Hoffman and Medical Board Of Australia
[2012] WASAT 110
•25 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: HOFFMAN and MEDICAL BOARD OF AUSTRALIA [2012] WASAT 110
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS C WALLACE (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 MAY 2012
FILE NO/S: VR 49 of 2012
BETWEEN: TREVOR DAVID HOFFMAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation Medical practitioners Acting improperly in the course of practice as a medical practitioner Review Penalty Mother brought infant son to medical centre for treatment but arrived before a doctor was available Mother approached practitioner in doorway outside medical centre and asked him whether he was a doctor Practitioner said that he was not a doctor and entered centre Practitioner admitted that he acted improperly in the course of his practice Professional Standards Committee recommended that the practitioner be cautioned Medical Board of Australia rejected Committee's recommendation and ordered that the practitioner be reprimanded and fined $1,000 Momentary lapse due to overwhelming stress Genuine and almost immediate recognition of impropriety Unblemished disciplinary record Demonstration of dedication and commitment to medical profession and community Practitioner cautioned
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 14
Health Practitioner Regulation National Law, s 289(2)
Medical Practitioners Act 2008 (WA), s 76(1)(b)(iii), s 96, s 97(2), s 152(i)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(1)
Result:
Decision to reprimand and fine practitioner set aside
Practitioner cautioned
Category: B
Representation:
Counsel:
Applicant: Ms JEJ Wilcock
Respondent: Ms K Bradshaw
Solicitors:
Applicant: Panetta McGrath Lawyers
Respondent: Australian Health Practitioner Regulation Authority
Case(s) referred to in decision(s):
Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The mother of an infant brought her child to a medical centre for treatment, but arrived before a doctor was available. She approached Dr Trevor David Hoffman in the doorway outside the centre and asked him whether he was a doctor. Dr Hoffman advised that he was not a doctor and entered the centre.
The mother of the infant made a complaint to the Medical Board of Western Australia. Dr Hoffman admitted that, by falsely advising the mother of the infant that he was not a doctor, he acted improperly in the course of his practice as a medical practitioner. The Professional Standards Committee recommended to the Medical Board of Australia that it should caution Dr Hoffman. However, the Medical Board of Australia decided to reprimand Dr Hoffman and fine him $1,000.
Dr Hoffman sought review of the decision in relation to penalty and contended that the Tribunal should impose the penalty recommended by the Professional Standards Committee.
The Tribunal determined that the correct and preferable decision, in order to meet the public interest in the protection of the public and the maintenance of the high standards and the good reputation of the medical profession, is to caution the practitioner, and that a reprimand and fine would be, in all the circumstances of the case, an excessive and unwarranted penalty. The Tribunal also determined that the publication of the finding, the caution, and the complaint and disciplinary process to which Dr Hoffman has been subjected, is adequate to deter him and other medical practitioners from denying being a doctor if asked that question by a member of the public who appears to be in need of medical assistance.
The Tribunal arrived at these conclusions because:
•Dr Hoffman's conduct was a momentary lapse which was an automatic or involuntary response to overwhelming stress caused by financial pressure, a recent doubling of workload, his wife's ill health, and running late, with a backlog of patients, and concentrating on getting to his room as quickly as possible, apologising to his waiting patients for being late and attempting to catch up with his appointment list;
•Dr Hoffman demonstrated genuine and almost immediate recognition of his impropriety and deep regret on account of it;
•The improper conduct was totally out of character and Dr Hoffman has an otherwise unblemished disciplinary record; and
•Dr Hoffman has demonstrated a dedication and commitment to the medical profession and the community by his work and teaching.
Introduction
On 1 December 2009, RR brought her son to the Ellenbrook Medical Centre for treatment, but arrived before a doctor was available. RR subsequently approached Dr Trevor David Hoffman (practitioner) in the doorway outside the centre and asked him whether he was a doctor. The practitioner advised RR that he was not a doctor and proceeded to enter the centre, leaving RR and her son in the doorway outside the centre.
On 3 December 2009, RR made a complaint in relation to the practitioner's conduct to the Medical Board of Western Australia. The practitioner admitted that, by falsely advising RR that he was not a medical practitioner, he acted improperly in the course of his practice as a medical practitioner, under s 76(1)(b)(iii) of the Medical Practitioners Act 2008 (WA) (MP Act).
On 24 October 2011, the Professional Standards Committee (Committee) of the Medical Board of Australia (Board) considered the complaint and recommended to the Board that the appropriate disciplinary consequence of the admitted improper conduct was for the Board to caution the practitioner. It appears from its reasons dated 10 November 2011 that the Committee made this recommendation to the Board because the practitioner had demonstrated 'remorse and insight by his admission of the allegation against him'. However, when the Board considered the matter on 12 January 2012, it rejected the Committee's recommendation and ordered that the practitioner:
(a)be reprimanded; and
(b)be fined the sum of $1,000.
On 15 March 2012, the practitioner sought review by the Tribunal of the Board's decision in relation to penalty, pursuant to s 152(i) of the MP Act, seeking the imposition of the penalty recommended by the Committee in place of the penalty imposed by the Board.
As the complaint by RR was received by the Medical Board of Western Australia before the repeal of the MP Act by s 14 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) on 18 October 2010, under s 289(2) of the Health Practitioner Regulation National Law, both the complaint and this review proceeding is to be dealt with under the MP Act as though that Act had not been repealed.
Legal framework and principles
Section 76(1)(b)(iii) of the MP Act identifies the following as a 'disciplinary matter':
That a person in the course of his or her practice as a medical practitioner
…
acted improperly;
Section 96(1) of the MP Act requires the Committee to investigate a complaint referred to it by the Board. Under s 96(2) of the MP Act, unless a complaint is withdrawn, on completion of the investigation, the Committee must submit a written report to the Board:
•detailing its findings and conclusions in relation to the complaint;
•making a recommendation to the Board under s 96(3) of the MP Act; and
•giving reasons for its recommendation.
Section 96(3) of the MP Act states, in part, as follows:
The committee may make the following recommendations to the Board …
(a)that the Board take no further action in relation to the complaint;
…
(d)that the Board caution or reprimand the respondent;
…
(j)that the Board require the respondent to pay the Board a penalty not exceeding $5 000 determined by the Board; …
Section 96(4) of the MP Act enables the Committee to recommend that the Board 'do more than one of the things referred to' in paras (d) and (j) of s 96(3). As noted earlier, on completion of its investigation, the Committee recommended that the Board should caution the practitioner, pursuant to s 96(3)(d) of the MP Act.
Section 97(2) of the MP Act states as follows:
If the Board receives a report from the professional standards committee under section 96, the Board is to consider the committee's recommendation and either
(a)act on the recommendation; or
(b)take action of a kind referred to in section 96(3) other than that recommended by the committee.
As noted earlier, the Board rejected the Committee's recommendation that it should caution the practitioner. In accordance with its power under s 97(2) of the MP Act to 'take action of a kind referred to in section 96(3) other than that recommended by the committee', the Board reprimanded the practitioner, pursuant to s 96(3)(d) of the MP Act, and required the practitioner to pay a penalty of $1,000 to the Board, pursuant to s 96(3)(j) of the MP Act.
Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
Section 29(1) of the SAT Act states that:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
Section 29(3) of the SAT Act states as follows:
The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
The principles in relation to the determination of an appropriate penalty in a disciplinary matter involving a medical practitioner were set out by Owen J in Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992) at 140142 as follows:
The general principles which are applicable are not difficult to state. The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrongdoers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements: see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 201.
There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community: see Ziderman v General Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future: see Giordano v Medical Board (198384) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563:
There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.
There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly.
Parties' submissions in relation to penalty
The practitioner made essentially five submissions in relation to penalty. First, he submitted that the conduct was 'entirely out of character and in no way reflective of his usual behaviour'. By 'way of explanation rather than excuse', the practitioner submitted that the 'very temporary aberration from his usual high professional standards was as a result of the significant financial stress he was under at the relevant time, the ill health of his wife and his workload'. Furthermore, the practitioner was running late when he arrived at the centre, was aware that he would already have a backlog of patients waiting to see him and that it would take some further time before he could open his computer and be ready for his first patient, and was 'quite taken aback by the patient's approach to him as he was concentrating on getting to his room as quickly as possible, apologising to his waiting patients for being late and attempting to catch up with his appointment list if at all possible'.
Secondly, the practitioner submitted that he 'recognised the impropriety of his conduct almost immediately and made efforts to rectify his departure from appropriate standards as soon as he was able to do so'. In particular, as soon as the practitioner had seen his first patient, he looked for RR and her child and discovered that they were being seen by his colleague, Dr Meshach Azucar. Later the same day, the practitioner spoke to the director of the medical centre, Dr Samuel Bada, and told him what had happened, that he deeply regretted what he had said to RR and that he wished to apologise to her. Dr Bada advised the practitioner that he would telephone RR to speak to her on his behalf. Dr Bada subsequently advised the practitioner that he had spoken to RR and informed her, among other things, that the practitioner was sorry for what he had said to her and that he would ring her later. The practitioner then sought to telephone RR on three occasions. On two occasions, the practitioner telephoned RR's mobile telephone number and left a message for her, but RR did not return either call. The practitioner also telephoned RR's home number and requested to speak with her. The practitioner was told that, although it was not convenient at the time, RR would be advised of the call. However, RR did not return the practitioner's call.
Thirdly, the practitioner submitted that he has 'an otherwise unblemished disciplinary record'. He also submitted that the complaint and the subsequent disciplinary proceedings 'have been a very salutary lesson' and he is 'confident that no repetition of the events will occur'.
Fourthly, the practitioner submitted that he has given 'of his time and expertise to the more deprived members of society such as the homeless, substancedependant and long term unemployed community'. In particular, he has worked as a general practitioner on the Perth Primary Care Network (Street Doctor) mobile van and with long term unemployed clients at the 'At Work Program' in Midland.
Finally, the practitioner submitted that he is committed to 'ensuring high standards in the profession generally' and pointed out that he has tutored medical students and has been involved in the examinations of fellowship candidates for the Royal Australian College of General Practitioners since 2009.
The practitioner also relied on a character reference by Dr Azucar.
In its submissions, the Board helpfully summarised the relevant law and facts. The Board acknowledged that the Tribunal may take into account 'the remorse and insight demonstrated by [the practitioner] admitting the allegations against him' and that the Tribunal may 'regard that as a consequence of that insight[,] [the practitioner] is less likely to transgress in the future'. The Board also acknowledged that the practitioner took steps to apologise to RR. The Board did not make any further submission other than to point out that it considered that the recommendation of the Committee 'did not adequately reflect the seriousness of the conduct as set out in the agreed facts'.
What is the correct and preferable decision in terms of penalty?
We consider that, in the particular circumstances of this case, the correct and preferable decision in terms of penalty for the practitioner's improper conduct is to caution the practitioner (as recommended by the Committee), rather than to reprimand the practitioner and fine him the sum of $1,000 (as imposed by the Board). We consider that, in all the circumstances, a caution is sufficient to meet the public interest in terms of protection of the public and the maintenance of the high standards and the good reputation of the medical profession, and that a reprimand and fine would involve an excessive and unwarranted penalty. Furthermore, we consider that the publication of the finding that the practitioner acted improperly in the course of his practice as a medical practitioner, the cautioning of the practitioner, and the complaint and disciplinary process to which the practitioner has been subjected, involve adequate specific deterrence to the practitioner and general deterrence to other practitioners not to engage in improper conduct by denying being a doctor when asked this question by a member of the public who appears to be in need of medical assistance. We have arrived at these conclusions for the following four reasons.
First, we find that the practitioner's conduct of lying to RR that he was not a doctor was a momentary lapse which was, as the practitioner said in his letter to the Medical Board of Western Australia dated 21 December 2009 in response to the complaint, 'an automatic or involuntary response to overwhelming … stress'. The stress which, we find, caused the practitioner's improper conduct was due to a combination of financial pressure, a recent doubling of his workload (from two to four patients per hour), his wife's ill health, and running late, with a backlog of patients, and concentrating on getting to his room as quickly as possible, apologising to his waiting patients for being late and attempting to catch up with his appointment list.
Second, we find that the practitioner demonstrated genuine and almost immediate recognition of his impropriety and deep regret on account of it. As soon as he had seen his first patient, the practitioner looked for RR and her son and discovered that they were being seen by Dr Azucar. Furthermore, prior to being notified of the complaint, the practitioner attempted to apologise to RR on three occasions, but she did not return his messages. When notified of the complaint, the practitioner promptly conceded the substance of the allegation against him.
Third, the improper conduct was, as Dr Azucar said, 'totally out of character for Dr Hoffman' and the practitioner has an otherwise unblemished disciplinary record. Dr Azucar described the practitioner as 'a very honest, dependable, fair minded and diligent person', 'a compassionate person with an outstanding moral character' and a doctor who serves the community 'with diligence, compassion, competence and without discrimination'. The Board did not question Dr Azucar's assessment of the practitioner and we accept that assessment.
Fourth, the practitioner has demonstrated a dedication and commitment to the medical profession and the community by his work as a general practitioner, his work on the Perth Primary Care Network (Street Doctor) mobile van, and by teaching medical students and being involved in examinations of fellowship candidates.
A reprimand is a more serious penalty for professional misconduct than a caution. We consider that a published finding that the practitioner acted improperly in the course of his practice, by falsely advising RR that he was not a medical practitioner when she asked whether he was, and a caution of the practitioner, is, in light of the foregoing four factors, sufficient to protect the public and maintain the high standards and reputation of the medical profession. The imposition of a reprimand and fine would be excessive and unnecessary in order to meet the public interest. We also consider that the publication of the finding, the caution, and the complaint and disciplinary process which, as the practitioner said, has served 'a very salutary lesson' to him, will sufficiently ensure that neither he nor medical practitioners generally will engage in improper conduct by denying being a doctor when asked that question by a member of the public who appears to be in need of medical assistance.
Conclusion
It follows that the application for review should be allowed, the decision of the Board to reprimand and fine the practitioner the sum of $1,000 should be set aside, and a decision should be substituted cautioning the practitioner.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the Medical Board of Australia on 12 January 2012 that Dr Trevor David Hoffman:
(a)be reprimanded; and
(b)be fined the sum of $1,000,
is set aside.
3.Pursuant to s 97(3) and s 96(3)(d) of the Medical Practitioners Act 2008 (WA), Dr Trevor David Hoffman is to be cautioned for having acted improperly in the course of his practice as a medical practitioner, pursuant to s 76(1)(b)(iii) of the Act, in that he falsely advised the mother of a patient that he was not a medical practitioner.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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