Podiatry Board of Australia v XBR
[2024] QCAT 312
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- Unreported Judgment
- Podiatry Board of Australia v XBR[2024] QCAT 312
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Podiatry Board of Australia v XBR[2024] QCAT 312
Podiatry Board of Australia v XBR[2024] QCAT 312
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Podiatry Board of Australia v XBR [2024] QCAT 312 |
PARTIES: | Podiatry Board of Australia (applicant) v XBR (respondent) |
APPLICATION NO: | OCR 124 of 2023 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 28 October 2024 |
HEARING DATE: | 15 August 2024 |
HEARD AT: | Brisbane |
FURTHER SUBMISSIONS: | 29 August 2024 and 5 September 2024 |
DECISION OF: | Judicial Member Dick SC Assisted by: Ms A Downey, Podiatry Panel Member Ms K McEntegart, Podiatry Panel Member Mr M Halliday, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – OTHER HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was a registered podiatrist who, inter alia, committed acts of serious domestic violence and breached domestic violence orders – where the respondent is reprimanded and suspended from practice Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Craig v Medical Board of South Australia (2001) 79 SASR 545; [2001] SASC 169 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Ombudsman v HCG [2020] QCAT 166 Health Ombudsman v McGuinness [2020] QCAT 1 Medical Board of Australia v Koulouris [2020] VCAT 348 |
APPEARANCES & REPRESENTATION: | |
Applicant: | R M de Luchi instructed by Clayton Utz |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]These are disciplinary proceedings brought by the Podiatry Board of Australia (Board) against the respondent. The Board referred the respondent’s conduct to the Tribunal for hearing and determination pursuant to ss 193(2)(b) and (3)(a)(i) of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [2]Section 196 of the National Law sets out the decisions available to the Tribunal. It is open to the Tribunal to make the following findings:
- (a)that the respondent has no case to answer and no further action is to be taken in relation to the matter; or
- (b)one or more of the following:
- (i)that the respondent has behaved in a way that constitutes unprofessional conduct; and/or
- (ii)that the respondent has behaved in a way that constitutes professional misconduct.
- [3]Neither party has submitted that the Tribunal should adopt the course in [2](a).
- [4]The National Law defines “unprofessional conduct” as, relevantly:
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.[1]
- [5]The National Law defines “professional misconduct” as, relevantly, including:
unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[2]
Background
- [6]At all material times, the respondent was a registered podiatrist.
- [7]The respondent admits that on 4 January 2021, he committed acts of domestic violence against his wife and exposed his three children to domestic violence including by:
- (a)sending a text message to his wife and daughter which said:
- When you get home you will either support me and love me or watch me die.
- (b)holding a knife in his hand while telling his wife that he would not leave without killing her and himself;
- (c)following his wife into the bedroom where she went to make a 000 call and holding her head down on a bed; and
- (d)following his wife into the family room where he pushed her against a wall and took the phone.
That behaviour forms the basis of ground 1 of the referral.
- [8]Two days earlier, on 2 January 2021, the respondent and his wife attended Springwood Police Station. While at the police station, police located and seized cannabis oil in the respondent’s car.
- [9]On 22 February 2021, the respondent pleaded guilty to a charge of possession of a dangerous drug. This conduct forms the basis of ground 2 of the referral.
- [10]On 8 January 2021, a domestic violence order (DVO) was made against the respondent, requiring him to be of good behaviour to his wife and children. It further prohibited him from contacting his wife except with written consent or except when arranging contact with the children. Further, he was prohibited from approaching to within 50 metres of his wife, except with written consent or when having contact with the children by prior arrangements.
- [11]The respondent breached the DVO on three occasions:
- on 17 May 2021, when he attempted to gain entry to the wife’s residence without consent;
- on 18 May 2021, when he sent text messages to his wife, including by sending a link to an article about a woman who went to police with domestic violence concerns before she was murdered; and
- on 15 September 2021, the respondent attended an event at his child’s school while his wife was present and used abusive and/or aggressive language towards his wife via a phone call.
- [12]In respect of the first two breaches, he pleaded guilty on 7 June 2021. In respect of the third breach, he pleaded guilty on 13 December 2021. This conduct forms the basis of ground 3 in the referral.
- [13]The breaches of the DVO and the drug charge are punishable by 12 months imprisonment or more. The respondent was thereby required to notify the Board in writing within 7 days of each charge and guilty finding.[3] He failed to do so and this conduct/failure forms the basis of ground 4.
- [14]On or about 28 October 2022, the respondent completed an online application for renewal of registration. In answer to the question “since your last declaration, has there been any change to your criminal history in Australia that you have not declared to Ahpra?”, the respondent answered “no” despite pleading guilty on 13 December 2021 to breaching the DVO. This conduct forms the basis of ground 5.
Burden and standard of proof
- [15]The Board bears the onus of proof and must satisfy the Tribunal of relevant acts and matters to the Briginshaw standard.[4]
Admissions
- [16]In respect of grounds 2, 3, 4 and 5, the respondent admits his conduct amounts to unprofessional conduct, but denies that he engaged in professional misconduct. In respect of ground 1, he does not admit the particulars or the characterisation of the conduct.
Respondent’s statement
- [17]The Tribunal has before it a statement signed by the respondent on 10 April 2024[5] which appears to have been sent by the respondent directly to the Tribunal’s registry.
- [18]That statement is of considerable concern to the Tribunal.
- [19]Firstly, the tone is histrionic, and this statement was dated 10 April 2024.
- [20]Secondly, the statement reveals that the respondent has an idiosyncratic and often incorrect view of the law. For example, he maintains he has never physically assaulted his wife.[6] The Tribunal is aware he has not been charged with or convicted of assault. However, the definition of “assault” in the Criminal Code 1899 (Qld) is as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.[7]
- [21]Therefore, the “pushing and shoving” and wielding of the knife in the circumstances that pertained, fit the definition. At the hearing he withdrew this submission.
- [22]The respondent also refers to an incident on 2 January 2021 (presumably after he and his wife visited the police station) where he says his wife took his car keys and “locked him out of his own home” for some days.[8] He alleges that this amounted to “coercive control”, ignoring that the definition he provided refers to “a pattern of behaviour”.[9]
- [23]The respondent submits that the Tribunal should consider the impact of Covid-19 on his health at the time.[10] It has done so, despite the fact he has produced no psychiatric/psychological evidence to support the claim.
- [24]The respondent claims he is also a victim of domestic abuse and “has been verbally and psychologically abused by his wife since 1997”.[11] The respondent says that there is evidence of this because he has signed “this … affidavit”.[12] Whilst it is true that the Tribunal is not bound by the rules of evidence, the document is not an affidavit and has not been tested, which affects the weight to be given to it.
- [25]The respondent’s wife has not seen the statement. Her character reference was dated prior to the statement, which somewhat detracts from her view of his “calm mental space”.[13]
- [26]There are other unmeritorious claims which significantly detract from his claims of contrition, insight and remorse.
Characterisation of the conduct
Ground 1
- [27]The conduct the subject of ground 1 is objectively serious. The respondent has admitted to domestic violence against his wife and to exposing his three children to domestic violence. The domestic violence included threats to kill himself or his wife whilst holding a knife and is especially egregious.
- [28]
While it may not have been so in the past, it has been rightly accepted in a number of recent cases (in other jurisdictions) that acts of domestic and family violence committed by health practitioners can give rise to professional misconduct or unprofessional conduct under the National Law.
- [29]
domestic violence is a matter of serious concern … [making] the maintenance of professional standards and public confidence in the profession matters of importance in this proceeding.
- [30]
Health practitioners must know that committing acts of family violence can result in a finding of professional misconduct, and in serious consequences including reprimand, suspension or, possibly, cancellation of registration.
- [31]
Ground 2
- [32]The respondent failed to act in accordance with the law.
Ground 3
- [33]The respondent breached a court order on three separate occasions. This can only be viewed as contemptuous and wilfully disobedient to the law and the authority of the court.
Grounds 4 and 5
- [34]The respondent had been in practice for many years and should have been aware of his obligations and abided by them. His ignorance is not excusable.
- [35]These are not trivial breaches, undermining, as they do, the effectiveness of National Boards in fulfilling their protective duties.
- [36]The Tribunal has previously said that the failure to notify the Board of relevant events under the National Law is:
regarded as aggravating the professional misconduct of the respondent and this is encompassed within the ultimate finding of professional misconduct.[21]
- [37]The Tribunal is satisfied to the required standard that the respondent’s conduct as alleged in grounds 1–5 of the referral constitutes professional misconduct.
Sanction
- [38]
- [39]The Tribunal must consider mitigating factors, such as insight, remorse and rehabilitation.
Insight
- [40]The Board accepts that the respondent has demonstrated some insight by his pleas of guilty in the criminal proceedings. Unfortunately, his statement of April 2024 severely detracts from this. He seeks to place blame on his wife, even posing the question:
Had the respondent’s wife agreed to calmy [sic] resolve their differences (as the respondent had wished) instead of driving to the police station on January 2nd 2021, then informing the police of the cannabis oil, then locking the respondent out of his home after he paid $100 to catch an Uber from Brisbane to the Gold Coast, would the ensuing domestic violence have occurred at all? No, it would not.[24]
- [41]This overlooks the fact that the domestic occurred two days later when there was “time for his passion to cool”.[25]
Remorse
- [42]The respondent has acknowledged the impact of the conduct on his family and the disrepute this has brought upon the profession.
Rehabilitation
- [43]The respondent has undertaken education courses on relevant topics. He joined Alcoholics Anonymous and saw a psychologist, but there is limited evidence of ongoing participation with either.
- [44]This is important because the respondent has, on his own evidence, a long-term history of alcohol abuse which has reawakened during times of personal stress.
References
- [45]The respondent has supplied glowing references from professional colleagues and the Tribunal has given these references due regard.
Comparable cases
- [46]The Board has provided details of comparable cases together with a caveat that care should be taken when comparing the cases and that they should provide guidance only.[26]
- [47]The respondent seeks to differentiate the cases to his and he is entitled to do so. However, absent in any of those cases is the presence of a weapon and repeated breaches of court orders.
- [48]The Tribunal notes that Health Care Complaints Commission v Haasbroek[27] is dated and related to conduct in 2015.
- [49]The Board submits that although a reprimand is a serious matter, a period out of professional practice is required to reflect contemporary community standards, to send a clear message about the consequences that will follow such conduct, and to provide general deterrence.[28]
- [50]The respondent submits that he has recently started employment with Queensland Health and is in a probationary period. He will lose his employment if suspended. He practices in an area of need and there will be serious consequences for his family’s financial security.[29]
- [51]Annexure 1 to the Respondent’s material is a role description for the position he presently holds. The Tribunal is of the view that the respondent, in his submission, overstates his qualifications and the fact there is basically no one else who can fulfil the role. Having read the material and the submissions, the Tribunal is of the view that the role could be undertaken by other experienced podiatrists. Nonetheless, the Tribunal accepts that backfilling the respondent’s role for a lengthy period may lead to sustained workplace shortages.
- [52]Any term of suspension will have effects. Apart from the stigma, it may affect present and future employment, housing arrangements and financial arrangements. This does not mean a suspension should never be imposed.
- [53]Ultimately, it is for the Tribunal to balance these competing factors, but the need for general deterrence and the need to maintain confidence in the profession, lead the Tribunal to the view that a period of suspension is called for in this case.
Orders
- [54]Accordingly, the Tribunal decides that:
- The respondent has engaged in professional misconduct.
- The respondent is reprimanded.
- The respondent is fined $10,000 to be paid to the Health Ombudsman within two months from the date of this order.
- The respondent’s registration is suspended for a period of one month.
- Each party is to bear its own costs of and incidental to the proceeding.
Footnotes
[1] National Law s 5 (definition of ‘unprofessional conduct’).
[2] Ibid, s 5 (definition of ‘professional misconduct’).
[3] National Law s 130.
[4]Briginshaw v Briginshaw (1938) 60 CLR 336.
[5] Response to Board’s Outline of Submissions dated 10 April 2024 (respondent’s statement).
[6] Respondent’s statement, [4(b)].
[7]Criminal Code 1899 (Qld) s 245(1).
[8] Respondent’s statement, [4(d)].
[9] Respondent’s statement, [4(d)].
[10] Respondent’s statement, [4(e)].
[11] Respondent’s statement, [4(f)].
[12] Respondent’s statement, [4(f)].
[13] Respondent’s statement, Annexure 1.
[14] [2020] VCAT 157 (‘GMR’).
[15] [2020] QCAT 166 (‘HCG’).
[16] [2020] VCAT 348 (‘Koulouris’).
[17] Podiatry Board of Australia, Code of Conduct for Registered Health Practitioners, March 2014 (2014 Code).
[18] 2014 Code, statement 1.1.
[19] 2014 Code, statement 1.2; Australian Health Practitioner Regulation Agency, Code of Conduct, June 2022 (2022 Code), statement 8.
[20] 2014 Code, statement 9.
[21]Health Ombudsman v McGuinness [2020] QCAT 1, [12].
[22]Craig v Medical Board of South Australia (2001) 79 SASR 545, [45].
[23] See also, National Law s 3A(1).
[24] Respondent’s statement, [4(f)] (emphasis in original).
[25] See, e.g, Criminal Code 1899 (Qld) s 269.
[26] Board’s Outline of Submissions filed 22 March 2024 (Board’s submissions), [42].
[27] [2018] NSWCATOD 177
[28] Board’s submissions, [64]–[65].
[29] Respondent’s statement, [1].