Medical Board of Australia v REY

[2025] QCAT 153

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v REY [2025] QCAT 153

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

REY

(respondent)

APPLICATION NO:

OCR097-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 January 2025 (decision)

3 March 2025 (reasons)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Prof P Baker
Ms J Felton
Dr B Manoharan

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT

1. In respect of each of grounds 1, 3 and 4, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (‘National Law’), the respondent’s conduct amounts to professional misconduct within the meaning of paragraphs (a), (b) and (c) as defined in s 5 of the National Law.

2. In respect of ground 2, pursuant to section 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meanings of paragraph (a) and (b) as defined in section 5 of the National Law.

3. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.

4. Pursuant to section 196(4)(a) of the National Law, the respondent be disqualified from applying for registration, enrolment or an authorisation to practise for a period of three (3) years.

THE TRIBUNAL ORDERS THAT:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)     the contents of a document or other thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal;

(c)     any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the respondent, the respondent’s wife or their children, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).

2.     Any material affected by the non-publication order shall not be copied or inspected without any order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to these proceedings or any appeal or review arising from these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a registered medical practitioner holding specialist registration in diagnostic radiology – where the respondent failed to maintain professional boundaries with his female colleagues – where the parties reach an agreement as to facts, characterisation of the conduct and sanction – whether the Tribunal is satisfied that agreement is appropriate – whether the respondent should be disqualified

Health Practitioner Regulation National Law (Queensland)

Health Practitioner Regulation National Law Regulation 2018 (Qld)

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)

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

1. This is a referral to the Tribunal by the Medical Board of Australia (‘Board’) against the respondent.

2. The respondent was a registered medical practitioner under the Health Practitioner Regulation National Law (Queensland) (‘National Law’) holding specialist registration in diagnostic radiology.

3. He was registered under the National Law on 22 January 1992. He was employed between 1995 and 2012 at Practice A, and between 2016 and 2018 at Practice B.

4. On 29 March 2021, the respondent had conditions imposed on his registration through immediate action taken by the Medical Board of Australia.  On 2 August 2021, the respondent retired from active practice, and on 13 August 2021 he surrendered his registration.  The respondent has no disciplinary history with the Tribunal, nor does he have any previous notifications. 

5. In a statement of agreed and disputed facts, it is agreed that on 18 June 2020 a notification was made by the Office of the Health Ombudsman.  On 7 July 2020, the notification was referred to the Australian Health Practitioner Regulation Agency (‘Ahpra’).  The notification was investigated, and on 24 October 2022 the Board referred the matter to the Tribunal. 

6. There are four grounds of conduct referred to the Tribunal, which are set out in the statement of agreed facts.  Ground 1 is described as an off-the-books X-ray scan, which was inappropriate in the circumstances and was undertaken informally and without any referral. 

7. Ground 2 is, again, an off-the-books scan, which was alleged to be inappropriate in the circumstances, because the procedure was not recorded and was undertaken informally and without any referral. 

8. Ground 3 is an off-the-books scan where the procedure was not recorded and was undertaken informally and without any referral. 

9. Ground 1 occurred on a date in 2009; ground 2 occurred on 9 September 2009; and ground 3 occurred on 23 December 2011.

10. In respect of Ground 4, the respondent admits that, on or about 2 August 2018, at Practice B, without invitation or consent, he put his arm around a female sonographer colleague, NP, and said words to the effect, “are we all good?”

11. The respondent admits the conduct set out and admits that he failed to maintain appropriate professional boundaries in his dealings with NP and demonstrate appropriate professional respect in his dealings with NP, and he admits that the conduct occurred in a room that was darkened. 

12. The respondent admits that on 7 August 2018 he touched NP’s upper back without invitation or consent.  The respondent and NP were alone in the room, and NP demanded that the respondent stop touching her.  The respondent held a position of seniority to NP, both by reference to his position as Practice B’s radiologist and his position as a registered medical practitioner as against NP’s position as sonographer. 

13. The Board notes in paragraph 7 of its submissions that it is the National Health Practitioner Board for the medical profession pursuant to part 5, division 1 of the National Law, and r 4 of the Health Practitioner Regulation National Law Regulation 2018 (Qld) (‘Regulations’). In paragraph 8 of its submissions, the Board notes that, pursuant to r 3 of the Regulations, the Queensland Civil and Administrative Tribunal is the appropriate tribunal for the purpose of the National Law as it applies in Queensland.

14. The Board submits that, in respect of grounds 1, 3 and 4, the respondent has behaved in a way that constitutes “professional misconduct” under each of limbs (a), (b), and (c), as defined in s 5 of the National Law, ; further, that in respect of ground 2, the respondent has behaved in a way that constitutes professional misconduct under each of limbs (a), and (b), as defined in s 5 of the National Law. It is noted, as stated above, that the respondent admits this characterisation.

15. In its submissions, the Board notes that the objective of the National Law is 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.

16. Further, the Board notes that:

    … the main guiding principle of the national registration accreditation scheme is that the protection of the public, and public confidence in the safety of services provided by registered health practitioners and students are paramount. 

17. The Tribunal has considered the allegations and the circumstances pertaining to each allegation and has read the submissions made by the respondent.  The Tribunal is satisfied in this case that the proper characterisation of the conduct is as follows: 

    (a)In respect of each of grounds 1, 3 and 4, pursuant to section 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meaning of paragraphs (a), (b) and (c) as defined in s 5 of the National Law; and

    (b)In respect of ground 2, pursuant to section 196(1)(b)(iii) of the National Law, the respondent’s conduct amounts to professional misconduct within the meanings of paragraph (a) and (b) as defined in section 5 of the National Law.

18. The Tribunal is also satisfied that, pursuant to s 196(2)(a) of the National Law, the respondent should be reprimanded.

19. The Board also seeks, pursuant to s 196(4)(a) of the National Law, that the respondent be disqualified from applying for registration, enrolment, or an authorisation to practice for a period of three years. It is noted that the respondent agrees to these orders. Having regard to the comparative decisions that have been provided, and submissions in relation to sanction as contained in the Board’s written submissions, that the respondent be disqualified from applying for registration, enrolment or an authorisation to practice for a period of three years, it is noted that the Board does not seek a cancellation order pursuant to 196(2)(e) of the National Law as the respondent retired from active practice and surrendered his registration on 13 August 2021.

20. It should also be noted that the Board does not seek a prohibition order pursuant to s 196(4)(b) of the National Law nor does it seek an order for costs.

21. In arriving at this sanction, the Tribunal has taken into account the principles of general deterrence and specific deterrence and has considered the respondent’s insight and remorse. 

22. Whilst the Tribunal is satisfied that the respondent’s agreement to the circumstances of the misconduct does show some insight, the Tribunal is not satisfied, having regard to the circumstances of his repeat offending over a period of time, that he has shown any remorse.  The Tribunal has taken into account the issues of insight and remorse in determining whether the sanction should be mitigated in this instance. 

23. The Tribunal is satisfied, having regard to the submissions that have been made by the Board, that a proper characterisation of the conduct is professional misconduct. 

24. The respondent has made an application for the non-publication order previously made to be continued.  In the reply submissions, the respondent notes the report of his treating psychiatrist, and relies on the grounds that publication would cause distress to the respondent and his family.  Two of his children are medical professionals.  It was stated by the respondent’s treating psychiatrist that publication of his name and circumstances would be highly likely to cause significant deterioration in his mental state and increase the risk of suicide. 

25. Having regard to the reports that have been provided to the Tribunal, the Tribunal is, to some extent, not convinced by the report by the respondent’s treating psychiatrist that the likelihood of personal harm to the respondent is as high as suggested.  It is, in the circumstances, satisfied that there is an element of risk if the non-publication is not made, and on balance, is prepared to make the non-publication order permanent in the circumstances of this case. 

26. It is noted that the Board has not made submissions one way or the other in respect of the non-publication order.  However, it is noted that general deterrence is a matter which would impact on whether publication was made or not, and the Tribunal is concerned that this is a case in which general deterrence would normally require that publication be made.  However, as noted and for the reasons that have been provided, on balance, it is considered that non-publication outweighs the public interest in this particular case.