MEDICAL BOARD OF AUSTRALIA and ROBERTS
[2014] WASAT 76 (S)
•20 OCTOBER 2014
MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 76 (S) | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:99/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) DR H HANKEY (SENIOR SESSIONAL MEMBER) MS F CHILD (MEMBER) | 20/10/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Respondent fined, reprimanded and a condition placed on his registration as a medical practitioner | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA DAVID EVAN ROBERTS |
Catchwords: | Medical practitioner Disciplinary matters Unprofessional conduct Penalty Reprimand, fine and condition on registration of practitioner |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 196 |
Case References: | Craig v Medical Board of South Australia (2001) 79 SASR 545 Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92) Medical Board of Australia v Roberts [2014] WASAT 76 |
Orders | On the application determined on the documents by Deputy President, Judge Sharp and Member Child and Senior Sessional Member Isaachsen and Senior Sessional Member Hankey on 20 October 2014, it is ordered that:,1. In respect of both the first finding of unprofessional conduct and the second finding of unprofessional conduct as defined in the Tribunal’s reasons, the respondent is reprimanded pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).,2. In respect of the third finding of unprofessional conduct as defined in the Tribunal's reasons, the respondent is reprimanded and must pay a fine to the applicant of $15,000 within 28 days of the date of this order, all pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).,3. The parties must prepare a minute which reflects their agreement as to the final form of the auditing condition described earlier in the Tribunal’s reasons. They will have liberty to apply to the Tribunal in the event that the form of the condition cannot be resolved by agreement. That condition will then be imposed on the respondent's registration as a medical practitioner pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).,4. Within 14 days of the date of this order, the applicant must file and serve its written submissions in relation to costs.,5. Within 14 days of the date of receiving the applicant's submissions, the respondent must file and serve his written submissions in relation to costs.,6. Subject to any further order of the Tribunal, the question of costs is to be dealt with entirely on the documents. |
Summary | In the Tribunal's decision in Medical Board of Australia v Roberts [2014] WASAT 76, the Tribunal found that the respondent, a medical practitioner, following two particular consultations with twin boys who were patients of the practitioner, had handed what he referred to as consultation notes to the boys' mother. The Tribunal considered that one of those notes was derogatory of both of those patients and that the other was derogatory of one of those patients. ,The Tribunal also found that the second of those notes contained a recommendation to the patients' parents that they use corporal punishment to bring about behavioural modification in the patients.,The Tribunal consequently made three findings of unprofessional conduct against the practitioner.,In this decision, the Tribunal considered and made orders concerning the appropriate penalty to be applied in respect of each of those three findings. The Tribunal concluded that the relevant considerations, namely the protection of the public and the need to maintain the standards of the profession in the eyes of the community, would be satisfied by:,a) reprimanding the practitioner in respect of the three findings;,b) in addition, imposing a fine on the practitioner of $15,000 in respect of the third finding; and,c) in respect of all three findings, applying a condition on the practitioner's registration as a medical practitioner that he provides a certificate from a senior medical practitioner, both now and again in six months, opining that the practitioner's note taking practices and his written communication with his patients (or the parents of his patients) are of an acceptable standard.,The Tribunal also ordered submissions from the parties in respect of costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
- Applicant
AND
DAVID EVAN ROBERTS
Respondent
Catchwords:
Medical practitioner Disciplinary matters Unprofessional conduct Penalty Reprimand, fine and condition on registration of practitioner
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 196
Result:
Respondent fined, reprimanded and a condition placed on his registration as a medical practitioner
Summary of Tribunal's decision:
In the Tribunal's decision in Medical Board of Australia v Roberts [2014] WASAT 76, the Tribunal found that the respondent, a medical practitioner, following two particular consultations with twin boys who were patients of the practitioner, had handed what he referred to as consultation notes to the boys' mother. The Tribunal considered that one of those notes was derogatory of both of those patients and that the other was derogatory of one of those patients.
The Tribunal also found that the second of those notes contained a recommendation to the patients' parents that they use corporal punishment to bring about behavioural modification in the patients.
The Tribunal consequently made three findings of unprofessional conduct against the practitioner.
In this decision, the Tribunal considered and made orders concerning the appropriate penalty to be applied in respect of each of those three findings. The Tribunal concluded that the relevant considerations, namely the protection of the public and the need to maintain the standards of the profession in the eyes of the community, would be satisfied by:
- a) reprimanding the practitioner in respect of the three findings;
b) in addition, imposing a fine on the practitioner of $15,000 in respect of the third finding; and
c) in respect of all three findings, applying a condition on the practitioner's registration as a medical practitioner that he provides a certificate from a senior medical practitioner, both now and again in six months, opining that the practitioner's note taking practices and his written communication with his patients (or the parents of his patients) are of an acceptable standard.
Category: B
Representation:
Counsel:
Applicant : Mr M Cuerden
Respondent : Ms G Archer SC
Solicitors:
Applicant : MDS Legal
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92)
Medical Board of Australia v Roberts [2014] WASAT 76
Background
1 In Medical Board of Australia v Roberts[2014] WASAT 76 (Roberts) delivered on 1 July 2014, the Tribunal made findings that the respondent (Practitioner) was guilty on three counts of unprofessional conduct as defined in the Health Practitioner Regulation National Law (WA) Act 2010 (WA) Schedule (National Law). Details of the Tribunal's findings in Roberts are set out later in these reasons. However, in essence, the Tribunal found that the Practitioner had provided two written notes to the mother (J) of two of his patients, one of which the Tribunal considered to be derogatory of one of those patients and the other derogatory of both. The Tribunal also found that one of those notes also contained a recommendation that J and her husband use corporal punishment to bring about behavioural modification in the patients, which put the patients' health, safety and welfare at risk.
2 All of the other allegations which the applicant (Board) made against the Practitioner were dismissed.
3 The Tribunal in Roberts ordered the parties to file submissions on penalty, and determined that the question of penalty is to be dealt with on the documents. The parties subsequently filed their written submissions in accordance with those directions.
Applicable legislation
4 Section 196(1)(b)(ii) of the National Law provides that the Tribunal may decide that the Practitioner has behaved in a way that constitutes unprofessional conduct.
5 It is then open to the Tribunal to make any of the orders described in s 196(2) of the National Law. Section 196(2) of the National Law reads as follows:
If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner's registration, including, for example
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner's registration for a specified period;
(e) cancel the practitioner's registration.
6 Section 196(3) provides that if the Tribunal decides to impose a condition on the Practitioner's registration, the Tribunal must also decide a review period for the condition.
Principles to be applied
7 It is well recognised and not in dispute between the parties that vocational disciplinary proceedings have three principal objects, namely:
1) the protection of the public 'from delinquents and wrongdoers within professions' and 'seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements';
2) the 'need to maintain the high standards and good reputation of the profession generally in the eyes of the community'; and
3) the 'need to deter others who may be of a like mind to transgress in the future'.
(Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92)) at 141 (Owen J).
8 Punishment of the practitioner for wrongdoing is not an object of disciplinary proceedings and it has been noted that'sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration'; Craig v Medical Board of South Australia(2001) 79 SASR 545 (Craig) at [43] (Doyle CJ).
9 The protection of the public may require a penalty intended to impress upon the practitioner or other members of the medical profession the seriousness of the relevant conduct in order to deter both the practitioner and other members of the profession from engaging in misconduct of that kind; Craig at [47].
Findings of unprofessional conduct
10 In Roberts, the Tribunal has made the following relevant findings in this matter.
11 Firstly, the Tribunal found that the Practitioner gave to J a note (First Consultation Note) which was derogatory of both patients in that it included the words:
• It[']s not that they [sic] they want to be men, they don't
• they don't want to have testes…
• they just don't want anyone to either
12 Secondly, the Tribunal found the Practitioner gave to J another note (Second Consultation Note) which was derogatory of one of the patients in that it stated that the patient was 'a princess' and 'a sooky la la'.
13 The third finding also related to the Second Consultation Note. The Second Consultation Note stated:
I recommend to your husband that he beat (physically) each and every of your our [sic] sons who swear and offend his wife (that is Mother)… to within in [sic[ an inch of his life.
14 The Tribunal found that the Second Consultation Note constituted a recommendation that J and her husband use corporal punishment to bring about behavioural modification in the patients, which put the patients' health, safety and welfare at risk.
15 For the reasons set out in Roberts, the Tribunal considered that the conduct the subject of these findings in each case amounted to unprofessional conduct by the Practitioner. In these reasons, we refer to these findings as, respectively, the first finding of unprofessional conduct, the second finding of unprofessional conduct and the third finding of unprofessional conduct.
Board's submissions
16 In respect of the appropriate penalty to apply in relation to the three findings of unprofessional conduct by the Practitioner, the Board submits that the Tribunal should impose a condition on the Practitioner's registration pursuant to s 196(2)(b)(i) of the National Law, requiring the Practitioner to undertake and complete at his expense a course approved by the Board dealing with the current model of paediatric psychiatry.
17 In addition, the Board submits that the Tribunal should impose a condition pursuant to s 196(2)(b)(ii) of the National Law requiring the Practitioner (at his expense) to submit at quarterly intervals his clinical notes to an auditor approved by the Board so that the auditor may peruse the notes and (also at the Practitioner's expense):
a) contact parents of the Practitioner's patients in order to enquire as to the respondent's interaction with their children and any recommendations made by the Practitioner in respect of discipline or behavioural management of their children; and
b) report to the Board at quarterly intervals in respect of the audit.
18 The Board says that this condition should remain in place for 12 months.
19 Alternatively to the 'audit' option, the Board says we could impose supervision by the use of a Boardapproved chaperone or suitably qualified supervisor who would be present during a limited number of consultations, and would need to report to the Board at regular intervals about the Practitioner's conduct with his patients. However, the Board concedes that this option would be more expensive and intrusive for patients and would be unlikely to prevent further misconduct.
20 Finally, the Board says that the Tribunal should also reprimand the Practitioner and impose a fine on him of an amount between $10,000 and $15,000.
21 The Board gives its reasons for seeking these orders. Firstly, the Board says that the Practitioner has engaged in paediatric practice since 1988 and therefore his conduct cannot be excused or explained by inexperience.
22 The Board also says that because the Practitioner put his patients' health safety and welfare at risk, the proposed course and auditing requirements are necessary for the protection of the public.
23 The Board says that the proposed fine and reprimand are necessary to deter the Practitioner and his peers from engaging in similar misconduct, and to reassure the public that this behaviour is not acceptable.
Practitioner's submissions
24 The Practitioner submits, and the Tribunal accepts, that in determining the extent to which the public needs protection, it is relevant to take into account the following personal circumstances:
a) the length of time the Practitioner practised before engaging in the unprofessional conduct;
b) the Practitioner's previous disciplinary record;
c) the duration of the unprofessional conduct;
d) the number of patients involved in the unprofessional conduct;
e) the Practitioner's record of service, and
f) adverse publicity against the Practitioner as a result of the allegations and the findings made.
25 In relation to the Practitioner's personal circumstances, he submits that in his 37 years of practice, he has not previously been the subject of any adverse professional finding. Furthermore, given that the unprofessional conduct occurred on only two occasions, in relation to the two patients, he says that the conduct could not be characterised as sustained.
26 The Practitioner also refers to his significant history of service to the community, including that:
a) he was a State President of the Australian Medical Association;
b) he was a chairman of the Royal Australasian College of Physicians; and
c) he was the founding chairman and board member of Nature Play WA Inc, a non-for-profit association established to increase the time Western Australian children spend in unstructured play outdoors.
27 The Practitioner says that the adverse publicity associated with these proceedings has already had a detrimental impact on his reputation and practice. The Practitioner's practice has received cancellations of patient bookings of approximately 20%. Furthermore, the Practitioner has been given notice to vacate his practice rooms and estimates that the cost of reestablishing his practice will be $25,000 to $30,000. The Practitioner also anticipates an increase in the rent for his new premises. The Practitioner has also felt pressured to resign from his position at Nature Play WA.
28 In relation to each of the penalties proposed by the Board, the Practitioner says the following.
29 In relation to the proposed course in paediatric psychiatry, the Practitioner says that his unprofessional conduct was not related to his skills in paediatric psychiatry. Accordingly, the Practitioner says that the course would not contribute to the protection of the public interest.
30 The Practitioner agrees with the Board that it would be appropriate for his notes to be audited. However, he submits that the auditor should not be able to contact the parents of his patients. The Practitioner says that, because the Tribunal did not make any findings in relation to his discussions with the patients or their mother or that his interaction with the patients was inappropriate, there is no need for the auditor to contact the parents of his patients.
31 The Practitioner also objects to the length of the auditing condition sought by the Board. The Practitioner says the findings made against him were limited, and should be seen in the context of his many years of practice. Accordingly, the Practitioner says that the audit should be limited to a period of six months, to permit the auditor to produce two reports at three month intervals.
32 The Practitioner requests that the auditor be a representative from the Royal Australasian College of General Practitioners, nominated by the Practitioner and approved by the Board (or the other way around). This, the Practitioner says, would ensure that the auditor is independent and has had no involvement in the background to the complaint. The Practitioner also requests that the Tribunal order the auditor's reports to be in writing and that the parties have liberty to apply in relation to this condition.
33 The Practitioner further says that the Tribunal's findings do not support the imposition of the proposed chaperone condition.
34 The Practitioner accepts that it is appropriate for a reprimand and fine to be imposed. However, the Practitioner says that the fine should be at the lower end of the scale. In particular, the Practitioner says the Tribunal should take into account:
a) the expense he will incur in complying with the chaperone condition;
b) his otherwise unblemished career and contribution to the medical profession and community; and
c) the adverse effect of these proceedings on the Practitioner's finances and reputation.
Findings on penalty
35 Although the Tribunal made three findings of unprofessional conduct against the Practitioner, these findings all arise from the Practitioner's treatment of the same patients. There has been no suggestion of misconduct in respect of the Practitioner's treatment of other patients. We consider that the third finding of unprofessional conduct is more serious than the first finding of unprofessional conduct and the second finding of unprofessional conduct. We will therefore apply a separate penalty in respect of each finding.
36 The Tribunal considers that in respect of both the first finding of unprofessional conduct and the second finding of unprofessional conduct the Practitioner should be reprimanded.
37 In respect of the third finding of unprofessional conduct, the Tribunal also considers that the Practitioner should be reprimanded and that in addition a fine of $15,000 should be imposed on him.
38 The Tribunal considers that this fine and these reprimands will act as a deterrent to the Practitioner and to other members of the medical profession in and will also indicate to the public that misconduct of the kind of which the Practitioner has been found guilty is unacceptable and will not be tolerated.
39 We now turn to consider whether, as a result of all of the findings of the Tribunal the Tribunal should also impose conditions on the Practitioner's registration, as contended for by the Board.
40 The Tribunal does not consider that a condition should be imposed requiring the Practitioner to undertake further training. We agree with the Practitioner that the findings against him did not relate to his medical skills and such a condition is therefore unnecessary.
41 There is no question that the Practitioner's written advice to patients or parents of patients has been deficient; Roberts at [185]. The Tribunal therefore considers that it is appropriate, for the purpose of the protection of the public, to order that a limited audit of the Practitioner's files should be undertaken by a senior medical practitioner nominated by the Practitioner and approved by the Board. The Board's approval must be given where the person nominated by the Practitioner is an experienced member of the Royal College of General Practitioners. This audit should be limited to a review of any written contact between the Practitioner and his patients or parents of his patients, read in the context of the Practitioner's clinical notes. We do not consider that it is necessary for the auditor to communicate with the Practitioner's patients or their parents.
42 Such an audit should be conducted twice. The first audit should be carried out as soon as is practicable after the publication of these reasons. The second and final audit should be carried out on or around the date six months after the first audit.
43 The condition to be imposed on the Practitioner's registration is that the Practitioner must provide to the Board copies of the certificates provided by the auditor immediately upon receipt of the same and that the certificates contain no findings adverse to the Practitioner.
44 The Tribunal considers that this is sufficient for the Board to establish whether or not the Practitioner has in fact implemented improvements to the manner in which he communicates with his patients and parents of his patients.
Costs
45 The Board in its original application sought an order for costs to be made against the Practitioner. However, for reasons which have been explained to the Tribunal, the Board has not yet made any submissions in support of that application and has indicated that it wished to do so. The Tribunal will make the appropriate orders for submissions from both parties.
Orders
The Tribunal makes the following orders:
- 1. In respect of both the first finding of unprofessional conduct and the second finding of unprofessional conduct, the respondent is reprimanded pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
2. In respect of the third finding of unprofessional conduct, the respondent is reprimanded and must pay a fine to the applicant of $15,000 within 28 days of the date of this order, all pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
3. The parties must prepare a minute which reflects their agreement as to the final form of the auditing condition described earlier in these reasons. They will have liberty to apply to the Tribunal in the event that the form of the condition cannot be resolved by agreement. That condition will then be imposed on the respondent's registration as a medical practitioner pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
4. Within 14 days of the date of this order, the applicant must file and serve its written submissions in relation to costs.
5. Within 14 days of the date of receiving the applicant's submissions, the respondent must file and serve his written submissions in relation to costs.
6. Subject to any further order of the Tribunal, the question of costs is to be dealt with entirely on the documents.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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