Health Ombudsman v KGY[2024] QCAT 337

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 9 August 2024, the Tribunal made orders in this matter and indicated it would deliver reasons subsequently.  These are those reasons.
2. [2]
   In 2019, KGY was working as a principal house officer in orthopaedics at a major public hospital.  Between June and August of that year KGY sent, on 12 separate occasions, various photos, videos and x-ray images to his then girlfriend, and another woman with whom he was in a relationship.
3. [3]
   A complaint to the Health Ombudsman resulting from that conduct has led ultimately to these proceedings.
4. [4]
   The parties are agreed that the relevant conduct constitutes professional misconduct as defined.^[1]  The substantive issue between the parties is the sanction that should be imposed. 
5. [5]
   Specifically, the Health Ombudsman contends a reprimand should be given and, consequently, recorded on the public register.  KGY resists a reprimand being ordered and submits “it would be open to the Tribunal to caution KGY or not make any further order”.
6. [6]
   KGY’s submissions in that respect are centred on the asserted impact of the almost five-year delay between the conduct and the Tribunal’s determination, and the effect and asserted deleterious impact of a reprimand appearing against KGY on the public register. 

The Nature of the Conduct

7. [7]
   The images the subject of the Health Ombudsman’s referral were sent via text or WhatsApp. They consist of graphic images of presenting injuries suffered by patients.  The images were usually accompanied by commentary and messages directed to the trauma depicted.
8. [8]
   By way of example, the images included:

   1. a video picture of an abdominal CT of a person's rectum containing a deodorant can, with the following words and emojis overlaid “deodorant can up the ass” with two smiley face emojis;
   2. an image of a severe trauma injury to a patient's hand, leaving only two remaining fingers with bony protrusion and blood with the following associated commentary and messages “Clap clap”; “Haha. Another day. It's like chopsticks”; “Haha. I have more… But am about to go do something to it”;
   3. an image of a patient's foot with trauma, necrosis or some other injury with an admission label affixed to the top of the foot and the following message, “that's my night. A foot that looks like pizza haha”;
   4. images of what appears to be a compound fracture with bony protrusion through the skin together with three x-rays; and
   5. one image showed a partial patient name, “… WELL, BRIAN” but otherwise did not identify the patient.
9. [9]
   Obviously, the images were sent without the knowledge or permission of any of the patients or of KGY’s employer.
10. [10]
    The photographs were taken or obtained by KGY in the course of his work.  It is not suggested that the images were derived from patient records or that patient records were accessed for any purpose other than what was appropriate for medical purposes.
11. [11]
    The texts and images sent by KGY did not identify the patients concerned.  An investigation by KGY’s then employer could not identify any patients.  The images were not published to the public, for example by distribution on social media or the like.

Classification of the Conduct

12. [12]
    Notwithstanding the parties’ agreement, it is for the Tribunal to reach its own conclusion as to whether the subject conduct is “professional misconduct” as defined.
13. [13]
    The subject conduct exhibits a flippant disregard for the pain and suffering endured by the individuals whose injuries were displayed. It offends the standards of professional behaviour set out in the relevant Codes of Conduct, including, in particular, the obligations of doctors to practice with integrity and compassion.
14. [14]
    The conduct is of a lesser standard than that expected of doctors by the public and a doctor’s professional peers. There should be a finding that the conduct constitutes unprofessional conduct within the meaning of the National Law.
15. [15]
    The unprofessional conduct is serious and represents a substantial departure^[2] from behaviour reasonably expected of a doctor with KGY’s level of training and experience.  Again, reference to the relevant Codes indicates the degree of departure as does the peer assessment of the professional members of the Tribunal.
16. [16]
    The parties’ concession that the conduct is professional misconduct as defined is properly made.  There should be a finding that the unprofessional conduct constitutes professional misconduct as defined in the National Law.

What Sanction is Appropriate?

17. [17]
    The principles relevant to the imposition of sanctions are dictated by the National Law and have been referred to in numerous decisions of the tribunal. 
18. [18]
    These reasons should nevertheless record that the Tribunal is cognisant that the purpose of sanctions is protective and not punitive.  Punishment is not the aim of sanctions imposed by the Tribunal, although that may be an effect.^[3]  The health and safety of the public is the paramount consideration in imposing sanctions.^[4]
19. [19]
    Protecting the health and safety of the public includes preventing the risk of the same or similar conduct being perpetrated by the particular practitioner in the future - a factor referred to ubiquitously as “specific deterrence”.  It is agreed that is not a factor in this case.  Again, that concession is properly made.  The evidence before the Tribunal reveals:

    1. KGY has no disciplinary history other than the instant complaint;
    2. he is of good character: references from authors, all of whom are aware of the conduct under consideration, attest to his good character, work ethic and compassionate approach to his patients;
    3. he has genuine insight into the inappropriateness of the conduct and an appreciation of the importance of relevant ethical standards;
    4. he cooperated fully with the investigation and made full and early admissions;
    5. the conduct occurred in the context of a period of work and personal stress which has since abated; and
    6. his subsequent conduct as a general practitioner (and at the public fracture clinic where he also works) has been exemplary.
20. [20]
    A complementary component of sanction is ubiquitously referred to as “general deterrence”.  Within that concept is upholding the standards of the profession as a whole by deterring the body of practitioners from engaging in conduct of the sanctioned type.  Sanction operates as a signal to the profession as a whole that professional misconduct will have consequences.^[5] 
21. [21]
    The concept is also relevant to protection of the public because:

… making orders … will secure the maintenance of proper professional standards [and a] disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.^[6]

22. [22]
    Within those broad principles, the exercise of the tribunal’s discretion in each case falls to be considered by reference to the facts and circumstances particular to the individual case.

Comparable Decisions

23. [23]
    The parties’ written submissions concede that little assistance can be gained from comparable decisions – cases with comparable circumstances are not common.  The Health Ombudsman’s written submissions refer to two decisions, both of which, it properly concedes, are not directly comparable with the instant case.
24. [24]
    In Medical Board of Australia v Lee,^[7] “graphic and gory images” of deceased were published widely on social media and internet forums and included commentary described as “extreme[ly] misogynistic”.  In addition, intimate photos of the practitioner and his wife and “xenophobic, racist, bigoted or discriminatory commentary” and images of patients and their clinical records were published.  The publications occurred on repeated occasions over extended periods.  The Health Ombudsman concedes that “the nature, extent and context of the practitioner’s disclosures, and the comments made” in the instant case “were less serious than those in Lee”.^[8]  
25. [25]
    In Health Care Complaints Commission v FLX,^[9] photographs of an infant patient’s genitalia were taken by an enrolled nurse on her mobile phone.  The infant was born with both male and female genitalia.  The photos were contained in a confidential medical record.  The photos were shared with colleagues and discussed and were also discussed with members of the public at a club.  Plainly, the information on the patient records was not only confidential but highly sensitive.  Again, the Health Ombudsman concedes that case is distinguishable and that the accessing of confidential and sensitive patient information in that case is an exacerbating factor.

Does Significant Delay Play a Role in Sanction?

26. [26]
    Some delay is, regrettably, a common occurrence in this Tribunal.  Significantly limited financial and human resources and a demand greater than what those resources can meet makes delay inevitable. The delay here is particularly lengthy.  It is agreed that no aspect of the delay in this matter progressing to a hearing is attributable to any act or omission by KGY or those who represent him. 
27. [27]
    The written submissions on behalf of KGY refer to Health Ombudsman v ORC^[10] where the then Deputy President Allen KC DCJ referred, at [31], to “the mitigating effect of the delay in the resolution of this matter, not attributable to any fault of the [practitioner]”.  In my view, delay in and of itself is not a mitigating factor (and nor do I apprehend his Honour considered it to be so in ORC).
28. [28]
    The overriding concern of these proceedings and any sanction imposed is to protect the public.  Of itself, delay does not ameliorate that concern.  Indeed, it may exacerbate it.  However, delay can have a mitigating effect where the imposition of any particular sanction causes demonstrable injustice.
29. [29]
    As has earlier been referred to, while punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect of them.^[11]   Significant delay can produce a result whose effect is to impose a greater punishment or detriment on a practitioner than those in like circumstances.  Delay can also have an effect in mitigation because what might otherwise be future intentions as to rehabilitation and change can now be seen to have been matched by actions and effects.  Each of those effects is present here.
30. [30]
    For health practitioners who are genuinely insightful and remorseful about their conduct, delay in the ultimate resolution of a complaint can cause significant additional anxiety and stress.  The Tribunal has no doubt that is the case here.
31. [31]
    Similarly, significant delay can permit deleterious effects of the conduct upon the practitioner to be assessed by reference to what has occurred rather than with might occur in the future.  The consequences for KGY of his conduct are severe and ongoing.
32. [32]
    Immediately consequent upon the complaint, KGY was suspended from his position. He had previously worked in surgical training positions for about six years, with the goal of specialising as an orthopaedic surgeon.  He had earlier been told informally that a position would be available in orthopaedics at another public hospital at the expiration of his contract.  That did not occur.  He was unemployed for about six months.
33. [33]
    KGY believed his goal of orthopaedic surgery would be shut off as a result of his conduct and the cessation of his contract.  The practitioner members of this Tribunal confirm that belief was well founded.  KGY retrained in general practice.  In February 2021 he started as a general practitioner registrar.  In August 2023, he became a fellow of the Royal Australian College of General practitioners.  He has worked as a GP since completing his training.  He also works at the fracture clinic at a public hospital.
34. [34]
    Documents before the Tribunal indicate that KGY has re-established himself as a general practitioner who has earned the respect of his peers and his patients.  The Health Ombudsman accepts his “reflection, remorse and regret”.  The five years that have elapsed since the conduct can be seen to have been a period of rehabilitation and redemption for KGY.
35. [35]
    For the reasons earlier referred to, the instant conduct should be seen as serious.  Other considerations also pertain:

    1. no patient was capable of being identified in the photographs or images;
    2. no patient records were accessed;
    3. no images were published to the web or wider public;
    4. no sexual or indecent intent is evident in the conduct;
    5. the behaviour is, with respect, a juvenile interaction between KGY and two women who, apparently, he sought to impress by that conduct;
    6. KGY has no relevant disciplinary history; and
    7. the conduct occurred at a time of particular professional and personal stress.
36. [36]
    The Health Ombudsman concedes there is no element of specific deterrence needed in any sanction imposed. 

Do the Circumstances Mitigate Against Imposing a Reprimand as a Sanction? 

37. [37]
    What role, then, does a reprimand — and its publication in the public domain — have as a sanction whose paramount concern is protecting the health and safety of the public.  Is it required so as to “assure the public that appropriate standards are being maintained” or to “enhance confidence in the profession”.^[12]  Is it required to deter other practitioners who might be minded to behave in a similar way?
38. [38]
    A reprimand must be included on the register by reason of s 225(j) of the National Law.  The fact of publication on a public register is insufficient, without more, to render a reprimand an inappropriate sanction (or component of sanction).  Indeed, publication on the public register can often be an important part of general deterrence and can fulfil an important role in protecting the public.
39. [39]
    In a similar vein, publication of a decision in the media might be:

… welcomed as it assists public understanding of the work of the Tribunal in such matters and hopefully assists in maintaining public confidence in the maintenance of professional standards of members of the health professions … The risk of being named and shamed also serves a salutary deterrent purpose and, ordinarily, that purpose would be frustrated or weakened if the identity of the practitioner were to be suppressed.^[13]

40. [40]
    Those reasons see a reprimand very commonly forming part of the sanctions imposed for professional misconduct.  Those considerations appear to be recognised in the submissions on behalf of KGY.  It is submitted that, had this matter been heard in a timely manner, a reprimand (and its consequences) may well have been an appropriate sanction.^[14]
41. [41]
    It is also submitted that, if the Tribunal considers a reprimand to be appropriate, “this would be an appropriate case for the Tribunal to express a view in its reasons as the appropriate duration for the Board to publish the reprimand”.^[15] That submission derives from the limits on the power of the Tribunal.
42. [42]
    The power to alter the s 225 requirement for publication, and the power to remove matters so registered, vests in the Board.^[16]  The Tribunal’s powers consequent upon a finding of professional misconduct do not extend to matters concerning the public register.^[17]  The Tribunal has no power to dictate the duration of any reprimand remaining on the public register.
43. [43]
    The written submissions also contend:

… in the absence of any up-to-date policy or statement about the effect of the previous policy, there is least a real possibility that the medical board will regard five years as the default minimum period for publication of a reprimand on the register of practitioners.^[18]

44. [44]
    Delay is said to be punitive and cause an injustice to KGY because a five-year publication period would commence at a time when, had the matter been heard timeously, a then-imposed reprimand and consequent five-year publication period would now be coming to an end. 
45. [45]
    Further, a five-year publication period resulting from a timeous order would see any rehabilitative efforts coincide approximately with the publication period — a circumstance concordant with a purpose of reprimand as a sanction. 
46. [46]
    Conversely, the “public shaming” aspect of a reprimand and its concomitant publication occurring now is inconsistent with the picture of a rehabilitated doctor held in high regard by his peers who speak highly of his caring concern for his patients.  In that respect, it represents an unjust sanction.
47. [47]
    The professional members of the Tribunal point out that word travels quickly in the tight-knit medical community, and all the more so among those aspiring to enter a specialty.  The serious deleterious effect on KGY’s then existing employment and his professional aspirations should, of themselves, be seen as a significant deterrent to other medical practitioners who might be tempted into conduct of a similar type.
48. [48]
    In that respect, the workings of social media are notorious.  Part of the word which spreads are the serious consequences for KGY of him engaging in the conduct.  The deterrent effect upon other practitioners of “word spreading” is, in the Tribunal’s view, of itself a very significant general deterrence and should not be underestimated.
49. [49]
    The Tribunal is unable to see any further or additional benefit to the health and safety of the public or protective purpose attributable to a reprimand issued (and published) now.  Indeed, it can be argued reasonably, that publishing a reprimand now creates a false impression of KGY. 
50. [50]
    The public can have confidence that misconduct is treated seriously, and the standards of the profession maintained, by reference to the dire consequences suffered because of juvenile conduct being treated properly as serious and judged to be professional misconduct.

The Appropriate Sanction

51. [51]
    In the circumstances of this case, the Tribunal considers that ordering a reprimand with its attendant publication would allow any protective purpose to be overtaken by a punitive purpose.  The latter is not the proper concern of the National Law.
52. [52]
    The Tribunal is of the view, however, that the seriousness of the conduct and its disregard for the circumstances of the patients concerned should be underscored by the imposition of a fine.  That, too, sends a general deterrent message to other practitioners and a message to the community at large as to the maintenance of standards.  Unlike a reprimand, a fine, does not appear on the National register.
53. [53]
    Oral submissions on behalf of KGY, received without demur, reveal that KGY has a young family with the usual financial commitments.  It is agreed that nevertheless he has the capacity to pay a fine.  The parties agree that if the Tribunal were to order a fine, $5,000.00 would be an appropriate amount.
54. [54]
    Consistent with what has been said about the impact of publication and a sanction that does not allow an unjust detrimental impact upon KGY to affect or outweigh sanctions appropriate to protect the health and safety of the public, it is submitted a non-publication order should be made which extends to KGY and any context that might lead to his identification. In light of the Tribunal's conclusions otherwise set out, we consider such an order, appropriate.
55. [55]
    It is agreed there should be no order as to costs.