Health Ombudsman v Boyle[2023] QCAT 270

 [2023] QCAT 270

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

DICK SC, Judicial Member

Assisted by:

DR CAVANAGH

DR ELLWOOD

MR MURDOCH

No OCR 389 of 2020

HEALTH OMBUDSMAN Applicant

v

BOYLE, Robert Neil Respondent

BRISBANE

TUESDAY, 14 FEBRUARY 2023

JUDGMENT

Background

1. [1]
   JUDICIAL MEMBER: The respondent is aged 76, having been born on the 14th of October 1945. He holds registration as a medical practitioner and, as part of his registration requirements, was required to maintain professional indemnity insurance.

Allegation 1

2. [2]
   The respondent had his 2015/16 policy cancelled on the 26th of May 2016 owing to his failure to pay his premiums, and accordingly he failed to maintain his insurance between the 1st of July 2016 and the 14th of August 2016, and during that time he performed procedures in plastic and reconstructive surgery. His policy, which he reinstated on the 15th of August 2016, included retroactive cover from the 1st of June 2002.

Allegation 3

3. [3]
   The respondent’s personal assistant submitted an application for renewal for the 2018/19 period. This application was refused. He was, therefore, uninsured from the 1st of July 2018 to the 25th of September 2018, and during that time he performed procedures and held consultations. On the 26th of September 2018 he obtained cover, including retroactive cover from the 1st of July 2000. In total, the respondent failed to maintain his cover for approximately four and a-half months.

4. [4]
   There is an agreed statement of facts that says that the failure was reckless and attributable to poor administration rather than a deliberate decision to practice without insurance.

Allegation 5

5. [5]
   As part of an application to secure online registration renewal, the respondent falsely declared that he had practised in accordance with the requirements of the Medical Board’s professional indemnity insurance regulation standards. It is agreed that the declaration was reckless and did not constitute a knowingly dishonest representation.

6. [6]
   The definitions of “professional misconduct” or “unprofessional conduct” pursuant to the Health Practitioner Regulation National Law (Queensland) are set out in the submissions on behalf of the Ombudsman at page 3. Parties are in agreement, however, that the conduct does not meet the threshold of professional misconduct and constitutes unprofessional conduct on the following bases:

3. (a)
   the period involved was relatively brief;

3. (b)
   it was due to poor administration;

3. (c)
   the respondent obtained retroactive cover which protected his patients during the relevant periods when he was not insured;

3. (d)
   he has demonstrated remorse;

3. (e)
   he has otherwise an unblemished career of over 50 years.

7. [7]
   The Tribunal has considered the comparable matters placed before it.

Sanction

8. [8]
   The purpose of these proceedings is to maintain professional standards and public confidence in the profession and to protect the public. The public should feel confident that practitioners have the appropriate insurance to cover any claim for damages arising from negligent treatment. Here, the applicant accepts that the respondent has demonstrated genuine remorse, and the parties have reached agreement as to the appropriate sanction. It is, of course, still a matter for the Tribunal, but the agreement between the parties should not be disturbed unless for a compelling reason.

9. [9]
   The applicant suggests that a reprimand is appropriate and says that a reprimand is not a trivial penalty and satisfies, primarily, the need for general deterrence. The Tribunal accepts that submission.

10. [10]
    The Tribunal’s findings and orders are as follows:

3. a.
   the respondent has engaged in unprofessional conduct;

3. b.
   orders that the respondent be reprimanded;

3. c.
   makes no orders as to costs.