Health Ombudsman v De Villiers
[2025] QCAT 5
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Health Ombudsman v De Villiers[2025] QCAT 5
- Add to List
Health Ombudsman v De Villiers[2025] QCAT 5
Health Ombudsman v De Villiers[2025] QCAT 5
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v De Villiers [2025] QCAT 5 |
PARTIES: | Health Ombudsman (applicant) v Robert Arthur D’Hotman De Villiers (respondent) |
APPLICATION NO: | OCR136-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 October 2024 (decision) 13 January 2025 (reasons) |
HEARING DATE: | 23 October 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Dr J Cavanagh, Medical Practitioner Panel Member Dr G Senator, Medical Practitioner Panel Member Mr M Halliday, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where it is alleged that the respondent assaulted a child by picking him up and smacking him on the bottom – where the respondent included demeaning and/or derogatory remarks in the relevant patient health summary – whether the conduct constitutes professional misconduct or unprofessional conduct – where the agreed sanction falls within the proper bounds of an appropriate disciplinary response Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Ombudsman v Niem Quoc Tang [2020] QCAT 165 Medical Practitioners Board of Victoria v Kelly (Occupational and Business Regulation) [2009] VCAT 2109 |
APPEARANCES & REPRESENTATION: | |
Applicant: | K A Pyra, solicitor of Corrs Chambers Westgarth |
Respondent: | J Liddle instructed by Meridian Lawyers |
REASONS FOR DECISION
- [1]On 23 October 2024, after hearing brief oral submissions from the parties, the Tribunal made the following orders:
- pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes unprofessional conduct;
- pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded;
- pursuant to s 107(3)(c) of the HO Act, the respondent pay a fine of $5,000.00 to the Health Ombudsman with 12 months; and
- no order to costs.
- [2]These are the reasons for making those orders.
- [3]The hearing proceeded on the basis of a referral filed by the Health Ombudsman (‘applicant’) on 31 May 2023 and a response filed by Dr De Villiers (‘respondent’) on 8 September 2023.
- [4]There are two allegations in the referral filed on 31 May 2023 (‘Referral’) relating to the conduct of the respondent during a consultation with J on 25 March 2022.
- [5]The allegations do not relate to the Respondent’s treatment of J. The allegations relate to his conduct in relation to M, the 28-month-old son of N and sibling of J, as follows:
- Allegation 1 is that on 25 March 2022, the Respondent assaulted M by picking him up and smacking him on the bottom; and
- Allegation 2 is that on 25 March 2022, the Respondent prepared the patient health summary which included demeaning and/or derogatory remarks in respect of N and M.
- [6]The Respondent admits allegations 1 and 2 as described above and has made factual admissions which are recorded in the amended statement of agreed and disputed facts (‘SOADF’) filed on 28 March 2024. Three facts remain in dispute.
- [7]The only disputed issue between the parties relates to characterisation of the admitted conduct. The applicant argues that it should be characterised as professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The respondent contends that the conduct is properly characterised as unprofessional conduct. Both agree that, whatever the determination of the Tribunal, properly described as a matter of degree in the authorities, the sanction should be a reprimand and a fine of $5,000.
Background and factual context
- [8]The respondent is an experienced medical practitioner. At the time of the hearing, he was 70 years of age, and had over 43 years of experience as a general practitioner. He trained in Zimbabwe, was registered in Australia on 23 November 1999 and attained fellowship of the Royal Australian College of General Practitioners in 2002.
- [9]At the relevant time, the respondent was working as a General Practitioner at the Edmonton Family Medical Centre (‘Practice’).
- [10]The respondent’s registration history is detailed in the Evidentiary Certificate at document 3 in the Index to Agreed Bundle of Documents.
- [11]At the time of the conduct, the respondent’s registration was subject to conditions which restricted his scope of practice in relation to procedural sedation and/or procedural analgesia.
- [12]On 28 March 2022, N, the complainant, made a complaint to the applicant.
- [13]The complainant is deaf and made the complaint through the National Relay Service with the assistance of an Auslan Interpreter. The complainant is the mother of J (born on 26 January 2018) and M (born on 26 November 2019). The complaint concerned the respondent’s conduct towards M, who was two years old at the time, during a consultation intended for J on 25 March 2022.
- [14]On 31 May 2023, the Director of Proceedings referred the matter to this Tribunal.
- [15]On 12 May 2023, as a consequence of the conduct which is the subject of the complaint, the applicant invited the respondent to show cause why it should not take immediate registration action by imposing conditions on the respondent’s registration providing that he must not have contact with any patient under 18 years of age without the presence of a practice monitor.
- [16]On 5 June 2023, the respondent’s solicitors provided submissions opposing the proposed immediate registration action.
- [17]On 26 June 2023, following consideration of the respondent’s submissions, the applicant decided not to take immediate registration action because “…[h]aving carefully considered your submission, I am unable to form a reasonable belief [that the respondent] pose[s] a serious risk to child patients and that the proposed action is necessary in accordance with section 58(1)(a) of the Act.”
- [18]M and J were both patients of the respondent. Prior to the consultation on 25 March 2022 for J, the respondent had treated M on 2 August 2021 and 1 October 2021.
Consultation
- [19]On 25 March 2022 the complainant attended the practice with her children for the purpose of her four-year-old son, J, attending an appointment with the respondent.
- [20]The reason for the appointment was to obtain a medical certificate regarding J’s apple allergy.
- [21]The complainant had arranged for, Ms Doessel, an Auslan Interpreter to attend the consultation electronically using FaceTime on an iPad.
- [22]The appointment was booked for 12.30pm.
- [23]The appointment commenced at approximately 1pm, with Ms Doessel in attendance via the iPad.
- [24]During the appointment M flicked the light switch to the consult room off and on. Adjacent to the light switch were two panels with a grey button and orange blinking lights (safety switches). The respondent said to M ‘no, no. Don't go there. Come sit here.’
- [25]The respondent asked Ms Doessel to ask the complainant to control the child, but the interpreter did not get a chance to relay this message to the complainant. M was ‘running amuck’.
- [26]M flicked the light off and on a second time and the respondent got up from behind his desk then picked M up and used an open hand to smack him on the bottom. M had a nappy on.
- [27]The respondent then terminated the appointment and asked the complainant to leave.
- [28]Dr Kresevic, another doctor at the practice, issued a medical certificate for J.
- [29]The respondent’s conduct which is the subject of allegation one was reported to the police.
- [30]The respondent was not charged with any offence.
Clinical notes
- [31]The respondent made the following record of the consultation in J’s Patient Health Summary:
[J] is allergic to apple.
Certificate is completed.
Mother [N] has no control over her children
Consult Cancelled;
The younger of her 2 kids came in misbehaving.
The little brat switched off the light, was told not to do that by me, & he did it again in defiance.
Then I picked him up & smacked him on the bottom after he ignored my warning.(this was over heavily padded trousers & no doubt a nappy under that)
The only injury inflicted was to the child's pride.
[N] objected & I told her thru the sign interpreter that the consults for her & her son were forthwith cancelled.
Reason for visit:
Apple allergy (anaphylaxis)
Disputed facts
- [32]If M had pressed the safety switches, the power to the consultation room and most of the practice would have been disrupted.
- [33]After the respondent picked him up and smacked him on the bottom, M began to cry. It was not the respondent’s intention to hurt M in any way.
- [34]In relation to the disputed facts, both parties agreed that resolution of the matter does not require the Tribunal to determine these, however the respondent argues that on the basis of the material in the Hearing Brief it is open to the Tribunal to determine the dispute.
Characterisation
- [35]The general principles are well known and need not be repeated. A finding of unprofessional conduct requires proof that the impugned conduct ‘is of a lesser standard than that which might reasonably be expected of the public or the practitioner’s professional peers’.[1] Whereas, the more serious professional misconduct requires proof of conduct ‘that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’.[2]
- [36]The Tribunal recently considered the definition of professional misconduct and the meaning of ‘substantial’ in Health Ombudsman v Niem Quoc Tang (‘Niem Quoc Tang’):[3]
The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:
… it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, ‘substantial’ connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.
In deciding whether conduct should be charactered as “unprofessional conduct” or “professional misconduct”, the Tribunal is required to make a judgment as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner’s professional peers.
- [37]The applicant bears the legal responsibility of satisfying the Tribunal that the admitted conduct here constitutes professional misconduct in accordance with the approach mandated in Briginshaw v Briginshaw.[4]
- [38]In concluding that the applicant had not met that standard, I relied on the material in the Hearing Brief, the substantial written and oral submissions of the parties, and the advice given to me by the assessors, particularly the two very experienced professional assessors.
- [39]The factors that I have taken into account include the:
- long experience of the respondent during which he has never done anything like this;
- distressing circumstances of the consultation itself;
- very short time period during which the conduct occurred;
- vulnerability of the mother and her need to have an interpreter present; and
- nature of the conduct itself.
- [40]There is no doubt that the little boy’s behavior was very challenging, but it was completely inappropriate for the respondent to intervene as he did.
- [41]In her statement to police, the interpreter described the child’s behaviour as “running amuck”. Further, the interpreter stated to police that “the doctor was becoming annoyed as [M] was not doing anything to control [J]. [J] flicked the lights off and on and off again.”
- [42]It is also relevant (as the applicant fairly acknowledges) that the respondent had, at this time, worked for 2 years without a break due to being a frontline health care worker responding to COVID-19.
- [43]As I noted during the hearing, it is well known that general practitioners in this country are under enormous pressure, which includes the reality that patients have to wait, often for some time after their allotted appointment time, to see their doctor. This was no doubt greatly amplified here with a vulnerable mother with two young children one of whom was “running amuck”, due in some part to having to wait for 30 minutes in the waiting room for what should have been a very straight forward consultation.
- [44]The respondent should never have acted as he did. He accepts this and expressed remorse when interviewed by investigators on behalf of the regulator. His unprofessional conduct was clearly out of character. As the little boy’s mother said in her police statement:
I usually take [M] to see [the respondent] and have seen him for appointments on six occasions. He has previously written referrals to the hospital, and he knows myself and [M]. Until now, he was good man, and this just happened out of the blue.
- [45]As the respondent accepts, he has breached the relevant Code by his conduct, which in itself is serious, as instruments of this nature are admissible under section 41 of the National Law as evidence of what constitutes appropriate conduct by health practitioners.
- [46]In relation to the disputed facts, and given the respondent’s comprehensive response to the investigators about the safety switches which were very close to the light switch, and which had the blinking light, and which lead to an electrician installing a cover over the safety switches, a photograph of which he sent to the investigators, I am satisfied that the consequences of the little boy accessing those switches was at least a factor that motivated the respondent to act in such an inappropriate way. I infer that he lost control and acted impulsively and given the nature of the admitted facts in relation to allegation one, I am satisfied that he did not intend to hurt the little boy and in fact did not.
- [47]Both parties rely on Medical Practitioners Board of Victoria v Kelly (Occupational and Business Regulation) (‘Kelly’).[5] This decision was made under a different regulatory system, however the relevant definitions of unprofessional conduct and professional misconduct were relevantly the same or very similar. It is important that Tribunals throughout the country exercising disciplinary jurisdiction in relation to registered health practitioners make orders that are consistent to ensure public confidence in the regulatory system.
- [48]I agree with the parties that Kelly is an analogous case. The other cases referred to by the applicant in its submission involved much more serious conduct.
- [49]Dr Kelly was also a very experienced general practitioner. She had been in general practice for 40 years. At the time of her impugned conduct, she was also under a lot of pressure as the result of an incident just prior to the consultation where a patient denied a prescription for a Schedule 4 drug which had been prescribed to her only days earlier, reacted violently in the surgery resulting in the police being called.
- [50]Unlike the respondent, Dr Kelly disputed the critical facts alleged that, in response to a 4-year-old child banging on the door of a consultation room in which the doctor was having a consultation with the child’s mother, the doctor went to the door, opened it and took the child by the arm and slapped her twice.
- [51]After a contested hearing during which witnesses, including Dr Kelly, were cross examined, the Tribunal did not accept her evidence on the critical facts and preferred the evidence of a young woman who was associated with the mother and the child, and who was in the waiting room at the relevant time.
- [52]
We are satisfied that when the door opened, Dr Kelly took TS by the arm, and slapped her twice… Whilst there is nothing to suggest that Dr Kelly did this to hurt or punish TS, we are satisfied it was done to exert some physical discipline to stop TS interfering with the consultation.
What Dr Kelly did was wrong. Hers was not an appropriate response to resolving disruptive behaviour. Any general practitioner would know not to have physical contact with a child, let alone a child who was not one’s patient, without first making oneself known to the child and establishing some rapport.
To have behaved in this peremptory fashion and to have taken matters into her own hands is a departure from what most general practitioners and the public would regard as a reasonable standard of behaviour. It is common for children to misbehave when they are distressed, and someone with Dr Kelly’s maturity and experience should have known better.
Whilst there may be cases where physical force or restraint is unavoidable, this was not such a case. Patients and people visiting the surgery who are vulnerable, the frail elderly and the disabled, have a right to attend a medical practice without fear of unwarranted and undue force being put upon them.
To make a finding of professional misconduct we would need to be satisfied that the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency. In this case, although the conduct was unprofessional and completely inappropriate, it does not fall within the spectrum of conduct that should be regarded as professional misconduct.”
- [53]The Tribunal found that Dr Kelly’s conduct constituted unprofessional conduct. As the decision relates only to the disputed factual hearing, it is unclear what her circumstances were at the time apart from noting that she was not then in practice.
- [54]The comments made by the Tribunal in Kelly at [54]-[55] are applicable here. I am satisfied that the respondent here has insight, that is demonstrated by his cooperation with the regulator and the Tribunal in these proceedings.
- [55]The respondent submits that the two admitted instances of unprofessional conduct should be regarded as one course of conduct. It is not clear from the material when the clinical note was made except that it was on the same day. I think it is more likely than not that he made that derogatory note at a time when he was still angry, so likely to be close to when the consultation was ended by him. The nature of the conduct in each allegation is however materially different and for that reason I do not accept the respondent’s submission.
- [56]I am satisfied that the admitted conduct in each case amounts to unprofessional conduct.
Sanction
- [57]Given my finding that the agreed sanction as submitted by the parties falls well within the proper bounds of an appropriate disciplinary response in this case, it is not necessary for me to explore the well-known principles that arise when a Tribunal such as this is considering the making of discretionary disciplinary orders.