Medical Board of Australia v Pawape (No. 2)
[2024] QCAT 141
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- Unreported Judgment
- Medical Board of Australia v Pawape (No. 2)[2024] QCAT 141
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Medical Board of Australia v Pawape (No. 2)[2024] QCAT 141
Medical Board of Australia v Pawape (No. 2)[2024] QCAT 141
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Pawape (No. 2) [2024] QCAT 141 |
PARTIES: | Medical Board of australia (applicant) v gibson pawape (respondent) |
APPLICATION NO/S: | OCR112-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 19 April 2024 |
HEARING DATE: | 14 November 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM Dr Wendy Grigg Dr Ankur Gupta Dr Katherine Hames |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent had conditions imposed on his registration – where the respondent breached those conditions – where breach of conditions was found to be professional misconduct – respondent reprimanded PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC – where the Board referred the matter to the Tribunal pursuant to s 193B of the Health Practitioner Regulation National Law (Queensland) ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent applied for non-publication order – where onus is on respondent – where respondent relies on embarrassment and professional impact – where reasons for order are insufficient – application dismissed Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) CLW v Health Ombudsman [2023] QCAT 97 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Dye v Commonwealth Securities Ltd (2010) 273 ALR 248 Health Ombudsman v Barber [2017] QCAT 431 Health Ombudsman v Shemer (No 2) [2019] QCAT 54 Medical Board of Australia v Duggirala [2015] QCAT 557 Medical Board of Australia v House [2020] QCAT 336 Medical Board of Australia v Jones [2012] QCAT 362 Medical Board of Australia v Pawape [2023] QCAT 311 Medical Board of Australia v XY [2017] QCAT 443 Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340 Pawape v Medical Board of Australia [2023] QCAT 262 Pearse v Medical Board of Australia [2013] QCAT 392 Peeke v Medical Board of Victoria (Supreme Court of Victoria, Marks J, 19 January 1994) Pharmacy Board of Australia v Ludwick [2013] QCAT 235 The Health Ombudsman v Jolley [2019] QCAT 173 X v Australian Prudential Regulation Authority (2007) 226 CLR 630 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Templeton, instructed by Clayton Utz Lawyers |
Respondent: | Self-represented |
REASONS FOR DECISION
History
- [1]The respondent, Gibson Pawape, is a registered medical practitioner. The applicant Medical Board, imposed conditions on the respondent's registration pursuant to s 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) on 1 February 2023. The respondent reviewed that decision. The review decision, Pawape v Medical Board of Australia,[1] set aside the Board’s decision, but imposed conditions substantially similar to those imposed by the Board.[2]
- [2]By referral filed on 24 April 2023, the Board alleges five breaches of the conditions imposed on the respondent.
Submissions
- [3]The conduct the Board alleged constitutes professional misconduct or unprofessional conduct are as follows:[3]
- Ground one: the respondent breached conditions imposed on his registration on 12 September 2018 by the medical Council of New South Wales (Council) by practising between 25 February 2019 and 7 March 2019 without prior approval of a group practice, contrary to condition one, and without prior approval of a supervisor, contrary to condition two.
- Ground two: the respondent breached conditions imposed on his registration on 20 April 2020 by the council by practising on 16 and 24 July 2020, without prior approval of a group practice, contrary to condition one, and without prior approval of a supervisor contrary to condition two.
- Ground three: that on the 16th and 24th of July 2020, the respondent falsified details on prescriptions by amending the name on the scripts from the intended recipient, Ms Lucy Pawape (his mother), to his name, so as to:
- Avoid detection of his non-compliance with the conditions imposed on 20 April 2020 (albeit the respondent was just as likely to be discovered prescribing to himself); and
- Access the pharmaceutical benefits scheme for the medication, in circumstances where Ms Lucy Pawape, a resident of Papua New Guinea, was not entitled to access that scheme.
- Ground four: that the respondent breached conditions imposed on his registration on 10 September 2020 by the Board by practising on 12, 15, 18 and 26 June 2021 in breach of condition four by exceeding 30 patient consultations on each of those days.
- Ground five: that the respondent breached conditions imposed on his registration on 10 September 2020 by the Board by failing to maintain and provide to the Australian Health Practitioners Regulation Agency (AHPRA) a logbook detailing his contact with patients between 11 June 2021 and 30 September 2021, as required by condition seven.
- [4]The applicant summarised the respondent’s response as follows:[4]
- Ground 1: the respondent admits he practised without first obtaining approval of a group practice and without prior approval of a supervisor. However, the respondent says that the fault for practising in breach of the conditions is shared with his recruiting agent. He denied that his conduct amounted to professional misconduct or unprofessional conduct.
- Ground 2: the respondent admits he issued a ‘one-off script’ for his mother, which was given in a medical emergency after his mother suffered a stroke … The respondent denies that this constituted ‘practise’. He denies that his conduct amounts to professional misconduct and appears to deny that it amounts to unprofessional conduct.
- Ground 3: the respondent admits that he issued the prescriptions. However, he says that he did so because it was an emergency, and they were life-saving drugs. He says he did not intend to deceive, by using his own name but did so because it was an emergency.
- Ground 4: the respondent appears to admit that he consulted with 31 patients on 12 June 2021 because he had consulted with a seriously unwell baby who had also seen the day before. He denies that he consulted more than 30 patients on each of the days alleged.
- Ground 5: the respondent’s response is unclear as to whether he admits or denies the allegation.
- [5]The Board submits that the Tribunal should find that the respondent has engaged in professional misconduct in respect of all five grounds and an appropriate sanction of reprimand should be imposed.
- [6]On 22 September 2021, the respondent admitted that he had not maintained a logbook as required by condition seven, constituting a breach of ground five.[5]
- [7]In this case, the Tribunal accepts the submissions made by the Board that the respondent’s conduct constitutes professional misconduct.[6] In particular, the Tribunal notes the submission made by the Board that conditions imposed by the regulator must be scrupulously observed and that as previously commented by the Tribunal:
It is a very serious matter indeed when a person who was privileged to practice subject to conditions chooses to breach those conditions, no matter what the circumstances of the breach might be.[7]
- [8]The Board's submission is that:
A failure to comply with a condition on registration is very serious matter, as it suggests the practitioner is not willing to observe the law and act consistently with the requirements of the relevant registration body. It is not open for a professional person to decide which conditions they chose [sic] to comply with or to disregard restrictions which have been placed on their registration.[8]
- [9]The Board submits that the appropriate sanction in this case is reprimand.
Applicable law
- [10]The applicant imposed conditions on the respondent’s registration pursuant to s 178(2)(c) of the National law.
- [11]Referral is made to the Tribunal pursuant to s 193B of the National Law.[9]
- [12]In s 5 of the National Law, professional misconduct is defined as including:
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner on an equivelant level of training or experience; and
- more than one insurance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered practitioner of an equivalent level of training or experience …
Discussion and decision
- [13]It is noted that the respondent has been the subject of regulatory action, resulting in his registration being suspended from 21 October 2021 to 15 September 2022, a period of approximately 14 months.[10]
- [14]It is also noted that the main guiding principle of the National Law is the protection of the public and that public confidence in the safety of services provided by registered health practitioners is paramount.
- [15]The purpose of disciplinary proceedings is to protect not to punish.[11]
- [16]It is noted that in determining sanction, the Tribunal must take into account the facts of each case. The Tribunal may consider factors including:
- the nature and seriousness of the practice misconduct;
- insight and remorse shown by the practitioner;
- the need for specific or general deterrence;
- 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;
- mitigating factors such as evidence of matters which may give context to the conduct, for example, mental health issues;
- other matters, including:
- (i)past disciplinary history;
- (ii)police history;
- (iii)character evidence;
- (iv)periods of preclusion/non-practice; and
- (v)cooperation during disciplinary proceedings.
- (i)
- [17]In particular, the Tribunal accepts the Board's submission that the respondent has not demonstrated insight into his misconduct because, his submissions both written and oral, are replete with suggestions that his non-compliance is the fault of others (or at least partially so) despite it being his personal obligation to ensure compliance.[12]
- [18]In this case, the Tribunal is satisfied that specific deterrence is a factor which must be taken into account. The respondent remains subject to extensive conditions imposed by the Board pursuant to s 178 of the National Law. The Board submits that the conditions remain in place because the respondent:
… still has areas of his clinical practice and decision-making that are unsatisfactory, albeit not to the catastrophic extent recorded by the Boards assessors” (review decision at [135]).[13]
- [19]It is also submitted and the Tribunal accepts that the review Tribunal found that the respondent had an “inflated opinion of his clinical competence” and “strongly resists any form of advice”.[14]
- [20]Dr Pawape appeared for himself in the application and was cross examined. The Tribunal noted that Dr Pawape did not or would not provide submissions to the Tribunal which in any way gave the Tribunal the sense of that Dr Pawape understood the allegations that were made against him in this referral or indeed his obligation to comply with conditions imposed by the Board.
- [21]He has provided substantial written submissions in respect of the allegations made against him The Tribunal accepts that on the one hand, the respondent is accepting the allegations made against him, on the other hand he attempts to shift blame to others, or to explain the behaviour on the basis that he is a highly experienced clinical medical practitioner and “knows best”.
- [22]As an example, in his lengthy and voluminous written submissions he makes the following comments in respect of the issue of insight:
What is lack of insight? Lack of insight is when a person with dementia is unable to recognise changes in their behaviour and emotions (that are caused by physical changes in the brain). Lack of insight is related to loss of activity in areas the front of a person’s brain (known as the frontal lobes).
This is demeaning and derogatory of the worse [sic] kind. QCAT must not allow on face value with no clinical evidence of loss of insight. This is worse [sic] kind of carpet bombing technique. It is almost racism of the worse [sic] kind. Therefore sick even to use it here with no evidence.
A [sic] enthusiastic defence of my clinical position is not lack of insight. That is what clinical medical [sic] is all about. Only a slavery gendered [sic] argument defeats the elements an u [sic] counter argument.
What the Applicant lawyer is really alluding to is saying you have no voice here in this QCAT court. You are a slave less then [sic] human in Australia. You are less than human-being. Shut up and listen. This is the message here.
My evidence of insight and contrition and reflection is my last 12–24 months in total compliance with the AHPRA condition. I have not written any more script from my mother or myself. I do not self–prescribe S8 drugs. QCAT just need to ask My Mark Fivaz my Ahpra monitoring officer assigned to me to confirm this. I have not had any drink and driving charges (for one do not drink alcohol) …[15]
- [23]Having regard to the oral submissions made by the respondent during the hearing it is clear to the Tribunal that the respondent continues to maintain the views identified by the review Tribunal.
- [24]The Tribunal accepts that given that it appears clear that the respondent has not changed his view in respect of these matters, that there is a real need for a sanction, which reinforces the need for compliance with his current conditions.[16]
- [25]The Tribunal has also taken into account the need for general deterrence such that other practitioners will be mindful of their obligations to comply with conditions when where they have a significant history of non-compliance or dishonest dealings with the Board.[17]
- [26]The Tribunal was provided a number of comparative decisions for the consideration of the Tribunal.[18] The Tribunal accepts the submission that this case is similar to the decision in Medical Board of Australia v House,[19] where a practitioner repeatedly breached conditions which required him to work only at approved places of practice and with supervision. Reprimand was ordered in that case.
- [27]It should be noted that a reprimand is not a trivial sanction.[20] It is “an official rebuke for past wrongful conduct” and will be recorded on the register of practitioners until removed by the Board.
- [28]The Board's submission that a reprimand is the appropriate sanction in this case is accepted by the Tribunal. It is noted that the respondent’s registration has already been suspended for a period of about 14 months and the respondent's breaches of the conditions do not indicate an intention to deliberately flout the authority of the regulator, but rather a failure to take personal responsibility for his own compliance.[21]
- [29]The Tribunal notes that the respondent is on notice that should he breach the conditions of his registration on further occasions, he is likely to jeopardise his ongoing registration as a medical practitioner.
- [30]The Tribunal acknowledges that supervision is sometimes difficult and not ideal. However, having regard to the respondent’s previous referrals, and the matters that were referred to in the review decision it is a fact which Dr Pawape must come to grips with for the time being. His continuing practice as a medical practitioner is completely within his own hands.
- [31]The Tribunal was not called upon to make any adjustments or alterations, or indeed, as Dr Pawape would prefer, to remove the conditions imposed by the Review Decision. The Tribunal adopts the comment made by the review Tribunal at [132] that:
In summary, the Tribunal's conclusions and findings set out above lead to the conclusion (one reached by other doctors who have supervised or mentored him), that the applicant is capable of practising competently but strongly resists any form of advice from colleagues that contradict his own inflated opinion of his clinical competence.[22]
- [32]The comments made by the review Tribunal at [135] are still applicable to the respondent now. The review Tribunal said about the respondent’s “Doctor centred” approach to clinical practice that:
that does establish that he still has areas of his clinical practice and decision-making that are unsatisfactory, albeit not to the catastrophic extent recorded by the Board's assessors. His conduct issues can be adequately addressed by the education and monitoring conditions in Exhibit 2, and his clinical decision-making and patient communication deficiencies as set out above can be appropriately addressed by the supervision and mentoring conditions set out in Exhibit 2.[23]
Applications for non-publication order
- [33]On 13 September 2023 and 14 April 2024, the respondent made applications seeking orders for non-publication pursuant to s 66(1) of the QCAT Act, for the non-publication of, inter alia, the reasons for an interlocutory decision in this matter.[24] The Interlocutory Decision has been published on the Supreme Court of Queensland Library and Queensland Judgment websites, as is standard practice for the Tribunal, particularly in occupational regulation matters.[25]
- [34]The Tribunal has the power to make orders for non-publication of documents or things that identify or could lead to the identification of a person concerned with or affected by the proceeding.[26]
- [35]However, s 66(2) of the QCAT Act provides that such an order can only be made if the Tribunal considers the order is necessary:
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
- [36]While the s 66(2)(e) provides a mechanism for an order for non-publication to be made in the exercise of the Tribunal’s discretion, “the discretion is not to be exercised lightly”,[27] and is “informed by the paramount principle of open justice”.[28] The onus is on the applicant for a non-publication order to show that it ought be granted.[29]
- [37]At their best, the reasons identified by the respondent as making an order for non-publication necessary can be understood as:
- embarrassment to the respondent; and
- professional impact on the respondent.
- [38]Neither embarrassment nor professional impact are sufficient reasons to grant an order for non-publication, particularly in circumstances where the decision has already been published.[30]
- [39]Accordingly, the respondent’s applications for non-publication orders in proceeding No. OCR 112 of 2023 are dismissed.
Orders
- [40]In all the circumstances, the Tribunal makes the following findings and orders:
- Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
- The applications for miscellaneous matters filed by the respondent on 13 September 2023 and 14 April 2024 seeking orders for non-publication in proceeding No. OCR 112 of 2023 are dismissed.
- No order as to costs.
Footnotes
[1] [2023] QCAT 262 (‘Review Decision’).
[2] Applicant’s submissions filed 22 September 2023 (‘Applicant’s submissions’), [1].
[3] Applicant’s submissions, [2].
[4] Applicant’s submissions, [3].
[5] Applicant’s submissions, [18].
[6] Applicant’s submissions, [22]–[23].
[7] Medical Board of Australia v Duggirala [2015] QCAT 557, [6] (Horneman-Wren SC DCJ).
[8] Nursing and Midwifery Board of Australia v Fisher [2018] VCAT 1340, [69] (Senior Member Dea).
[9] See also, Health Ombudsman Act 2013 (Qld) (‘HO Act’) ss 94(2)–(4); Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 10(1)(b).
[10] Hearing Brief (‘HB’), pp 368–373 and 389–399.
[11] The Health Ombudsman v Jolley [2019] QCAT 173, [75] (Sheridan DCJ); Health Ombudsman v Barber [2017] QCAT 431, [34] (Sheridan DCJ).
[12] Applicant’s submissions, [29]–[31].
[13] Applicant’s submissions, [32].
[14] Ibid; Review Decision (n 1), [132]–[136] (Judicial Member Robertson).
[15] Respondent’s submissions filed 23 October 2023 (‘Respondent’s submissions’), HB p 213.
[16] Applicant’s submissions, [32].
[17] Applicant’s submissions, [33].
[18] See Applicant’s submissions, [35]–[39].
[19] [2020] QCAT 336.
[20] Peeke v The Medical Board of Victoria (Supreme Court of Victoria, Marks J, 19 January 1994); Medical Board of Australia v Jones [2012] QCAT 362, [14] (Kingham DCJ); Pharmacy Board of Australia v Ludwick [2013] QCAT 235, [57] (Horneman-Wren SC DCJ).
[21] Applicant’s submissions, [42].
[22] Review Decision (n 1), [132] (Judicial Member Robertson).
[23] Ibid, [135].
[24] Medical Board of Australia v Pawape [2023] QCAT 311 (Dann DCJ) (‘Interlocutory Decision’).
[25] See Pearse v Medical Board of Australia [2013] QCAT 392, [68] (Horneman-Wren SC DCJ).
[26] QCAT Act s 66(1).
[27] Medical Board of Australia v XY [2017] QCAT 443, [81] (Sheridan DCJ).
[28] Health Ombudsman v Shemer (No 2) [2019] QCAT 54, [6] (Allen KC DCJ).
[29] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [9] (Wilson J).
[30] CLW v Health Ombudsman [2023] QCAT 97, [10] (Dann DCJ); Pearse v Medical Board of Australia [2013] QCAT 392, [68]–[70] (Horneman-Wren SC DCJ); See also, Dye v Commonwealth Securities Limited (2010) 273 ALR 248; Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151; See, generally, X v Australian Prudential Regulation Authority (2007) 226 CLR 630, 655–656 [89] (Kirby J).