Chhaya Medical Services Pty Ltd v AHPRA
[2022] QDC 5
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- Chhaya Medical Services Pty Ltd v AHPRA[2022] QDC 5
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Chhaya Medical Services Pty Ltd v AHPRA[2022] QDC 5
Chhaya Medical Services Pty Ltd v AHPRA[2022] QDC 5
DISTRICT COURT OF QUEENSLAND
CITATION: | Chhaya Medical Services Pty Ltd v AHPRA [2022] QDC 5 |
PARTIES: | Chhaya Medical Services Pty Ltd (Appellant) v Australian Health Practitioner Regulation Agency (Respondent) |
FILE NO: | |
DIVISION: | Appeal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Beenleigh |
DELIVERED ON: | 25 January 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 May 2021 |
JUDGE: | Devereaux SC CJDC |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – UNREGISTERED PERSONS – where appellant convicted of one charge, and acquitted of 13 charges, of knowingly or recklessly holding out a person to be registered under the National Law contrary to s 116(2)(c) of the Health Practitioner Regulation National Law (Queensland) – where appellant supervised an oversees trained doctor engaged on clinical observership – whether the conviction is unreasonable and cannot be supported by the evidence – whether it was open to find the appellant recklessly held out that the clinical observer was a registered medical practitioner. |
LEGISLATION: | Health Practitioner Regulation National Law (Queensland) s 3, s 3A, s 62, s 116 |
CASES: | Malaguti v Orchard [2020] QDC 242. |
COUNSEL: | M.J. Jackson for the respondent |
SOLICITORS: | A.D. Anderson, Anderson Legal for the appellant Australian Health Practitioner Regulation Agency for the respondent |
- [1]The appellant company owned and operated a medical practice at two locations, Greenbank and Flagstone. Doctors Rajeev Chhaya and Bhavana Chhaya[1] were its directors. At relevant times, Mr Kirubairajah Tharmarajah (Mr Kiru) undertook a medical placement with the appellant with a view to being registered in Australia as a medical practitioner and working at the practice.
- [2]The appellant was tried, in the Magistrates Court at Beenleigh, on 14 charges of knowingly or recklessly holding out Mr Kiru to be registered under the National Law, contrary to s. 116(2)(c) of the Health Practitioner Regulation National Law (Queensland). The learned magistrate acquitted the appellant of all but charge 11. This appeal is against that conviction.
- [3]The ground of appeal, as amended, is that the conviction on charge 11 is unreasonable or cannot be supported by the evidence.
- [4]The appeal is by way of rehearing on the evidence before the magistrate. The prosecution set out to prove a course of conduct from which guilt would be inferred beyond reasonable doubt. That case depended largely on documentary evidence. The prosecution led oral evidence from an investigator, direct evidence from two patients with respect to charge 11, and the evidence of an officer from the Office of the Health Ombudsman in support of charges 13 and 14. The two directors of the appellant gave evidence for the defence.
- [5]For the reasons that follow, I conclude that the amended ground of appeal is not made out. On my own review of the record the appellant was guilty of the charge and the appeal must be dismissed.
Some relevant provisions of the National Law
- [6]Section 3: Objectives and guiding principles
- (1)The object of this Law is to establish a national registration and accreditation scheme for -
(a) the regulation of health practitioners; and
(b) the registration of students undertaking—
(i) programs of study that provide a qualification for registration in a health profession; or
(ii) clinical training in a health profession.
- (2)The objectives of the national registration and accreditation scheme are—
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and….
…
(c) to facilitate the provision of high quality education and training of health practitioners; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
…
(e) and to facilitate access to services provided by health practitioners in accordance with the public interest; and
…
- [7]Section 3A provides that “the main principle for administering this Act is that the health and safety of the public are paramount.”
- [8]Part 7 of the National Law, “Registration of Health Practitioners”, contains Division 10, “Title and Practice Protections”. It includes s. 116. The charges were brought under subsection 116(2)(c), which provides:
- (2)A person must not knowingly or recklessly—
(c) claim another person is registered under this Law, or hold the other person out as being registered under this Law, if the other person is not registered under this Law; or
…
Maximum penalty—
(a) in the case of an individual—$60,000 or 3 years imprisonment or both; or
(b) in the case of a body corporate—$120,000.
The charge
- [9]The charge alleged that the appellant knowingly or recklessly claimed or held out Mr Kiru to be registered under the National Law. Despite the apparently numerous possible paths to conviction, the focus of the trial and appeal was whether the court could be satisfied beyond reasonable doubt that the appellant recklessly held Mr Kiru out as being registered.
As to the elements of the charge, the trial was conducted on the basis that the prosecution had to prove that the appellant: 1. made the relevant claim or holding out; 2. did so knowingly or recklessly; and 3. Mr Kiru was not registered. The last was not in issue. It was accepted Mr Kiru was at the practice as a clinical observer.
- [10]The learned magistrate, as a result of submissions below, which were repeated in the appeal, considered the fault element of recklessness as having objective and subjective parts. Her Honour was referred to the reasons of Kent QC DCJ in Malaguti v Orchard [2020] QDC 242, in which the appellant had been charged with offences under s. 116(1)(b)(i) and s. 118(1)(b)(i) of the National Law. Those provisions concern the use of a title or, among other things, a description that, having regard to the circumstances, “indicates or could reasonably be understood to indicate” the person had the title or qualification. In that context, and no doubt guided by the way the prosecution described the elements in the case, his Honour said:
“.., the state of mind, could be established by recklessness, or “conscious disregard” of the risk. The focus is on the appellant’s state of mind, but there is an objective aspect as to how her content might be considered by a reader.”[2]
- [11]In the present case, although it ultimately does not affect the outcome, in my respectful view, the magistrate was misled and distracted by the way the prosecution case was put. The fault, or mental, element was recklessness. It involved proof that the appellant acted, as Kent QC DCJ also said in Malaguti, in conscious disregard of the risk. That is, that the appellant was conscious of the risk that its conduct amounted to a claim or holding out that Mr Kiru was registered, and that the appellant unjustifiably took the risk. One way of assessing whether this has been proven might be to ask whether a patient would think Mr Kiru was a doctor, but that is not an element of the charge.
The background
- [12]Mr Kiru was registered to practise medicine in Malaysia. He applied to the Medical Board of Australia for provisional registration in May 2018: Exhibit 7.
- [13]Section 62 of the National Law governs provisional registration, setting out the qualifications that would make a person ‘eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration..’.
- [14]On the application form, Mr Kiru’s sponsor employer was Dr Rajeev Chhaya. Dr Rajeev was also the named principal supervisor in the application and the appellant was the named employing practice.
- [15]Mr Kiru did not attain provisional registration, or any level of registration. He was not engaged with the appellant ‘to complete a period of supervised practice’.
- [16]While engaged with the appellant’s practice, on August 2018, Mr Kiru underwent the Pre-employment Structured Clinical Interview (PESCI). The panel assessed him unsuitable for the position of General Practice – Level 2. The panel recommended that he undertake a clinical observership with a mentor experienced in training GP registrars: Exhibit 8.
- [17]Exhibit 9 was a Medical Board of Australia Guidance document concerning clinical observerships. Both directors gave evidence of their familiarity with the guidance document. As the document says, the National Law does not define the term, ‘clinical observership’.
- [18]Under the heading, Supervision of clinical observers, the document states that a health care practice that allows observers to be present should have procedures in place to record the details of observers and the nature of the observership. Supervising practitioners are responsible for ‘the actions of clinical observers under their supervision’. The reader is reminded that good medical practice in teaching, supervising and mentoring includes:
- making the scope of the student’s role in patient care clear to the student, patients and other staff;
- informing patients about the involvement of the medical student, and encouraging their consent for student participation while respecting their right to choose not to consent.
- [19]There follows a passage both parties relied on:
“These principles also apply to the supervision of clinical observers. Specifically, clinical observers should at all times be under the supervision of a medical practitioner with general or specialist registration. Medical practitioners who agree to supervise clinical observers are responsible for all patient outcomes and must ensure:
- there are procedures in place for informed consent providing patients with an opportunity to consider consent prior to a consultation or procedure which may include a clinical observer
- that clinical observers are competent and safe to perform any activities they are undertaking.”
- [20]The appellant argues the guidance allows that the observer will be tasked with activities that concern medical procedures, and that the observer will be involved in activities within the practice to develop their skills, under supervision. That is, the observer is to be more than an on-looker, and nothing in the guidance would preclude the activities Mr Kiru undertook. However, recommended steps, comprehended in the practice’s protocols, were not taken on 11 October 2018 by others, to the ignorance of the appellant.
- [21]The respondent emphasises that Mr Kiru, as the appellant knew, was not registered in any of the categories provided for in Part 7 of the National Law. In particular, he did not have provisional registration. He was not undertaking a period of supervised practice. The respondent submits the regulatory regime embodied in the clinical observership guidance document imposed a positive duty on the corporate entity, which it failed to implement, to inform the patient Mr Kiru was not a registered practitioner and to seek and obtain the patient’s consent to any treatment.
- [22]During two periods from about 10 July 2018 to 28 August 2018 and from about 9 October 2018 and 17 October 2018, Dr Rajeev was out of Australia. There was evidence that he supervised Mr Kiru remotely during this time. All of the charges are dated in the periods Dr Rajeev was absent.
Magistrate’s findings in favour of the appellant
- [23]The particulars of each charge included the assertion that Mr Kiru was introduced by the appellant to other employees as ‘Dr Kiru’, and the appellant instructed employees to make medical appointments for patients to see ‘Dr Kiru’. The learned magistrate, having obtained ‘a fair overview of Mr Kiru’s involvement and engagement in the practice’ during the relevant period from the evidence of the two directors, which her Honour accepted ‘in the most part’[3], found as follows:
“Based on the unchallenged evidence of Dr Rajeev and Dr Bhavana, I accept that staff, including the receptionist, Rebecca, were aware that Mr Kiru was present at the practice as a clinical observer and was not to be introduced as a doctor but rather as Dr Rajeev’s trainee doctor. I also accept their evidence that they told staff and Mr Kiru that he was not to consult with patients.”[4]
- [24]The learned magistrate, in careful reasons, did not draw inferences sought by the prosecution from certain other circumstantial facts. For example, the prosecution relied on documents entitled: Patient Health Summary. These were records of all visits a patient made to the practice. In some patient records on the 13 dates reflected in the charges, the record stated, “Surgery consultation recorded by Dr RR Chhaya”, and the consultation notes followed. This was an account in the practice’s software made available to Mr Kiru. The prosecution relied on these documents, together with the evidence of three patients of the practice, to support the inference that Mr Kiru was providing health services to patients on those days. The learned magistrate declined to draw the inference from the documents because her Honour accepted the directors’ evidence that Mr Kiru was tasked with writing up the notes of a consultation he had observed.
- [25]The learned magistrate considered that the roster system, which included Mr Kiru, left open the inference that it was a flexible system and included Mr Kiru’s being rostered to attend and be involved in consultations with Dr Rajeev and Dr Bhavana which they considered would assist his training. This was their evidence and the learned magistrate accepted it.
- [26]The learned magistrate accepted the evidence of Ms Mann, who made an appointment by telephone on 15 October 2018 using the name, Cathy Green. She asked to make an appointment with Dr Kiru. She attended for the appointment on 17 October 2018. She recorded the consultation. The learned magistrate accepted Dr Rajeev’s evidence that Mr Kiru saw this patient against direct instructions not to see patients without supervision. Dr Rajeev made futile attempts to contact the patient.
- [27]The learned magistrate assiduously observed the onus of proof, giving the appellant the benefit of the doubt where an inference consistent with innocence was open on the circumstances.
- [28]I have already set out the finding, in favour of the appellant, that the staff, including the receptionist, were told not to introduce Mr Kiru as a doctor and that Mr Kiru was not to consult with patients. The receptionist was not called as a witness and neither was Mr Kiru. Without the opportunity her Honour had to observe the directors as they gave their evidence I do not purport to interfere with the finding, although her Honour accepted the evidence of the patients as to what Rebecca said to them. It might be thought highly unlikely that an experienced receptionist so directed would have, to two different patients on one day, referred to Mr Kiru as a doctor.
The acquittals
- [29]Briefly put, the learned magistrate dismissed the other charges as follows.
- [30]The essential particular of charge 13 was that, on 15 October 2018, an appointment was made by telephone for a patient to see ‘Dr Kiru’. The charge depended on the representation by Rebecca to Ms Mann that Mr Kiru was a doctor. Having found that the receptionist was instructed not to do so, her actions could not be attributed to the appellant.
- [31]Charge 14 focussed on the delivery of health services by Mr Kiru to Ms Mann on 17 October 2018. The learned magistrate stated she could not be satisfied the appellant was aware, through the directors, of the reasonable possibility of the consultation. It was against their instructions and without their knowledge.
- [32]Her Honour observed that the other charges, except for charge 11, were not supported by direct evidence from patients. Her Honour referred to a written answer given by the appellant through lawyers as to the contact Mr Kiru had with patients which included: “Generally, his contact would be under the direct supervision of Dr Rajeev or Dr Bhavana. However, there were occasions when Mr Kiru only consulted with either of the supervising doctors before, during or after seeing a patient.”
- [33]Her Honour noted the directors’ emphasis on supervision, but correctly said that was not the test. Section 116 could still be breached even if Mr Kiru were supervised, depending, of course, on the nature of the supervision. Her Honour acknowledged that the circumstances – the course-of-conduct evidence – were open to the inference that the appellant held Mr Kiru out as a registered practitioner but the directors’ explanations raised a doubt.
- [34]Without rehearsing the reasons for dismissing each charge, it suffices to take an example, charge 2, where her Honour said, “the possibility that he merely observed a consultation or that the consultations took place in the presence of Dr Bhavana or, even if not, that the patient was aware that Mr Kiru was not registered and consented to the procedure cannot be excluded.”
Charge 11
- [35]The evidence supporting charge 11 was quite different. It was supported by the evidence of two witnesses of their experiences as patients with Mr Kiru on 11 October 2018 – Ms Dupreau and Ms Hughes.
- [36]Ms Hughes had been a patient of the health service at Greenbank and at Flagstone for about 3 years. She made an appointment by telephone, asking to see her usual doctor, Dr Zakhary. The receptionist, Rebecca, told her he was no longer with the practice, but she could see Dr Chhaya or Dr Kiru. Ms Hughes chose Dr Kiru.
- [37]On the day of the appointment, Ms Hughes went to the clinic, spoke to Rebecca, and waited a while. Then the new doctor came out and pointed to the room for her to go to. The doctor examined her. He checked her throat, heart, blood pressure, which he said was a bit low, and told her it was a viral problem. He did not write a prescription. He recommended rest, Vicks and orange juice. The doctor did not call himself a doctor; there was no certificate on the wall, as there had been when Dr Zakhary was there; he sat back from the table and did not use the computer or make notes. She did not see another doctor.
- [38]The learned magistrate accepted Dr Bhavana’s evidence that she was at the surgery that day; that she told Mr Kiru to usher the patient into the room and start the consultation; that when she was finished with her own patient, she went to the door of the room Mr Kiru was in, listened and could hear the consultation ending. The patient did not see her.
- [39]Ms Dupreau took her son to the clinic on 11 October 2018. She did not have an appointment. The receptionist, Rebecca, told her Dr Zakhary was no longer at the clinic but there was a new doctor. After 5 to 10 minutes the ‘new doctor’ greeted her, introduced himself as the new doctor, and they went to the consultation room. She spoke well of his manner. Her son had tonsillitis. He was known to be allergic to certain antibiotics. The doctor gave him a prescription for a drug called Bactrim. She saw no-one else in the consulting room. During the consultation the doctor left the room and returned with a stethoscope. Ms Dupreau said her husband took the prescription to a chemist.
- [40]The learned magistrate accepted Dr Bhavana’s evidence about this incident – that at the start of the day she met with Mr Kiru; Rebecca told them a patient had come in with a child, and Dr Bhavana told Mr Kiru to take the patient to the consulting room and get started, as she wanted him to get practice and experience eliciting information from patients. She was standing outside the room when he came out asking for the stethoscope and a blood pressure cuff. She gave him her stethoscope. He told her the child had tonsillitis and they were requesting an antibiotic. She said, “Fine. Go ahead.”
- [41]The chemist called the clinic because the liquid form of the drug was unavailable. The learned magistrate accepted the evidence of Dr Bhavana that it was she who spoke to the chemist. The chemist advised her the parents had agreed the child could take a tablet, so Dr Bhavana agreed to change the prescription.
- [42]The prescription was not valid. It did not include a prescriber number. Mr Kiru’s access to the practice’s software allowed him to put in data and print prescriptions in the name Dr RR Chhaya. The procedure was for him prepare and print a prescription then give it to one of the directors for signing and the insertion of their prescriber number. The stated purpose of the procedure was to give Mr Kiru training in writing prescriptions and to create the efficiency in producing them.
- [43]The learned magistrate’s findings included that, while her Honour accepted that Dr Bhavana intended to go into the consulting room while Mr Hughes was there, she did not. In relation to Ms Dupreau, Dr Bhavana said she allowed Mr Kiru to see the patient on his own. He was supervised, in the sense, as her Honour said, that “he came out of the room and checked his diagnosis and treatment”. Dr Bhavana did not go into the room. The experience of the two patients was that Mr Kiru treated them as a doctor would, without supervision. He did not tell them he was not registered. He did not seek their consent to his treating them.
- [44]As to the so-called subjective part of the fault element, the learned magistrate said,
“Dr Bhavana Chhaya allowed Mr Kiru to see the patients on his own, carry out a consultation and, in the case of Ms Dupreau, write a script.”
- [45]The appellant argues that this summary overstates the evidence. To deal with this submission it is necessary to set out parts of Dr Bhavana’s evidence:
“So do you recall – just dealing specifically with Rebecca Dupreau, do you recall knowing that she was coming into practice? --- Yes.
Do you recall speaking to Mr Kiru about her? --- Yes, so the receptionist briefed us to say that I’ve got a parent bringing a child and they – you know, and they’re coming in. So I said, “Okay Kiru. So we’re armed with – what we’re going to do today is elicit the ideas and the concerns of the patient. I want you to start forming the report and I” – I mean, I just patted myself on the back when I say that Rebecca Dupreau said that, “If it had to be the same doctor, I would go back to him again.”
…
She says that Mr Kiru – you would recall this – Mr Kiru saw her without anyone else in the room? --- So that - - -
Did that happen? --- That was only the initial part. So I let – I said, “Kiru, you usher the patient in and you take the patient in and I want you to get started.” So he got started and because we – like, yeah, we’re all – what can I say, we’re all – you know, we hold our stethoscopes and all those are quite precious. It’s not the cheap, sort of the fifty hundred dollar ones which don’t – so we’re all quite precious about the stethoscopes we hold and Kiru was only operating or working out of whatever things we have so he started the consultation and I was actually standing outside the room. The Flagstone is a – the Flagstone clinic is a very small clinic which has got quite porous walls so if I do that carefully I can actually, you know, hear the whole conversation happening. And he’s saying – when he came to the examination, he came out and he needed the stethoscope and a blood pressure cuff. He didn’t have to use the blood pressure cuff. He took my stethoscope from my room and I met him and he’s like, “It’s a child. I’ve already seen. They’ve got – it’s tonsillitis and the patient is allergic so they are requesting for an antibiotic.” So I said, “Fine. Go ahead.””
- [46]With respect to Ms Hughes, Dr Bhavana gave this evidence:
“Was Kiru allowed to see her without you being there and without - - -? --- No.
- - - you knowing? --- So Kiru was in my room with me, and I was seeing a set of patients. And the receptionist said that, you know, the next patient has come in. And she said – she – she just wants – she just wants to be examined, and she’s otherwise okay. She just simply wants to be examined and made sure that, you know, she’s still got the infection. So I instructed Kiru to go – to go out of my room and I said, “Can you please usher the patient in?” By the time – and I was, obviously, in consultation with the – it’s an elderly couple, and I was in consultation with them. And by the time I was, like, “Okay. Let me – I need to go out and be able to go in and see whoever he’s seeing,” just to have a brief overview of, you know, what’s happening; I’d like to see him. I did hear him across the room; I did hear him through the door, because I was at the door. And then he was concluding his visit. And before I knew the patient came out, and I stepped out, the patient came out and left. And I didn’t – the – so the patient never saw me. Because the way the door opens, as you open the door to exit out, the door faces the hallway to leave. So you just leave. So you wouldn’t be much with whoever is – you know, whoever’s at the back. So I was wanting to come into the room to see her. Like, not – I don’t think I was wanting to see her - - -”
- [47]In my opinion, the learned magistrate’s summary did not significantly overstate the evidence. The appellant submits that insofar as Dr Bhavana allowed Mr Kiru to go ahead and write a script she must be understood as meaning he could write a dummy prescription to which she would later add her prescriber number to make it valid, and any other outcome was the fault of Mr Kiru. However, the holding out was already complete. Dr Bhavana had allowed Mr Kiru to see the patients in a separate room, in circumstances which amounted to holding him out to be a registered practitioner.
- [48]The argument that it was not open on the evidence to find the mental element of the charge proved beyond reasonable doubt must reduce to the proposition that the appellant was not guilty because Dr Bhavana was not reckless of the risk that Mr Kiru was being held out as a registered practitioner because, in one case, she expected to take part in the consultation, and in both cases he was supposed to tell the patients he was not registered and seek their consent to treatment.
- [49]The evidence as to the protocols in place included the following.
Dr Rajeev, in examination-in-chief:
“What was the – or was there any protocol that they had to follow in allowing – or not allowing – patients to see trainee doctors like Mr Kiru? --- Yes. Clearly, they weren’t supposed to be letting the patients in, and letting Kiru to see the patient. That was the instruction from the practice.
“That was the instruction from the practice”, meaning what – is that what you told them? --- Yeah, yeah. Yeah.
And is that what your wife told them? --- Yes, yes.
Was there any document or form they had to follow in allowing in – sorry, I withdraw that. So they just weren’t allowed – he wasn’t allowed to see patients on his own? --- No.
You heard evidence from Sarah Marie Hughes yesterday; do you recall that? --- Yes, I do.
Do you recall saying, effectively, that the same sort of thing happened to her, that she saw Dr Kiru on her own; do you recall that? --- Yes.
Would that have been permitted? --- No.”
Dr Bhavana, in examination-in-chief:
“Did it include – did the supervising and clinical observership – did it include allowing him to see patients? --- So as per the guidelines, the – the guideline says that the supervisor at all times must continue to keep on assessing the progress of the person they are supervising and therefore, accordingly, allowed them in a graduated manner to see what they can and cannot do. So initially we would – we – we – you know, Kiru was just introduced as a trainee. He is just sitting in with us. He’s – he’s waiting to get his exams. And he would just sit quietly in the background without even a word or anything. Then, gradually, I started telling Kiru, “Kiru, obviously, with the patient’s consent, that now I’m going to put you in the hot seat, so you pretend that you’re the doctor in the room, and you have to conduct this consultation as the patient has come in and expressed all the ideas, concerns and expectations, find out- check their body language, look for the soft signs, everything”, and would just try and it quietly – not just sit there in the background, but just not talk so that – let’s see how he flows, and then once – and then in between obviously take over the consultation and carry on or would put him on the spot and say, “Would you like to show me just how you’re going to examine the respiratory system”, or - - -
--------------
And if I didn’t ask it before, I’ll ask it now, I think I did ask: was Mr Kiru allowed to see patients without you knowing or being present? --- Master Kiru – or, rather, Kiru, as I call him – was not allowed to see any patients on his own. And I don’t really think he’s seen any or many or any on his own. He was always – the receptionist would always prep up to say this – you know, like, this person is coming for this or something, or I would allocate patients and say, “Here, I want you to see this, this is going to be a good exam case.”
So - - -? --- I would go in and out of consultation if I wanted.”
- [50]If, at the start of Mr Kiru’s period with the practice, he was prevented from seeing patients on his own, that practice clearly changed. On 11 October 2018, Mr Kiru was allowed to see the patients alone in a separate consultation room. It is clear that in one case at least, Dr Bhavana was engaged with other patients. I have set out earlier Dr Bhavana’s account of the circumstances of Mr Kiru’s consultation with Ms Hughes. Shortly after that evidence, Dr Bhavana was asked:
“I suppose what I’m really wondering is; were you aware that he was going to see this woman or not? --- Not by himself.”
- [51]If, by that answer, Dr Bhavana meant that he was not to see the patient by himself for the whole consultation, it was for her to determine how long she spent with her other patients before attending to Ms Hughes. In the result, the Hughes consultation was short and she did not see Ms Hughes at all. Dr Bhavana had the opportunity, at the end of Ms Hughes’ consultation, to speak with her, but did not take it.
- [52]With respect to the consultation with Ms Dupreau and her child, Dr Bhavana heard Mr Kiru’s assessment, lent him her stethoscope, and allowed him to return alone to the patient. Even if her actions amounted to supervision, as the learned magistrate recognised, that was not the issue. The conduct amounted to holding out Mr Kiru as a registered practitioner.
- [53]Even if it was for the company to delegate to the clinical observer, in the absence of a supervising doctor, the duty to inform the patient and seek consent, Mr Kiru’s omission does not, in all the circumstances of the case, excuse the appellant’s recklessness.
- [54]It was open to the learned magistrate to conclude on the evidence that the appellant, by Dr Bhavana’s actions on 18 October 2018 with respect to Mr Hughes and Ms Dupreau, held Mr Kiru out as a registered practitioner, was aware of the risk it was doing so, and carried on regardless of the risk. Upon my own review of the record, I reach the same conclusions.
- [55]The appellant, through the directors, professed to having a keen sense of the need not to present Mr Kiru as a registered practitioner. The measures said to be in place confirmed this awareness. Dr Bhavana’s acts permitted the realization of the risk.
Corporate liability
- [56]Where the liability arises from the acts and knowledge of a director, particularly in a corporation the size of the appellant, no serious question about attribution of liability to the company arises. No reliance upon, for example, the statements and actions of the receptionist is necessary. I have noted the learned magistrate’s findings.
- [57]Arguably, given the emphatic purpose of the National Law, the relatively small size of the medical practice, and the apparent authority of an experienced receptionist in such a practice, it would have been open to the learned magistrate to conclude that the statements and actions of the receptionist revealed a corporate approach attributable to the appellant;[5] but it is unnecessary to reconsider her Honour’s conclusion.
- [58]The appellant argued that the learned magistrate wrongly considered that supervision of Mr Kiru required one of the supervisors to be present when he was with a patient, whereas Dr Bhavana explained that the essence of supervision was the authority to affect the outcome of the consultation. The misunderstanding was important, as I understand the submission, because the learned magistrate placed emphasis on the prosecution’s failure to exclude the possibility that a supervising doctor was present during the consultations relied on in support of the other charges. That led to the acquittals. Conversely, proof of absence in the consultations relevant to charge 11 led to the conclusion that Mr Kiru was not supervised, and so to conviction.
- [59]The submission that the magistrate’s emphasis on presence as a requirement of supervision led to error is not well founded. The magistrate’s repeated reference to the possibility that Mr Kiru was not alone with the patients in the other charges was relevant to the prosecution’s failure to exclude exculpating inferences. It was in that way that the “course of conduct” case the prosecution led failed. The exception was count 11, where the exculpating possibility was excluded by the evidence of the patients and the absence of Dr Bhavana. The evidence of the patients confirmed the holding out and Dr Bhavana’s evidence confirmed the recklessness.
- [60]I confirm the learned magistrate’s order.
- [61]The appeal is dismissed.
Footnotes
[1] I will adopt the practice, as in the appellant’s written outline, of referring to the doctors as Dr Rajeev and Dr Bhavana
[2] Malaguti at [116]; Crowther v Sala [2008] 1 Qd R 127, footnoted in Malaguti, concerned a charge under the Commonwealth Criminal Code of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. It does not affect the present issue.
[3] Reasons for decision 5.20.
[4] Reasons for decision 5.35.
[5] As to the attribution of liability to a company under a statute and the particular relevance of the statutory purpose, see the discussions by Bell J in ABC Development Learning Centres Pty Ltd v Wallace [2007] VSC 171 and Edelman J in Commonwealth Bank of Australia Ltd v Kojic [2016] FCAFC 186 at [94-101].