Medical Board of Australia v Martin
[2013] QCAT 376
•8 July 2013
| CITATION: | Medical Board of Australia v Martin [2013] QCAT 376 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Gary Raymond Martin (Respondent) |
| APPLICATION NUMBER: | OCR287-11 & OCR172-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 8 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The parties are to file in the Tribunal an amended proposed order within seven (7) days of the date of this decision. 2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 the publication of information identifying BJ, MG and LR is prohibited. |
| CATCHWORDS: | HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the proceedings were referred under the Health Practitioner (Disciplinary Proceedings) Act 1999 – where the registrant was being investigated prior to the commencement date of the Health Practitioner Regulation National Law (Queensland) – where the conduct the subject of the referral occurred after the commencement date – whether the matter was referred to the Tribunal under the appropriate act HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant provided inadequate treatment to patients –where the registrant made false or misleading statements to an investigator appointed by the Board – whether the registrant’s conduct amounted to unsatisfactory professional conduct HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant retrospectively altered medical records – where medical records were provided to the Coroners Court for an inquest – whether the registrant’s conduct amounted to professional misconduct HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS –where the registrant had conditions for supervision on their registration – where the registrant practised without a supervisor – whether the registrant’s conduct amounts to professional misconduct HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant admitted conduct – where the parties agreed on the appropriate sanction – whether the Tribunal should impose the agreed sanction Health Practitioner Regulation National Law (Queensland) s 3(2)(a), s 288, s 289 Australia Competition and Consumer Commission v Colgate Palmolive Pty Ltd [2002] FCA 619, cited Medical Board of Australia v Grant [2012] QCAT 285, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Referrals
The Medical Board of Australia has referred two disciplinary proceedings to the Tribunal. The first, referred to the Tribunal on 6 December 2011, sets out five grounds for disciplinary action against Dr Martin.[1] The second, referred to the Tribunal on 21 May 2012, includes one ground. It alleges that he has conducted himself in a way which constitutes professional misconduct.
[1]The referral, as originally filed, included six grounds. However, one of those grounds, ground 6, has now been abandoned by the Board.
Applicable Legislation
The second referral is made under the Health Practitioner Regulation National Law (Queensland) (National Law). The Board contends that the first referral is made under the Health Practitioners (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act),[2] although in its submissions the Board acknowledges that the fifth ground in the first referral should have been referred under the National Law. Dr Martin contests whether the other grounds in the first referral were properly made under the Disciplinary Proceedings Act. He submits that they should have been referred under the National Law.
[2]This act was formerly entitled the Health Practitioners (Professional Standards) Act 1999. The name was changed on 20 May 2013; section 23 of the Health Practitioner Registration and Other Legislation Amendment Act 2013.
The National Law commenced on 1 July 2010. The relevant transitional provisions[3] provide that a complaint or notification which had been received by a former Board before 1 July 2010, but which that Board had not started dealing with before that date, was to be taken to be a complaint or notification made under the National Law. On the other hand, if the former Board had commenced dealing with the complaint or notification before 1 July 2010, then it was to continue to be dealt with under the Disciplinary Proceedings Act.
[3] Sections 288 and 289 of the National Law.
Dr Martin points out that in respect of all the grounds contained in the first referral, other than the first ground, reference is made to events which occurred after the commencement of the National Law on 1 July 2010. Therefore, he contends that those grounds could not have been referred under the Disciplinary Proceedings Act.
As to the first ground, Dr Martin submits that the document at page 1 of the Agreed Bundle demonstrates that the complaint came to the Board after 1 July 2010, even though it concerned matters which occurred before that date. He submits the Board has not pointed to any evidence to support its submission that it had commenced investigating the matter prior to 1 July 2010.
The document at page 1 of the Agreed Bundle of Documents is a letter from Dr Luke Stradwick to Mr Steve Ziebarth dated 28 January 2011. The letter does not identify who Mr Zeibarth is, or in what capacity he was being written to by Dr Stradwick. However, it is apparent from AHPRA’s Preliminary Investigation Report prepared for a meeting of the Performance and Professional Standards Committee of the Queensland Board of the Medical Board of Australia[4] that Mr Zeibarth was an investigator directed by the Board to investigate the notification concerning Dr Martin. Dr Martin’s submission appears to assume that this was the original letter of complaint concerning the patient to whom ground one of the referral relates. If so, the assumption is wrong.
[4] Document 28 in the Agreed Bundle at Section 3.9.
Document 28 of the Agreed Bundle is the Preliminary Investigation Report of AHPRA into complaints made by Dr Stradwick. The report, at section 3.5, discloses that the Medical Board of Queensland received a notification from Dr Stradwick on 5 March 2010. Dr Stradwick had asserted that he was making the notification under the mandatory reporting requirements of s 166(2) of the Medical Practitioner Registration Act 2001.
It is apparent that Dr Stradwick had earlier written to the Board on 22 February 2010. In his letter of 22 February 2010 Dr Stradwick had stated:
I have a number of other patients who have been inappropriately managed by Dr Martin prior to the introduction of mandatory reporting. [Name obliterated] is just the latest in a series of his management that in my opinion is negligent.
The Preliminary Investigation Report records that, initially, Dr Stradwick did not provide details of the other patients alleged to have been treated negligently by Dr Martin. At section 3.11 of the report it is said that Dr Stradwick provided information about a further patient, BJ (to whom ground 1 in the first referral relates) on 28 January 2011. This is the letter to which the submissions on behalf of Dr Martin refer as establishing that the referral must necessarily have been under the National Law rather than the Disciplinary Proceedings Act. However, in the letter itself Dr Stradwick says that BJ was first referred to him in April 2009. At that time BJ is said to have had ‘a massive Merkel Cell carcinoma of his left lower eyelid which had been biopsied and shown to be a Merkel Cell carcinoma by his GP Dr Gary Martin’. It seems tolerably clear from that letter that BJ was one of the other patients to whom Dr Stradwick had referred in his letter of 22 February 2010. That being so, the notification being dealt with by the then Board prior to 1 July 2010 included matters related to BJ.
Section 3.6 of the report says that the Complaints Advisory Committee conducted a preliminary assessment of the notification pursuant to s 53 of the Disciplinary Proceedings Act on 23 June 2010. That committee recommended, amongst other things, to refer the matter for investigation. The committee also decided to direct an investigator to conduct an investigation.
In my view, this demonstrates that the Board had started to deal with the notification prior to the commencement of the National Law.[5]
[5] Compare Medical Board of Australia v Grant [2012] QCAT 285 at [13].
Ground one of the first complaint was properly referred under the Disciplinary Proceedings Act.
The issue is not without significance. If all the matters should have been referred under the National Law, then, as submitted by Dr Martin, ss 9(3), 9(4) and 61 of the Queensland Civil and Administrative Tribunal Act 2009 would have provided sufficient basis to correct any procedural error.[6]
[6]Compare Charoentanakarn v Bain [2010] QCATA 7 at [6] – [7] per Wilson J, President; and Pharmacy Board of Australia v Ludwick [2013] QCAT 235 at [16] per Horneman-Wren SC DCJ, Deputy President.
However, there is a substantive and not merely procedural issue. Section 289(2)(b) of the National Law requires any proceeding in the Tribunal relating to a notification which the Board started dealing with before 1 July 2010 to be dealt with under the Disciplinary Proceedings Act as though that Act had not been repealed. Therefore, the Tribunal must consider ground one of the first referral under the provisions of the Disciplinary Proceedings Act.
So too it is clear from document 47 of the Agreed Bundle that Dr Stradwick first saw MG, the patient to whom ground 3 of the first referral relates, on 10 November 2009. Section 3.38 of the Preliminary Investigation Report records that Dr Stradwick provided unsolicited information concerning MG on 20 July 2011.
The particular conduct to which ground 3 relates occurred in August 2011. It relates to responses provided by Dr Martin to an investigator concerning whether or not he paid for corrective surgery performed by Dr Stradwick on MG. Whilst that particular conduct, that is, the responses provided, occurred after the commencement of the National Law, and after Dr Stradwick had provided the information concerning MG in July 2011, I am of the opinion that the investigation into allegations concerning patients of Dr Martin, more generally, had commenced before 1 July 2010. The fact that particulars of those patients, including of their identity and treatment, were not obtained until later in the investigation, and after 1 July 2010, does not remove those patients from the scope of the investigation earlier commenced.
Under s 289(2)(b) of the National Law the notification was to continue to be dealt with under the Disciplinary Proceedings Act as if it had not been repealed. Therefore, the investigation was to continue in accordance with Part 5, Division 5 of the Disciplinary Proceedings Act. The requirement to give information imposed by s 79 of the Disciplinary Proceedings Act continued to apply. A failure to give that information could still offend against s 79. Such a failure could also still constitute grounds for disciplinary action under s 124(1)(d) or (f) of the Disciplinary Proceedings Act. This is so notwithstanding that the failure to provide the information occurred after 1 July 2010.
It would seem highly probable that MG was also one of the patients treated negligently by Dr Martin to whom Dr Stradwick was referring in his letter of 22 February 2010.
In my view, ground 3 of the first referral is properly brought under the Disciplinary Proceedings Act.
The fourth ground of the first referral alleges that Dr Martin gave an investigator misleading and deceptive information concerning BJ. For the reasons set out concerning ground 3, ground 4 is also properly brought under the Disciplinary Proceedings Act.
Whether ground 2 of the first referral is properly brought under the Disciplinary Proceedings Act is less clear. It concerns the treatment of a LR.
The first reference to LR in the Preliminary Investigation Report is at section 3.50. There it is recorded that on 29 July 2011 a Director of Health First Medical Centres, Ms Miller, delivered copies of medical records for a number of patients, including LR, to AHPRA. Those records were provided in response to a letter dated 21 July 2011 from AHPRA regarding LR. This is evident from the covering letter from Ms Miller of 27 July 2011 under which they were provided.[7] The letter from AHPRA, however, is not in evidence. The detail of what was requested is, therefore, not known. However, it appears that the investigation of matters concerning LR stemmed from, and formed part of the broader investigation into, Dr Stradwick’s notification. There had been no other notification to the Board which could have provided the statutory foundation for an investigation under Part 5 of the Disciplinary Proceedings Act (or indeed under the National Law).
[7] Document 29 of the Agreed Bundle.
Therefore, I am of the view, that the investigation into the treatment of LR was also pursuant to the Disciplinary Proceedings Act and that the referral to the Tribunal in respect of those matters in ground 2 was properly pursuant to that Act.
Dr Martin’s conduct
Ground 1
Ground 1 of the first referral, as noted, relates to the treatment of a patient, BJ, by Dr Martin. The following facts are admitted by Dr Martin in relation to this ground.
On or about 14 July 2008 he performed a biopsy of a skin lesion from the left malar region for BJ. The pathology report relating to the biopsy noted, amongst other things:
The histological appearances and pattern of positivity with the AE1/AE3 marker are consistent with neuroendocrine carcinoma. The features appear consistent with merkel cell carcinoma (primary neuroendocrine carcinoma of the skin) but the CK20 negativity is an unusual feature. It may be necessary to consider the possibility of a metastatic small cell neuroendocrine carcinoma.
On or about 8 September 2008 Dr Martin ordered a bone scan for BJ. BJ underwent further treatment including biopsies on 11 December 2008 and 14 January 2009 which indicated the existence in the lesion of a Merkel Cell tumour which is a form of skin cancer which may be caused by excess sun exposure over many years and which may spread to nearby lymph nodes and other organs such as the liver and bone.
Dr Martin admits that the predominate diagnostic procedure to detect a Merkel Cell carcinoma is through biopsy or excision of the lump and that the recognised form of treatment of a Merkel Cell carcinoma involves excision of the tumour with a wide margin of skin often followed by irradiation of the area and any nearby lymph nodes.
On 23 February 2009 Dr Martin hyfrecated a skin lesion for BJ which grew rapidly from that time onward.
He referred BJ for further treatment by a specialist on 17 March 2009.
Dr Martin admits that he should have referred BJ for treatment by a specialist in relation to the Merkel Cell tumour before 17 March 2009.[8]
[8]All those facts are admitted in paragraph 6 of the Affidavit of Gary Raymond Martin filed 21 December 2012.
The Board alleges that Dr Martin’s conduct concerning BJ constituted unsatisfactory professional conduct under the Disciplinary Proceedings Act. Unsatisfactory professional conduct is defined in the schedule for the Disciplinary Proceedings Act to include professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers.
In submissions filed on behalf of Dr Martin on 6 February and 25 January 2013 no particular admission is made by him that his conduct concerning BJ constitutes unsatisfactory professional conduct under the Disciplinary Proceedings Act. That is unsurprising given that Dr Martin’s submissions proceed on the basis that the referral ought to have been under the National Law rather than the Disciplinary Proceedings Act.
Unsatisfactory professional conduct is not a classification of conduct under the National Law. However, unprofessional conduct as defined in s 5 of the National Law means 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. Therefore, if the conduct satisfies the definition of unsatisfactory professional conduct under the Disciplinary Proceedings Act, it will also satisfy the definition of unprofessional conduct under the National Law.
Although Dr Martin’s submissions make no particular admission in relation to ground 1, at paragraph 2, the general submission is made that the admissions which have been made by Dr Martin found a basis for the Tribunal to exercise its statutory powers to make disciplinary orders.[9] Such a concession would apply equally irrespective of the act under which the referral was made under.
[9] Written submissions on behalf of the registrant filed 25 January 2013.
The Tribunal is satisfied that Dr Martin’s conduct in relation to the treatment of BJ constitutes unsatisfactory professional conduct under the Disciplinary Proceedings Act.
Ground 2
Ground 2 in the first referral, as noted, concerns Dr Martin’s treatment of LR. In his affidavit Dr Martin makes the following admissions concerning that treatment.
On or about 24 September 2008 he performed a shaved biopsy and hyfrecation of a skin lesion on LR’s right temple. The pathology report for that biopsy stated:
Sections show thick inflammatory crust and excudate associated with ulcerated basal cell carcinoma of superficial and fribrosing pattern infiltrating to the basis of the shave specimen within the mid dermis.
Dr Martin further admits that on 10 November 2008 he performed an excision of a Basal Cell carcinoma on LR’s right forearm and sent the biopsied tissue for histology. On that date, he also hyfrecated a Basal Cell carcinoma on LR’s right temple but no histology of that tissue was ordered.
Dr Martin admits that LR consulted him on 5 October 2009 in relation to a persistent ulcer on his right temple which Dr Martin excised on 12 October 2009. The pathology report relating to the persistent ulcer was:
Keratotic basal cell carcinoma nodular and micro nodular types, extending into the deep reticular dermis.
The lesion focally extends to the base and to at least one short access [sic] edge of the excision.
On 22 October 2010 Dr Martin admits that he excised a further Basal Cell carcinoma on LR’s right temple the pathology report for which stated:
Sections show a basal cell carcinoma at this site, confirming your clinical suspicion. The tumour appears of infiltrating subtype and extends to the level of the deep dermis and focally involves the upper subcutis. The excision of the lesion appears incomplete in at one transverse skin margin and also focally at the deep margin.
On 9 November 2010 Dr Martin re-excised a Basal Cell carcinoma from LR’s right temple the pathology report relating to that stated:
Sections identified the site of previous biopsy, with epidermal ulceration and underlying dermal scarring. There is a focal foreign body giant cell reaction to exogenous material. There is evidence of residual nodular and infiltrating type basal cell carcinoma. Tumour tissue focally extends to one transverse skin resection margin, and excision of the lesion overall is considered incomplete at this margin. Tumour tissue is principally located in the tissue block which includes the small macroscopic lesion described.
Dr Martin admits that one of the recognised treatments when a Basal Cell carcinoma is suspected is for it to be removed surgically, and that if it is not removed it has a tendency to slowly invade deeper into the tissues and after many years, on rare occasions, may cause a patients death. He admits that upon receipt of the pathology report of 24 September 2008 he ought to have either formally excised the Basal Cell carcinoma from LR’s right temple and/or referred LR for treatment and review by a specialist dermatologist.
In his affidavit, Dr Martin observes that he was LR’s general practitioner for approximately 30 years. During that time, LR, who had fair skin, had numerous skin lesions which were predominately diagnosed as Basal Cell carcinomas. Dr Martin says that because of this it was his practice to perform formal skin checks of LR each time he consulted with him. He did not specifically record that he performed those skin checks in his clinical notes; a matter which he regrets. He states that he performed such checks on 11 occasions over a three year period from September 2008 to July 2011, as a result of which he removed numerous lesions.
The Board alleges that Dr Martin’s conduct relating to LR was unsatisfactory professional conduct under the Disciplinary Proceedings Act.
The only admission which Dr Martin has made concerning his conduct in the treatment of LR is the general admission at paragraph 2 of his submissions that his admissions found a basis for the Tribunal to make disciplinary orders.
I am satisfied on the basis of the matters admitted by Dr Martin that his treatment of LR satisfies the definition of unsatisfactory professional conduct.
Ground 3
Ground three of the first referral alleges that Dr Martin provided false and misleading responses to an investigator and that such was in contravention with s 79 of the Disciplinary Proceedings Act and constituted grounds for disciplinary action under s 124(1)(d) or (f) of that Act.
In respect of this ground Dr Martin, in his affidavit, admits that he received an email communication from AHPRA dated 29 July 2011 in which he was asked:
I am also informed that you paid for Mr Miller’s corrective surgery undertaken by Dr Stradwick and Dr McMonagle. Would you please provide a submission in relation to the allegations …
Dr Martin further admits that on 1 August 2011 he provided a response in which he stated:
As regards to the payment of fees to correct his ectropion; initially I had a very amicable relationship with [MG] but this situation changed when he was accompanied by unnamed [sic] companion who dominated the consultations, in fact became quite intimidating.
On 3 August 2011 AHPRA again emailed Dr Martin and suggested that he had not answered the query as to whether he had paid for the corrective surgery. He responded, later that day, by stating:
I had already offered to have the Juvederm procedure performed by a colleague in Brisbane [which MG did not proceed with]. This was the reason I was prepared to pay for the minor procedure out of my own pocket.
Most importantly, Dr Martin admits that his responses to the investigator regarding the payment of fees for the surgery performed on MG by other doctors were not clear and were open to misinterpretation by the investigator. He concedes that he ought to have clearly and specifically confirmed that he had offered to pay for MG’s procedures which were to be performed by Dr Stradwick and that he did, in fact, pay Dr Stradwick’s fees in relation to the reparative procedures.
Notwithstanding those submissions, Dr Martin denies that he purposely misled the investigator and says that the mode of communication, namely by emails exchanged over a number of days, may not have leant itself to clarity of response.
It is submitted on Dr Martin’s behalf that his emails reveal that he failed to directly address the question that was asked of him in the way which would be expected of a medical practitioner in the circumstances. However, it is further submitted that the answers were consistent with the true position, being that Dr Martin had accepted responsibility for paying for the corrective surgery. It is said that the answers were not consistent with an attempt to deceive the investigators. Nonetheless, it is accepted that it was conduct of a lesser standard than that which would be expected of a medical practitioner, although, it is said, in the lower order of such contraventions.
In my view, Dr Martin’s responses should be considered to have been intentionally evasive of the questions being asked of him rather than being an attempt to mislead or deceive the investigators. He did not proffer a version of events which was, of itself, incorrect or false. Rather, he sought to avoid answering the question which was asked of him.
His concession that his conduct, as admitted, was of a lesser standard than that which would be expected of a medical practitioner in the circumstances is, in my view, well made. I am of the view that it does constitute unsatisfactory professional conduct.
Ground 4
Ground four of the first referral, as noted above, alleges that Dr Martin gave misleading and deceptive responses to an investigator concerning BJ. It is alleged that his conduct constituted unsatisfactory professional conduct in that he had engaged in infamous conduct in a professional respect; misconduct in a professional respect; conduct discreditable to the registrant’s profession; and other improper or unethical conduct.[10]
[10]As to the meaning of each of the forms of unsatisfactory professional conduct and how they relate to one another, see Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191 at [27] – [45].
In his affidavit Dr Martin admits that in correspondence dated 8 July 2011 to AHPRA he stated that he had discussed BJ’s Merkel Cell carcinoma with Dr Mills on or about 14 July 2008 and that he had discussed the prognosis with BJ and had later performed a body scan which showed no evidence of metastases. He admits also that in his letter he had advised that ‘on subsequent review, there was no evidence of residual tumour until I biopsied a lesion of the [L] malar area on 11 December 2008 which showed Merkel Cell Tumour …’.
Dr Martin further admits that he did not specifically address what action he had taken after discussing the results of the original pathology report, which had identified the Merkel Cell carcinoma as at 14 July 2008, with Dr Mills after that date. He concedes that his responses to the investigator on 11 July 2013 were open to misinterpretation and, upon reflection, he ought to have referred BJ for review and treatment by a specialist after he had received the pathology report on 14 July 2008 which referred to the Merkel Cell Carcinoma.
The conduct which the Board alleges constituted the unsatisfactory professional conduct was not however, restricted to Dr Martin’s letter to AHPRA of 8 July 2011. It points to conduct which occurred between 16 May 2011[11] and 29 July 2011. Particularly, the Board points to Dr Martin’s response to the Board’s investigator on 16 May 2011 in which he did not refer specifically to any dates or timeframes of relevant events and in which he indicated that he referred BJ to two specialists before ultimately referring him to Dr Mason.
[11]Annexure “A” to the Referral identified the conduct occurring between 18 May 2011 and 29 July 2011. The Board’s submissions filed 25 January 2013 refer to the response being on 16 May 2011, document 70 of the Agreed Bundle of Documents. This document is a letter sent on 16 May 2011 and received on 18 May 2011.
The Board also points to a further response of Dr Martin on 20 June 2011 wherein he states:
I referred [BJ] to 4 other Specialists for ongoing care after I had discussed the Merkel’s Cell Carcinoma [which I had not encountered before] with Dr Kenward Mills [a practitioner in my clinic who has an advanced diploma in skin care management] …
The Board also refers to medical records obtained from Dr Martin’s practice which disclose that referral letters were created referring BJ to a Dr Layat on 17 March 2009; a Dr Gahankarie on 19 March 2009; and Dr Mason on 20 March 2009. It seems unclear from the material whether the referrals to Dr Layat and Dr Gahankarie were ever sent. There do not appear to be any subsequent records which would indicate that they were.
The Board also draws attention to a further submission made by Dr Martin on 26 June 2011 in response to a letter from the investigator of 21 June 2011 in which she had sought more complete disclosure as the pathology reports which had been provided by Dr Martin to that point were incomplete. In that response Dr Martin’s referred to having
‘received the diagnosis of Merkel Cell Carcinoma on 14.JAN.2009’; and
‘the time lapse [after diagnosis] before referral to numerous specialists which resulted in a ‘merry go round’ as no one appeared to want to assume responsibility, was only two months.’
The Board submits that Dr Martin’s response of 20 June 2011 wherein he referred to the referral of BJ to four other specialists was false and/or misleading in that it does not appear that Dr Martin referred BJ to four specialists. The evidence suggests that only three referral letters were drafted and, of those, only one is likely to have been sent. In my view, the Board’s submission is correct.
The Board further submits that the reference to receiving the diagnosis of Merkel Cell carcinoma on 14 January 2009, contained in Dr Martin’s submission of 26 June 2011, was false and misleading because he became aware of BJ’s probable diagnosis of Merkel Cell carcinoma as a result of the initial biopsy in July 2008, and that he identifies having discussed treatment with BJ about the Merkel Cell Carcinoma on or about 14 July 2008 in his further response of 8 July 2011.
In my view, the Board’s submissions in that regard are, again, correct.
The Board also refers to a file note of a conversation between the investigator and BJ as suggesting that Dr Martin was aware of the diagnosis of Merkel Cell carcinoma prior to 14 January 2009. However, as that evidence has not been tested in the proceedings, the Tribunal ought not act upon it.
The Board also refers to Dr Martin’s statement in his submission of 26 June 2011 that the time lapse between diagnosis and referral as being only two months as being misleading and deceptive given Dr Martin was aware of the probable diagnosis of a Merkel Cell Carcinoma from about 14 July 2008.
In submissions made on behalf of Dr Martin, it is conceded that Dr Martin’s responses ‘were confusing and prone to misinterpretation’. It is conceded that he ought to have been more precise with respect to his communications with the investigator about these matters. However, it is submitted that it is unlikely that Dr Martin intended by his response to mislead the investigator as opposed to being somewhat careless. The basis for that submission is that the Board would be expected to have records concerning the patient the management of whom was being investigated. However, that submission does not fully acknowledge that the Board’s investigator did not have available to her all the medical records relating to the patient at all times at which Dr Martin was making his various responses.
In my view, more than mere carelessness is demonstrated by the evidence. Dr Martin’s references to dates and elapsed periods of time which were quite inaccurate on the records demonstrate that, in this instance, he intentionally placed false information before the investigator with the intention that she would be misled.
His conduct is, as he admits in any event, unsatisfactory professional conduct.
Ground 5
The fifth ground for disciplinary action contained in the first referral is the alleged provision of misleading and deceptive documentation to the Coroners Court by Dr Martin in the inquest into the death of a PD. The Board in the referral alleges that Dr Martin conducted himself in a way which constitutes unsatisfactory professional conduct in that he engaged in infamous conduct in a professional respect; misconduct in a professional respect; conduct discreditable to his profession; and other improper or unethical conduct. However, as the Board now accepts that this ground should have been referred under the National Law, it should be considered as a complaint of professional misconduct under the National Law.[12]
[12] The Board’s submissions were directed to a complaint of professional misconduct.
PD was a 35 year old man with a history of chronic illness who fell ill on the evening of 23 January 2007. He consulted Dr Martin on 24 January 2007. PD died on 25 January 2007.[13]
[13]Findings of the inquest into the death of PD delivered on 16 September 2010; Document 90 in the Agreed Bundle.
On 12 October 2007 Dr Martin received a request to produce to the Coroner medical records pertaining to PD. Following that request, he produced to the Beenleigh Coroner medical records in which he had made retrospective additions to PD’s clinical records. The additions were ‘Recommended hospital admission. Patient refused admission’ and in “social history”:
DRUG ABUSE
Use marijuana/IV drugs
Shared needles Ò Hepatitis C
Heavy Smoker
ALCOHOLIC
In a written statement provided to the Coroner dated 28 July 2008 Dr Martin stated:
In view of the symptoms that [PD] had complained of, I recommended that he be admitted to the Gold Coast Hospital for treatment. He refused.
In a subsequent statement dated 31 May 2010 Dr Martin altered his position in respect of that earlier statement and said:
At the conclusion of [PD’s] consultation with me on 24 January 2007 I told him that if his condition got any worse that he should go to hospital. He said that he did not want to go to hospital.
Dr Martin admits that the information which he provided to the Coroner by including further information in the records concerning PD without clear identification that they were retrospective additions had the capacity to mislead or deceive the Coroner. He says that it was careless of him to incorporate retrospective additions to the records without a clear indication that they were retrospectively amended. He states that the words which he added were not precisely accurate; though he says they were substantially true.
He denies any deliberate or wilful intention to mislead the Coroner stating that he added the retrospective entries because he had recalled that he had provided the information to PD in the consultation on 24 January 2007 and wished to add that information as it formed part of his recollection of the consultation.
In his findings, State Coroner Barnes said:
I am of the view that Dr Martin sought to deliberately mislead the court by fraudulently altering the computerised medical record of the consultation on 24 January to make it appear he had recommended [PD] be admitted to hospital. I surmise that when he became aware of the on-going coronial investigation, he read the record of the symptoms that had been noted, observed the absence of any meaningful diagnosis in circumstances where the death of the patient occurred so soon after the consultation, and became concerned his conduct would not withstand scrutiny. He continued this attempt to mislead when he made a false claim to the same effect in his statement to the court.[14]
[14] Findings of the inquest at page 807 of the Agreed Bundle.
In submissions made on behalf of Dr Martin to the Tribunal it is urged that the conclusion reached by the State Coroner that Dr Martin altered the document fraudulently not be adopted. It is said that there was no basis offered in the reasons for that conclusion. In respect of the additions to include reference to PD’s drug abuse, drug use and alcoholism, it is said that whilst those matters were added to the records retrospectively, they were nonetheless entirely true and the records establish that history. It is conceded, however, that the additions concerning the advice provided to PD in regard to hospitalisation were inaccurate. However, the inaccuracy is said to be only as to the nature or quality of the advice given, rather than to whether any advice was given at all. The true nature and quality of the advice is said to be that contained in the subsequent statement by Dr Martin.
It is submitted that Dr Martin erred in his professional conduct in that he ought to have ensured that the retrospective changes to the notes were clearly marked as such and that one of the changes made was not completely accurate in its detail. It is said that the difference in detail between what was accurate and what was included in the note was subtle, although important.
In my view, the difference in detail is not as subtle as Dr Martin would contend. The record which he made of the consultation, in the knowledge that the records were to be provided to the Coroner, recorded an actual recommendation for hospitalisation which he represented he made in the course of the consultation. It also recorded a refusal by the patient of hospital admission. That there was a purported actual recommendation and refusal were both affirmed in his original statement to the Coroner on 28 July 2008.
In my view, if the recommendation which Dr Martin had made had been conditioned or qualified upon PD’s physical condition becoming worse, that is a matter which one would expect would have been included in the amendment first made to the note by Dr Martin or, at least, corrected in his statement of July 2008. So too, in my view, an expression by the patient that he did not want to go to hospital in the context of a discussion as to the possible need for that if his condition deteriorated, is quite different to a definite refusal of hospital admission as recorded by Dr Martin in his amended note of the consultation, and as repeated in his first statement to the Coroner. There was simply no occasion for a refusal of admission to be made by the patient if the discussion as to admission was of the conditional or qualified kind referred to by Dr Martin in his second statement to the Coroner.
I am of the view that Dr Martin’s conduct was professional misconduct. The precise meaning which the Coroner was intending to give to the expression “fraudulent” in his reasons is unclear. The Tribunal does not need to adopt that expression in this matter. It is sufficient for the Tribunal to identify the conduct as professional misconduct for the reasons given.
Ground 6
The sixth ground of disciplinary action, being that raised in the second referral, concerns Dr Martin performing unsupervised work in contravention of conditions imposed upon his registration in October 2011. Dr Martin admits that he breached the condition concerning supervision on six separate occasions between 11 November 2011 and 9 December 2011. He had become aware of the conditions as imposed on 2 November 2011.
There is, on the evidence, a dispute between Dr Martin and Dr Thomasevic, his nominated supervisor, as to whether Dr Thomasevic ever supervised Dr Martin prior to his being appointed his supervisor by the Board on 3 January 2012. As submitted by Dr Martin, that factual dispute is unable to be resolved on a hearing conducted on the papers.
The Board submits that Dr Martin’s breach of the conditions amounted to professional misconduct under the National Law. The definition of professional misconduct under the National Law includes:
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.
At paragraph 44 of the submissions made on behalf of Dr Martin, it is said that the Tribunal would make a finding which satisfied that definition in respect of the conduct referred to in the first and second referral notices. However, in making the submission, reference is made not to the definition of professional misconduct in s 5 of the National Law, but rather to the definition of ‘unprofessional conduct’ in s 5 and s 196(1)(b)(ii) of the National Law. Those provisions refer to the Tribunal deciding that the practitioner has behaved in a way that constitutes unprofessional conduct not professional misconduct.[15]
[15] Professional misconduct is referred to in s 196(1)(b)(iii) of the National Law.
In my view, the contravening of the supervision condition by Dr Martin on numerous occasions in November and December 2011 of itself constitutes professional misconduct under the National Law. Each instance was, in my view, unprofessional conduct and, when those instances are considered together, the conduct falls substantially below the standard reasonably expected of a medical practitioner of Dr Martin’s level of experience.
Therefore, I am of the view that the sixth ground for disciplinary action amounts to professional misconduct under the National Law.
Sanction
Having determined that Dr Martin has engaged in unsatisfactory professional conduct under the Disciplinary Proceedings Act and professional misconduct under the National Law, it is appropriate that the Tribunal impose a sanction.
The parties have jointly proposed a sanction. The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct,[16] bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[17]
[16]Compare Australian Competition and Consumer Commission v Colgate Palmolive Pty Ltd [2002] FCA 619.
[17]Ooi v Medical Board of Queensland [1997] 2 Qd R 176; s 6 and s 123 of the Disciplinary Proceedings Act and s 3(2)(a) the National Law.
In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission,[18] Burchett and Kiefel JJ referred to the important public policy involved in a court (or tribunal) not departing from agreed sanctions which are within a permissible range in all the circumstances of the case. That public policy identified was in not jeopardising the beneficial consequences of potentially lengthy and complex litigation being concluded with an acknowledgement of wrong doing and agreement as to an appropriate sanction for the conduct. Their Honours observed that such beneficial consequences could be jeopardised if parties “…were to conclude that proper settlements were clouded by unpredictable risks”.
[18] (1996) 71 FCR 285 at 290 – 291.
Whilst those observations were made in the conduct of a consumer protection litigation, they are, in my opinion, apposite to disciplinary proceedings such as these. It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.
The sanction jointly proposed by the parties is as follows:
1.The registrant be reprimanded in respect of the conduct;
2.The registrant be suspended for a period of 12 months commencing from 3 August 2012 to be suspended after 6 months with the balance period of 6 months to be imposed if there were to be any breach of conditions within an operational period of 3 years;
3.The registrant shall not be permitted to perform any surgical procedure except under supervision at Level 1 (as defined in the guidelines of supervised practice for limited registration dated 1 May 2012 as published by the Medical Board of Australia);
(a)The supervision shall be carried out only by a supervisor first approved by the Board in writing and at the registrant’s expense;
(b)The supervision shall be for a minimum period of 12 months;
(c)The registrant will be allowed to perform the following procedures without Level 1 supervision:
(i)Insertion of intrauterine contraception devices;
(ii)Insertion of Implanon involving insertion of subcutaneous implant;
(iii)Removal of stitches or foreign bodies if required;
(d)At the conclusion of 12 months supervision and thereafter the registrant shall only practice in any procedure which is also advised in writing as notified to the Board by the approved supervisor;
(e)Monitoring and reporting conditions in the usual terms to be imposed for the duration of the conditions;
(f)The registrant will pay the costs of and incidental to the proceedings on the scale applicable to matters in the District Court to be agreed or assessed.
Subject to some minor amendments, the Tribunal is satisfied that the sanctions proposed fall within an appropriate range and serve the purposes of disciplinary proceedings and orders. The following matters ought, however, be attended to.
First, the parties acknowledge that in relation to 3(d) above concerning the restriction on practice after the conclusion of 12 months supervision some mechanism is also needed, perhaps by the way of requirement for an undertaking by the registrant to the Tribunal and the Board, that he will not undertake any surgical procedure other than is authorised in writing by the approved supervisor until he has satisfactorily undertaken and passed any further assessment as approved in writing by the Board. The parties are directed to settle the terms of such an undertaking.
Secondly, reference to the imposition of ‘monitoring and reporting conditions in the usual terms’ in order 3(e) is somewhat vague. The parties are directed to settle the terms of those conditions and to include them in lieu of order 3(e) or as an additional schedule to the orders.
Thirdly, order 3(f) is more appropriately renumbered as order 4.
The parties are directed to recast the orders in light of these reasons and to submit them, both in writing and electronically, to the Tribunal within seven days of the release of the decision.
Non-publication
The Tribunal under s 66 of the QCAT Act may make an order prohibiting the publication of information that may enable a person who is affected by a proceeding to be identified.[19] The Tribunal may make such an order if the Tribunal considers it necessary for some reason in the interests of justice; or to avoid the publication of information whose publication would be contrary to the public interest.[20] The Tribunal may make the order on the application of a party or on its own initiative.[21]
[19]QCAT Act 2009, s 66.
[20] QCAT Act 2009, s 66(2).
[21] QCAT Act 2009, s 66(3).
BJ, MG and LR have neither participated in these proceedings nor consented to their personal information being publicised. The information provided to the Tribunal in regards to these persons is of a personal and sensitive nature and usually treated in confidence. In these circumstances it is not in the public interest for information about these individuals to be published.[22] Further, it is in the interest of justice to prohibit the publication of such information.[23] For these reasons a non-publication order is made in regards to BJ, MG and LR. These persons shall be referred to as BJ, MG, and LR.
[22] MBA v Gallery [2013] QCAT 224 at [3].
[23]Medical Board of Australia v Van Opdenbosch [2012] QCAT 703, [42] – [43]; Pharmacy Board of Australia v Chan [2013] QCAT, 5 March 2013, at [31] – [32].
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