Medical Board of Queensland v Mallon

[2010] QCAT 311

CITATION: Medical Board of Queensland v Mallon [2010] QCAT 311

PARTIES:	Medical Board of Queensland  (Applicant)
v
Dr Stephen Mallon (Respondent)

APPLICATION NUMBER:            HPF016-09              

MATTER TYPE: Occupational Regulation

HEARING DATE:   19 April 2010
HEARD AT:   Brisbane

DECISION OF: Deputy President  Kingham
(Assessors:
Mr Bradley Scott Bishop;
Dr Bernadette Maree Dutton;
Dr Glenda Joyce Powell)

DELIVERED ON:   30 April 2010
DELIVERED AT:   Brisbane

ORDERS MADE:  1. Dr Mallon is reprimanded.

2. Dr Mallon must pay a fine of $2,000.
3. The disciplinary action taken against Dr Mallon must be recorded in the Medical Board of Queensland’s Register for 2 years from this order.
4. Dr Mallon must pay the Board’s costs of the investigation and the proceedings on a standard basis as assessed, if not agreed, against the scale of fees applicable in the District Court of Queensland.
5. Publication of the names of the patients mentioned in the evidence or any details that might tend to identify them, other than these reasons, is prohibited.

CATCHWORDS : 

HEALTH PRACTITIONER – GROUNDS FOR DISCIPINLARY ACTION – unsatisfactory professional conduct – professional conduct of lesser standard than that which might recently be expected of the registrant by the public or his peers – sanction agreed

PROCEDURE – NON PUBLICATION ORDERS – whether necessary to avoid offending public decency or morality – whether in the interests of justice.

Health Practitioners (Professional Standards) Act 1999 ss 123,124(1)(a), 241(2)(a),(k), s242(1)(d), schedule

Queensland Civil and Administrative Tribunal Act 2009 ss 66, 247, 256

Medical Board of Queensland v B [2009] QHPT 9; distinguished.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	J. Allen instructed by McInness Wilson Lawyers
RESPONDENT:	G W Diehm SC instructed by Moray & Agnew

REASONS FOR DECISION

1. Dr Mallon admits grounds exist to take disciplinary action against him.[1]  He engaged in and maintained a personal and sexual relationship with a patient during the time he treated her or within an inappropriate time after terminating his professional relationship with her.

   [1]The referral notice was filed by the Medical Board of Queensland in the Health Practitioners Tribunal. The Health Practitioners Tribunal was abolished and the referral proceeds in QCAT under the  Queensland Civil and Administrative Tribunal Act 2009 ss247, 256.

1. Dr O’Connor prepared a report for the Board about her investigations. She expressed the view that Dr Mallon had breached ethical and boundary issues in establishing a relationship with a patient, which later became sexual in nature. It is unclear exactly when the sexual relationship commenced. Dr Mallon had been the family doctor for the patient and other members of her family for six years. After formal commencement of his relationship with the patient, Dr Mallon continued to provide some professional services which would have entailed a professional assessment of the relevant situation. Dr O’Connor advised the Board the relationship was contrary to the Medical Board of Queensland Policy Statement on Sexual Relationships between Health Practitioners and their Patients.

1. Dr Mallon did not contest Dr O’Connor’s opinion.

1. The Tribunal is satisfied the conduct admitted to constitutes professional conduct of a lesser standard than that which might reasonably be expected of Dr Mallon by the public or his professional peers[2].

   [2]Health Practitioners (Professional Standards) Act 1999 s124(1)(a), Schedule definition of unsatisfactory professional conduct.

1. The relationship was one of substance. It endured for some years. The patient did not complain to the Board about Dr Mallon’s conduct. Since the sexual relationship terminated, Dr Mallon remains on friendly terms with the patient. The Board acknowledged Dr Mallon’s conduct was not predatory.

1. These are all circumstances which have been taken into account in accepting the parties’ joint submission as to penalty. That is that Dr Mallon should be reprimanded, pay a fine of $2,000 and that the disciplinary action taken against him should be recorded in the Register of the Medical Board of Queensland for two years from the date of the Tribunal’s orders.[3]

   [3]           Health Practitioners (Professional Standards) Act 1999 s241(2)(a),(k); s242(1)(d)

1. The only point of contest between the parties was the scope of a non publication order. The Tribunal may make an order prohibiting the publication of information that may enable identification of a person who has appeared before the Tribunal, or is affected by a proceeding.[4] The Tribunal may only make such an order if it considers the order is necessary in circumstances specified in s66(2). Of those, counsel for Dr Mallon relied on:

“(c) to avoid offending public decency or morality; or

[4]           Queensland Civil and Administrative Tribunal Act 2009 S66(1)

(e) for any other reason in the interests of justice.”[5]

[5]           Queensland Civil and Administrative Tribunal Act 2009 S66(1)(c)(e)

1. There was no dispute that it was in the interests of justice not to publish the names of either of the patients involved. Counsel for Dr Mallon sought an order also preventing publication of Dr Mallon’s name.

1. Whilst Dr Mallon’s conduct was unsatisfactory professional conduct, and might be considered salacious, publication of his name or information that might identify him will not likely offend public decency or morality.

1. For Dr Mallon, it was argued that it was not in the interests of justice to publish his name because it would not serve any purpose and might lead to identification of the patients.

1. The Tribunal was referred to Medical Board of Queensland v B.[6] In that case, the Tribunal was persuaded not to publish the registrant’s name because:

   [6]           [2009] QHPT 9

·     His practice was in a discrete inland community.

·     He was the only practitioner at the practice who could treat patients unsupervised.

·     He was concerned that publication would adversely affect his wife and step daughter given the close knit community.

·     Identification of him or his wife would have an adverse impact on their professional life.

1. There are features which distinguish that case from this. In that case the registrant had married and remained married to the patient and the community was much smaller than the one in which Dr Mallon resides and works. In B’s case, those features created a near certainty the patient would be identified. The same cannot be said here.

1. There is merit in counsel’s argument that publication is not necessary to deter Dr Mallon from further transgression. The Tribunal should, nevertheless, take into account other purposes of disciplinary proceedings in deciding whether it is in the interests of justice to make a non publication order.[7]

   [7]           Health Practitioners (Professional Standards) Act 1999 s123

1. Deterring others from offending is an aspect of upholding professional standards. The risk of public exposure may well be an effective deterrent to some practitioners who might otherwise stray beyond accepted boundaries.

1. It cannot be said there is no risk that the patients involved in these proceedings will be identified if Dr Mallon’s name is published. However, that risk has been ameliorated by the Tribunal’s decision not to include in these reasons any details of the period of the relationship or the location of Dr Mallon’s practice during that time.

1. On balance, the Tribunal is not persuaded the risk of the patients being identified outweighs the purpose served by publication and declines to make a non-publication order in the terms sought by Dr Mallon.

1. The Tribunal orders:

1.      Dr Mallon is reprimanded.

2.      Dr Mallon must pay a fine of $2,000.

3.      The disciplinary action taken against Dr Mallon must be recorded in the Medical Board of Queensland’s Register for 2 years from this order.

4.      Dr Mallon must pay the Board’s costs of the investigation and the proceedings on a standard basis as assessed, if not agreed, against the scale of fees applicable in the District Court of Queensland.

5.      Publication of the names of the patients mentioned in the evidence or any details that might tend to identify them, other than these reasons, is prohibited.