Medical Board of Australia v Dr FA (No 3)
[2012] QCAT 705
| CITATION: | Medical Board of Australia v Dr FA (No 3) [2012] QCAT 705 |
| PARTIES: | Medical Board of Australia (Applicant) v |
| Dr FA (Respondent) |
| APPLICATION NUMBER: | OCR120-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham Assisted by: Dr Reza Adib Bronwyn Herbertson Dr Ross Taylor |
| DELIVERED ON: | 21 December 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Dr FA’s registration is suspended pending the outcome of the Board’s determination of her application to renew her registration. 2. The fact of the suspension may be recorded on the entry into the register of medical practitioners, relating to Dr FA. 3. Dr FA must pay the Board’s costs of and incidental to the proceedings, assessed on the standard basis against the District Court Scale of Costs. 4. Until further or other order, the reasons for any decision made in the course of these proceedings may be published but only in a form that does not personally identify the practitioner. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – HEALTH PRACTITIONER – MEDICAL PRACTITIONER – SANCTION – Where the Tribunal found the practitioner had engaged in unsatisfactory professional conduct – where, before the hearing on sanction and costs, the Tribunal was provided with reports from a psychiatrist regarding Dr FA’s state of health – where Board maintained its submissions on sanction – where Dr FA provided only a brief statement and did not attend the hearing – whether Dr FA’s registration should be suspended OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – HEALTH PRACTITIONER – MEDICAL PRACTITIONER – COSTS – Where Board sought indemnity costs – where that submission withdrawn after psychiatrist’s report provided to the Tribunal – where Board maintained its submission for costs, assessed on a standard basis – where Dr FA did not make any submission about costs – whether costs should be awarded in favour of the Board OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – HEALTH PRACTITIONER – MEDICAL PRACTITIONER – PUBLICATION OF REASONS – Where proceedings did not involve any suggestion that Dr FA was impaired – where decisions already published name the practitioner – where an order made to remove the decisions from the website pending consideration of the question of publication – where no finding of impairment – where impairment process now underway – where public interest in the actions taken in relation to unprofessional conduct – where the practitioner’s identity can be protected, to some extent, by use of a pseudonym in the reasons – whether reasons should be published under a pseudonym – whether disciplinary action should be noted on Dr FA’s registration Queensland Civil and Administrative Tribunal Act 2009, ss 32, 66 Health Practitioner Regulation National Law Act 2009, s 3 Medical Board of Australia v FA (No 2) [2012] QCAT 288 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 6 July 2012, I announced my finding that Dr FA had engaged in unprofessional conduct and directed the matter was listed for a further hearing on the sanction that should be imposed and consequential orders, including costs of the proceedings.
Before the hearing, the Tribunal was provided with medical reports by Dr Slaughter, a psychiatrist, dated 10 August 2012 and 5 September 2012. Dr Slaughter saw Dr FA on 21 May 2101. This was after the hearing, which was heard orally over 2 days in February and March and on the papers in April.
At the time he first saw her, Dr Slaughter considered Dr FA was then psychotic, probably hypomanic and in urgent need of treatment. Although initially reluctant to do so, after some treatment as a day patient, Dr FA was hospitalised for more intensive treatment. By 3 July 2012, she was discharged and consulted Dr Slaughter regularly.
In August 2012, Dr Slaughter diagnosed Dr FA as having suffered from a bipolar 1 disorder that had been present for much of her adult life, as well as a chronic pain disorder associated with both psychological factors and a general medical condition. He considered she was unwell when she appeared in the Tribunal.
Although that cannot be established with any certainty, I accept Dr Slaughter’s assessment that Dr FA was affected during the hearing process as most likely true. Dr Slaughter saw Dr FA not long after the last oral hearing and shortly after the last material was provided by Dr FA. His diagnosis is consistent with some of the more bizarre and outlandish allegations made by Dr FA, including the assertion that Opus Dei had infiltrated the Board. It is also consistent with the disorganised thinking evident in the voluminous material of marginal relevance provided to the Tribunal and the fact that different documents were provided to the Tribunal and to the Board.
The more difficult question is whether the conduct which is the subject of these proceedings also occurred at a time when Dr FA was impaired. Tentatively, Dr Slaughter suggested her conduct over a number of years may have been affected by her condition. He acknowledged the difficulty in reflecting back and assessing the impact of a present condition in the past. Dr FA has been disciplined previously for unprofessional conduct for her role in an out of hospital drug induced abortion. Dr Slaughter has raised the suggestion that Dr FA might have been labouring under her illness at that time too.
Perhaps because, as Dr Slaughter noted, Dr FA could be very convincing, both these and the earlier disciplinary proceedings were premised on Dr FA’s conduct alone, not on an allegation that it evidenced she was impaired then or now.
Although Dr Slaughter has raised the prospect she may have been impaired at the time of the conduct the subject of these proceedings, there is insufficient evidence to establish that was so. The Tribunal is left, then, with the dilemma as to the proper sanction to be imposed for Dr FA’s conduct.
What sanction should be imposed?
Dr FA established a website on which she provided instruction on how a woman might terminate her pregnancy using a drug regime at home and without medical supervision. In a letter dated 31 October 2012, Dr FA said she now realises that she suffers from a mental illness which has been, on reflection, remitting and relapsing throughout her life since late adolescence. She believes she is now in remission, due to Dr Slaughter’s treatment. She says she suffered paranoid delusions and some grandiosity which is now a source of embarrassment as well as regret for the consternation and inconvenience her actions provoked, given the Board’s responsibility to protect the public. She expressed the hope that she could continue practising, without undertaking confinements or major surgery.
[10]In August, Dr Slaughter considered Dr FA should retire on medical grounds. Only weeks later, he noted a considerable improvement in Dr FA’s condition and thought she could possibly return to some clinical practice as early as October 2012.
[11]The Board, however, maintains its submission, made as early as February 2012, that the appropriate sanction is to suspend Dr FA’s registration for a period of 4 months and add a condition to her registration which would prevent her from directly or indirectly disseminating information about medically unsupervised terminations or recommending the use of abortifacients, other than those prescribed by a medical practitioner.
[12]To some extent events have overtaken the proceedings. The Board has commenced a process through its Health and Performance Program to investigate whether Dr FA is now impaired. That could well have consequences for her ability to practise in the future.
[13]In the meantime her registration has expired. Her application to renew her registration will not be decided until the Board has the outcome of its Health and Performance Program. Nevertheless, the effect of s 108 of the National Law is that her current registration will continue until her application to renew her registration has been determined. There is no legal impediment to her continuing to practise.
[14]The Courts have long recognised that primary purpose of disciplinary proceedings in relation to the professions is protective, not punitive.[1] This is reinforced by the objectives and guiding principles of the National Law:
[1] Re Gulland (No 2) (2003) 33 SR(WA) 341.
(a)that the scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and
(b)the restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[2]
[2] Section 3 Health Practitioner Regulation National Law.
[15]Given Dr FA’s registration status is active and Dr Slaughter considers some return to clinical practice is now feasible, the Tribunal must determine what, if any, sanction is required to protect the public.
[16]Dr FA shows some insight into her conduct. She withdrew the material from the website shortly after being contacted by the Board, although she refused to give an undertaking in terms similar to the condition the Board says should be imposed on her registration. She now appears to accept that she may have been acting under the influence of feelings of grandiosity at the time. She appears to be currently compliant with her medication and treatment.
[17]The Tribunal accepted that Dr FA has acted out of a sincerely held belief about the need to increase knowledge of and access to the full range of abortion procedures, but in doing so recklessly disregarded the safety of those who might have accessed her material.[3]
[3] Medical Board of Australia v FA (No 2) [2012] QCAT 288.
[18]The question of what sanction is most appropriate to protect the public interest depends on what risk Dr FA presents. If her conduct in establishing the website was deliberate and not affected by an underlying and untreated psychiatric condition, a sanction that involves an element of personal deterrence might be called for, particularly given the earlier disciplinary proceedings.
[19]On the other hand, if her conduct was indeed affected by an active psychiatric condition, the public will be best protected by a regime that provides a high level of satisfaction that Dr FA is fit to return to work and will maintain appropriate treatment.
[20]Given the Board’s impairment process is under way, I consider the appropriate course to protect the public is to suspend Dr FA’s registration until the Board has determined her application to renew her registration.
[21]Dr Slaughter has indicated some confidence that Dr FA might return to some clinical practice. His brief second report was given only one month after he opined Dr FA should retire on medical grounds. Given Dr Slaughter’s assessment that the condition has been long standing and may well have affected Dr FA’s conduct over a very lengthy period, I am not persuaded the public would be protected were Dr FA to return to clinical practice in the short term.
[22]Had there been no indication Dr FA suffered a psychiatric condition, I would have imposed a 4 month suspension, as the Board requested, to deter further conduct of a similar nature. Depending on the findings about her condition, if Dr FA is appropriately treated, a sanction involving deterrence might not be justified.
[23]From Dr FA’s perspective, the point may seem semantic, as either course prevents her from practising for some period. Nevertheless, given the uncertain diagnosis of her health status at the time she engaged in unprofessional conduct, I consider the proper course is to suspend her registration until the Board has determined her application to renew her registration.
[24]Once the Health and Performance Program is complete, the Board will be best placed to determine whether Dr FA’s registration should be renewed and, if so, what conditions should be imposed. If Dr FA is dissatisfied with the Board’s decision, she can apply to the Tribunal to review that decision.[4]
[4] Section 199 National Law.
What costs order should be made?
[25]Taking into account Dr Slaughter’s opinion that Dr FA was affected by a medical condition during these proceedings, the Board has withdrawn its application for a costs order assessed on an indemnity basis. The Board has fulfilled a statutory function in bringing these proceedings and did what it could to resolve the matter with Dr FA without the need for a disciplinary decision. In those circumstances it is entitled to an order for costs in its favour, assessed on the standard basis.
Should the reasons be published
[26]There is no finding that Dr FA is impaired, although there is evidence to suggest that may be so. By earlier order, the reasons for my disciplinary findings were removed from the website on which the Tribunal’s decisions are published.
[27]The Board has contended that, in the absence of a finding of impairment, there is no statutory prohibition on publication of the reasons or on noting the sanction on the entry in the medical practitioners register relating to Dr FA. I accept that is so.[5]
[5]Sections 242(2), 331(7) Health Practitioners (Professional Standards) Act 1999.
[28]The Board submitted both the public interest in knowing the outcome of disciplinary proceedings and Dr FA’s personal interest can be achieved by an order which allows the sanction to be noted on the register and the reasons published in a form that does not personally identify her. I am persuaded that is a just and permissible outcome in the circumstances of this case.[6]
[6] Section 66 Queensland Civil and Administrative Tribunal Act 2009.
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