Health Ombudsman v Sudusinghe
[2023] QCAT 542
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- Unreported Judgment
- Health Ombudsman v Sudusinghe[2023] QCAT 542
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Health Ombudsman v Sudusinghe[2023] QCAT 542
Health Ombudsman v Sudusinghe[2023] QCAT 542
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Sudusinghe [2023] QCAT 542 |
PARTIES: | health ombudsman (applicant) v Rasika sudusinghe (respondent) |
APPLICATION NO/S: | OCR088-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 14 November 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Dr R Pittelli, Medical Practitioner Panel Member Dr J Quinn, Medical Practitioner Panel Member Ms K Thomson, Public Panel Member |
ORDERS: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a general practitioner – where the respondent has aided another health practitioner to breach conditions – where the parties agree that the conduct constitutes professional misconduct – whether conditions are to be imposed – practitioner reprimanded and fined Health Ombudsman Act 2013 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Ombudsman v Sudusinghe [2022] QCAT 99 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Background
- [1]The respondent is a registered medical practitioner and holds specialist qualifications as a general practitioner (‘GP’). The referral filed by the applicant on 29 April 2022 contains one allegation, namely that between 1 April 2020 and 28 September 2020, the respondent aided and/or enabled Dr Samitha Sudusinghe to breach conditions imposed on his registration by the Health Ombudsman on 6 June 2019.
- [2]The parties have filed an agreed statement of facts. The parties are agreed as to the proper characterisation of the alleged conduct. The conduct is admitted, and the parties have reached agreement as to the appropriate sanction. As a result, the matter proceeds on the papers.
The conduct the subject of the referral
- [3]The conduct subject of the referral involves Dr Samitha Sudusinghe, who is the husband of the respondent. On 1 February 2019, he was convicted in the District Court of Queensland of one count of sexual assault. On 6 June 2019, the Health Ombudsman took immediate registration action in respect of Dr Samitha Sudusinghe by imposing conditions on his registration which, in effect, banned him from having contact with female patients.
- [4]The respondent was obviously aware of her husband’s conviction, and she was aware of the imposition of the condition. She knew that he was prohibited from having contact with female patients.
- [5]Between those dates alleged, he had contact with five female patients in breach of the conditions. The particulars of the contact with the patients are set out in more detail in the statement of agreed facts, and indeed, not be repeated. In effect, he assisted and/or had contact with a patient in relation to the removal of a subdermal contraceptive device at the request of the respondent.
- [6]It is accepted that the conduct the subject of the referral occurred in circumstances which followed a period of sustained stress for the respondent, in that she has remained married to her husband and was obviously aware of his journey through the criminal courts, which included an unsuccessful appeal to the Court of Appeal. In October 2018, she opened her own general practice. She had financially committed to opening the practice before the complaint of sexual assault against her husband was made public.
- [7]It is accepted that the respondent had little social support during this period, and that her family were overseas. As a result of the imposition of the condition on her husband’s practice, he was unable to find employment, so it was in those circumstances that she employed him in her practice. She says in her affidavit that it would have been hard for her to refuse to employ him.
- [8]The parties agree that the admitted conduct constitutes professional misconduct in that it was conduct falling substantially below the standard expected of a doctor of an equivalent level of training and experience. The concession made by the respondent as to the characterisation of her conduct is properly made.
- [9]The principles relating to sanction are well-known and need not be repeated here. The respondent’s professional misconduct occurred in the context of what was clearly a highly stressful time for her in her life. Having said that, she well knew the condition was imposed on her husband’s registration relating to contact with female patients. She must’ve understood that the condition was there for a protective purpose. The patients were all booked in to see the respondent. She did not inform the patients of the restrictions on her husband’s practice before permitting him to have contact with them. She did not record his involvement with the five patients in any of her clinical records.
- [10]She admits all of this, and in her affidavit filed in these proceedings, she recognises that her conduct in aiding him to contravene the condition involved a serious departure from proper ethical and professional standards. It is common ground that she has some insight into her conduct, and there is no suggestion that she now is other than a fit and proper person to hold registration as a medical practitioner. Her husband has been before the Tribunal, and his registration has been cancelled, and he is not permitted to apply for registration for a period of two years from the date of the decision of the tribunal in Health Ombudsman v Sudusinghe.[1]
- [11]General deterrence is obviously the most important principle in play in the circumstances of this case. Given the fundamental importance to the proper operation of the regulatory system, of the need for health practitioners to comply with conditions imposed on their registration which are designed to protect the health and safety of the public, and particularly in this case, that of female patients.
- [12]I agree with the respondent’s counsel that the cases referred to in the applicant’s submission are not truly comparable. Neither party has found a case like this, where a health practitioner has aided another health practitioner to breach conditions. That is not surprising. The circumstances here are unique. The cases confirm the obvious seriousness of health practitioners not complying with registration conditions for the reasons stated earlier.
- [13]The orders proposed by the parties involve a reprimand, a substantial fine of $10,000 and a set of conditions being imposed on the respondent’s registration which, effectively, involve a five-hour education component focusing on ethical decision-making to be completed within six months with a reflective report. The proposed conditions are set out at pages 32-33 of the Hearing Brief.
Orders
- [14]The Tribunal decides that:
- The conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).
- Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent pay a fine of $10,000 to the Health Ombudsman.
- Pursuant to s 107(b)(i) of the Health Ombudsman Act 2013 (Qld), conditions be imposed on the practitioner’s registration that the respondent complete education in the terms of the attached schedule.
- Each party bears their own costs of the proceeding.
Annexure A – Schedule of Conditions
Schedule of Conditions
Education
- The practitioner must undertake and successfully complete a program of education, approved by the Medical Board of Australia (‘the Board’) and including a reflective practice report, in relation to ethical decision making.
- The practitioner must, on the approved form (HPN24) nominate for the approval by the Board an education course, assessment or program (the education) addressing the topics required. The practitioner must ensure:
- the nomination includes a copy of the curriculum of the education;
- the education consists of a minimum of 5 hours including ethical decision making; and
- the education contains a formal assessment component in relation to ethical decision making.
- The practitioner must complete the education within 6 months of the notice of the Board’s approval of the education.
- Within 28 days of the completion of the education, the practitioner is to provide to Ahpra:
- evidence of successful completion of the education;
- a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition and how the practitioner will incorporate the lessons learnt in the education into the practitioner’s practice; and
- evidence of having undertaken and successfully completed the formal assessment component of the education.
- All costs associated with compliance with the conditions on their registration are at the practitioner’s own expense.
Review of conditions
- Subdivision 2, Division 11, Part 7 of the National Law applies to these conditions.
- Pursuant to section 196(3) of the National Law and for the purposes of Subdivision 2, Division 11, Part 7 of the National Law, the relevant review period for the conditions is 6 months.
Footnotes
[1] [2022] QCAT 99.