Medical Board of Australia v Putha
[2014] QCAT 159
| CITATION: | Medical Board of Australia v Putha [2014] QCAT 159 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Padmaja Putha (Respondent) |
| APPLICATION NUMBER: | OCR259-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member, assisted by Dr S Pozzi, Dr D Rosengren and Mr P Murdoch |
| DELIVERED ON: | 26 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Putha behaved in a way that constitutes professional misconduct in that she made misleading statements in her application dated 30 December 2010 and curriculum vitae. 2. Dr Putha’s registration is cancelled. 3. Dr Putha is prohibited from applying for registration for a period of one year from the date of this order. 4. Dr Putha is ordered to pay the Board's costs of these proceedings as assessed by QICS or Hickey & Garrett (as appointed by the Board) on the standard basis on the District Court Scale of Costs within 28 days of receiving the assessment. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNPROFESSIONAL CONDUCT – GENERALLY – where the registrant made misleading statements in her application for registration and curriculum vitae – whether a registrant’s conduct before registration can ground a finding of professional misconduct – whether cancellation or suspension of registration is preferable PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the registrant has already paid the applicant’s costs of earlier related proceedings – where the proceedings were delayed – where there had been an offer to settle – whether the costs payable by the registrant should be limited Health Practitioner Regulation National Law (Queensland), s 5, s 6, s 193, s 196(1), s 196(2)(b) Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Rodgers Barnes & Green, solicitors |
| RESPONDENT: | Moray & Agnew, solicitors |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (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. 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 this State. It will be referred to as ‘the adopted National Law’.
The allegation in the present case is that Dr Putha improperly obtained registration by providing false statements in her application for registration.
The events the subject of this disciplinary proceeding occurred after the commencement of the adopted 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 adopted National Law.[1]
[1]Health Practitioner Regulation National Law Act 2009 (Qld), s 6; and s 5 (definition of ‘responsible tribunal’ in the adopted National Law).
The basis of this reference to QCAT is the Board’s reasonable belief that Dr Putha behaved in a way that constitutes professional misconduct[2].
[2]The adopted National Law s 193(1).
The decisions and orders that may be made by the Tribunal in these proceedings are relevantly prescribed in s 196(1) of the adopted National Law. They include the making of findings of ‘unsatisfactory professional performance’ ‘unprofessional conduct’ and ‘professional misconduct’, or of conduct amounting to one or more of those terms, each of which are defined in s 5 of the Act.
Section 196(2) specifies the types of order that may be made by QCAT upon such a referral.
Main Facts and circumstances
The respondent, who was born in 1971, obtained her medical qualifications (MB, BS) at Andhra Pradesh, India, in 1996. During her internship she gave birth to her daughter, but returned to work not long after and worked intermittently in Hyderabad and Secunderabad until 1998 when she left with her husband to come to Australia. She obtained an IT diploma here, and returned to India intermittently after 2001. Between 2002 and 2007 she practiced medicine for short periods during visits to India amounting to a total of about five months practice over those five years. During this time she obtained Australian citizenship (2006) and gave birth to a son (February 2007).
Between 2008 and 2010 she undertook courses in Australia which would support an application for registration, or limited registration as a medical practitioner in this country.
On 30 December 2010 she signed an application for limited registration and included a curriculum vitae. These were submitted through an agent to the Australian Health Practitioner Regulatory Authority (‘AHPRA’).
On 28 June 2011 the Medical Board of Australia approved limited registration with a condition that she attend an orientation program and submit reports from a supervisor after three months and six months. She was then granted approval to practice in an ‘area of need’, namely Dalby with Dr Kyaw.
She practiced in the Dalby area from October 2011 for about 15 months, apparently with the appreciation of many persons with whom she had come into contact. An anonymous informant then contacted the Board alleging deceit in her application.
The Board took ‘immediate action’[3] by suspending the respondent’s registration on 23 May 2013.
[3]See adopted National Law ss 155 – 158.
Upon being contacted by the Board she was immediately remorseful and cooperative.
She conceded that she had no excuse for the content of her CVs, and that she knowingly exaggerated her experience in Indian clinics. Her motivation was that she desperately wanted to work as a doctor in Australia. She has personally acknowledged her actions as a terrible mistake, selfish, dishonest and wrong.
Upon suspension she ceased practice and now lives with her husband in Maryborough, Queensland. She describes herself as the main breadwinner in her family, and is anxious to return to practice.
It seems that the admitting Board, in reliance on the false statement that she had been in continuous practice in India between 2002 and 2007, granted her a type of registration which she would not otherwise have been granted, and that had the full facts been known she would have been required to serve some time in a hospital where she would gain experience under supervision before any registration would commence.[4] This is not contested.
[4]Affidavit of Ms Thompson, [20] – [23].
There is no actual suggestion of medical incompetence despite the limited extent of her prior experience. Indeed, she seems to have practiced with a reasonable level of competency. Extensive testimonials from a wide range of qualified health care practitioners are included in the material testifying to her apparent good work within the profession during her period of Australian practice.
Discussion
The first question is whether antecedent misconduct (ie conduct by a practitioner before registration) is a proper basis for a finding of professional misconduct under the adopted National Law.
The Board submits that the respondent submitted an updated curriculum vitae when she lodged her application for provisional registration, and that it recorded the same details as those in her first curriculum vitae, and that she held registration at the time of lodging that application. Accordingly it submits that a false representation was made by her after registration, and this can ground a charge of professional misconduct.
That seems to be correct, but I do not think it is necessary to base the necessary finding of professional misconduct on that submission. In my view misrepresentations in an application for registration may be found to constitute professional misconduct, and be the subject of such a charge after registration, as it falls with subparagraph (c) of the definition of ‘professional misconduct’ in s 5 of the adopted National Law. That definition of ‘professional misconduct’ includes:
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.
An advantage seems to have been obtained by reason of the misrepresentation concerning medical practice between 2002 and 2007, in that the Board would at that stage have refused registration and would have advised her to seek employment in a junior hospital position in an ‘area of need’, and complete the required course rotations in a hospital where she would work under close supervision of other health professionals.
Level of Sanction
The Board contends that Dr Putha should be precluded from applying for any registration for a period of five years.
No comparable cases have been cited to indicate the level of response and sanction that might be expected to be imposed for conduct of this kind. A number of decisions were referred to indicating how seriously the Courts regard misstatements by applicant solicitors and barristers, but a number of different factors operate in the legal profession where the essential trust between the Courts and the legal practitioners is a primary consideration along with the need for honesty and trust in their dealings with clients and members of the public.
This is not to say that high character is not also a requirement for other professions including the medical profession, but these factors make it difficult to transfer the legal profession decisions directly to the present matter. The legal professional cases include Re: Liveri,[5] Law Society of New South Wales v Walsh[6] and Re: Hampton,[7] Legal Services Commissioner v Adamakis,[8] and Legal Services Commissioner v Spicehandler[9]. The last two mentioned cases are examples of prohibition of reapplication for periods of five years. Other examples may be found in cases involving aspiring solicitors or barristers where applicants who have misstated their qualifications, or failed to disclose reprehensible acts, have taken many years to surmount the hurdle of satisfying the Court that they have developed sufficiently trustworthy character to be admitted to the profession.
[5][2006] QCA 152.
[6][1997] NSWCA 185.
[7][2002] QCA 129.
[8][2013] VCAT 1970.
[9][2012] VCAT 630.
In this matter the Board seeks a ban for five years.
Exclusion from the medical profession for a period such as five years is not only a serious destruction of income earning capacity, but also the destruction of ongoing experience and the continuing education and skills that practice provides. One would think that further refresher activity would usually become necessary for a person removed from the profession for such a period.
It may be noted that only very serious cases of professional misconduct in actual medical practice result in suspensions approaching this length. To take the example of sexual misconduct with a patient, which is seriously regarded, a survey of the cases suggests that the normal range of sanction results in suspensions of between three months and two years.[10]
[10]Medical Board of Australia v Blomeley [2014] QCAT 160 and cases therein referred to.
Reference was made to the celebrated case of Dr Patel who obtained registration in Queensland by means of serious misrepresentations in his application. He was dealt with for this in a Criminal Court and a substantial sentence of imprisonment was imposed. It serves to underline the potential seriousness of such conduct, but does not provide much guidance for the appropriate response in this Tribunal in the circumstances of the present matter.
Reference was also made to Nursing and Midwifery Board of Australia v Brocklehurst[11] where there was fairly protracted deception by a nurse who applied for registration with particular endorsements. In that case she was reprimanded and her registration suspended for three months (suspended after one month for a period of two years).
[11][2011] QCAT 71.
The Board also seeks an order that the respondent pay the Board’s costs of the proceedings. For reasons stated later I have concluded that the respondent must be ordered to pay the Board’s costs. No estimate has been offered of the amount that will need to be paid, but past experience suggests that costs will be a substantial sum. There is evidence of the respondent's financial difficulties which, although not exhaustive, suggests that she will have difficulty in meeting this impost. The fact that there will be substantial financial disadvantage arising in consequence of these proceedings is a factor to be borne in mind in framing the overall sanction.
It may be accepted that her existing qualifications and her willingness to undertake whatever courses and additional experience may be required in order to practise in Australia mean she would in all probability have become a registered practitioner not very long after the original application if only she had made full and true disclosure of her limited experience to that time. Her gain was relatively small, but the point of concern is the poor character that is revealed by such a deception. The dominant factor influencing the terminations in this type of misconduct must be general deterrence of others from misleading the registering authorities.
The respondent’s registration has been suspended since 23 May 2013. By the time of publication of this decision the respondent will have suffered an effective 12 months of suspension from practice through an order of the Board. The framing of any further period of disbarment by this Tribunal must take that fact directly into account. For example the effect of an order that she may not reapply for another year is that overall she will suffer a minimum disbarment of two years.
Submissions were made on the respondent’s behalf for an order imposing conditions on her registration, including supervision and various conditions being imposed on her practice, instead of any further suspension at all. In my view some of those proposed conditions would be likely to be unworkable, and in any event the level of sanction would be inadequate as a deterrent to others. If, as I think, it is necessary that cancellation be ordered, there will be no subsisting registration upon which conditions could be imposed under s 196(2)(b). The tribunal has no power to impose conditions on future admitting Boards[12].
[12]Pharmacy Board of Australia vArulogun [2013] QCAT 685, [18] – [23]; Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 39.
In my view cancellation of registration is desirable, as distinct from further suspension. It would seem to be a very appropriate order in most cases where registration has been obtained by fraud. The live issue is the period during which the respondent is to be prohibited from reapplying for registration.
With the benefit of discussion with the assessors in the present matter I consider that the period of further disbarment in the present case should be fixed at one year. This will be achieved by cancelling the registration and ordering that the period for which the respondent should be precluded from reapplying for registration will be one year.
The Board also sought the inclusion of a reprimand in the order. This seems to be unnecessary when there is to be a far more serious order for actual cancellation of registration, and it will not be included.
Questions of adequacy of qualification, experience and possible supervision will no doubt then be canvassed by the Board which will deal with her eventual reapplication in the light of circumstances at that time.
Costs
The Board’s submissions correctly point out that its function in bringing proceedings of this kind is performed in the public interest, and that the cost of the exercise is borne by the members of the profession. It is also true that in most cases where it is found that a practitioner has erred and that the bringing of such proceedings is justified, the Board will be awarded its costs. It is equally true that in many cases an order for their payment constitutes one of the many serious disadvantages incurred through a respondent's involvement in the disciplinary process. In some cases it may have a crushing effect on the erring practitioner. In my experience, courts and tribunals alike are aware of this from case to case, and bear it in mind when fashioning the appropriate sanction.
The tribunal has an untrammelled discretion to award costs in these cases. Section 201 of the adopted National Law states that “[t]he responsible tribunal may make any order about costs it considers appropriate for the proceedings”.
This overrides the more conservative approach generally required by the Queensland Civil and Administrative Tribunal Act 2009[13] (“the QCAT Act”) which applies unless the enabling act expressly or impliedly says otherwise.[14]
[13]Especially QCAT Act ss 100 and 102.
[14]See QCAT Act ss 6(2) and 28.
In the present case, a number of matters were raised on Dr Putha's behalf, touching and concerning the conduct of the litigation.
Firstly, attention was drawn to the fact that Dr Putha has already been required to pay the Board’s costs of earlier review proceedings in this matter, which became unnecessary when the present reference was lodged. Those costs were settled at $4,600. However, having studied the material I see nothing oppressive or unreasonable in the Board’s conduct concerning those proceedings.
Secondly, complaint was made concerning the Board’s delay in referring the matter to QCAT. Dr Putha was understandably anxious for a quick conclusion after the initial cancellation of her registration (23 May 2013), and her solicitors made numerous calls concerning whether and when a referral to QCAT might occur. The referral did not eventuate until 16 October 2013. If this had resulted in ultimate disadvantage for Dr Putha, the Board’s delay might be taken into account in the making of an order limiting or reducing costs. But the delay does not seem to have been inordinate, and is in any event part of the 12 month’s suspension which has already been taken fully into account by this Tribunal in framing its order.
Thirdly, reference was made to an “offer to settle”. On 13 November 2013, the respondents of solicitors wrote a without prejudice letter to the Board’s solicitors, offering “to resolve” the proceedings. It intimated that she would agree “to a six month suspension of her registration (but such suspension to include the period of suspension she has already served)”. The offer was, in effect, that the Board should agree to a “time already served” order so far as cancellation or suspension was concerned.
The Board rejected the offer, and in my view rightly so. Some further suspension or cancellation was plainly necessary. The other components of the offer were not such as to make it an offer that the Board would have been remiss to refuse.
I therefore do not think that the without prejudice offer and its rejection provide any basis for depriving the Board of costs or reducing them. It is in any event difficult to think that the offer should be regarded as an “offer to settle” under r 86 of the Queensland Civil and Administrative Tribunal Rules 2009, because the parties cannot settle disciplinary proceedings. These are proceedings in which the Tribunal must make its own decision in the public interest. Even so, I acknowledge that an offer made during such negotiations may be relevant and admissible in relation to the conduct of the litigation, and may in an appropriate case be taken into account by the Tribunal in the exercise of its discretion.
For the above reasons I conclude that it will be appropriate to order the respondent pay the Board's costs, and that there is no reason to impose any particular limitation upon them. I am however prepared to mention in relation to their assessment that they ought to be moderate in view of the respondent’s timely admissions and general cooperation in the proceedings.
Orders
The following orders will be made:
1. Dr Putha behaved in a way that constitutes professional misconduct in that she made misleading statements in her application dated 30 December 2010 and curriculum vitae.
2. Dr Putha’s registration is cancelled.
3. Dr Putha is prohibited from applying for registration for a period of one year from the date of this order.
4. Dr Putha is ordered to pay the Board’s costs of these proceedings as assessed by QICS or Hickey & Garrett (as appointed by the Board) on the standard basis on the District Court Scale of Costs within 28 days of receiving the assessment.
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