Medical Board of Australia v Holding
[2014] QCAT 632
•21 November 2014
| CITATION: | Medical Board of Australia v Holding [2014] QCAT 632 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Brett Jeffrey Holding (Respondent) |
| APPLICATION NUMBER: | OCR088-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Farr SC Dr Harpreat Moudgil |
| DELIVERED ON: | 21 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. It is recorded that the respondent behaved in a way that constitutes unprofessional conduct by sending inappropriate text messages to a female patient on 21 and 22 October 2013. 2. The respondent is reprimanded pursuant to s 196(2)(a) of the National Law. 3. The respondent is ordered to pay a fine of $5,000.00 to the Medical Board of Australia by a date agreed to by the parties, or if an agreement cannot be reached, as ordered by the Tribunal. 4. A condition is placed upon the respondent’s registration, requiring him to complete a Medical Board of Australia approved course of education nominated by the respondent and approved in writing by the Medical Board of Australia, which addresses issues of boundary violations that arise in general practice. 5. The respondent is to successfully complete that course within 12 months from the date of this order. 6. The respondent is to bear the cost of such a course. 7. The respondent will pay the applicant Board’s costs of the proceedings on the scale applicable to matters in the District Court of Queensland to be agreed, or if agreement cannot be reached, to be assessed. |
| CATCHWORDS: | DISCIPLINARY PROCEEDINGS – where the applicant alleged professional misconduct by reason of inappropriate text messages – where the behaviour constituted unprofessional conduct as defined in s 5 of the National Law SANCTION – where the respondent demonstrated a lack of insight but ultimately admitted to the conduct – where main objective of sanction is to ensure public protection and safety – where further education which addresses issues regarding boundary violations necessary – where respondent reprimanded, fined and condition placed upon registration – where respondent ordered to pay the applicant’s costs |
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
JURISDICTION
This is a reference from the Medical Board of Australia under s 193 of the Health Practitioner Regulation National Law (‘the National Law’). That law is scheduled to the Health Practitioner Regulation National Law Act 2009 (Qld) and, to the extent that it is set out in the schedule, it is binding law in the State.
The events the subject of this disciplinary proceeding occurred after the commencement of the National Law which commenced operation on 1 July 2010.
QCAT is the “responsible tribunal” with jurisdiction to deal with references made under s 193 of the National Law.[1]
[1]Health Practitioner Regulation National Law Act 2009 (Qld) s 6; and National Law s 5 (definition of “responsible tribunal”).
These disciplinary proceedings were referred to the tribunal on 22 April 2014.
On 22 August 2014 the applicant was given leave to amend that referral. The amended referral comprises a sole charge that the respondent violated the professional boundary between he and his patient by sending inappropriate text messages to the patient. The respondent has admitted to this conduct.
The tribunal had previously directed that the parties’ file joint submissions on sanction or, if there was no joint submission, that the applicant file its submissions by 17 September 2014 and the respondent file his submissions by 24 September 2014.
No joint submissions were filed and accordingly the applicant filed its submissions on 17 September 2014. The respondent did not file submissions.
The decisions and orders that may be made in these proceedings are relevantly prescribed in s 196 of the National Law. They include findings of ‘unsatisfactory professional performance’ and ‘unprofessional conduct’ and ‘professional misconduct’, or of conduct amounting to one or more of those terms, each of which is defined in s 5 of the National Law. Section 196(2) specifies the types of order that may be made by QCAT upon such a referral.
The conduct
On 21 and 22 October 2013 the respondent violated the professional boundary between he and his patient by sending text messages to her. The first message which was sent at 8.23pm stated:
Hello (the patient) this is dr brett. This might seem a random weird question but what the heck nothing to loose (sic). would u like to come out to the movies or climb a mountain or something with me 1 day. If it is 2 weird i will understand. No strings attached just wondering?
The patient made no response to that text message and at 10.42am the following day she received a second text message from the respondent which stated:
(the patient) did u get my message?
The patient respondent 14 minutes later and said:
Hello and no thank you to your suggestions as you say it’s too weird for me. Have a nice day.
Just over an hour later the respondent sent another text message to the patient which read:
I thought it would be cheers no probs ta. blood tests ok so far.
One minute later the patient received another text message from him which read:
Ps let me know if u have a change of heart
The patient attended a different general practitioner on 24 October 2013. She complained to that practitioner about the respondent’s behaviour and she and that practitioner then made a formal notification to the Australia Health Practitioner Regulation Agency (“AHPRA”) on 13 November 2013.
The parties agree that the respondent’s conduct is in breach of the Medical Board of Australia’s “A Good Medical Practice: A Code of Conduct for Doctors in Australia”.
The applicant alleges that the respondent behaved in a way that constituted professional misconduct by engaging in:
Unprofessional conduct by the practitioner that amounts to conduct that is substantially below that standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[2]
[2]As defined in s 5 of the National Law.
The respondent has admitted to the conduct as alleged in the referral and agreed that this conduct was inappropriate. However, he has not conceded that the conduct amounts to professional misconduct as alleged by the applicant.
The applicant did not make submissions as to why it alleges the conduct amounts to professional misconduct. Nor did it refer the tribunal to any comparative cases.
Before sanctioning the respondent the tribunal must decide whether the respondent’s behaviour falls under one or more of the following categories:
(a) The practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(b) The practitioner has behaved in a way that constitutes unprofessional conduct;
(c) The practitioner has behaved in a way that constitutes professional misconduct.[3]
[3]National Law s 196.
In Nursing and Midwifery Board of Australia v Tainton[4] the tribunal concluded that the behaviour the subject of the referral constituted professional misconduct as that term is defined in the National Law. In that matter the respondent was a nurse who worked at a correctional centre and developed a relationship with a prisoner who had presented to her on a health matter. There was never any physical relationship between them but 31 telephone calls were made between them and five letters were exchanged by post. At [28] the tribunal said:
In my view, aided by the assessors, while this is not at the serious end of such cases, it is capable of satisfying subparagraph (a) of the definition of ‘professional misconduct’, and …
[4][2014] QCAT 161.
In my view the current matter is substantially less serious.
That matter however provides some guidance to the tribunal as to how the behaviour the subject of this matter should be categorised. Given that this matter involved behaviour that took place over a very short period of time and involved only three brief text messages which did not express personal feelings of desire, attraction or the like, I am not satisfied that it is behaviour that would appropriately be categorised as substantially falling below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. In my view, it is behaviour which is more accurately categorised as conduct that is of a lesser standard then that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers. In that regard I have had the benefit of the opinions of the assessors in this matter who all formed a similar view.
Accordingly, in my view the behaviour the subject of this referral can properly be categorised as unprofessional conduct as that term is defined in s 5 of the National Law.
The respondent’s conduct during the investigation and proceedings
The respondent was contacted by AHPRA on 18 November 2013 to advise him of their receipt of the notification. During the telephone call the respondent informed the investigator that he had invited the patient out for bowls. This is not consistent with the text message sent to the patient.
In a written submission made to AHPRA on that day, the respondent said that he had invited the patient to participate in social outings with a group that he often socialised with and involving activities such as cards, darts and other such social activities. This also was inconsistent with the text messages that he had sent to the patient.
On 8 January 2014 the respondent made a further written submission to AHPRA in which he submitted that he had intended to send the text messages to a different person who was an ex-patient. He contended that the names of the complainant and that ex-patient were next to each other in his address book and he may have mistakenly sent the texts to the complainant.
The respondent has since acknowledged that this was a false assertion made in an attempt to mislead the investigator. He also acknowledged in that affidavit that he should not have provided the name of an ex-patient in this attempted deception and conceded that his attempt to mislead was flippant and inappropriate. I note that he did not correct these issues however until 6 August 2014.[5]
[5]See affidavit of respondent dated 5 August 2014.
The applicant has submitted that Dr Holding’s statements exhibited limited insight with respect to the seriousness of his conduct towards his patient and exhibited an absence of remorse. I agree. His attempts to downplay the seriousness of the invitations to the patient were not only unsophisticated, they were dishonest. In my view, this is behaviour which is demonstrative of the respondent’s less than satisfactory insight into his behaviour and its potential adverse consequences.
Having said that, it should also be noted that the respondent’s cooperation during these proceedings has ensured that the patient has not been required to give evidence. This is also a relevant consideration when determining an appropriate sanction.
The principles of a sanction order
One of the main objectives of the National Law is to ensure public protection and safety. Section 3 sets out its objective and guiding principles. Section 3(2)(a) states:
The objectives of the national registration and accreditation scheme are–
(a)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.
As Fryberg J noted in the case of Medical Board of Queensland v Martin,[6]
It is trite law that the purpose of the disciplinary jurisdiction is the protection of the public. As the Tribunal has observed in a number of cases, there are a number of aspects to this. In some cases, protection may be achieved by erasing the practitioner’s name from the register. In others, the deterrent effect of disciplinary punishment, coupled with the knowledge of the stress, cost and publicity associated with disciplinary proceedings, may be enough to satisfy the Tribunal that there is little risk to the public from the practitioner. The existence of genuine remorse is a factor which may assist the Tribunal in reaching a conclusion that the practitioner poses little danger to the public. The Tribunal must also consider the issue of general deterrence. The order which the Tribunal makes must be such as to deter other members of the profession who might be minded to behave in a similar way. It must also be calculated to maintain public confidence in the profession and in the system of disciplinary administration.
Board’s position on sanction
[6]Medical Board of Queensland v Martin [1998] Queensland Medical Assessment Tribunal (unreported, no 6 of 1997).
Any restriction on the practice of a health professional is to be imposed only if it is necessary to ensure the safe provision of health services.[7]
[7]National Law s 3(3)(c).
The applicant has submitted that the salient aspects of this case relevant to the determination of an appropriate sanction are:
(a) by sending an inappropriate text message to his patient, the respondent violated the professional boundary between them;
(b) upon being rebuffed by the patient, the respondent sent a further inappropriate text message in violation of this professional boundary;
(c) the patient was shocked and, after seeing another general practitioner, made a joint notification;
(d) the respondent attempted to downplay his conduct;
(e) the respondent attempted to mislead the investigators;
(f) the respondent regrets his behaviour during the investigation;
(g) upon the matter being referred to the Tribunal the respondent admitted to the conduct, saving the patient from having to give evidence in the proceedings;
(h) upon his admission, the respondent failed to exhibit any particular insight into why his conduct was a breach of his ethical responsibilities; and
(i) the respondent now accepts that his conduct was in breach of his ethical responsibilities.
The applicant has submitted that to ensure the safe provision of health services, the respondent ought complete further education regarding boundary violation issues arising in general medical practice.
The applicant has also submitted that, as a matter of deterrence to the respondent and other practitioners, he ought be reprimanded and fined the sum of $5,000.00.
The maximum fine that may be imposed is $30,000.00.[8] The Board has submitted however that a fine of $5,000.00 would carry sufficient bite to deter both the respondent and other health practitioners from behaving in a similar way.
Conclusion
[8] National Law s 196(2)(c).
In my view, the sanction proposed, plus any stress, cost and publicity associated with these proceedings, would uphold the objectives of the National Law, protect the public interest and maintain public confidence in the profession.
It is a sanction which is appropriate given the circumstances of the offending conduct and gives due recognition to principles of general and personal deterrence. Furthermore, it appropriately takes into account the respondent’s acknowledgment of his misconduct and the fact that his cooperation (albeit limited) resulted in the complainant not having to give evidence.
The Tribunal has noted on prior occasions that a reprimand is not a trivial penalty as it is a matter of public record and affects the reputation of the practitioner.[9]
[9]Medical Board of Australia v Grant [2012] QCAT 285 at [49].
Given that the respondent made no submissions on sanction, I am unable to further comment upon his approach to this matter or his present personal circumstances in any way.
Costs
Section 195 of the National Law provides the Tribunal with a discretion to make any order as to costs that it considers appropriate.
The applicant seeks its costs in the proceedings on the District Court scale. I note that referral of this matter to the Tribunal by the applicant was mandatory under the legislation. I also note that the applicant is wholly funded by the profession through the registration fees of medical practitioners.
I acknowledge that Dr Holding admitted to the conduct at any early time. I note also however that the applicant has acted reasonably at all times in bringing the matter to resolution.
In successfully referring disciplinary proceedings to the Tribunal, the applicant will usually be awarded its costs of the proceeding on a standard basis, and I see no reason to depart from that usual course in this matter.
Orders
It is recorded that the respondent behaved in a way that constitutes unprofessional conduct by sending inappropriate text messages to a female patient on 21 and 22 October 2013.
The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.
The respondent is ordered to pay a fine of $5,000.00 to the Medical Board of Australia by a date agreed to by the parties, or if an agreement cannot be reached, as ordered by the Tribunal.
A condition is placed upon the respondent’s registration, requiring him to complete a Medical Board of Australia approved course of education nominated by the respondent and approved in writing by the Medical Board of Australia, which addresses issues of boundary violations that arise in general practice.
The respondent is to successfully complete that course within 12 months from the date of this order.
The respondent is to bear the cost of such a course.
The respondent will pay the applicant Board’s costs of the proceedings on the scale applicable to matters in the District Court of Queensland to be agreed, or if agreement cannot be reached, to be assessed.
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