Health Ombudsman v Heath[2024] QCAT 531

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter was heard in sequence with a referral by the Medical Board of Australia (Board) against the respondent (proceeding number OCR 90 of 2022) (Board matter), on 24 July 2024.  I delivered judgment in the Board matter on 21 August 2024, indicating that the Health Ombudsman (HO) and Dr Heath had reached agreement in respect of the facts, characterisation and sanction in this referral, but sought to amend their agreed position on sanction, dependent on the outcome of the Board matter.^[1]  The parties maintain their agreement, save as to the length of time sought for the respondent to comply with the sanction.^[2]

What is agreed in this referral?

2. [2]
   This referral relates to the respondent’s conduct on a single occasion on 21 September 2020, when he treated a patient in a clinical setting, in breach of a condition which was then on his registration that he was “not to practice in any General Practice role requiring direct or indirect clinical patient contact”.  The respondent was aware of the condition on his registration and that he was required to only use his professional knowledge in a non-clinical capacity.  The respondent is, and was at the relevant time, an experienced medical practitioner, having held registration with the Board since 20 October 1988.
3. [3]
   The patient attended the respondent’s practice on this date with a nail bed injury and the respondent:

   1. applied a tourniquet to the patient’s injured finger;
   2. gave the patient injections of local anaesthetic to numb the finger; and
   3. directed the practice nurse to apply silver nitrate to the nail bed injury.
4. [4]
   The respondent admits his conduct and that it constitutes professional misconduct, in that, it is “conduct that is substantially below the standard expected of a registered health practitioner of an equivalent level of training or experience”.^[3]
5. [5]
   The parties have also agreed the appropriate sanction that the respondent:

   1. is reprimanded;^[4] and
   2. must pay a fine of $10,000 to the HO within 14 months of the date of the Tribunal’s order.^[5]
6. [6]
   The parties also agree that there be no order as to costs.
7. [7]
   Notwithstanding the parties’ agreement, it is a matter for the Tribunal to exercise its independent discretion to determine the appropriate characterisation and sanction.

Characterisation

8. [8]
   In this matter, the respondent is a medical practitioner with over thirty years’ experience.  The public and other medical practitioners would expect such an experienced practitioner to understand the importance of compliance with conditions on his registration and not to knowingly disregard them.^[6]  I have also been referred to a body of authority which indicates that it would be odd not to regard a breach of conditions as professional misconduct.^[7] 
9. [9]
   Accordingly, I am satisfied that the respondent’s conduct constitutes professional misconduct.

Sanction

10. [10]
    Turning to sanction, it is important to remember that the purpose of disciplinary proceedings is protective and not punitive in nature.  A sanction may seek to achieve one or more of the following purposes:^[8]

    1. the maintenance of standards of practitioners in the health profession;
    2. the denunciation of inappropriate conduct by the relevant regulatory body and ;
    3. personal and general deterrence;
    4. the protection of the public; and
    5. the protection of the public confidence in the safety of services provided by registered health practitioners.
11. [11]
    In determining the appropriateness of a particular sanction, I may consider:^[9]

    1. the nature and seriousness of the conduct;
    2. whether the practitioner acknowledges culpability and any evidence of insight, contrition or remorse;
    3. the practitioner’s professional and disciplinary history;
    4. evidence of character;
    5. evidence of rehabilitation;
    6. any delay between the conduct, investigation, and the conclusion of proceedings in the Tribunal; and
    7. any other mitigating factors.
12. [12]
    The respondent’s conduct in breaching the conditions on his registration are objectively serious, however, in the respondent’s favour is his full admissions as to conduct and cooperation with the HO in the disciplinary referral.
13. [13]
    The respondent has a complicated disciplinary history.  The relevant features are that he has been subject to conditions on his registration (prior to this referral) on 3 June 2019 and 18 May 2020.  Both sets of conditions were breached by the respondent, the latter breach being the subject of this referral.
14. [14]
    The parties submit, and I accept, that the respondent has insight into his conduct and has ameliorated the risk of engaging in the same conduct in future.  Particular reference is made to the respondent’s affidavit filed 6 November 2023 in which he deposes that:

… the treatment that I provided to the Patient was in contravention of the condition on my registration not to practise.

My response was intuitive and based on more than three decades in practice.  Whilst I was there purely in an administrative role, my professional training took over.

I fully acknowledge that the Patient should have been left to the care of the nurse and attending General Practitioner, Dr Whelan. In my view, it would not have been appropriate to refer an unaccompanied, distressed patient to the local Hospital.

I discussed the event with my staff, and doctors, reflected on the process and subsequently (while the condition was in place), I only attended my/the Medical Centre when it was closed.^[10]

15. [15]
    Notwithstanding this insight, remorse, and the respondent’s efforts to avoid recidivism in the same manner, I accept the submission that personal deterrence is a large consideration in this matter.  This is because of the respondent’s repeated breaches of conditions in the past.  I also accept that the public and the medical profession at large must be reminded that the breach of conditions by practitioners is serious and intolerable and that adverse consequences will follow for such conduct.
16. [16]
    Whilst each case turns to be decided on its own facts, the parties have referred to comparative cases as “yardsticks”.  These cases are:

    1. Medical Board of Australia v Duggirala;^[11]
    2. Medical Board of Australia v House;^[12] and
    3. Medical Board of Australia v Pepulani.^[13]
17. [17]
    Each of the cases provided involved breaches of conditions, however, the breaches in each were far more significant than in the present case.  The sanction in each was, as is reflective of their more serious nature, far more onerous than is submitted for in this referral.  I do not derive assistance from the comparatives in respect of the appropriate sanction.
18. [18]
    I am cognisant that a reprimand is not a trivial penalty and carries with it the potential for serious adverse implications for a professional person.^[14] 
19. [19]
    In balancing the above considerations, I am satisfied that a reprimand is appropriate in this matter, and that it is appropriate for the respondent to be fined $10,000.

Non-publication order

20. [20]
    The parties jointly submit for the Tribunal to make a non-publication order restricting the publication of the name of the patient involved in the matter.  Patient information is properly considered information which is confidential, satisfying s 66(2)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  Accordingly, I consider it appropriate to exercise my discretion to make such an order and will do so.

Orders

21. [21]
    The Tribunal orders that:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
   1. the contents of a document or other thing filed in or produced to the Tribunal;
   2. evidence given before the Tribunal; and
   3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the patient the subject of the referral, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings, and for the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
   1. a judicial member;
   2. a tribunal member;
   3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
   4. any assessor appointed to assist the Tribunal;
   5. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
   6. the parties to these proceedings or any appeal or review arising from these proceedings.

22. [22]
    It is the decision of the Tribunal that:

1. The conduct of the respondent constitutes professional misconduct.

2. The respondent is reprimanded.
3. The respondent must pay a fine of $10,000.00 to the Health Ombudsman within 14 months from the date of this order.
4. No order as to costs.