Bhoola v Optometry Board of Australia

Case [2022] SASCA 20

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

BHOOLA v OPTOMETRY BOARD OF AUSTRALIA

[2022] SASCA 20

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Blue)

18 March 2022

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OPTICIANS AND OPTOMETRISTS - BOARDS, TRIBUNALS, ETC

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OPTICIANS AND OPTOMETRISTS - DISCIPLINARY PROCEEDINGS

This is an application for leave to appeal against orders made by a single Justice of the Supreme Court on 11 May 2021 and 20 May 2021. On 11 May 2021, the Judge allowed an appeal by the respondent, the Optometry Board of Australia, and set aside an order by the South Australian Civil and Administrative Tribunal (the ‘Tribunal’) disqualifying the applicant, Mr Ashok Bhoola, from applying for registration as an optometrist for 12 months. In its place, the Judge disqualified Mr Bhoola from applying for registration as an optometrist for five years, commencing 5 August 2020. On 20 May 2021, the Judge ordered, that the applicant pay the respondent’s costs and disbursements of the appeal, agreed and fixed in the amount of $11,135. 

The applicant seeks to set aside the orders of the appeal Judge. Essentially, the applicant seeks a restoration of the Tribunal’s sanction disqualifying the applicant from applying for registration as an optometrist for 12 months. The appeal grounds are as follows:

1.The appeal Judge erred in finding that the harm engaged by the proven offending had not been adequately considered and/or evaluated by the Tribunal in arriving at an appropriate sanction.

2.The appeal Judge erred in determining that the Tribunal gave excessive weight both to the ramifications of the sanction upon the applicant’s employment, and an absence of future risk of recidivism in arriving at an appropriate sanction.

3.The appeal Judge erred in determining that the Tribunal failed to consider the adequacy of the protection offered by the sanction by failing to have regard to the financial loss incurred by the applicant’s employer or franchisor.

4.The appeal Judge erred in determining that the sanction was inadequate in all of the circumstances.

Held, per the Court, refusing leave to appeal on Grounds 1 and 4, granting leave to appeal on Grounds 2 and 3, but dismissing the appeal:

1.In relation to Ground 1, the appeal Judge was correct in concluding that the Tribunal erred in its approach in determining sanction and in imposing a 12 month disqualification from registration. The appeal Judge was also correct in concluding that the Tribunal did not properly consider the applicant’s risk of recidivism or repetition of conduct.

2.In relation to Ground 2, the appeal Judge erred in finding that the Tribunal’s expressed ‘reluctance’ to suspend or cancel the applicant’s registration meant that it erroneously took into account the applicant’s loss of employment when imposing sanction. The appeal Judge was also in error in concluding that the Tribunal misused the character evidence.

3.In relation…

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AGLC
Bhoola v Optometry Board of Australia [2022] SASCA 20
Case
[2022] SASCA 20
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of South Australia from a decision of a single judge, who had reviewed a disciplinary finding and sanction imposed by the South Australian Civil and Administrative Tribunal (the Tribunal) against Mr Bhoola, an optometrist. The dispute arose from Mr Bhoola's conduct in altering prescriptions formulated by a colleague, Ms McKernan, between February 2015 and January 2016. The Tribunal had found this conduct to constitute professional misconduct, deeming Mr Bhoola not a fit and proper person to be registered.

The legal issues before the Court of Appeal included whether the appeal judge had erred in finding that the Tribunal had improperly considered Mr Bhoola's subsequent employment when determining sanction, and whether the appeal judge had correctly identified an error in the Tribunal's consideration of character evidence and the risk of recidivism. Further issues concerned whether the appeal judge had erred in finding that the Tribunal failed to consider the financial loss suffered by Mr Bhoola's employer, and whether the appeal judge had correctly concluded that the Tribunal's imposed sanction was inadequate.

The Court of Appeal determined that the appeal judge had erred in finding that the Tribunal's expressed "reluctance" to suspend or cancel Mr Bhoola's registration was solely due to his subsequent employment, and also erred in concluding that the Tribunal misused character evidence. The Court also found that the appeal judge had erred in finding that the Tribunal did not consider the financial loss to the employer. However, the Court upheld the appeal judge's finding that the Tribunal's initial sanction was inadequate, and that Mr Bhoola's conduct represented a serious departure from professional standards requiring a substantial sanction to protect the public.

Ultimately, the Court of Appeal refused leave to appeal on grounds relating to the initial sanction and the inadequacy of the disqualification period. Leave to appeal was granted on grounds concerning the appeal judge's findings on employment and employer loss, but the appeal was dismissed. The Court concluded that, on review, no different sanction should be imposed, and Mr Bhoola's appeal was dismissed.

Orders

Orders of the court

Held, per the Court, refusing leave to appeal on Grounds 1 and 4, granting leave to appeal on Grounds 2 and 3, but dismissing the appeal:

1. In relation to Ground 1, the appeal Judge was correct in concluding that the Tribunal erred in its approach in determining sanction and in imposing a 12 month disqualification from registration. The appeal Judge was also correct in concluding that the Tribunal did not properly consider the applicant’s risk of recidivism or repetition of conduct.

2. In relation to Ground 2, the appeal Judge erred in finding that the Tribunal’s expressed ‘reluctance’ to suspend or cancel the applicant’s registration meant that it erroneously took into account the applicant’s loss of employment when imposing sanction. The appeal Judge was also in error in concluding that the Tribunal misused the character evidence.

3. In relation to Ground 3, the appeal Judge erred in finding that the Tribunal did not take into account the financial loss suffered by the employer.

4. In relation to Ground 4, the applicant has established no error in the appeal Judge’s finding that the period of disqualification imposed by the Tribunal was inadequate. Further, the appeal Judge was correct in concluding that the Tribunal's disqualification of the applicant from applying for registration as an optometrist for 12 months was inadequate.

5. On a review of all the materials and submissions, no different sanction should be imposed. The applicant’s conduct was a serious departure from the standards required of the profession. A substantial sanction was required to protect the public and maintain confidence in the profession.

Background

Background to the litigation

An appeal lies to this Court pursuant to s 19B of the Supreme Court Act 1935 (SA). Leave to appeal is required. This Court has the usual powers of an appellate court to affirm, vary or quash the orders made by the appeal Judge.Background The applicant, Mr Bhoola, and Ms McKernan, also an optometrist, were shareholders and directors of the company that operated the West Lakes Specsavers store, which was operated under an agreement with Specsavers Pty Ltd (‘Specsavers’). From the middle of 2015 onwards, Ms McKernan became aware that there was an increase in the number of glasses being returned to the store to be remade. The returned glasses were the subject of prescriptions formulated by Ms McKernan following testing. The errors in the prescriptions appeared to be the result of typing mistakes. In early January 2016, Ms McKernan became suspicious that the applicant had logged into her test results and made alterations. This led to the glasses being dispensed in accordance with altered prescriptions, rather than the prescriptions she had formulated following testing. Ms McKernan contacted Specsavers’ IT department to determine if the errors were the result of a computer glitch. She was informed that the applicant had logged into the test results that had been altered. Following further changes to her prescriptions, Ms McKernan again reported these matters to Specsavers and requested a roster change so that she did not work at the same time as the applicant. Once this change was implemented, no further errors were found in Ms McKernan’s prescriptions. An investigation by Specsavers led to the discovery that between 4 February 2015 and 19 January 2016, the last day on which the applicant and Ms McKernan worked together, 410 prescriptions were altered by a person using the applicant’s login details. The only people working in the store on the occasions that the prescriptions were altered were the applicant and Ms McKernan. The Tribunal proceedings On 14 May 2020, following a trial, the Tribunal found that the applicant’s conduct amounted to professional misconduct in the practice of optometry (the ‘Professional Misconduct Decision’).[1] The Tribunal found that the applicant had made alterations to prescriptions formulated by Ms McKernan, and that these alterations were made ‘deliberately, without clinical justification and contrary to the interests of the patients, and that his actions put the welfare of patients at risk’.[2] [1] Optometry Board of Australia v Bhoola [2020] SACAT 46. [2] Optometry Board of Australia v Bhoola [2020] SACAT 46 at [149]. The Tribunal reconvened on 21 July 2020 to determine the penalty to be imposed upon the applicant (the ‘Sanction Decision’).[3] In determining sanction, the Tribunal found that the applicant was not a ‘fit and proper person to be registered as an optometrist’.[4] [3] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47.[4] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [23].

Evidence

Evidence Before The Court

We refuse leave to appeal on this ground. Ground 2 – Loss of employment and evidence of good character In its reasons, under the heading ‘[s]uspension or cancellation’, the Tribunal said:[34]We have considered the nature of the misconduct in this case, along with the events that have occurred since the misconduct took place. After losing his position with Specsavers, the respondent sought other work and has been employed in various positions as an optometrist on a fulltime basis since January 2017. It is therefore with some reluctance that we find it necessary to impose a period of suspension or disqualification, but we consider that the seriousness of the misconduct in this case does warrant such a sanction.(emphasis added)[34] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [24]. The appeal Judge held that the Tribunal, when imposing the sanction, erroneously took into consideration that the applicant had obtained employment as an optometrist after his conduct was discovered, and that as a consequence of the Tribunal’s orders, he would lose that employment. The appeal Judge found that the placement of the Tribunal’s words ‘with some reluctance’ immediately after referring to the applicant’s ongoing employment and in the absence of any further explanation, meant that it could be inferred that the Tribunal’s ‘reluctance was occasioned by the fact that the respondent had been working full time as an optometrist since January 2017’.[35][35] Optometry Board of Australia v Bhoola [2021] SASC 51 at [56]. The appeal Judge also held that the Tribunal erred in its treatment of the evidence of the applicant’s otherwise good character. The appeal Judge found that the Tribunal had not specifically dealt with the applicant’s risk of reoffending and, because it failed to do so, it could be inferred that it dealt with the character evidence in that context. The appeal Judge found that the Tribunal erred by elevating the applicant’s character evidence over other more relevant factors (such as the applicant’s denials) when assessing his risk of reoffending. The applicant appeals against the appeal Judge’s findings. The applicant submits that the Tribunal’s observation that it was ‘with some reluctance’ that it considered it necessary to impose a period of suspension or disqualification was simply consistent with the Tribunal expressing their regret in a ‘bedside manner’ at cancelling his registration. It was also not solely attributable to the fact that the applicant had returned to employment but rather, the entirety of his personal circumstances, including his charitable works, lack of prior misconduct, and service to the community.[36] [36] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [24]. The applicant contends that in any event, his employment and other personal circumstances were matters properly considered by the Tribunal in determining the sanction, with the qualification that the weight given to personal circumstances cannot override the need to adequately protect the public.[37] [37] Medical Board of Australia and Singh [2017] WASAT (S) 33 at [23]-[29], adopted for example in Medical Board of Australia v Hadges [2018] SAHPT 6 at [32].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

We refuse leave to appeal on Ground 4.Reconsideration In this matter, the errors by the appeal Judge concern findings that the Tribunal erroneously took into account the applicant’s loss of employment (Ground 2) and failed to consider the financial loss suffered by the applicant’s employer (Ground 3). They are errors relevant to the appeal Judge’s conclusion that the sanction imposed by Tribunal was inadequate. We have already found that notwithstanding those errors, the appeal Judge was correct in finding that the sanction imposed by the Tribunal was inadequate and it was necessary for the appeal Judge to exercise the discretion afresh (Ground 4). The errors the subject of Grounds 2 and 3 do not infect the appeal Judge’s approach to the imposition of sanction; they do not undermine or have any bearing on the correctness of the appeal Judge’s approach to imposing sanction. In any event, on a review of all the materials and submissions, we would not impose a different sanction than that imposed by the appeal Judge.[49] For the reasons set out earlier, the applicant’s conduct was a serious departure from the standards required of the profession and a significant sanction was required to protect the public and maintain confidence in the profession. Accordingly, it follows that the appeal must be dismissed. [49] Kentwell v The Queen (2014) 252 CLR 601 at [43] per French CJ, Hayne, Bell and Keane JJ.Orders We refuse leave to appeal on Grounds 1 and 4. We grant leave to appeal on Grounds 2 and 3 but dismiss the appeal.