Medical Board of Australia v MCD
[2024] QCAT 481
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Medical Board of Australia v MCD[2024] QCAT 481
Medical Board of Australia v MCD[2024] QCAT 481
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v MCD [2024] QCAT 481 |
PARTIES: | medical board of australia (applicant) v MCD (respondent) |
APPLICATION NO/S: | OCR064-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 30 October 2024 (ex tempore) |
HEARING DATE: | 30 October 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Murphy SC Assisted by: Dr J Cavanagh Prof D Morgan Mrs K Thomson |
ORDERS: |
|
APPEARANCES & REPRESENTATION: | |
Applicant: | R M de Luchi instructed by MinterEllison |
Respondent: | G W Diehm KC instructed by Meridian Lawyers |
REASONS FOR DECISION
The conduct the subject of the referral
- [1]The patient, Mr XY, has a swastika tattooed on the left side of his penis. This fact emerged during his treatment in April 2019 at a hospital in regional Queensland for a number of significant injuries which occurred when a homemade pipe bomb exploded as he was holding it. The injuries sustained saw Mr XY in intensive care for a week. He was in a coma and was intubated and ventilated.
- [2]The respondent, Doctor A, an orthopaedic surgeon then employed by the Hospital, was one of Mr XY’s many treating practitioners. During the course of treatment, Doctor A noticed the swastika tattoo and photographed it. He shared the photograph with other treating practitioners on WhatsApp or a similar platform.
- [3]Plainly, neither the photograph nor the sharing of it occurred with Mr XY’s knowledge or consent. There was no clinical or medical purpose for either taking the photograph or sharing it.
- [4]A notification to the Office of the Health Ombudsman identifying each of those forms of conduct was made in December 2019. Subsequently, the Medical Board of Australia commenced an investigation in February 2020 which led, ultimately, to the referral to this Tribunal.
The parties’ agreed position
- [5]The parties are agreed that each form of conduct (particularised in two separate grounds of the referral) and the conduct taken as a whole, meets the definition of “professional misconduct” in s 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
- [6]Save for any inconsequential factors to the platform on which the photograph was published, the facts as particularised by the Board are admitted by Doctor A.
- [7]The first issue for the Tribunal is whether a finding of professional conduct should be made. The second issue is the sanction which should flow from any such finding.
- [8]The parties are agreed that Doctor A should be reprimanded. Submissions on behalf of Doctor A contend that no further sanction should be imposed.
- [9]The Board contends Doctor A should, in addition, be suspended from practice for six months and have a mentoring condition attached to his registration.
Does the conduct meet the statutory definition?
- [10]Notwithstanding the parties’ agreement, it is for the Tribunal to make its own determination as to whether Doctor A’s conduct meets the statutory definition of “professional misconduct”.
- [11]References are made to the Good medical practice: a code of conduct for doctors in Australia (‘Code’)[1] as providing evidence that the relevant conduct is at a lesser standard than that expected by the public and Doctor A’s professional peers. The conduct plainly falls foul of a number of aspects of good medical practice referred to in the Code. It infringes a patient’s right to privacy and the right for a patient to be treated with respect. It breaches the trust reposed in doctors by their patients.
- [12]Criminal proceedings were brought against Doctor A, although ultimately dismissed. The dismissal was a consequence of Mr XY and Dr A agreeing to a “private arrangement” at a restorative justice conference.
- [13]The conduct plainly meets the definition of unprofessional conduct in the National Law.
- [14]The unprofessional conduct in this case can be seen to be serious. The patient was unconscious and particularly vulnerable. The trust reposed by the patient in his treating doctors can be seen to be particularly acute in those circumstances.
- [15]It follows that Doctor A’s unprofessional conduct falls substantially below that expected of a specialist medical practitioner at a level of training and experience equivalent to that of Doctor A. The agreement as to the conduct constituting professional misconduct, as defined, is appropriate, and the Tribunal finds the definition is satisfied.
What sanctions are appropriate?
- [16]The powers given to the Tribunal by section 196 of the National Law consequent upon a finding of professional misconduct must be exercised within a statutory mandate which requires the Tribunal to ‘exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A”.[2]
- [17]Relevant to the issue at hand, section 3(2)(a) of the National Law provides that an objective of the Tribunal is:
to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in an…ethical manner are registered.
- [18]The protective purpose referred to in that subparagraph is underscored by section 3A which provides, relevantly:
- (1)The main guiding principle of the national registration and accreditation scheme is that the following are paramount –
- (a)protection of the public;
- (b)public confidence in the safety of services provided by registered health practitioners and students.
- [19]The section goes on to provide, again, relevantly:
- (2)The other guiding principles of the national registration and accreditation scheme are as follows –
- (a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
[…]
- (c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
- [20]A number of principles emerge consequently. Punishment has no role in the imposition of appropriate sanctions – although as has been said by an earlier Deputy President of the Tribunal – punishment may be perceived as an effect of the sanctions imposed.[3]
- [21]Protecting the public and ensuring the safety of health services includes protection from unethical behaviour or behaviour which, while not related to medical or clinical practice, falls below the standard expected of medical practitioners. So much is made clear by ss 3, 3A and 5 (definitions of “unprofessional conduct” and “professional misconduct”).
- [22]Decisions of this and like Tribunals reflect those principles, referring ubiquitously to the roles of “specific deterrence” and “general deterrence” in imposing sanctions.
- [23]The former expression relates to protecting the public by preventing curtailing or “deterring” future conduct by the particular health practitioner, the subject of the referral. That is, it refers to the possibility of and the consequent risk posed by the repetition of conduct by the individual practitioner.
- [24]As the name suggests, so-called general deterrence has a broader purpose: it holds that the health and safety of the public is protected by deterring other practitioners from conduct of a similar type, and in doing so, maintaining or enhancing the trust imposed by the public in the health profession. It refers to public confidence being enhanced by the trust reposed in health practitioners being reinforced by sanctionable behaviour having meaningful and observable consequences.
- [25]Those considerations should sound in sanctions specific to the individual practitioner, bounded by only such restrictions as are necessary to ensure the practitioners health services are provided safely and are of an appropriate quality.[4]
- [26]Doctor A was first registered as a medical practitioner in 2003 and subsequently obtained his specialist registration in orthopaedic surgery. He has no previous disciplinary history. He has cooperated fully with the investigative process and made early full admissions.
- [27]Numerous colleagues speak to his skill, professionalism, care for his patients and the abhorrence of conduct of the incident type. Doctor A has, in the five years since the complaint was made, returned to private practice and no longer practises in the public sector. There is no suggestion that in that five year period, Doctor A’s practice has been anything other than entirely appropriate. Again, references tendered on his behalf speak of his professionalism and care for his patients.
- [28]It is not suggested that Doctor A is at risk of committing like behaviour or other unethical behaviour in the future nor does the evidence point to any such conclusion. Nothing specific to Doctor A poses any risk to the health or safety of the public. Indeed, the evidence suggests the contrary is the case. The Tribunal notes the notorious fact that the state’s regions are not well-serviced by medical specialists.
- [29]Doctor A has, throughout his life in Australia, been subjected to racism in various forms. It has caused him significant distress, manifesting in him ultimately changing his name formally. The appearance of a swastika, notoriously a Nazi emblem, on Mr XY’s penis triggered feelings of shock and offence. He understood the swastika to represent racism and to be derogatory of people with his ethnic origins.
- [30]At the same time, Doctor A was under considerable stress working within the public hospital system in a regional area. Prior to taking and distributing the photograph, he had worked 18 days without a break and was under considerable work pressure.
- [31]There can be no doubt on the evidence that Doctor A immediately regretted taking and distributing the photograph and was remorseful. He resigned from his public health position and has continued to practice privately. He speaks of a significant reduction in stress and an increase in the appropriate work-life balance. Subsequent to the complaint, Doctor A sought and received professional assistance with respect to professional boundaries and ethical decision-making. He has also separately participated in a similar program, operated by Dr John North.
- [32]Plainly enough, denunciation of conduct falling below the required standard is important in maintaining public trust in the provision of health services. The incident conduct should be seen as serious. Mr XY was intubated and ventilated and, of course, unconscious. He apparently only became aware of the photograph being taken when the police commenced the investigation to which reference has earlier been made.
- [33]As all members of the currently-constituted Tribunal suggest, the notion that other doctors tempted to engage in conduct of the incident type would be deterred by the prospect of sanction five years after the event does not ring particularly true. Other aspects of general deterrence do play a significant role, and it might be argued, a more significant role.
- [34]In Health Ombudsman v KGY [2024] QCAT 337 (‘KGY’), I presided over the Tribunal, which involved misconduct also involving the taking of photographs, albeit in a context different from the instant case. In that case, reference was made to a matter which the members of this Tribunal also considered to be very important in the context of so-called general deterrence. It was said in that case:[5]
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 speciality. 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.
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.
- [35]Similar considerations apply in this case. In KGY, the Tribunal concluded, relevantly:
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.
- [36]Obviously enough, the circumstances of the cases are different. There was no juvenile conduct in this case of the type surrounding the photographs taken in KGY. Rather, there was a different motivation, and a motivation which, at least in some respects, might be seen as more understandable, although Doctor A is at pains to say that in no sense should that be seen as an excuse for what he acknowledges is a serious breach of trust.
- [37]The Board, in its written submissions:
seeks a suite of sanctions which recognise the seriousness of the impugned conduct, have the requisite deterrent effect and critically, seek to remedy to the extent possible the lack of public confidence in the profession which follows conduct in the nature of that which has been admitted by the respondent. The Board submits that this is particularly important in circumstances where the respondent’s conduct has previously been subject to media attention, which has the potential to significantly undermine public confidence in the profession and/or its regulation.
- [38]That submission’s reference to media attention is to articles published in both the local paper in the region in which Doctor A practises and also, more broadly, in the Courier Mail, which of course is distributed statewide.
- [39]Misleadingly and inaccurately, a photograph of the notorious Dr Jayant Patel appears together with the article. Dr Patel has no connection whatsoever to Doctor A. Further, the headline in each case says this: “[anonymised region] surgeon charged over penis picture…practising medicine under a different name”, a headline again repeated statewide.
- [40]The article commences, “a surgeon charged over taking a photo of a patient’s genitalia has been practising medicine under a different name at a [regional] hospital and a private clinic”. There can be little doubt that both the headline and the introductory paragraph to each of those articles suggest a prurient element to the conduct. That is entirely inaccurate.
- [41]That inaccuracy is not corrected, at least in the case of the Courier Mail article, until well into the article when it is said that, “it is understood [the doctor] took the photograph because of a tattoo the man had, and not for sexual gratification”. Whether or not those having read the headline and the opening paragraphs ever reached that particular passage in the story, remains unknown.
- [42]The submission by the Board that supervision and mentoring are required is rejected.
- [43]The Tribunal is unable to agree that either or both are appropriate to protecting health and safety of the public or maintaining its confidence in the provision of health services. It is difficult to see what effect the media attention referred to in the submission could have had other than general deterrence. That particular aspect of this case exacerbates the issue referred to in the earlier decision of KGY. The fact that unprofessional conduct might be the subject of media attention and the ignominy which comes with that (particularly when the media attention contains inaccuracies including inaccurate prurient references that are not justified by the facts of the case), is of itself in the Tribunal’s view, a significant pointer to general deterrence.
- [44]At the commencement of the hearing, the Tribunal raised some of the concerns just referred to and indicated its views that a fine was an appropriate sanction. Account had been taken of the cases referred to in both sets of helpful written submissions provided by the parties and the guidance that any of those cases might provide in this case. As is conceded in those submissions, none of the facts of those cases are particularly apposite to the facts of this case. Particular regard has been had to the decision in Health Care Complaints Commission v Hill [2023] NSWCATOD 101.
- [45]In light of the Tribunal’s indication, the matter was adjourned and, subsequently, the parties made submissions in respect of the Tribunal’s indication. The Board indicated that it continued to press for a suspension, but in the event that the Tribunal was against that submission, it submitted for a fine that was “towards the upper end of the range”. It is to be observed that the maximum fine that can be ordered by the Tribunal is $30,000.
- [46]Submissions on behalf of Doctor A by Mr Diehm KC referred to the circumstances in KGY where a fine of $5,000 was imposed. It is acknowledged by both parties that the facts of KGY are different to those here. In KGY, 12 photographs or other images were sent to the doctor’s (romantic) partners in what was there described as instances of juvenile behaviour designed to curry favour with the particular women involved. Obviously, the facts of this case are entirely different.
- [47]Mr Diehm KC submits, the Tribunal thinks correctly, that care needs to be exercised so as to ensure the amount of the fine is not punitive in its design. So much is clear from the principles earlier enunciated. As is acknowledged, however, the line is somewhat blurred because of the references to general deterrence and the need for any fine to embrace the seriousness of the conduct and the concerns which emanate from that. Mr Diehm KC submits that it can be argued that the conduct in KGY is more egregious than the conduct here because the patient’s right to privacy and respect was flippantly disregarded.
- [48]Here, whilst not excusing the behaviour, the motivation is more complex and, at least on one view, more understandable.
- [49]In the particular circumstances of this case, the Tribunal considers that a fine is the appropriate sanction together with a reprimand. In that respect, Mr Diehm KC submits that in KGY, by reason of facts peculiar to that case, no reprimand was ordered and a fine of $5,000 imposed, that is, the fine was imposed, as it were, in lieu of a reprimand. Here a reprimand is conceded as appropriate. That concession is properly made in the Tribunal’s view. It is submitted that, in that situation, the fine should be seen as operating in conjunction with the reprimand so as to together achieve the purposes. It is said that, in those circumstances, the fact that the reprimand is also imposed impacts on the quantum of the fine.
- [50]The Tribunal has sought to take into account all of the submissions made on behalf of Doctor A and the Board. In the particular circumstances of this case, the Tribunal finds that a fine of $10,000 is appropriate.
- [51]The Board applies for a non-publication order in the standard form. That is not opposed. In light of what has been described as the media attention in the case, Mr Diehm KC submits that particular attention should be paid to anonymising the reasons and the references to the doctor in this case. The Tribunal agrees and has taken account of the misleading nature of the media reports already referred to.
- [52]In the circumstances of this case, it considers that a non-publication order should apply in respect of Doctor A and the name by which he has been known and his current name.
- [53]There should be no order as to costs.
Footnotes
[1] Medical Board of Australia (October 2020).
[2] Health Practitioner Regulation National Law (Queensland) s 4.
[3] Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 [22] (Judge Kingham, Deputy President).
[4] Health Practitioner Regulation National Law (Queensland) s 3A(2)(c).
[5] Health Ombudsman v KGY [2024] QCAT 337 [47].