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- Paramedicine Board of Australia v Wylie[2024] QCAT 423
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Paramedicine Board of Australia v Wylie[2024] QCAT 423
Paramedicine Board of Australia v Wylie[2024] QCAT 423
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Paramedicine Board of Australia v Wylie [2024] QCAT 423 |
PARTIES: | Paramedicine Board of Australia (applicant) v Brendon Wylie (respondent) |
APPLICATION NO: | OCR 245 of 2023 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 October 2024 |
HEARING DATE: | 23 October 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President Assisted by: Ms K Nielsen, Paramedicine Panel Member Mr L Parker, Paramedicine Panel Member Ms K Thomson, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was a registered paramedic – where the respondent’s registration was suspended by immediate action – where the respondent held out that he was registered whilst his registration was suspended – where the parties agree that this constitutes professional misconduct – whether the conduct is appropriately characterised as such PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the parties agree as to the appropriate sanction for the conduct – where the Tribunal ought not depart from agreed sanction unless it is outside the permissible range – whether the sanction is appropriate Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Dental Board of Australia v Ho (Review and Regulation) [2019] VCAT 467 Health Care Complaints Commission v Bechara [2020] NSWCATOD 140 Health Ombudsman v Vale [2020] QCAT 363 Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822 Medical Board of Australia v Martin [2013] QCAT 376 Psychology Board of Australia v Wakelin [2014] QCAT 516 |
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
Introduction
- [1]This disciplinary proceeding was referred to the Tribunal by the Paramedicine Board of Australia (Board) on 12 October 2023.
- [2]The respondent was, at all times material to the referred allegations, a registered paramedic under the Health Practitioner Regulation National Law (Queensland) (National Law). The respondent’s registration as a paramedic was suspended by way of immediate action[1] between 19 October 2020 and 22 March 2021. The respondent failed to renew his registration as a paramedic in April 2021 and it lapsed in May 2021.[2] He remains unregistered.
- [3]The parties’ legal representatives signed an agreed statement of facts, findings and determinations and it was filed in the Tribunal on 16 February 2024 (ASOF).
- [4]The parties confirmed, by email to the Tribunal on 25 July 2024, that they were content for the Tribunal to deal with the matter on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Tribunal proceeds on that basis.
- [5]However, notwithstanding the parties’ agreed position, it is for the Tribunal to determine the appropriate characterisation of the conduct and the sanction to be imposed. The Tribunal ought not readily depart from an agreed position unless the sanction falls outside a permissible range.[3]
- [6]The referral contains two grounds.
- [7]For ground one, which occurred between 20 October and 30 November 2020, the allegation is that the respondent practiced as a paramedic and/or knowingly or recklessly claimed to be a registered health practitioner or held himself out to be a registered health practitioner under the National Law in circumstances where the Board suspended his registration on 19 October 2020.
- [8]For ground 2, which occurred between 8 October and 7 November 2020, the allegation is that the respondent provided the Australian Health Practitioner Regulation Agency (Ahpra) and/or the Board with false information.
What are the facts?
- [9]By a notification dated 21 August 2020 from the Office of the Health Ombudsman to Ahpra, Ahpra was notified that on 9 July 2020, the respondent returned a non-negative drug test before commencing work whilst working for MSS Strategic Medical and Rescue (MSS) at a Queensland coal mine. There was no evidence the practitioner practiced whist impaired. Subsequent laboratory analysis confirmed the test was positive for amphetamine and methamphetamine.[4] The respondent’s selection for the random drug and alcohol test prior to commencing work occurred as part of the site drug and alcohol process.[5]
- [10]The Board imposed conditions on the respondent’s registration by way of immediate action on 2 September 2020[6] which required the respondent to, inter alia, undertake random urine and hair drug screening and attend a treating practitioner.[7] At some point proximate to this the Board also required the respondent to undergo a health assessment.[8]
- [11]The respondent signed a contract of employment working as a casual[9] as a paramedic with ER24 on or about 6 October 2020 and worked his first shift as a casual paramedic with this organisation at another Queensland coal mine site on or about 18 October 2020.
- [12]The Board suspended the respondent’s registration on 19 October 2020 for failing to comply with the conditions it imposed earlier. The respondent was made aware of this suspension that day and queried Ahpra by email on 20 October 2020 whether he was able to renew his registration. On 21 October 2020, Ahpra advised the respondent in writing that he could not apply for renewal of his registration whilst his registration was suspended.
- [13]Whilst his registration was suspended, and he knew it was suspended, the respondent worked a further 24 shifts as a casual paramedic with this employer at the mine site between 20 October and 30 November 2020.
- [14]The respondent’s registration was suspended between 19 October 2020 and 22 March 2021 by way of immediate action pursuant to s 156 of the National Law.
- [15]On or about 17 October 2022 the respondent was convicted in the Magistrates Court at Cairns, on his own plea of guilty, of one charge of knowingly or recklessly claiming to be registered under the National Law, or holding himself out as being registered under the National Law contrary to s 116(1)(c) of the National Law. He was fined $5,000 and ordered to pay $2,357.45 in costs and fees with no conviction recorded.
- [16]The above conduct supports allegation one in the referral.
- [17]For ground 2, the agreed facts are:
- on or about 26 August 2020, the respondent provided a Practice Information Form to Ahpra which listed the Australian Safety and Rescue Group (ASRG) as his employer. He also advised his employment would soon end and he would advise Ahpra of any future employment;
- the respondent then signed a contract of employment as a paramedic with ER24 on or about 6 October 2020;
- Ahpra requested the respondent’s practice information under s 132 of the National Law on 12 and 19 October 2020. The respondent did not provide this information on either date and worked his first shift as a casual paramedic with ER24 at the coal mine site on 18 October 2020; and
- between 8 October and 7 November 2020, the respondent sent emails to Ahpra with false statements indicating that he was not employed:
- (i)on 8 October 2020:
- (i)
I’m STILL unemployed and CANNOT afford to pay a monthly bill of 12 X $66 + 1 X $825.00 for hair testing;
- (ii)on 12 October 2020:
I AM, AND HAVE BEEN, UNEMPLOYED SINCE THIS WHOLE THING BEGAN;
- (iii)on 18 October 2020:
I am still unemployed, have no money for testing, have no money for legal council [sic], not in a union, and receive no government assistance as my wife works and we don’t qualify.
…
I have been completely honest all through this situation and have provided ample supporting documentation to underpin my situation.
- (iv)on 19 October 2020:
I have no improvement in employment, under extreme financial stress, my wife refuses to give you our bank a/c’s to trawl through, it would seem that my fate is sealed with Ahpra; and
- (v)on 7 November 2020:
that’s no good to me as I will be driving a bobcat … that’s the only work I can get thanks to you lot!!!!”.
- The respondent was required to provide the requested practice information and failing to do so contravenes section 132 of the National Law.
What are the respondent’s circumstances?
- [18]The respondent first obtained registration as a paramedic with the Board on 11 November 2019. He was 53 years old at the time of the events the subject of the referral.
- [19]The respondent has no history of disciplinary proceedings. Material in the hearing brief suggests that as at June 2023 the respondent was working overseas and was unlikely to return to Australia.[10]
Discussion and Sanction
- [20]Whilst the parties have agreed that the admitted conduct constitutes professional misconduct, it is necessary for the Tribunal to determine, pursuant to s 196 of the National Law:
- how to characterise the respondent’s conduct; and
- the appropriate disciplinary sanction.
- [21]The Board submits and the Tribunal accepts that the respondent’s conduct undermines public confidence in the character of health practitioners, especially paramedics. It is correct to observe that the community would not expect an individual to practice whilst their registration to practice had been suspended. In this case the respondent:
- pleaded guilty to and was found guilty of the criminal offence of holding out;
- knew or ought to have known that he was the only paramedic on site for the shifts he worked and was therefore responsible for any immediate health care required by any person stationed at the mine;
- was employed to work at a workplace where safety standards are of paramount importance, given the nature of the work environment;
- demonstrated a significant lack of insight into the seriousness of his conduct throughout the Ahpra registration and a lack of remorse for it. Communications to Ahpra officials, most of which were conducted by email, were intemperate and displayed a profound lack of understanding of the wider public safety issues which regulatory bodies have to consider. Two examples of this suffice:
- (i)one week after the suspension, in response to an email from an Ahpra official who confirmed that when registration was suspended fresh renewal applications could not be submitted, an email which provided in part:
- (i)
I can’t believe that you, APHRA [sic], delivered documents to my home to BY an UNKNOWN PERSON, WITHOUT IDENTIFICATION FROM THE APHRA PERSON AND IS IN CLEAR VIOLATION OF THE PRIVACY ACT.
I WILL BE EXPLORING LEGAL ACTION AGAINST YOU FOR THIS BREACH
…
You lot really are soulless !!!!!!!!!!!!!!!!!!!!;[11] and
- (ii)in response to an email advising of a rescheduled date and mechanism for a health assessment (after he had refused to attend the originally nominated practitioner and said he would only attend by Skype), an email which provided in part:
That’s no good to me, as I will be driving a bobcat…. that’s the only work I can get thanks to you lot!!!!
I’ll let you know when I get time to be assessed…. TOOK YOU LONG ENOUGH TO GET BACK TO ME….YOU CLEARLY DON’T GIVE A SHIT ABOUT MY HEALTH.
AND DON’T EVER COME TO MY HOUSE EVER AGAIN….GO AND RUIN SOME MORE CAREERS….. THAT’S WHAT YOU ARE A HIGH PERFORMER AT ACHIEVING;[12] and
- did not inform his employer, in simple terms, at the time he was suspended, that he was suspended by Ahpra. That would not have been difficult to do. The respondent’s communications were obtuse in the information which was provided to his employer, when it was clear, and he knew that his registration had been suspended from 19 October 2020. On 28 October 2020, some 9 days after he was notified he had been suspended, he wrote to his employer in part:
I have just checked my Gmail and I have been advised by APHRA that I will not meet the criteria for re-registration.
…
If AHPRA is essential then I am sorry for any inconvenience I am causing you and the ER24 team.[13]
The respondent made no mention that his registration had been suspended.
- [22]The respondent compounded his conduct by:
- failing to provide Ahpra with practice information requested under s 132 of the National Law on two occasions in October 2020; and
- despite being employed, having signed a contract of employment on or about 6 October 2020 to work as a paramedic and undertaking his first shift on 18 October 2020, making false statements in emails between 8 October 2020 and 7 November 2020 to Ahpra indicating he was not employed, as I have already set out.[14]
- [23]The respondent’s actions just summarised are plainly conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. His conduct, too, in its dishonesty and deliberateness, is inconsistent with him being a fit and proper person to hold registration. The Tribunal is satisfied that the respondent’s conduct contained in the agreed facts, in respect of each of allegations one and two, constitutes professional misconduct as defined by s 5 of the National Law.
- [24]When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.[15]
- [25]The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public. The sanction in a particular case must be considered based on the peculiar facts. Something is to be crafted which best achieves these purposes.
- [26]Relevant factors for the Tribunal to consider when determining what sanction is appropriate include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence, insight and remorse of the practitioner and the fitness of the practitioner to practice at the time of the hearing.[16]
- [27]Other considerations may include a practitioner’s disciplinary history before or after the conduct, delay from the time the investigation started to finalisation in the Tribunal and any other mitigating matters specific to the particular circumstances.[17]
- [28]The Tribunal observed in Psychology Board of Australia v Wakelin[18] (at [21]) that, in that case, the practitioner’s dishonest responses to Ahpra in the course of the investigation were, in some respects, a more serious reflection on the practitioner’s character than the underlying conduct. That case involved the practitioner having a consensual sexual transgression with a former patient, which she lied about during the investigation). The practitioner had been registered for about 6 years at the time of the transgression. The treating relationship was short (three sessions), it ended before the sexual relationship began and a personal and sexual relationship was on foot for at least 16 months. The Tribunal also observed (at [27]):
The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the responses of is practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty …
- [29]In this case, in addition to the respondent holding himself out as a registered paramedic when his registration had been suspended, and working a significant number of shifts, there is repeated dishonesty to Ahpra, with multiple false statements having been made to Ahpra over a number of occasions concerning the respondent’s apparent lack of employment at a time when he was actually employed and working as a paramedic. Furthermore, many of his communications with Ahpra were intemperate, rude and quite abusive.
- [30]There is, too, no evidence that the respondent has developed any significant insight into the perils of his conduct. True it is that he admitted the underlying facts quickly,[19] and that this matter has been addressed expeditiously and with agreement between the parties. It took him some short time thereafter, however, to admit that his conduct constituted professional misconduct.[20]
- [31]The respondent has not given any explanation for his conduct; whilst one might look to infer from the materials that he was experiencing some sort of financial difficulties, he never provided the information Ahpra sought to properly establish that. Another inference may be that as his wife was very ill at the time, his behaviour was affected by issues arising from that[21] but that submission has not been made either. However, in the absence of any explanation, his conduct must be unexplained.
- [32]More significantly, the respondent has not provided any evidence that he has undertaken education or engaged any other action that might assist the Tribunal to consider he has reflected on his earlier actions and understands that his conduct fell far short of that of a responsible professional person.
- [33]For these reasons, both general and specific deterrence are relevant considerations on this referral.
- [34]In Dental Board of Australia v Ho (Review and Regulation),[22] the dentist inadvertently failed to renew his registration and, for four weeks, practised whilst unregistered, not realising his registration had lapsed. When he became aware his registration had lapsed, he contacted Ahpra and advised them of this. He was told he must not practice dentistry until he was re-registered. Notwithstanding this, he chose, over about two weeks, to treat patients who were part way through their treatment with his registration lapsed, rather than refer them to colleagues. He admitted to Ahpra that he had treated patients. It ultimately took him almost 6 months to be reregistered and during that time he could not see patients, he experienced remorse and embarrassment and suffered significant financial harm. The Tribunal determined he should be reprimanded and fined $7,000.00.
- [35]This case is more serious than Ho, in that Dr Ho was evidently remorseful and embarrassed, neither of which is apparent here. The circumstances also did not call into question Dr Ho’s underlying fitness to perform his work as a health practitioner. However, in this case, the respondent became unregistered because he failed to comply with conditions for drug testing imposed after he failed a drug screen at work. This is in the context of working in a potentially hazardous workplace, in a role where he would be responsible for the safety and well-being of others in the event of some sort of incident or accident at the workplace.
- [36]In Health Care Complaints Commission v Bechara,[23] an enrolled nurse was suspended for failing to comply with conditions on her registration that she only practice under supervision of a registered nurse. The respondent nurse owned a practice primarily performing cosmetic injections. She had had complaints about her performance which caused ultimately caused the imposition of the condition requiring practice under supervision. She practised in breach of that condition and then in breach of the suspension of her registration (because she had practiced without supervision). The Tribunal found that the practitioner had provided false information to the Council delegates when she told them she had been being supervised by a registered nurse, because she was not being so supervised. The Tribunal was satisfied too that she treated clients after her registration was suspended, she attempted to conceal doing so and she held herself out as an enrolled nurse who was entitled to practice as well as holding herself out as a registered nurse. The Tribunal found that her conduct in providing false information to the Council delegates was both improper and unethical, as was her conduct in continuing to treat patients whilst she was suspended and in holding herself out to have professional registration that she did not have. Accepting that the gravity of professional misconduct is not to be measured by reference to the worse cases, but by the extent to which it departs from the proper standards, the Tribunal was satisfied that her conduct in treating patients after her registration was suspended and in providing false information to the Council delegates about her supervision arrangements was sufficiently serious conduct to justify the suspension or cancellation of her registration. It was deliberate and put her business interests ahead of the safety and care of her patients. It revealed a fundamental defect of character, observing:
the practitioner’s conduct represented an ongoing course of conduct in disregard of her professional obligations and continued notwithstanding the numerous regulatory interventions.[24]
- [37]The Tribunal cancelled her registration and imposed a period of 18 months before she was able to make any application for re-registration, expressing that the evasive responses in her evidence gave it reservations about the genuineness of her reflection or insight.[25]
- [38]The Tribunal assesses that Ms Bechara’s improper conduct was, in overall terms, more protracted than the respondent’s conduct in this case, in that she had been involved in a counselling interview, workplace inspections, performance assessments and hearings convened under ss 150 and 150C of the National Law, however, she had failed to address the fundamental shortcomings in her practice and approach to her professional obligations. There was also evidence of patient complaints against Ms Bechara; in this case there is no suggestion of any complaint by any person treated by the respondent of suboptimal care.
- [39]There are parallels, however, in key aspects of Ms Bechara’s impugned conduct with the conduct of the respondent in this case, which help to guide the Tribunal as to the range of permissible sanction in this case. Those features are:
- that he held himself out as a paramedic and worked for a significant number of shifts after his registration was suspended, having failed to comply with conditions imposed by the Board. He knew that his registration had been suspended and he did not tell his then employer of this fact; and
- he was repeatedly dishonest with Ahpra on several occasions over a number of weeks as to the true position of his employment, putting his personal interests above the interests of those who he may have been required to treat.
- [40]The Tribunal notes the parties have agreed on a reprimand as a part of the sanction. The authorities recognise a reprimand is a serious matter for a professional person and is not a trivial penalty. A reprimand marks, from the perspective of general deterrence in particular, the clear inappropriateness of such conduct to the profession and the broader community. It is appropriate in this case.
- [41]The practitioner is unregistered, so an order for cancellation of registration is not available. Where a person is not registered the Tribunal has a power to disqualify that person from applying for registration as a registered practitioner for a specified period.
- [42]An order for a disqualification period from the date of these reasons will, as the Board submits, send a clear message that holding out conduct, deliberately providing Ahpra with false information and engaging in overall dishonest conduct is a serious departure from the standards expected of health practitioners and does not align with the National Law and the suitability requirements to hold registration. It is these aspects of the respondent’s conduct which make Bechara a relevant comparator.
- [43]The Tribunal is satisfied that the sanction proposed by the joint agreement of the parties is one which is within the permissible range of sanctions for such conduct.
- [44]The parties have agreed that each party is to bear their own costs of the proceeding and such an order is appropriate.
- [45]The Tribunal has derived assistance from the assessors on questions of fact and thanks the assessors for their thoughtful engagement and assistance.
- [46]The Tribunal makes the following order(s):
- In respect of each of allegations 1 and 2 in the referral, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has 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.
- Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (Queensland) the respondent is disqualified from applying for registration as a registered health practitioner for a period of nine months from the date of this order.
- Each party bears their own costs of the proceeding.
Footnotes
[1] Pursuant to National Law Pt 8, Div 7.
[2] In his email to Ahpra on 21 May 2021 the respondent wrote: “Now that I am lapsed (close of business today) … Can you please stop writing to me, … Aphra [sic] has distroyed [sic] my employment opportunities, … So just stop writing to me”: Hearing Bundle (HB), p 995.
[3] Medical Board of Australia v Martin [2013] QCAT 376, [91]–[93].
[4] HB, p 69.
[5] HB, p 54.
[6] ASOF, [6(a)]. Coincidentally, at p 299 of the HB an email from the mine to his then employer provided positive feedback about his performance and assistance on the recent swing of shifts.
[7] HB, pp 73–74.
[8] HB, p 99: letter dated 22 September 2020 to the respondent advising of the Board’s decision made under s 169 of the National Law to require the practitioner to undergo a health assessment. Perhaps the Board made the decision for this requirement on 26 August 2020: see HB, p 706.
[9] HB, pp 275–294.
[10] HB, p 867.
[11] HB, p 749 (emphasis in original).
[12] HB, p 757.
[13] HB, p 846.
[14] See [17](d) above.
[15] National Law s 3A.
[16] Health Ombudsman v Vale [2020] QCAT 363 (‘Vale’), [17] (Judicial Member McGill SC).
[17] Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822, [43].
[18] [2014] QCAT 516.
[19] Form 36 — Response to the Referral dated 17 January 2024 (response) — although he disputed characterisation.
[20] Response — he denied the conduct was professional misconduct; the ASOF was filed on 16 February 2024.
[21] HB, p 271.
[22] [2019] VCAT 467 (‘Ho’).
[23] [2020] NSWCATOD 140 (‘Bechara’).
[24] Bechara, [85].
[25] Bechara, [86].