Medical Radiation Practice Board of Australia v Lindberg
[2014] QCAT 698
•21 October 2014
| CITATION: | Medical Radiation Practice Board of Australia v Lindberg [2014] QCAT 698 |
| PARTIES: | Medical Radiation Practice Board of Australia (Applicant) |
| v | |
| Devorah Ann Lindberg (Respondent) |
| APPLICATION NUMBER: | OCR258-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Ms Jenny Felton, Dr Lynda Michel, Mr Greg Rattray |
| DELIVERED ON: | 21 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent is reprimanded. 2. The respondent pay the applicant’s costs of and incidental to the proceedings as agreed or as assessed on the District Court scale. |
| CATCHWORDS: | PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS –MEDICAL PRACTITIONERS –DISCIPLINARY PROCEEDINGS –where respondent’s application for registration was misleading –where respondent failed to disclose her recent employment in an equine hospital not human hospital –whether respondent’s failure to disclose deliberate –where the failure to disclose was not intentional –where failure to disclose amounts to unsatisfactory professional conduct Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld), s 124(1)(a) Medical Board of Australia v Putha [2014] QCAT 159 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr C Wilson instructed by Lander & Rogers Lawyers |
| RESPONDENT: | Ms Lindberg appeared for herself |
REASONS FOR DECISION
This is a disciplinary proceeding brought by the Medical Radiation Practice Board of Australia against Ms Devorah Ann Lindberg. The Board alleges that Ms Lindberg has engaged in conduct which constitutes unsatisfactory professional conduct as defined in the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’).
The Disciplinary Proceedings Act has now been repealed. However, transitional provisions determine that these proceedings are to be continued as though that Act had not been repealed. The reference is pursuant to section 124(1)(a) of the Disciplinary Proceedings Act.
Ms Lindberg’s Conduct
The Board alleges that the conduct of Ms Lindberg constitutes unsatisfactory professional conduct in accordance with a number of the provisions of the definition of that expression contained in the dictionary, which is a schedule to the Disciplinary Proceedings Act. I shall return to those definitions shortly.
The alleged unsatisfactory professional conduct arises from Ms Lindberg's application for registration under what was then the Medical Radiation Technologists Registration Act 2001 (Qld). Ms Lindberg was trained and obtained her qualifications in foreign jurisdictions and had worked in countries other than Australia prior to 2010. Ms Lindberg made application for registration by application dated 13 January 2012. She had, prior to that time, obtained recognition of her qualifications from the Australian Institute of Radiography in 2011.
The application for registration required Ms Lindberg to disclose, amongst other things, her recent employment in the profession. As part of that disclosure, Ms Lindberg indicated that between January 2006 and August 2010, she had been employed by the Dubai Hospital at Za'abeel, Dubai in the United Arab Emirates. She described the nature of the practice as being a government hospital. At section 6 of her application, she declared the statements which she made in the application to be true and correct.
In support of her application Ms Lindberg attached a curriculum vitae, which she noted as being true and correct, on January 13, 2012. That curriculum vitae also identified that for the period from January 2006 to August 2010, she had been employed at the Dubai Hospital at Za'abeel, Dubai in the United Arab Emirates, which she described again as being a government hospital. She set out in the CV the nature of her duties in the course of that employment.
Shortly after making application to the Board, on 2 February 2012, a member of the Board sent an email to Queensland Health, identifying that he had received an application for employment from Ms Lindberg in which the CV, which was provided, identified that the hospital at which she had worked between January 2006 and August 2010 was, in fact, the Dubai Equine Hospital within the Dubai Ruler's office of the United Arab Emirates. The Board member was raising the discrepancy between that description of the hospital contained in the CV provided to him and that which had been provided in Ms Lindberg's application, and the CV in support of it, to the Board.
The Board commenced an investigation into the application and the information provided. It is apparent from exhibit 1 in the proceedings that on 19 March 2012 the Board received from the Australian Institute of Radiographers certain documentation which had been provided to it in support of Ms Lindberg's application for accreditation and acceptance of her qualifications. That information included, in the section detailing her clinical experience, disclosure of her place of employment between January 2006 and August 2010 as being the Dubai Equine Hospital. It is apparent that she also provided to the AIR references, including two references from employees of the Dubai Equine Hospital. Those persons were a Mr Greg Haines and a Dr Guy Alexander.
On 7 February 2012 a request was made, pursuant to s 46(1)(b) of the Medical Radiation Technologists Registration Act 2001 (Qld), for further information concerning Ms Lindberg's application for registration. That notice drew attention to the matters which had been raised by the Board member concerning the distinction between the CV provided to him and the application and CV provided to the Board, and sought answers to particular questions including: why different names had been given in the two CVs for the same institution; why Ms Lindberg had omitted all references to equine treatment in her CV supplied to the Board; and details of the scope of her practice from January 2006 to December 2011, including clarification of any of her practice which was veterinary or equine‑related and that which was human‑related.
Ms Lindberg provided a reply to that request on 21 February 2012 in which she said the following:
The Sheikh had purchased an MRI scanner for his horses and staff. They needed a Technologist who could X‑Ray injured people (from the many horse‑inflicted and riding accidents). As well as someone to do MRI on the staff as well as teach the vets, interns and medical students MRI Physics + Scanning.
My job consisted of MRI scanning and teaching about 70% of the time (horses and adults) and X‑Ray 30% of the time (adults).
In her evidence before the Tribunal today, Ms Lindberg has stated that it was not her intention to deliberately mislead the Board in the information which she provided in her application and supporting CV. She said that the component that she was referring to in her application to the Board was the human component of the work which she performed at the Dubai Equine Hospital. She said that she worked mainly with the humans. She was not X‑raying the horses; that she only X‑rayed veterinarians, trainers, etcetera.
She observed that because the hospital was not registered as a human hospital, human patients should have been sent to the American hospital, also in Dubai, a place at which she had formerly worked prior to going to the equine hospital. She said that she deliberately omitted the reference to equine because she didn't consider it to be relevant. She worked in the section where the humans came, and she omitted reference to the equine hospital because it was not the scope of her job.
It is to be noted, however, that in disclosing the Dubai Hospital as being her place of employment between January 2006 and August 2010, she also identified that her average hours of work per week were 40. That, in my view, is inconsistent with identifying only that component of the work which could be said to be related to humans.
Her evidence concerning the extent of her work being mainly with humans also did not sit comfortably with that which was said by Mr Haines and Dr Alexander in their references, which had been provided in July 2010 and September 2010, respectively. In his reference of 31 July 2010, Mr Haines said:
She was employed at the Dubai Equine Hospital in this capacity [that is the capacity of Diagnostic Radiographer/Medical Imaging Technologist] from January ‘06 to present. Her employment was a full time (40 hour weekly) position with some call back and overtime responsibilities. Percentage wise, her employment breakdown would have placed her in MRI approximately 70% of the time. The remaining 30% was spent as a general radiographer.
Devorah was hired to help initiate our venture into standing MRI imaging (Hallmarq Equiscan 3000) in the distal limbs of the horse. Despite having the necessary equipment, we had not performed this diagnostic imaging modality at our facility. Her in depth knowledge of this field and familiarity with the technology allowed us to progress and rapidly expand our case load. Our images are sent to the UK for interpretation. Devorah facilitated this and developed a close relationship with our colleague in the UK. As a result, we were able to obtain the necessary protocols to provide us with the best possible diagnostic information.
Mr Haines also went on to say:
Devorah was very professional in her approach. She had a limited equine background upon accepting our position. She took it upon herself to learn the clinical anatomy and the various conditions she would be dealing with. She dissected cadavers and spent considerable time becoming familiar with horses and their tendencies.
In his reference, dated 1 September 2010, Dr Alexander had said:
Devorah Lindberg was employed at the Dubai Equine Hospital between 15th January 2006 and 31st August 2010. Her main role was as a Medical Imaging Technologist, and specifically to enable the hospital to offer a service in equine standing MRI. She also performed MRI on small animal patients and the occasional staff member. Additional duties included scintigraphic examination and equipment assistance in surgery, particularly with arthroscopy.
Devorah was a reliable and professional employee. She established an excellent working relationship with a colleague, interpreting her MRI images, in the UK and received great praise from her on the standard of her work due to being extremely thorough and meticulous.
Those references, in my view, read fairly, suggest that Ms Lindberg's involvement in the MRI practice of the Dubai Equine Hospital extended beyond her suggestion in evidence today that, really, she dealt with the humans and it was the veterinary surgeons who then dealt with the horses.
Subsequently the Board, as part of its investigations, sought clarification from Mr Haines about the matters referred to in his reference. In an email dated 2 May 2012, the investigator referred to Mr Haines' statement in his reference that the employment breakdown of Ms Lindberg's employment would have placed her in MRI 70 per cent of the time and the remaining 30 per cent would have been spent as a general radiographer. He was asked to clarify what percentage of those times would have been spent with humans. His response was that none of the time would have been spent with humans. He said that "we are an equine hospital, and Devorah was hired to initiate our MRI unit as it pertained to horses."
Ms Lindberg has indicated there may be reasons why Mr Haines would be reluctant to indicate that any of the work which she performed related to humans. However, his response on 2 May 2012 should, in my view, be taken at face value, given that it simply qualifies that which he had said in his earlier reference in July 2010 and, in my view, it appears consistent with that earlier reference.
More recently, Dr Alexander has provided an affidavit in which he deposed to the matters concerning Ms Lindberg performing radiography on humans as referred to in his reference of September 2010. He says:
Devorah has explained her current situation, that there is a dispute as to whether or not she performed MRI on human patients, whilst at Dubai Equine Hospital. I can confirm that Devorah performed MRI on my ankle region. I am also aware MRI was performed on other staff members while I was there but cannot provide specific details.
Whilst that affidavit of Dr Alexander does have Ms Lindberg performing some examinations on humans, it does not bespeak, in my view, extensive work in that area.
The Board carried out further investigations concerning Ms Lindberg's application including researching by the internet the Dubai Equine Hospital.
In June 2012, the Board considered Ms Lindberg's application and, in doing so, all the material which it had obtained through the inquiries which had been undertaken. It is clear from the affidavit of Mr Edward Anderson, who was the then chair of the Board, that whilst some reservations were held by him about granting Ms Lindberg registration with conditions, the Board nonetheless decided to do so in full knowledge of all the matters which had been discovered in the course of investigating her application.
On 25 June 2012, the Board wrote to Ms Lindberg informing her that it had considered her application for registration and had decided to grant her general registration, with conditions, as a Medical Imaging Technologist in Queensland. The conditions were largely conditions requiring supervision and set a review period of six months on those conditions.
Eligibility for registration under the Medical Radiation Technologists Registration Act 2001 (Qld) at the relevant time was governed by s 43 of that Act. Section 43(1) provided that an applicant for general registration in a profession governed by the Act was eligible for general registration if the applicant was qualified for general registration under s 44, which dealt with relevant qualifications, and the applicant was fit to practise the profession.
It must be assumed that the Board, in deciding to grant general registration subject to conditions, was satisfied that Ms Lindberg was fit to practise the profession. If not, she was ineligible for registration.
Section 59 of the Act permitted the Board to grant general registration subject to conditions the Board considered necessary or desirable for the applicant to competently and safely practise the profession. That is the course which it followed.
In its reference to the Tribunal, the Board alleges that the conduct of Ms Lindberg in providing information in her application, curriculum vitae and her letter of 21 February 2012 was false, misleading and otherwise incorrect, and that it constituted unsatisfactory professional conduct in that it was: professional conduct that was of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant's professional peers; it was misconduct in a professional respect; it was conduct discreditable to the registrant's profession; it was fraudulent or dishonest behaviour in the practise of the registrant's profession; or it was other improper or unethical conduct.
Each of those matters is conduct which is included within the meaning of unsatisfactory professional conduct in the Disciplinary Proceedings Act.
Full, frank and accurate disclosure of information in an application for registration as a health professional is of great importance. A failure to fully, frankly and accurately disclose information is, in my view, capable of being improper conduct in association with the professional conduct of a registrant, or potential registrant, and is capable of being unsatisfactory professional conduct within the meaning of that expression in the Disciplinary Proceedings Act, albeit that it occurred at a time prior to registration.
Whilst I accept that it may not have been Ms Lindberg's intention to deliberately mislead the Board, I find that she did deliberately omit information which was in fact relevant to her application; the omission of which information presented the Board with a less than full understanding of her work history. This case identifies why full and complete disclosure is required in applications for registration. A prospective registrant, even if well‑intentioned, who discloses only what he or she considers relevant, may in fact fail to disclose information which, contrary to his or her own view, is indeed relevant. In my view, this is what has occurred here.
I am satisfied, on that basis, that Ms Lindberg has engaged in improper conduct in relation to her application for registration and that that is unsatisfactory professional conduct within the meaning of that expression as used in s 124(1)(a) of the Disciplinary Proceedings Act.
Sanction
In written submissions filed by the Board on 14 October 2014, it was submitted that whilst the range of sanction which might be imposed for unprofessional or unsatisfactory professional conduct in circumstances relating to attaining registration through false or inaccurate or dishonest disclosure of information was broad, this was a matter which ought be viewed in the higher end of the range and, accordingly, the gravity of Ms Lindberg's conduct called for either the cancellation of her registration or, at least, its suspension. In my view, that submission cannot be sustained.
Mr Wilson of Counsel, who appears for the Board, today has submitted that a reprimand, at least, would be appropriate in these circumstances. The sanctions of cancellation and suspension, although put on behalf of the Board today, are not put with the same degree of force as they are in the Board's written submissions of a week ago. In my view, cancellation of Ms Lindberg's registration cannot be sustained for a number of reasons.
First is the matter to which I have already referred concerning s 43 of the Medical Radiation Technologists Registration Act 2001 (Qld) that required the Board to be satisfied as to her fitness to practise in order for her to be eligible for registration. In my view, it is inconsistent to the point of complete incompatibility for the Board to have found her to be fit to practise the profession, and so accord her registration on 25 June 2012, and at the same time to advance that, essentially, she is not fit to practise the profession and, therefore, ought have that registration cancelled.
This is not a case, such as Medical Board of Australia v Putha [2014] QCAT 159, wherein the false or misleading information resulted in the applicant for registration obtaining registration which she would not otherwise have obtained. In his reasons, at [17] the Honourable Mr Thomas AO identified, in Putha, that in reliance on the false statement that had been made concerning continuous practice in another jurisdiction for five years, the Board granted the applicant a type of registration which she would not otherwise have been granted had the full facts been known. He identified, at [22], that an advantage had been obtained by reason of the misrepresentation concerning that medical practice as disclosed in the application. That is not the case here.
The Board, in full knowledge of the matters concerning the inaccuracy in the description of her experience as contained in her application and CV, nonetheless, upon due consideration of that information, granted general registration, subject to appropriate conditions which it considered necessary. That is, she attained only the registration which the Board felt she ought attain.
I also do not consider that this is an appropriate matter in which Ms Lindberg's registration ought be suspended. In my view, the appropriate sanction, bearing in mind the purposes of disciplinary proceedings and disciplinary action as set out in s 123 of the Disciplinary Proceedings Act, which I must take into consideration, they being to protect the public, to uphold standards of practice within the health profession and to maintain public confidence in the health professions, are adequately met by reprimanding Ms Lindberg for the conduct.
Costs
The Board seeks its costs. Disciplinary proceedings are brought by boards to uphold the professional standards of the profession and to protect the public. Boards perform a public duty in doing so. The Board is funded, in large part, by the subscriptions of members of the profession of good standing and it has often been said that those members of the profession of good standing ought not bear the costs of proceedings where a member of the profession has been found to have engaged in unsatisfactory professional conduct.
Putting aside those general considerations, in this matter, on 14 February 2014, solicitors on behalf of the Board wrote to Ms Lindberg, offering to resolve the proceedings on the basis that she admit to having engaged in conduct which constituted unsatisfactory professional conduct and that she be sanctioned by way of a reprimand and that she agree to pay the Board's costs of and incidental to the proceedings to that point.
In my view, in light of that offer made by the Board, which reflects, effectively, the outcome of these proceedings, the Board is entitled to its costs of and incidental to the proceedings as agreed or as assessed on the District Court scale.
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