Medical Board of Australia v Henderson (No 2)
[2011] QCAT 222
•23 May 2011
| CITATION: | Medical Board of Australia v Henderson (No 2) [2011] QCAT 222 |
| PARTIES: | Medical Board of Australia (Appellant) |
| v | |
| Dr Peter Henderson | |
| APPLICATION NUMBER: | HPF 014-09; HPA008-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Mrs Ann Langley |
| DELIVERED ON: | 23 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Henderson’s registration is cancelled. 2. The Medical Board of Australia must not register Dr Henderson as a medical practitioner before 1 November 2014. 3. Upon any application for re-registration: a. Dr Henderson must satisfy the Medical Board of Australia that he has received such on-going treatment, including psychotherapy, as his current or any subsequent treating psychiatrist has advised he should have (at his own expense); b. Dr Henderson must provide the Medical Board of Australia with a report from Dr Wainwright, or another treating psychiatrist (at Dr Henderson’s own expense) confirming Dr Henderson is fit to practice medicine. Both practitioners must be provided with a copy of the Tribunal’s reasons and the reports of Dr Fredericks (25 May 2009) and Dr Boulnois (4 June 2009) prior to conducting their assessment. c. The Medical Board of Australia must require Dr Henderson to be independently assessed by a psychiatrist (at his own expense) for the purpose of providing an opinion on whether he is fit to practice medicine and whether any restrictions (in addition to those described below) should be imposed upon his registration. 4. If the Medical Board of Australia grants registration (with or without conditions) to Dr Henderson, it must also impose conditions upon his registration in the following terms: a. Dr Henderson must not treat any female patients. b. Dr Henderson may not apply to review that condition (described in para 4.a.) for a period of three years from the day the condition takes effect. 5. If the Medical Board of Australia grants registration to Dr Henderson, the details of any conditions imposed upon Dr Henderson’s registration must be recorded in the Board’s register for the period they are in force. 6. Dr Henderson must pay the Medical Board of Australia’s costs of and incidental to the proceedings as agreed or to be assessed. 7. HPA008-09 is dismissed. |
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – sexual and inappropriate conduct towards female patients – where certain allegations admitted – where prior disciplinary history for similar offending – where parties jointly proposed cancellation and pre-conditions to re-registration and a prohibition on treating female patients if re-registered – whether the Tribunal can fix a period during which the prohibition may not be reviewed Health Practitioners (Professional Standards) Act 1999, ss 123, 240(1), 241(2)(j)(ii), 337, 405P (1),(4) |
REASONS FOR DECISION
The Tribunal published preliminary reasons on 24 March 2011 but, before finalising the orders, invited written submissions from the parties about an issue the Tribunal had not resolved.
The outstanding issue related to the condition the Tribunal will require the Board to impose on any future registration of Dr Henderson. That condition would prohibit him from treating female patients. The Tribunal accepted the condition was appropriate and necessary to protect female patients, at least for a period.
The outstanding issue related to whether Dr Henderson would be entitled to review the condition and, if so, whether the Tribunal could fix a period during which Dr Henderson would be precluded from seeking its review. The question arose for consideration because of the transition from a state based to a national scheme for registration of medical practitioners which occurred after the proceedings commenced.
The parties agree the Tribunal will not have the power to review the condition, either under the former state based or the current national scheme for registration. However, the Board does have the power under the national scheme to review the condition. The Tribunal is also satisfied that the Tribunal can order the condition cannot be reviewed for a specified period and that the Board will be required to give effect to that order.
These proceedings commenced under the Health Practitioners (Professional Standards) Act 1999. The Tribunal was required to continue to hear and decide the matter as if that Act had not been repealed.[1]
[1] Health Practitioners (Professional Standards) Act 1999, s 405P(1).
The decision will be implemented[2] under the National Law (Queensland).[3] Under that law, the Board must give effect to the decision of the Tribunal, unless it is stayed on appeal.
[2]Health Practitioners (Professional Standards) Act 1999, s 405P(4).
[3]Which is how the Health Practitioner Regulation National Law (adopted by the Health Practitioner Regulation National Law Act 2009) is to be referred to; see s 4 of that Act.
If Dr Henderson is ever re-registered, he will be subject to a prohibition on treating female patients for a further three years. He may then apply to the Board to review that condition[4] and, if dissatisfied with the Board’s decision, he has the right to apply to review that decision in QCAT.[5]
[4] Health Practitioner Regulation National Law Act 2009, s 127.
[5] Health Practitioner Regulation National Law Act 2009, ss 199(1)((f).
For the reasons published on 24 March 2011, the Tribunal has determined that the orders made today are appropriate in this case. They largely reflect the joint submission of the parties, with some minor amendments to increase their efficacy.
The effect of them will be that Dr Henderson would not have worked as a doctor for at least 5 ½ years before he becomes eligible to re-apply to be registered to practice.
If he does seek re-registration, he must provide evidence that he has complied with the conditions regarding his on-going treatment, including psychotherapy. He must also be assessed to be fit to practice by Dr Wainwright and an independent psychiatrist. Those practitioners will have the Tribunal’s reasons and the reports about Dr Henderson’s fitness to practice that were tendered at the hearing.
Given the lengthy period out of practice, it is likely that Dr Henderson would also be required to demonstrate his professional competence. That may well involve further training and assessment.
If he succeeds in securing registration, Dr Henderson will be subject to a condition that he must not treat any female patients and will not be able to apply to review that condition for a further three years.
This sanction is significant and onerous for Dr Henderson. It reflects the serious view the Tribunal takes of his conduct, particularly when set against a background of former transgressions and attempts by the Board to respond to earlier complaints. Nevertheless, Dr Henderson’s co-operation in these proceedings indicates remorse and insight. He has already voluntarily undergone treatment. The conditions are intended to further encourage his rehabilitation.
All that remains is to deal with a related appeal lodged by Dr Henderson against the Board’s decision to suspend his registration. The appeal has been overtaken by these disciplinary proceedings. The parties agree it should be dismissed.
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