Medical Board of Queensland v Whittaker
[2010] QCAT 312
•28 April 2010
| CITATION: | Medical Board of Queensland v Whittaker [2010] QCAT 312 |
| PARTIES: | Medical Board of Queensland (Applicant) |
| v | |
| Dr Donald Bruce Paul Whittaker (Respondent) | |
| APPLICATION NUMBER: | HPF011-09 |
| MATTER TYPE: | Occupational Regulation |
| HEARING DATE: | 9 February 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Deputy President Kingham |
| (Assessors: Dr Brian Kable, Dr Sandra Congdon & Ms Jennifer Felton) |
DELIVERED ON: 28 April 2010
DELIVERED AT: Brisbane
ORDERS MADE:
The tribunal orders that:
- Dr Whittaker is reprimanded.
- The following conditions are imposed on his registration:
a) On the first working day of each month, the Registrant must provide the Board with a copy of any form or certificate required by legislation to be completed with respect to any termination of pregnancy he has performed in the preceding month;
b) The Registrant must allow a representative of the Board to inspect and take copies of the medical reports or clinical notes of patients who consult with him for the purposes of undergoing a termination of pregnancy at such time or times as the Board shall determine for the purposes of monitoring compliance with these conditions.
- The Board must hold secure and confidential any documents received or obtained pursuant to order 2. Those documents must not be used for any purpose unrelated to these proceedings. The Board must promptly determine whether there is due cause to retain them and, if not, the Board must promptly and securely destroy them.
- Dr Whittaker may not apply to review this decision to impose the conditions for 12 months.
| CATCHWORDS : | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDING – UNSATISFACTORY PROFESSIONAL CONDUCT – whether conduct is of a lesser standard than might reasonably be expected by the public or peers – where there was a deliberate decision not to fulfill a legal obligation to report termination of certain pregnancies – whether breach of any legal obligation will constitute professional conduct of a lesser standard. HEALTH PRACTITIONER – DISCIPLINARY PROCEEDING – UNSATISFACTORY PROFESSIONAL CONDUCT – whether discreditable conduct – where practitioner motivated by patient welfare – whether motivation relevant to finding of unsatisfactory professional conduct. HEALTH PRACTITIONER – DISCIPLINARY PROCEEDING – UNSATISFACTORY PROFESSIONAL CONDUCT – whether conduct improper or unethical – where limited evidence of ethical obligations. HEALTH PRACTITIONER – DISCIPLINARY PROCEEDING – SANCTION – where conditions intended to monitor compliance with legal obligations - where proposed conditions intrude upon confidentiality of patient records – measures to protect records. Births, Deaths and Marriages Registration Act 2003 Health Practitioners (Professional Standards) Act 1999 ss123, 124(1)(g), 126(1)(b) Queensland Civil and Administrative Tribunal Act 2009 ss247, 256 Registration of Births, Deaths and Marriages Act 1962 ss30, 44 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 362, applied Graham v Queensland Nursing Council [2009] QCA 280 per Fryberg J at [99], followed Legal Services Commissioner v Bradshaw [2009] QCA 126 at [54], applied Mercer v Pharmacy Board of Victoria [1968] VR 72 at [85], followed Medical Board of Queensland v Osborne decision of the Health Practitioners Tribunal (Forde DCJ) 4 May 2005 ( File No 3134/04 ), considered |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | J.Farr instructed by Moray & Agnew |
| RESPONDENT: | D.Tait S.C instructed by Blake Dawson |
REASONS FOR DECISION
Dr Whittaker is a medical practitioner who performs terminations of pregnancies. Between 1997 and 2002 he performed 24 terminations which, because of the age or weight of the foetus, should have been reported as deaths.[1] He chose not to report them. The Board referred that conduct to the tribunal[2] as ground for taking disciplinary action against Dr Whittaker. His failure to report is not in dispute.
[1] Registration of Births, Deaths and Marriages Act 1962 s30, forms 9 (Cause of Death Certificate) & 9A (Perinatal Supplement).
Pursuant to s126(1)(b) of the Health Practitioners (Professional Stnadards) Act 1999, the referral was filed in the Health Practitioners Tribunal, now abolished. The referral is a pending proceeding that is taken to be a proceeding before QCAT. Queensland Civil and Administrative Tribunal Act 2009 ss247, 256.
Dr Whittaker argued his conduct did not establish a ground to take disciplinary action and opposed the sanctions proposed by the Board. Primarily, he relied on his motivation in deciding not to make the reports. This, he says, was out of concern for patient confidentiality and welfare. The first 3 patients, with whom he discussed the reporting requirement, exhibited such extreme distress at the prospect that he decided to put their interests ahead of his obligation to report. He did not discuss the reporting requirement with the remaining 21 patients, in the belief they would suffer, likewise, the same distress. In Dr Whittaker’s opinion, the reports served no purpose because, to his knowledge, nothing was done with the information. This assumption fortified him in his decision.
The Board questioned the relevance of Dr Whittaker’s motivation in determining whether a ground exists to take disciplinary action, although it accepted that it did bear upon what sanction is appropriate. It challenged the genuineness of Dr Whittaker’s motivation. In 2008, in the context of other disciplinary proceedings, later withdrawn by the Board, he reported the terminations, without consultation with the patients. The Board sought orders effectively placing it in a position to supervise Dr Whittaker’s performance of his reporting obligation.
Are there grounds for taking disciplinary action?
The Board must establish a ground exists to take disciplinary action, to the reasonable satisfaction of the tribunal.[3] In determining whether it is reasonably satisfied, the tribunal must consider, amongst other things, the seriousness of the allegation and the gravity of the consequences flowing from the finding.[4]
[3] Health Practitioners (Professional Standards) Act 1999 s240(1)
[4] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 362.
Conviction of an offence relating to the practice of the registrant’s profession is a ground to take disciplinary action. [5] Here, there is no conviction. The Board argued Dr Whittaker’s failure to report established a ground to take disciplinary action because, but for the passage of time, he would have been convicted of such an offence.
[5] Health Practitioners (Professional Standards) Act 1999 s124(1)(g)
Dr Whittaker’s obligation to report arose in his capacity as a doctor. It is a requirement that relates to the practice of his profession. The offence carries a maximum penalty of 2 penalty units and may be prosecuted in a summary manner.[6] By the time these matters came to light, the limitation period had expired and no proceedings could be commenced against Dr Whittaker.
[6] Registration of Births, Deaths and Marriages Act 1962 s44
By analogy, it might be argued, unsatisfactory professional conduct is established because Dr Whittaker has admitted to conduct that would have founded a conviction, had proceedings been implemented within time.
That somewhat glosses over the matters the tribunal must consider. The term “unsatisfactory professional conduct” is defined.[7] The Board alleged Dr Whittaker’s conduct fell within particular elements of that definition.
[7] Health Practitioners (Professional Standards) Act 1999, Schedule
It argued Dr Whittaker had behaved in a way that constitutes unsatisfactory professional conduct because he had engaged in:
· Professional conduct that is of a lesser standard than that which might reasonably be expected of him by the public or his professional peers;
Ÿ Misconduct in a professional respect;
Ÿ Conduct discreditable to his profession;
Ÿ Other improper or unethical conduct.
At the hearing, the Board abandoned the allegation that Dr Whittaker had engaged in misconduct in a professional respect.
In making its case, it relied upon Dr Whittaker’s deliberate decisions, over a number of years and involving multiple patients, not to make the reports he knew he was obliged to make. It argued it is not for an individual practitioner to choose whether to comply with a statutory obligation. Ethically, as well as legally, the Board asserted, Dr Whittaker was required to report the terminations.
In his defence, Dr Whittaker argued not every breach of the law constituted unsatisfactory professional conduct and his motivation for not reporting was relevant. At the time, he had placed client confidentiality and patient welfare ahead of the requirement to report.
Professional conduct that is of a lesser standard than that which might reasonably be expected of him by the public or his professional peers
Professional conduct is unsatisfactory if it is of a lesser standard than that which might reasonably be expected of a practitioner by the public or their professional peers. Dr Whittaker’s conduct, therefore, must be assessed against the reasonable expectations of the public and his professional peers.
The Board did not lead evidence on this point, merely asserting Dr Whittaker’s conduct was of a lesser standard than required.
Dr Whittaker called Dr Douglas Keeping, an obstetrician and gynaecologist. He thought the failure to report was misguided, however well-meant. Because the conduct did not impact on Dr Whittaker’s clinical management or care for patients, it did not diminish Dr Keeping’s regard for Dr Whittaker as a practitioner.
In his report, Dr Keeping stated he did not think the failure to report constituted professional conduct that is of a lesser standard than that which might reasonably be expected of Dr Whittaker. During oral evidence he described that statement as lawyers’ words. Without intending to cast any doubt on Dr Keeping’s integrity, it is clear those words were not his own and no weight has been placed on them in determining the question.
Dr Keeping did not give evidence of what is encompassed by professional conduct or the standard of professional conduct that might reasonably be expected of a practitioner by the public or his peers. He drew a distinction between conduct which compromised a patient and that which did not, and viewed the former with great concern. He separated patient care from administrative requirements.
Counsel for Dr Whittaker relied on a decision of the Health Practitioners Tribunal in Medical Board of Queensland v Osbourne[8] in support of his proposition that not every breach of a legislative requirement established unsatisfactory professional conduct. In that case, the doctor failed to observe a number of requirements in regulating a patient under the Mental Health Act 1974. The gravamen of the case against that doctor related to her clinical decision to regulate the patient, rather than whether all process requirements had been fulfilled. The evidence supported the doctor’s clinical decision and there was no finding of unsatisfactory professional conduct arising from her failure to observe procedural requirements of the Act. The circumstances are quite different and Osbourne provides limited guidance in this case.
[8] Decision of Forde DCJ made on 4 May 2005 ( File No 3134/04 )
A medical practitioner’s professional conduct is not confined to the clinical care of patients. As a profession, doctors owe duties to persons other than their patients and to society as a whole. This is evident “in their statutory obligation to provide certain information about their patients to assist the government in developing and carrying out its health policies.”[9]
[9] Skene, Law and Medical Practice, 2nd Ed at [2.90]
The definition of "unsatisfactory professional conduct" is an inclusive definition. It does not purport to be comprehensive. In establishing whether conduct is unsatisfactory professional conduct, the Board need not establish what a member of the public expects of a doctor. It is “not something easily capable of direct proof.”[10]
[10] Legal Services Commissioner v Bradshaw [2009] QCA 126 at [54]
Further, the definition references reasonable expectations of the public and the doctor’s peers. That calls for an objective consideration in light of the particular circumstances that apply in an individual case.
Whilst there was no evidence about the expectations of members of the public, there was some evidence of the expectations of Dr Whittaker’s professional peers. Dr Keeping described Dr Whittaker’s conduct as misguided, albeit well-meaning, and the decision not to report as a choice he, personally, would not have made.
Further, Dr Whittaker said he did not consult his peers about his decision not to report. It is reasonable to infer this was because he expected to be confronted by advice to the contrary. He acknowledged as much by now accepting that he had made the wrong decision. He said he respected the reporting requirement was a function the legislature had imposed upon him in his capacity as a doctor and that the choice to report or not was not for him to make.
I am satisfied the public and his professional peers might reasonably expect Dr Whittaker to take appropriate steps to comply with his obligations to persons other than his patients.
This is not to say that any failure to comply with a statutory obligation will necessarily demonstrate conduct of a lesser standard than required. The failure might be attributable to neglect or carelessness in the context of a pressured practice. Or a practitioner might be genuinely confused about what was required or be hampered in fulfilling their obligations by circumstances outside their control. The circumstances in which a failure occurs will colour the conduct.
Dr Whittaker’s failure was not due to a human failing or intervention of circumstances beyond his control. Over a period of time and involving a number of patients, Dr Whittaker decided not to observe his requirement to report. He did so without seeking the advice of his peers about how to balance his concern about patient welfare with his legal obligation. I am satisfied that, in those circumstances, the standard of Dr Whittaker’s professional conduct was less than might reasonably be expected of him by the public and his professional peers.
Conduct discreditable to his profession
What impact Dr Whittaker’s conduct might have on public or professional regard for him or for his profession is a different matter. The Board alleged Dr Whittaker engaged in conduct discreditable to his profession. “Discreditable imputes to the conduct a type of impact created in the minds of others.”[11] It is not necessary for the conduct to be dishonest, fraudulent or involve moral turpitude, but it must have the tendency to destroy or lower public confidence in Dr Whittaker as a practitioner and, as a consequence, in his profession.[12] Dr Whittaker disputed his conduct would have that effect.
[11] Graham v Queensland Nursing Council [2009] QCA 280 per Fryberg J at [99]
[12] Mercer v Pharmacy Board of Victoria [1968] VR 72 at [85]
Counsel for the Board repeatedly described Dr Whittaker’s conduct as criminal. The maximum penalty (two penalty units) puts that submission in its proper context.
Not every breach of law will lower confidence in a professional or in their profession. Accepting the criminal analogy for this purpose, motivation is a factor which can either mitigate penalty or count against leniency. This is because it speaks to the character of the offender. Likewise, Dr Whittaker’s motivation in not reporting will affect the view others will take of his conduct. In turn, that will determine how his conduct reflects upon his reputation as a professional and upon his profession generally.
Where there is an allegation of discreditable conduct, motivation is not merely a factor relevant to sanction. It is central to the question the tribunal must determine.
The Board sought to cast doubt on the genuineness of Dr Whittaker’s motivation. During his evidence, Dr Whittaker revealed his strong views about Queensland’s abortion laws and how they have been enforced. He spoke of his fear of heavy handed law enforcement, and the sword of Damocles of illegality that overhangs the practice. He spoke of the vehemence of the approbation of those who oppose abortion and the fear of retribution, which cannot be dismissed as unreasonable. None of this undermines his professed motivation in deciding not to report the terminations.
It is true that, subsequently, he reported them without consulting the patients. Then, patient welfare appeared to take second place to his personal interest in establishing his competence to perform late term abortions.[13]
[13] This was an issue in disciplinary proceedings on other grounds commenced but later abandoned by the Board.
This aspect of the evidence is troubling. It does not reflect well on Dr Whittaker that when required to balance patient welfare with personal interest he arrived at a different answer than when required to balance patient welfare with legal obligation.
Nevertheless, I accept his decisions not to report, at the relevant time, were motivated by a concern for patient welfare. He derived no benefit from not reporting. There is no suggestion he deliberately flouted other legal obligations or generally held the law in disregard.
Dr Keeping described Dr Whittaker’s conduct as misguided but well-meaning. Because it did not compromise patient care, it did not lower his regard for Dr Whittaker as a medical practitioner. The Board did not lead evidence of the potential impact of Dr Whittaker’s conduct on public confidence in the medical profession. On the evidence before it, the tribunal could not be satisfied Dr Whittaker engaged in conduct discreditable to his profession.
Other improper or unethical conduct
Improper conduct is “behaviour which in all the circumstances of a case is an inappropriate or incorrect way of discharging duties, obligations and responsibilities.”[14] Dr Whittaker admitted as much during the hearing when he acknowledged that it was not for him to decide whether to make the reports.
[14] R v Byrnes & Hopwood (1995) 183 CLR 501
As for whether the conduct is unethical, the Board relied on the Code of Ethics of the Australian Medical Association (AMA) as an indication of relevant ethical standards:
“1.3...
d) Keep in confidence information derived from your patient, or from a colleague regarding your patient, and divulge it only with the patient’s permission. Exceptions may arise where the health of others is at risk or you are required by order of a court to breach patient confidentiality.” [15]
[15] AMA Code of Ethics , 1 February 1996 (in force for the relevant period)
The focus of the clause is the duty of confidentiality owed to the patient. The exceptions to the obligation are drawn narrowly and do not include statutory reporting requirements.
The revised AMA Code of Ethics published in 2003 broadened the scope of the exceptions to encompass that requirement, but it was not in force during the relevant period.
Dr Whittaker defended these proceedings on the basis he placed ethical obligations to his patients above the requirement to report. The realm of ethics may not be coincident with the realm of the law. Their function, scope, audience and beneficiaries may not always converge.
The Board did not lead other evidence to establish Dr Whittaker’s conduct was unethical. The version of the code relied upon did not directly address the circumstances of this case. A finding of unethical conduct is a serious matter. It connotes a moral failing in the practitioner. There is insufficient evidence to satisfy the tribunal on that score.
What sanction should be imposed
The tribunal is satisfied that ground exists to take disciplinary action against Dr Whittaker for unsatisfactory professional conduct because he engaged in professional conduct of a lesser standard than might reasonably be expected of him by the public or his professional peers and engaged in improper conduct. The tribunal is not satisfied Dr Whittaker engaged in conduct discreditable to his profession or engaged in unethical conduct.
The Board asked the tribunal to reprimand Dr Whittaker. The Board also sought an order to impose the following conditions on his registration:
On the first day of each month, the Registrant shall provide the Board with any form or certificate required by legislation to be completed with respect to any termination of pregnancy he has performed in the preceding month;
The Registrant will allow a representative of the Board to inspect and take copies of the medical reports or clinical notes of patients who consult with him for the purposes of undergoing a termination of pregnancy at such time or times as the Board shall determine for the purposes of monitoring compliance with these conditions.
The Board submitted Dr Whittaker should be precluded from applying to review the decision to impose those conditions for 12 months.
The purpose of disciplinary proceedings is to protect the public, to uphold professional standards and to maintain public confidence in the profession.[16] There is no contest about a reprimand. That is an appropriate and public expression of the tribunal’s disapproval of his conduct.
[16] Health Practitioners (Professional Standards) Act 1999 s123
The evident purpose of the proposed conditions is to ensure Dr Whittaker complies with his legal obligations. Dr Whittaker says he no longer performs terminations that would have to be reported but that, if he did so in the future, he would certainly report them. Given the period over which Dr Whittaker failed to report, independent verification of his undertaking is not an unreasonable or onerous imposition.
The interests of those patients who consult Dr Whittaker must also be considered. The proposed conditions provide the Board with access to information it would, otherwise, not receive. In particular, it will allow the Board to inspect records regarding terminations of pregnancies that would not have to be reported because the triggers of age or weight were not reached. To that extent, the proposed conditions extend beyond the reach of the legal obligation.
These conditions represent an exception to the ethical obligation of patient confidentiality. Access to and use of any records provided to or obtained by the Board under them must be strictly confined to the purpose of ensuring Dr Whittaker’s compliance with his reporting requirements. They must be securely disposed of if they are not required for disciplinary purposes. The tribunal’s orders seek encompass those restrictions and should be interpreted and applied by the parties accordingly.
The tribunal orders that:
1. Dr Whittaker is reprimanded.
2. The following conditions are imposed on his registration:
c) On the first working day of each month, the Registrant must provide the Board with a copy of any form or certificate required by legislation to be completed with respect to any termination of pregnancy he has performed in the preceding month;
d) The Registrant must allow a representative of the Board to inspect and take copies of the medical reports or clinical notes of patients who consult with him for the purposes of undergoing a termination of pregnancy at such time or times as the Board shall determine for the purposes of monitoring compliance with these conditions.
3. The Board must hold secure and confidential any documents received or obtained pursuant to order 2. Those documents must not be used for any purpose unrelated to these proceedings. The Board must promptly determine whether there is due cause to retain them and, if not, the Board must promptly and securely destroy them.
4. Dr Whittaker may not apply to review this decision to impose the conditions for 12 months.
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