Medical Board of Australia v Mandy, Durlen

[2023] QCAT 269

[2023] QCAT 269

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

DICK SC, Judicial Member

Assisted by:

DR CAVANAGH

DR ELLWOOD
MR MURDOCH

No OCR 337 of 2021

MEDICAL BOARD OF AUSTRALIA  Applicant

v

MANDY, Durlen  Respondent

BRISBANE

TUESDAY, 14 FEBRUARY 2023 JUDGMENT

Background

1. JUDICIAL MEMBER: At all material times Dr Mandy was a registered medical practitioner holding general and specialist registration as a general physician and he practised at Gladstone Hospital. He is presently working on what can either be described as a locum or short-term contracts at the Bundaberg Hospital and has been doing so for two years or thereabouts.

2. On or about the 22nd of June 2018, certain orders were made by the Family Court of Australia as between Dr Mandy and his ex-partner. The parties were divorced in 2015. The orders included one which limited communication between the parties to communication about parental responsibilities and making arrangements for their children.

1. On various dates between the 7th of November 2018 and the 26th of June 2019, the practitioner sent various emails to his ex-partner outside the scope of the permitted communication and in breach of the Court’s order. Thirty-three of the breaches involved email contact, and three others involved physical approaches. Some of the contact took place after the practitioner was charged. He was charged with 35 breaches on or about the 5th of March 2020. He pleaded guilty. He was fined $1,000 and no conviction was recorded.

1. This hearing is a disciplinary hearing, pursuant to section 193B(2) of the Health Practitioners Regulation National Law (Queensland) (“the National Law”).

The characterisation of the conduct

1. The respondent, through submissions, accepts that the relevant conduct is properly characterised as domestic violence, pursuant to the definition contained in Part 2, Division 2 of the Domestic and Family Violence Protection Act. In addition, the behaviour constituted a blatant disregard for the conditions of a court order, showing a lack of respect for the law. This was made even more apparent when the conduct persisted beyond the first set of charges. The respondent’s submissions as to the nature of the emails is much more benign than what is true; whilst there is no overt threat, there is a repeatedly critical tone to many. As well, many refer to not being intended to harass, annoy or persuade the other party. This demonstrates a realisation that this may have been, indeed, the anticipated reaction. One said:

   Stop forcing me to be mean to you.

2. The conduct was not a single event, but persisted and escalated even after the respondent was charged. This belies the denial by the respondent that he was not aware, or ought to have been reasonably aware, that breaching a temporary protection order resulting in charges and a subsequent finding of guilty was in breach of the standards of the good medical practice; clause 1.4 of Good Medical Practice: A Code of Conduct for Doctors in Australia is a code of conduct for doctors in Australia and his conduct generally was unlawful and likely to bring the medical profession into disrepute.

3. Section 5 of the National Law defines professional misconduct as follows:

   (a)    unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

   (b)    more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

   (c)    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. There have been arguments, reduced to writing and oral arguments, in respect of the proper finding in this case. It was a matter referred to in oral argument, and I will refer to it again. As was said in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177:

   Our orders, however, must also uphold the standards of members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means that practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour.

2. The Tribunal is of the view that the conduct is of such a nature and duration to bring the medical profession into disrepute. There is, therefore, a considerable call for a deterrent order to send a message to other practitioners of the consequences of inappropriate behaviour in both their professional and personal lives.

3. There is no direct link between the conduct here and the practitioner’s practice of medicine. Nevertheless, the effect on his ex-partner, or ex-wife, cannot be mitigated. It is clear that this type of domestic violence, sometimes called coercive behaviour, is becoming more apparent and attitudes to it are changing. The practitioner here is fortunate that these events happened before, or were about, the time of that awareness coming to the surface.

1. There are some mitigating features. The conduct occurred some years ago and the Magistrates Court hearing was almost three years ago. He has not offended since, that has been accepted. The Magistrate found the breaches on the lower end of the range. He pleaded guilty. He has no disciplinary history. The respondent submits he has a clear understanding and insight into the wrongfulness of his behaviour: there is no direct evidence of this, such as a psychiatrist’s report. It therefore falls to be inferred because he has accepted the charges before the Tribunal and that there is no evidence of a recurrence of the behaviour.

1. Unprofessional conduct is defined by the National Law as:

   professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers …

2. This behaviour goes, in the view of the Tribunal, well beyond that, and amounts to conduct that is substantially below the standard reasonably expected. The Tribunal is satisfied that the respondent’s conduct amounts to professional misconduct.

Sanction

1. The purpose of sanctions imposed on a health practitioner under the National Law is to protect the public, not punish the practitioner, and the time of the hearing is the appropriate time to assess fitness to practice. The Tribunal has also considered all of the comparable matters placed before it. The Board here argues that the practitioner should be reprimanded, and his registration should be suspended for six months; or, as I understand in the most recent submission, perhaps less than that and then to allow for time to make arrangements.

2. The applicant’s submission has changed because the Tribunal raised with the Board the question of ‘area of need’, and there has been an argument that the Bundaberg Hospital is an area of need. The Board says he is only a locum and can be replaced. The practitioner says there are many interviews to obtain locums that are unsuccessful. Therefore, the area of need argument is alive, but some of it less persuasive than what might otherwise be the case.

1. The respondent argues that the objective of general deterrence can be achieved through a reprimand and/or a fine. A reprimand would constitute, as has been said many times, a strong rebuke by the Tribunal. A reprimand is not a trivial penalty, and that has been said many times by the Tribunal.

1. This Tribunal has come to the view that, considering the sanction at this time, the call for specific and general deterrence can be met by the following findings and orders:

   a.   the practitioner has engaged in professional misconduct;

   b.   the practitioner is reprimanded;

   c.   the practitioner is fined the sum of $5,000 to be paid within 2 weeks of today’s date, and failing payment in that time the Tribunal will reconvene to reconsider the penalty.

2. I want to say here and now that it is only the fact that five years, almost, has elapsed from the time these breaches began, and the fact that the awareness of the depravity of coercive conduct and domestic violence was, perhaps, not so apparent that has led the Tribunal to this decision. If the conduct was happening now, with public knowledge of how this conduct is treated, the result would have been much closer to what the Board suggested.