Medical Board of Australia v Gilliland (No 3)
[2014] QCAT 700
•16 December 2014
| CITATION: | Medical Board of Australia v Gilliland (No 3) [2014] QCAT 700 |
| PARTIES: | Medical Board Of Australia (Applicant) |
| v | |
| Dr Stephen Gilliland (Respondent) |
| APPLICATION NUMBER: | OCR251-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Dick SC Assisted by: Mr Murray Green Dr Glenda Powell Dr Sandra Congdon |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Dr Stephen Gilliland is reprimanded.1. Dr Stephen Gilliland’s registration is suspended for a period of two years commencing on 16 January 2015.2. Dr Stephen Gilliland shall pay the Medical Board of Australia’s costs of and incidental to these proceedings on the scale applicable to matters in the District Court to be agreed or assessed within 28 days of the date of agreement or receiving the assessment.3. |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the practitioner engaged in a sexual relationship with a patient – whether the practitioner has engaged in professional misconduct |
| Health Practitioners Regulation National Law (Queensland) s 5, s 138, s 196(1)(b)(iii), s 196(2)(a), s 196(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 |
| APPEARANCES AND REPRESENTATION: | Mr Geoffrey Diehm QC instructed by Ashurst Mr Richard Perry QC instructed by Moray & Agnew |
REASONS FOR DECISION
The purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession and to protect the public.
The tribunal takes into account that the patient and the registrant had known each other since 2006 in circumstances that extend beyond the treating relationship.
The patient clearly saw the affair as a genuine relationship and does not feel as though she was exploited, however, it was the registrant’s duty, not hers, to maintain the appropriate professional boundaries.
The tribunal takes into account that the affair lasted at least two years. He breached not only his duty to the patient but to her husband and her children who were also his patients. The sanction therefore must carry some general deterrence against like conduct by others.
There are some factors which need to be taken into account in mitigation of the sanction to be imposed. The registrant is a medical practitioner of long standing service. References from three doctors speak to the fact that he is well regarded by his peers and that he has provided good service to the community. There is no evidence to suggest that the registrant’s professional care to the patient and her family was not of good quality. The registrant has no disciplinary history and there will, of course, be a financial and social impact on him over and above the sanction imposed by the tribunal.
It must be recognised that the registrant has denied the allegations and that his conduct of the proceedings does not allow the tribunal to mitigate the sanction as a result of demonstrated remorse. He has denied the affair in the face of compelling evidence and his conduct of the proceedings has required the patient to give evidence and submit to attacks on her character and credibility. His conduct of the proceedings demonstrates a lack of remorse and a preparedness to misrepresent the truth to his professional body. The registrant submits that, under the National Law, the main principle for administering the Act is that the health and safety of the public is paramount (s 53A). He submits that aside from the clear objectives of appropriately dealing with practitioners who engage in misconduct the Act specifically and expressly recognises an objection of facilitating access to services provided by health practitioners in accordance with the public interests, with one of the guiding principles being that restrictions on the practice of a health practitioner should only be imposed if necessary to ensure health services are provided safely and are of an appropriate quality. The registrant argues that the order should contain an order for suspension rather than cancellation. With cancellation there is a requirement that the respondent demonstrate to the satisfaction of the Board he is a person who ought to be registered at the end of the period. The registrant points out that he has continued to practise for the last three or more years since the matters came to the attention of the Board and the Board has not sought to restrict his practice in that time nor has there been any suggestion that there has been any problem caused by his continued practice over that period of time. That argument is persuasive and in those circumstances the tribunal is of the view that the appropriate order is one for suspension.
Costs
The board has a role in maintaining professional standards. The tribunal has found that a sexual relationship existed, that is a matter that the board was bound to pursue. The registrant was not prepared to concede the existence of the sexual relationship and the proceedings and investigation were long and involved. There will be an order that the registrant pay the Board’s costs on the standard basis.
In the tribunal’s view this is not a case which would be described as calling for an order for indemnity costs in the proper exercise of discretion, as opposed to the common form of order of costs on the standard basis. There was correspondence between the parties after the first 2 days of hearings. That correspondence sought to negotiate an ‘in principle’ agreement as to facts and/or sanction. As is pointed out, this was a circumstantial case. The registrant has lost the opportunity of being allowed mitigation for remorse and costs will be significant in his future financial situation.
Orders
The tribunal orders that:
Dr Stephen Gilliland is reprimanded.1.
Dr Stephen Gilliland’s registration is suspended for a period of two years commencing on 16 January 2015.2.
Dr Stephen Gilliland shall pay the Medical Board of Australia’s costs of and incidental to these proceedings on the scale applicable to matters in the District Court to be agreed or assessed within 28 days of the date of agreement or receiving the assessment.3.
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