sanction than I would have considered if no suspension had been previously imposed. As well, the respondent was put to trouble and expense to get it set aside.
- [8]Under the National Law, the option is open to the Tribunal to caution the respondent in relation to the conduct the subject of the referral: s 196(2)(a). That is a lesser sanction than a reprimand,[10] and an appropriate response to a relatively minor example of unprofessional conduct. I acknowledge the assistance of the assessors in this matter. The decision of the Tribunal is that the respondent be cautioned for the conduct the subject of the earlier decision of the Tribunal. The respondent has foreshadowed making submissions on costs. I will give directions for such submissions.
Footnotes
[1] The Act s 126. For their function, see s 127.
[2] [2023] QCAT 115.
[3]Psychology Board of Australia v GA [2014] QCAT 409 at [39]; Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [21]; Health Ombudsman v De Celis [2019] QCAT 140 at [12].
[4] National Law s 3A, s 4.
[5]Legal Services Commission v Madden (No 2) [2009] 1 Qd R 149 at [122]. See also Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at [29]–[31].
[6]Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. See also Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553; Medical Board of Australia v Zhao [2021] VCAT 1053 at [115].
[7]Medical Board of Australia v Blomeley [2018] QCAT 163 at [140]–[143].
[8]Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].
[9] Hearing Book p 502.
[10] As to a reprimand, see Health Ombudsman v De Celis (supra) at [13].