Health Ombudsman v Kadrian - [2022] QCAT 350

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kadrian [2022] QCAT 350

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

David Senti Kadrian

(respondent)

APPLICATION NO/S:

OCR113-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 September 2022 (ex tempore)

HEARING DATE:

15 September 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Associate Professor M Byrne

Dr J Cavanagh

Mr K Murphy

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of six months from the date of these orders.

4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action taken by the Health Ombudsman on the 23rd of December 2019 and amended on the 27th of July 2020 is set aside.

5. There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where respondent medical practitioner engaged in multi-faceted unprofessional conduct over a number of years from 2013-2016 – as well as treating close persons with whom he had or had had a close personal relationship he engaged in inappropriate boundary violations in relation to a number of female patients – where he breached undertakings to the regulator and conditions imposed in his registration – where he failed to keep proper medical records – where he engaged in inappropriate medical treatment – where he had a previous disciplinary history – where he has taken significant steps in the years since to address the causes of his misconduct – where he demonstrates significant insight and remorse – where the parties agree as to the fact and characterisation of the conduct as professional misconduct – where the parties also agree as to sanction – whether the delay is a mitigating factor

Health Ombudsman Act 2013 (Qld) ss 62, 107

Health Practitioner Regulation National Law (Queensland) s 5

Health Ombudsman v Gascard [2020] QCAT 264

Health Ombudsman v Veltmeyer [2021] QCAT 77

Medical Board of Australia v Sevdalis (Review and Regulation) [2018] VCAT 1931

The Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The respondent is a medical practitioner, first registered with the Medical Board of Australia (the Board) on 5 November 2001. In a referral filed with the Tribunal on 30 April 2021, the applicant alleged that, in a number of respects, the respondent has engaged in professional misconduct by:
(a)providing treatment to persons with whom he was in a close personal relationship contrary to the Good Medical Practice: A Code of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 350
Decision Date

CaseChat Overview and Summary

The case before the court involves Health Ombudsman acting against Kadrian, a registered medical practitioner. The Health Ombudsman had imposed conditions on Kadrian's registration following complaints regarding his conduct during his professional practice. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the sanctions imposed by the Health Ombudsman. The primary legal issue before the Tribunal was whether the sanctions imposed on Kadrian were appropriate and whether they should be upheld or altered. The Tribunal needed to consider the principles of proportionality and the protective purpose of disciplinary proceedings, as well as the joint submission made by the parties regarding the appropriate sanction.

The Tribunal examined the submissions made by both parties and the evidence presented. It considered the principles set forth in previous case law, particularly the decision in Medical Board of Australia v Martin, where it was noted that the Tribunal should not deviate from a proposed sanction agreed upon by the parties unless it falls outside the permissible range. The Tribunal also took into account the respondent's disciplinary history, his qualifications, and the nature of the complaints against him. After a thorough review, the Tribunal determined that the sanctions imposed by the Health Ombudsman were appropriate and aligned with the principles of proportionality and the protective purpose of disciplinary proceedings.

The Tribunal concluded that the sanctions imposed on Kadrian were appropriate and should be upheld. It found that the agreed sanction, which was within the permissible range, adequately addressed the concerns raised by the complaints and served the protective purpose of the disciplinary proceedings. The Tribunal also noted that the respondent had a history of similar conduct, which warranted a firm response to ensure public protection.

The Tribunal's decision was that the sanctions imposed by the Health Ombudsman on Kadrian's registration should be upheld. The conditions imposed on his registration would remain in place, as agreed by the parties, and would not be altered by the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

In relation to sanction, the effect of a joint submission was referred to by the then-Deputy President of the Tribunal, his Honour Judge Horneman-Wren, DCJ SC in the Medical Board of Australia v Martin,[2] where his Honour, in effect, stated that the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive. [2][2013] QCAT 376 at [91] – [93]. Background The respondent is 57 years of age. His date of birth is the 31 of December 1964. He holds a number of tertiary qualifications in arts and science. In 1999, he was awarded a Bachelor of Medicine and a Bachelor of Surgery from the University of Newcastle. He currently holds general registration with the Board, however, his registration is subject to conditions which were imposed by the Health Ombudsman on 23 December 2019 and amended on 27 July 2020. From early January 2008 until early 2010, he held various positions as a neurological registrar in various hospitals in south east Queensland. Relevantly to the conduct the subject of the referral, from about January 2012 to February 2015, he worked at the Chevron After Hours Medical Centre. In July 2015, he relocated to New South Wales and commenced working as a general practitioner at the Ballina West Medical Centre. He continued to work there from July 2015 to December 2017, and then from August 2018 until July 2019. Between January 2017 and August 2018, he undertook cosmetic surgery rotations in Adelaide, Melbourne and Southport. Between January 2018 to August 2018, and then from July 2019 until July 2020, he practiced as a general practitioner at the Chevron After Hours Medical Centre. In accordance with the statement of agreed facts, dated 15 December 2021, he was last employed in July 2020 as part of a COVID19 swabbing program with a company called Medi7 Pty Ltd as approved by the Health Ombudsman. On 26 April 2016, the Office of the Health Ombudsman (the Office) received a complaint from Ms RA regarding the respondent’s conduct. On 12 July 2016, following a request from the Australian Health Practitioner Regulation Agency (Ahpra), a complaint from Ms CKA made on 22 April 2013 was referred to the office. The respondent has a relevant disciplinary history. On the 30th of December 2009, Ahpra received a complaint regarding the respondent’s treatment of Ms WF at the Royal Brisbane and Women’s Hospital. The complaint concerned the respondent’s neurological assessment of the patient following a motor vehicle accident. On 11 July 2012, following an investigation, a Disciplinary Committee established by the Board, conducted a hearing in relation to the respondent’s treatment of patient WF. On 20 September 2012, the Disciplinary Committee decided to reprimand the respondent and accepted undertakings signed by him on 9 September 2012 (2012 undertakings).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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