Medical Board of Australia v Kagan (No. 2)

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Kagan (No. 2) [2024] QCAT 384

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

BERNARD KAGAN

(respondent)

APPLICATION NO/S:

OCR067-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Dr J Cavanagh, Medical Practitioner Panel Member
Dr K Hames, Medical Practitioner Panel Member
Mr J Walsh, Public Panel Member

ORDERS:

1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is cautioned.

2. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — CHARACTERISATION OF CONDUCT — where the respondent was a general practitioner with significant gynaecological experience — where the respondent conducted internal examination of a patient — what is the appropriate sanction

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Sanction

The purpose of disciplinary proceedings is protective not punitive.[1] The relevant purposes are to bring home to the practitioner the seriousness of their conduct, general deterrence, maintaining public confidence in the profession and securing the maintenance of professional standards.
[1] Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545, [41].
The respondent is now aged nearly 80 and retired in September 2023. He has instructed, and there is no reason to disbelieve, he will not attempt to return to practice.
The event which led to the Tribunal’s proceedings occurred five years ago and related to an unnecessary breast and vaginal examination, and his record-keeping was unsatisfactory. It was an isolated incident and the Tribunal found that there was:
no suggestion the examinations were for a sinister or malicious motive but rather ill-judged.[2]
[2]Medical Board of Australia v Kagan [2024] QCAT 311, [39].
It was not argued that the respondent did not have the skills and/or expertise to do the tests and his explanation that his conduct was out of concern for the welfare of the patient was not challenged.
The case was unusual in that it was more nuanced than usual. The respondent has had a long, unblemished and illustrious career and was led into this judgement by his experience and expertise.
On the evidence of the applicant’s expert, the conduct is not prevalent in contemporary medicine and so the need for general deterrence is ameliorated. The need for specific deterrence is also ameliorated because the respondent has retired.
In the special circumstances of this case, the Tribunal is satisfied that the appropriate order is that the respondent be cautioned pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland).
The Tribunal makes no orders as to costs.

Medical Board of Australia v Kagan (No. 2) involved a general practitioner with significant gynaecological experience who conducted an internal examination of a patient. The Medical Board of Australia brought disciplinary proceedings against the practitioner, seeking to determine the appropriate sanction for the conduct in question. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was to characterise the conduct of the respondent and to determine the appropriate sanction under the Health Practitioner Regulation National Law (Queensland). The tribunal had to consider the nature of the internal examination, the respondent's qualifications and experience, and the impact of the conduct on the patient and the profession.

The tribunal concluded that the respondent's conduct constituted misconduct, but was not of a nature warranting a more severe sanction. The tribunal found that while the examination was inappropriate, the respondent's actions did not reach the threshold of professional misconduct. Instead, the tribunal considered the caution to be an appropriate and proportionate response. Consequently, the tribunal ordered that the respondent be cautioned, and made no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established