Greer v Medical Board of Australia
[2016] QCAT 474
•21 December 2016
CITATION: | Greer v Medical Board of Australia [2016] QCAT 474 |
PARTIES: | Marshall Greer |
| v | |
| Medical Board of Australia (Respondent) | |
APPLICATION NUMBER: | OCR095-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 11 February 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne Sheridan, Deputy President Mr K MacDougall |
DELIVERED ON: | 21 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The appeal is dismissed. 2. The respondent’s decision of 19 May 2015 is confirmed. 3. The applicant is to file submissions on costs by close of business on Friday, 20 January 2017. 4. The respondent is to file submissions on costs by close of business on Friday, 27 January 2017. |
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where a complaint was made regarding the professional conduct of the registrant – where the complaint alleged the registrant had had an unsolicited and inappropriate conversation with a 12 year old patient regarding sexual health matters – where the Medical Board of Australia decided to caution the registrant and impose education conditions upon his registration – where the registrant sought to appeal the imposition of those conditions – whether the registrant’s conduct is or may be unsatisfactory – whether the conditions imposed should remain Health Practitioner Regulation National Law Act 2009 (Qld), s 9, s 199(1)(e) Pearse v Medical Board of Australia [2013] QCAT 392, applied |
APPEARANCES: | |
APPLICANT: | Dr Greer in person |
RESPONDENT: | Mr C Wilson of counsel, instructed by Moray & Agnew Lawyers |
REASONS FOR DECISION
This is an appeal by the applicant general practitioner, Dr Marshall Greer, against the decision of the respondent Medical Board of Australia (Board) to impose conditions upon his registration.
Background
On 5 November 2014, SK attended upon Dr Greer for a medical appointment with her 12 year old daughter, AG. The appointment had been scheduled because SK was concerned that her daughter did not appear to have a red eye reflex, and wanted to have it checked.
On 6 November 2014, the Office of the Health Ombudsman (OHO) received a complaint from SK alleging that during the examination, Dr Greer had had an inappropriate conversation with SK and AG regarding schoolies celebrations, the use by teenagers of anti-acne drugs as contraception, and abstinence.
The complaint was referred by OHO to the Board. On 19 May 2015, the Board formed the reasonable belief that the way Dr Greer practised is or may be unsatisfactory. Pursuant to s 178 and s 179 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law), the Board decided to:
a)Caution Dr Greer; and
b)Impose conditions on his registration requiring satisfactory completion of an education program addressing “appropriate communication with patients who are minors, including parental/guardian role in determining appropriate information to be provided to their children.”
On 22 June 2015, Dr Greer filed in the Queensland Civil and Administrative Tribunal (tribunal) an application to review the Board’s decision to impose conditions upon his registration.
By order of the tribunal dated 4 December 2014, the operation of the education condition was stayed until the date of the hearing. At the conclusion of the hearing, the stay was extended until the date of delivery of these reasons.
The nature of the proceedings
Section 199(1)(e) of the National Law provides that a person who is the subject of a decision by a national board to impose a condition on the person’s registration may appeal against the decision to the appropriate responsible tribunal.
Pursuant to s 9 of the National Law, a reference in the National Law to an appeal against a decision is, for an appeal to QCAT as the responsible tribunal, a reference to a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 20(2) of the QCAT Act provides that the tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. The combined effect of s 9 of the National Law and s 20(2) of the QCAT Act establish the nature of an appeal as being a full hearing de novo.[1]
[1]Pearse v Medical Board of Australia [2013] QCAT 392, [36].
The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[2] The tribunal must decide on the material before it whether it reasonably believes that the way Dr Greer practices the health profession, or his professional conduct, is or may be unsatisfactory, and if so satisfied, whether the conditions imposed should remain.
[2]QCAT Act, s 20(1).
The hearing
On the hearing of the matter, on behalf of the Board, evidence was given by the complainant, SK, and her husband, NK. Dr John Turnbull, who had provided an expert report, was called by the Board and his report tendered. Dr Greer cross-examined each of the witnesses. Dr Greer also gave evidence.
While there was a dispute between the witnesses as to the persons present during the consultation, the manner in which the topics came up in the consultation and the language used by Dr Greer, in the course of the hearing Dr Greer made certain admissions. Importantly, he admitted to having raised, in the course of the consultation, the topics of schoolies celebrations, the use by teenagers of anti-acne drugs as contraception and abstinence. He did not accept that his use of the phrase “abstinence” in the context in which he used it could be given the interpretation contended for by the complainant, SK. He also maintained that NK was present throughout the consultation.
The evidence given by the complainant, SK, and her husband, NK, was such that where there was a conflict between their evidence and that of Dr Greer, I do not accept the evidence of Dr Greer. Both the complainant and her husband had an excellent recollection of the events of that day. The recollection of the complainant, SK, was assisted by notes she had made of the consultation, either the day of or the next day after the consultation.
The approach taken by Dr Greer in the cross-examination of the witnesses was concerning. He accused the complainant of being an overly protective mother who kept AG isolated and sheltered. He sought to ask questions of SK which were entirely inappropriate given the consultation concerned was a consultation involving a 12 year old girl. He accused SK of having a poor understanding of English. The purpose of these questions was unclear from the point of view of Dr Greer.
Despite the admissions made, he also attempted to attack the character of both SK and NK.
Dr Greer’s approach in questioning the witnesses certainly suggested that he still did not understand the inappropriateness of his communications with AG, nor the legitimate concern a parent might have about a 12 year old daughter being exposed to that type of communications, particularly at a consultation that was meant to deal with eye problems. His conduct of the cross-examination of witnesses confirmed, rather than disarmed, the importance of the imposition of the conditions imposed by the Board.
Expert evidence
This is particularly so in view of the fact that the evidence against Dr Greer included an expert report from a general practitioner, Dr Turnbull. In his report dated 15 September 2015, Dr Turnbull opined that Dr Greer’s comments and conversation during the consultation were unwanted and inappropriate. He said:
I do consider that Dr Greer’s progression of the conversation to matters of sexual teenage behaviour, whether in explicit or euphemistic terms, was indeed inappropriate … The topic was not initiated by [SK], was not relevant to the visual assessment, was not welcomed by [SK], and apparently caused her distress and embarrassment in front of her daughter.
… I consider that almost all twelve year old girls would be reluctant and uncomfortable to be suddenly led into a conversation regarding sexual behaviour in older teenagers, with a middle-aged doctor, when she felt she was just attending for an eye examination.
During cross-examination by Dr Greer, Dr Turnbull stated that to broach such a topic without pre-warning was inappropriate. He indicated the more appropriate approach would have been to lead with an open ended question such as “Is there anything else you would like to talk about?”, which would then give the opportunity to the mother and child “if they wanted to talk about something different, as opposed to just the eye condition.”
Discussion
Dr Greer submits he intended to provide information he considered to be in the best interests of his patient, AG. On the contrary, the tribunal finds that the comments made during the consultation were entirely inappropriate.
AG was 12 years old at the time of the consultation with Dr Greer, and attended upon him for an eye examination. Neither AG nor SK at any point in the consultation asked questions directed towards sexual health related matters. The more appropriate course by Dr Greer would have been that suggested by Dr Turnbull; to ask SK and AG whether there was anything further they wished to discuss. It is clear that Dr Greer would benefit greatly from the type of education envisaged by the Board.
The tribunal orders that the Board’s decision of 19 May 2015 is confirmed and the appeal is dismissed.
Orders
Accordingly, the orders the tribunal makes are that:
a)The appeal is dismissed;
b)The Board’s decision of 19 May 2015 is confirmed;
c)Dr Greer is to file submissions on costs by close of business on Friday, 20 January 2017; and
d)The Board is to file submissions on costs by close of business on Friday, 27 January 2017.