Optometry Board of Australia v Bhoola
[2021] SASC 51
•11 May 2021
Supreme Court of South Australia
(Civil)
OPTOMETRY BOARD OF AUSTRALIA v BHOOLA
[2021] SASC 51
Judgment of the Honourable Auxiliary Justice Bochner
11 May 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY
Appeal against penalty imposed by the South Australian Civil and Administrative Tribunal.
Held - appeal allowed.
Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), referred to.
Optometry Board of Australia v Bhoola [2020] SACAT 46; Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47; House v The King (1936) 55 CLR 499; Craig v Medical Board of South Australia [2001] SASC 169; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Medical Board of Australia v Jansz [2011] VCAT 1026; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Medical Board of Australia v Konidaris [2019] SACAT 52; Maroulis v Psychology Board of Australia [2021] SASC 16; Craig v Medical Board of South Australia (2001) 79 SASR 545; Health Care Complaints Commission v Do [2014] NSWCA 307, considered.
OPTOMETRY BOARD OF AUSTRALIA v BHOOLA
[2021] SASC 51
Civil
On 14 May 2020, following a contested hearing, the South Australian Civil and Administrative Tribunal (“the SACAT”) found that the respondent had engaged in professional misconduct in the practice of optometry (“the first decision”). Following a further hearing (“the sanction hearing”), the SACAT reprimanded the respondent, cancelled his registration as an optometrist and disqualified him from applying for registration as an optometrist for a period of one year. The Optometry Board of Australia (“the Board”) appeals that penalty, and says that the respondent should be disqualified from applying for registration for a period of five years.
The factual background
This brief factual background is taken from the findings made by the SACAT in the first decision. No appeal was brought by the respondent in respect of this decision, despite his maintaining, at the sanction hearing, that he had not undertaken the conduct that was the subject of the SACAT’s findings of professional misconduct.
The respondent and Ms KcKernan, also an optometrist, were shareholders and directors of the West Lakes Specsavers store, which was operated under an agreement with Specsavers Pty Ltd (“Specsavers”). From the middle of 2015 onwards, Ms McKernan became aware that there was an increase in the number of glasses being returned to the store for remakes. All of the glasses so returned were the subject of prescriptions formulated by Ms McKernan following testing. The errors in the prescriptions appeared to be the result of typing mistakes. Ultimately, in early January 2016, Ms McKernan became suspicious that the respondent had logged into her test results and had made alterations, which led to the glasses being dispensed in accordance with the altered prescription, rather than the prescription she had formulated following testing. She contacted Specsavers’ IT department to determine if the errors were the result of a computer glitch; she was advised that the respondent had logged into the test results which had been altered. Following further changes to her prescriptions, she again reported these matters to Specsavers and requested a roster change so that she did not work at the same time as the respondent. Once this change was implemented, no further errors were found in Ms McKernan’s prescriptions.
Specsavers then conducted an investigation, which led to the discovery that, between 4 February 2015 and 19 January 2016, the last day on which the respondent and Ms McKernan worked together, 410 prescriptions were altered by a person using the respondent’s log in details. The only people working in the store on all of the occasions that prescriptions were altered were the respondent and Ms McKernan. The SACAT heard evidence from Ms McKernan, the respondent, and a number of employees of Specsavers who were familiar with its IT systems and prescribing practices. It also heard evidence from an expert forensic accountant, Jean-Pierre du Plessis, who had examined Specsavers’ computer systems, and in particular the files in respect of the altered prescriptions. Mr du Plessis concluded that the errors were not the result of typing errors, database corruption or accidental override. He also rejected a hypothesis that Ms McKernan had altered her own prescriptions. He concluded that the changes were made either by the respondent, or a person who had access to the respondent’s log in details. He was unable to find any evidence that supported the suggestion that the respondent’s log in details were compromised or otherwise used by a third party.
The SACAT found that the alterations to the prescriptions were made by the respondent, and that these alterations were made deliberately, without clinical justification, and contrary to the interests of the patients concerned. It found that these actions put the welfare of the patients at risk.
The sanction hearing
After summarising its factual findings in the first decision, the SACAT briefly set out the purpose of disciplinary proceedings and sanction: protection of the public rather than punishment of the practitioner. It accepted that any sanction imposed should be the minimum sanction necessary to provide sufficient protection of the public. It then considered s 196(1)(b) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (“the National Law”). It said:
We find the conduct in this matter to be “substantially below the standard reasonably expected of a registered health practitioner” as required by the definition of professional misconduct. The conduct was dishonest and done with knowledge that it would put the welfare of patients at risk. It had a significant adverse effect on the other optometrist partner. We have no difficulty in finding that the conduct amounts to professional misconduct.
In concluding that the respondent was not a fit and proper person to be registered as an optometrist, the SACAT took into account the dishonesty of the conduct, and the fact that the respondent knew that it might have an adverse effect on the welfare of patients. It acknowledged that the time spent by employees of Specsavers in investigating the matter would have been significant; however, it said that the quantification of that cost did not influence its decision on sanction. It found that the quantification of loss had little relevance to the protection of the public and maintaining the public’s confidence in the supervisory scheme under the National Law. It expressed concern that the respondent continued to deny responsibility for the conduct that was found to amount to professional misconduct.
In imposing a period of suspension, the SACAT expressed “some reluctance” in doing so, as the respondent had been employed on a full time basis as an optometrist since January 2017. It took into account the favourable character references prepared for the respondent and was satisfied that he was of good character, save for the misconduct that was the subject of the findings. The SACAT noted that the respondent had done much voluntary work.
The appeal
The Board relies on four grounds of appeal. They read:
The sanction imposed by the Tribunal was in error and inadequate by reason that the Tribunal erred:
1. in failing to approach sanction, and to make findings at each step, as follows,
a. in not making findings about the nature of the harm, and potential harm to the public and the profession (being patients, other optomerists [sic] and employers of optometrists), arising from the falsification of prescriptions by the respondent, and that as a result such harm and potential harm was significant;
b. in not finding that there remained a very significant risk the conduct and such harm and potential harm would be repeated because the respondent had been dishonest (and had been dishonest in practice, to the Optometry Board of Australia and the Tribunal) and further that the respondent in engaging in the conduct was either deliberately malicious or recklessly indifferent to that harm and potential harm;
c. in not making findings that accordingly a very substantial period of disqualification was necessary to protect the public and maintain standards in the profession by way of sanction.
2. in wrongly (despite the focus on sanction being on the protection of public, other professionals and the employer, and maintenance of standards in the profession) approaching sanction by:
a. giving significant weight the consequences for the respondent of the loss of employment which he had been able to regain over the pre-trial and trial period as a result his untruthful denials of misconduct;
b. incorrectly addressing the risk of future misconduct from character evidence where such character was only able to be demonstrated because of continued registration held because of his false denials and notwithstanding the misconduct involved him being (at the least) secretly untruthful and manipulative of a fellow optometrist and patients.
3. in finding that the extent of financial impact on the employer of the respondent’s misconduct was not relevant and “did not influence its decision”.
4. in imposing a sanction that was in all the circumstances inadequate to protect the public, (including patients, other optometrists and their employers), and to maintain standards in the profession.
Ground 1 sets out findings that the Board says the SACAT should have made in respect to the conduct of the respondent, the risk posed by that conduct, and the consequences that should flow from such conduct.
By the second ground, the Board asserts that the SACAT placed too much weight on the loss of the respondent’s employment and on the character evidence adduced by the respondent.
By the third ground, the Board says that the SACAT should have taken into account the financial impact of the respondent’s conduct when considering the sanction that should be imposed.
By the fourth ground, the Board says that the sanction imposed was inadequate both in terms of protection of the public, and maintenance of standards within the profession, once all of the relevant matters have been taken into account.
The appellant’s submissions
The appellant says that, as the imposition of a sanction involves an exercise of discretion, an error of the kind identified in House v The King must be established. Mr Jacobi, on behalf of the Board, submitted that disciplinary proceedings are distinct from criminal proceedings; thus, the Board need meet no other threshold for the appeal to be allowed. I do not understand that these submissions were opposed by the respondent. I accept that these submissions are correct.
Ground 1
Mr Jacobi submitted it was the task of the SACAT to identify a sanction that would protect the public, maintain standards in the profession, and impress upon the practitioner the seriousness of the conduct, in the context of the deliberate, persistent and dishonest manipulation of patient records by the respondent. In making this submission, Mr Jacobi relied on authorities such as Craig v Medical Board of South Australia. He noted that the element of protection of the public included, not just protection from the practitioner the subject of the finding, but also protection from similar conduct by other practitioners.
Mr Jacobi said that it was incumbent on the SACAT to make findings in relation to the extent that the respondent’s conduct departed from the appropriate standard, which findings would include the significance of the harm and potential harm to the public and the profession. The need to do this was made clear in the case of Health Care Complaints Commission v Litchfield, where the Court said:
The gravity of the professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
In this regard, the Board submitted that the SACAT should have identified the harm caused and risks occasioned by the respondent’s conduct. The harms and risks extended to the individual patients, Dr McKernan, the practice, and the profession generally.
The Board submitted that the SACAT should have, but failed, to address the future risks presented by the respondent, as set out in Medical Board of Australia v Jansz. To the contrary, the risk of recidivism was not addressed, despite the fact that the respondent had provided no explanation for his conduct, but continued, in the face of the findings made by the SACAT in its first decision, to maintain his denial of responsibility. Further, the SACAT failed to consider what sanction would be required to maintain public confidence in the profession of optometry, and to discourage other practitioners from engaging in similar conduct. Both the respondent’s dishonesty, and his misuse of patient records required such a consideration.
Only once the SACAT had undertaken these steps, could it, so submitted Mr Jacobi, consider what was necessary by way of sanction, to protect the public and maintain standards in the profession.
Ground 2
Mr Jacobi submitted that the SACAT erred in viewing the sanction to be imposed from the perspective of the respondent’s loss of employment. Because any sanction is protective, the consequences of the sanction on the respondent are not relevant considerations. The High Court made this clear in New South Wales Bar Association v Evatt, where it said:
The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v. N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186, at pp. 201, 202. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
Accordingly, the Supreme Court was, clearly, in error in deciding. to suspend the respondent from practice rather than to disbar. him, and it is the duty of this Court to correct that error.
The relevant considerations are those which go to the protection of the public, not the consequences of the sanction on the respondent.
Mr Jacobi further submitted that the SACAT did not expressly address future risk, and seemed to address this only in respect of character evidence. He said that such use of character evidence is in error, in circumstances where there were no admissions or explanations in respect of his conduct by the respondent. Indeed, he submitted that the good character exhibited by the respondent was displayed at the same time that he was being untruthful in respect of his conduct.
Ground 3
Mr Jacobi submitted that the reasoning of the SACAT fell into error in two respects. It ignored evidence of harm and the consequences of the respondent’s misconduct. It also failed to consider that employers were entitled to protection, as members of the public, when employing staff for whom registration is required as evidence of their fitness to practise.
Ground 4
Finally, the Board contended that the sanction imposed by the SACAT was inadequate, when addressing conduct that was calculated, dishonest, repeated many times over a significant period, and caused harm to a colleague, his employer and patients. Further, Mr Jacobi relied on the respondent’s continued denial of the conduct, as evidence of his failure to accept and explain his behaviour and motives; this factor must be significant in considering whether the respondent is a fit and proper person to be registered as an optometrist.
Mr Jacobi submitted that, to maintain public confidence in the profession of optometry, a significant period of disqualification was required. While acknowledging that decisions in other matters were of limited assistance in formulating an appropriate sanction, he noted that in other cases involving deliberate, dishonest conduct, substantial periods of disqualification ensued.
Mr Jacobi submitted that the appeal should be allowed, the order of the SACAT disqualifying the respondent from reapplying for registration for a period of one year should be set aside, and an order disqualifying the respondent for a period of five years should be substituted.
The position of the respondent
Mr Anders on behalf of the respondent submitted that the SACAT had careful regard to all of the evidence before it, as evidenced by the first decision. He said that the Board did not suggest that SACAT’s first decision was marked by error; I can be satisfied that, having carefully analysed the conduct of the respondent for the purpose of determining whether he had carried out the acts which were the subject of the complaint, the SACAT had equally analysed that conduct with a view to formulating an appropriate sanction. He submitted that this was particularly the case as the SACAT was comprised of two assessors, one of whom was a qualified optometrist. As the SACAT had received a significant body of evidence for the purpose of making the first decision, as well as having had the benefit of detailed submissions from both parties, both orally and in writing, it is inherently less likely that the SACAT will have made an error in regard to sanction.
Ground 1
Mr Anders pointed to the lengthy and detailed reasons published by the SACAT in its first decision, which acknowledged the gravity of the respondent’s conduct. Mr Anders submitted that the SACAT appropriately acknowledged its gravity, and, as part of this acknowledgement, pointed to specific instances of that conduct which indicated the seriousness of it. He rejected Mr Jacobi’s submission that the sanction decision was very brief; he said that such a submission ignored the detailed process which underpinned the first decision, which was the context in which the sanction decision was made.
In his oral submissions, Mr Anders submitted that regard must be had to the fact that the majority of prescription alterations made by the respondent were of a minor nature. I should not dismiss this assessment of the harm caused by the respondent’s conduct too quickly; the SACAT in fact has the expertise to consider the significance of the changes, and their potential for harm.
In relation to the question of reoffending, Mr Anders submitted that the Board focused overly on the repetition of the conduct. He submitted that, while the absence of earlier offending conduct is of limited relevance, it should not be ignored or discounted entirely. Further, evidence of good conduct in his employment since the conduct in question should be taken into account.
In respect of the delay between the period of the conduct and the imposition of a sanction, Mr Anders submitted that, while he accepted that delay in itself was not a relevant factor to take into account, it is relevant in the sense that it has allowed the respondent to demonstrate that there has been no repeat of the impugned conduct, and that he has successfully returned to employment, without incident, as an optometrist. During the lengthy period between the date when the respondent was first advised of the complaint, and the making of submissions on sanction, the respondent demonstrated exemplary professional conduct, including significant charitable work. This in itself should demonstrate that the respondent does not remain a risk to the public. The fact that the respondent was now working in a different setting is also relevant to the question of reoffending.
Mr Anders submitted that there was no need for the SACAT to set out its reasoning in detail; it is clear from the submissions that were made to the SACAT, and its sanction decision that factors, such as the harm to Specsavers and Ms McKernan, were taken into account. In this regard, Mr Anders referred me to specific passages in the sanction decision which demonstrated that the SACAT had taken these matters into consideration.
Mr Anders submitted that the respondent is entitled to maintain a denial in respect of the conduct during the primary trial, without that denial having an adverse effect on the sanction to be imposed. He noted that the SACAT stated on a number of occasions that the failure to acknowledge responsibility for the conduct was a matter of concern. This was appropriately recognised, and taken into consideration, by the SACAT. Given that the burden of proof at all times rested with the Board, the SACAT was correct not to penalise the respondent for electing to maintain his innocence. It appropriately acknowledged and took into account his consistent denial of responsibility.
In respect of ground 1(c), Mr Anders submitted that, in effect, the Board was inviting the Court to draw a comparison between this matter and other cases. Mr Anders relied on the decision of the Full Court in Marin v Chiropractic Board of Australia, where the Court said:
It is well accepted that in sentencing for criminal offences the assistance provided by comparative sentences is limited. That is all the more the case in periods of disqualification imposed to maintain professional standards. In Lee v Health Care Complaints Commission, the Court of Appeal of New South Wales observed:
(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is ‘correct’;
(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection …
(citation omitted)
He submitted that, as the body with the relevant expertise, the decision of the SACAT in respect of sanction should be maintained. Mr Anders also noted that the sanction imposed by the SACAT is, in effect, a minimum period of disqualification; at the end of the twelve month period of disqualification, the respondent must reapply for registration, which is not guaranteed.
Ground 2
Mr Anders submitted that the Board’s second ground of appeal was overly reliant on the maintenance of his denial of responsibility. He submitted that while contrition is a factor to take into account when considering the risk of reoffending, it was not the only factor. Other relevant factors included the absence of prior unsatisfactory conduct, a successful return to practice, and evidence of good character. Given that the SACAT was obliged to consider the respondent’s circumstances at the date of imposing the sanction, it would be wrong not to take these things into consideration.
In respect of the use of character evidence, Mr Anders noted that all of the references came from a time after the impugned conduct; taking both the references and the respondent’s conduct since the complaint into consideration, he submitted that an approach such as that taken in Medical Board of Australia v Konidaris would not be inappropriate.
The respondent submitted that the Board read too much into the SACAT’s decision that it imposed a period of disqualification with reluctance. Rather, he submitted, the SACAT was merely applying a “bedside manner” and so this statement did not represent error. He submitted that it was not inappropriate for the SACAT to express its lack of pleasure in imposing such a sanction on a person who had otherwise served his community and his profession in an exemplary manner.
Ground 3
Mr Anders submitted that the SACAT had taken a common sense approach to the affidavit evidence of Mr Ivey, in respect of the financial impact to the business of the respondent’s conduct. He noted that, at [19] of the sanction decision, the SACAT acknowledged that the time spent by employees of Specsavers in dealing with the consequences of the conduct would have been significant. The SACAT was not in error to find that a detailed quantification of cost (in circumstances where the SACAT was not called upon to make a costs order) would not assist in making a decision as to the sanction required to protect the public and maintain confidence in the profession of optometry. It is clear that, having found that the time spent by employees of Specsavers would have been significant, the SACAT considered that this was a relevant factor to take into account.
The respondent submitted that the welfare of Ms McKernan was demonstrably taken into consideration by the SACAT; not only is it specifically mentioned at [5] of the sanction decision, the SACAT dealt with this topic at length in its first decision. Given the SACAT’s detailed findings in its first decision, there was no need for it to revisit all of these matters in its sanction decision. It had already made its understanding of the seriousness of its findings clear.
Ground 4
Mr Anders submitted that the SACAT arrived at an appropriate penalty, having regard to all of the circumstances of the case. It properly identified the purpose of imposing a sanction and expressly had regard to the matters that were relevant to determining a sanction that was appropriate to the circumstances of the conduct.
Consideration
In the recent decision of Maroulis v Psychology Board of Australia, Bleby J, at [33], set out the nature of an appeal such as this one. He said:
An appeal of this nature is by way of rehearing. However, it is an appeal against a decision involving the exercise of a discretion. It is necessary for the appellant to identify an error of the kind identified by the High Court in House v The King. The mere question of the weight to be placed on a relevant consideration is a matter for the fact finder and is not capable of being the subject of a complaint of error under House v The King principles.
(footnotes omitted)
I accept that this is the framework within which I must consider this appeal.
In Craig v Medical Board of South Australia, Doyle CJ said:
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
In New South Wales Bar Assn v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (at 183-184):
"The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Assn (1960) 104 CLR 186, at p201, p202. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error."
Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
In Health Care Complaints Commission v Do, Meagher JA noted that the protection of the public has a dual purpose. Not only must the public be protected from the acts of a particular practitioner, it must also be protected from the chance of other practitioners engaging in the same or similar conduct. He said:
Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The issue of the maintenance of standards and public confidence in the profession was discussed by Kourakis CJ in Marin v Chiropractic Board of Australia, where he said:
In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions. Even though that consideration has some analogy with general deterrence, its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed.
(citations omitted)
Finally, it is important to take note of the following words of the Court of Appeal in New South Wales, in Health Care Complaints Commission v Litchfield:
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
None of these principles was in contention between the parties.
Ground 1
In finding that the respondent’s conduct amounted to professional misconduct, the SACAT found that it “was dishonest and done with knowledge that it would put the welfare of patients at risk. It had a significant adverse effect on the other optometrist partner.” The Board says that it was incumbent on the SACAT to go a step further and to make findings as to the extent to which the respondent’s conduct departed from the proper standard. It is only once this has been done, that it could then address the sanction required to prevent further conduct of a similar nature, by the respondent or by another practitioner. I note that the respondent submitted:
Deficiency in eyeglasses is not the equivalent of a deficiency in say an artificial limb…”
In making this submission, I am of the view that the respondent has himself fallen into the error warned against in Litchfield. The fact that the consequences of the respondent’s conduct are not as bad as the consequences of other conduct in respect of a different profession is, in my view, irrelevant.
I consider that the SACAT erred in not making an assessment of the degree to which the respondent’s conduct departed from the proper standard in the profession. While the SACAT began the first part of this assessment, as set out at [49], it did not complete the task. It was required to articulate its assessment of the degree to which the conduct of the respondent departed from the proper standard.
The Board says that the SACAT made no finding as to the risk of repetition of the conduct. The Board is correct in this contention, and in this regard, I am of the view that the SACAT again fell into error. It made no specific finding in respect of the likelihood of reoffending, and save for noting that the respondent’s failure to admit responsibility for the conduct caused it concern, did not address whether the protection of the public and maintenance of standards in the profession would be in any way put at risk by the respondent’s resuming the conduct which was the subject of this complaint. The likelihood or otherwise of further offending conduct by the respondent is not discussed. This is a clear error.
The Board says that, having failed to make findings about the extent to which the conduct fell below the required standard, and having made no assessment of the likelihood of the repetition of the conduct, the SACAT was unable to make findings that were necessary to protect the public and to maintain standards in the profession. This led the SACAT to impose a sanction which was clearly insufficient.
Having found that the SACAT erred in the first two steps set out above, I am of the view that it follows that it also erred in determining the sanction to impose. This is because it is impossible to ascertain from the sanction decision any reasoned basis for its imposition of disqualification for a period of twelve months.
Ground 1 is established.
Ground 2
Ground 2 centres on the use by the SACAT of the words, “with some reluctance” when imposing a period of disqualification. Given its placement in the paragraph dealing with whether suspension or disqualification should be imposed, and in the absence of any further explanation, it can only be inferred that the reluctance was occasioned by the fact that the respondent had been working full time as an optometrist since January 2017. The statement of reluctance, without more, leads me to infer that the SACAT took the consequences of the loss of employment to the respondent into account. In this regard, it was in error.
I am also of the view that the SACAT was in error in its treatment of the character evidence. Given that it did not specifically deal with the risk of the respondent’s reoffending, it can be inferred that it dealt with the character evidence in that context. As it did not appear to consider any of the other factors which may be relevant in regard to the prospect of the respondent’s repeating the impugned conduct, it erred by elevating the character evidence over any of the other factors, to the extent that they did not require examination.
Ground 2 is established.
Ground 3
I consider that the SACAT was in error when it found that a detailed quantification of the costs incurred by Specsavers in respect of the investigation it carried out did not influence its decision, and was not relevant to its task in determining an appropriate sanction.
I am of the view that the Board is correct in its submission that this approach appeared to exclude evidence of the harm caused by the respondent’s conduct, and that it appeared to fail to consider that employers are members of the public who deserve protection through registration of their professional employees.
I consider that a detailed quantification of the loss occasioned to Specsavers should have been taken into account, even though it was not open to the SACAT to make an order for compensation in this regard. The financial consequences of the impugned conduct is clearly relevant in determining its seriousness and its consequences.
Ground 3 is made out.
Ground 4
Ground 4 is based on the premise that, if the SACAT had not made the errors set out in Grounds 1 to 3, it would have imposed a substantially longer period of disqualification than the twelve month period that it imposed. Such a sanction, says the Board, fails to communicate to both the respondent and to the profession the seriousness of the conduct and the disapproval that it attracts. It is insufficient to maintain public confidence in the profession of optometry.
In reaching a decision whether the period of disqualification imposed by the SACAT is inadequate, I must address the matters that were not addressed by the SACAT. I must address the factors that will lead to a sanction that will protect the public, maintain standards in the profession, and bring home to the respondent the seriousness of his conduct. Once I have done this, I will be in a position to determine whether Ground 4 has been established.
In my view, the conduct engaged in by the respondent fell significantly below the standard of conduct expected within the profession. His conduct was deliberate and prolonged. He altered patient records on more than 400 occasions over a period of less than one year. He targeted one colleague, who, as a result of his conduct, questioned her own competence, considered moving to a different working environment which was less busy, and suffered significant embarrassment. He caused significant expense to his employer, both in regard to glasses which had to be remade, and in regard to the investigation which it undertook. The investigation process involved a number of staff at Specsavers investing large amounts of time at significant cost to Specsavers. These costs exceeded $50,000.
The alteration of patient records is extremely serious. It may have an impact on the patient’s health at the time, and in the future when others may seek to rely on the record. It may result in the patient receiving inappropriate treatment. Given that the respondent’s conduct in this regard was prolonged, deliberate and clearly against the interests of the patient, it was incumbent on the SACAT to make a finding that the respondent’s conduct fell well below the standard expected of a registered optometrist. It required a sanction which sent a clear message to other practitioners that unauthorised and unjustified alteration of patient records will not be tolerated. It required a sanction that acknowledged the harm caused to patients, Ms McKernan and Specsavers.
In respect of the question of recidivism, it is of note that, to the date of the appeal, the respondent has continued to deny his responsibility for the conduct, despite the detailed findings of the SACAT. This is a matter which must weigh heavily when the appropriate sanction is being considered. In the absence of any explanation for the conduct, it is difficult to accept that there is little or no likelihood that the respondent will not repeat the conduct some time in the future. Given that no motive has been identified, there remains a risk that similar circumstances may occur in the future, which cause the respondent to reoffend. Not only has the respondent demonstrated no insight into his conduct, he has rejected the finding of the SACAT completely. This stance can only lead to a conclusion that there can be no confidence that reoffending will not occur.
The respondent’s successful employment since January 2017 is a relevant, but not overriding, factor to take into account. Given the delay since the conduct and the imposition of the sanction, the respondent had an opportunity to demonstrate appropriate conduct. He took this opportunity. It is clear from his character witnesses that he has acquitted himself well since he gained employment in January 2017, and that he has been active in charitable work. This work history however, occurs under the shadow of his refusal to take responsibility for his conduct. Thus, while some assurance may be gained from his conduct since these matters came to light, that assurance can by no means be unqualified. Risk from the respondent in the future must remain.
To provide adequate protection to the public and to maintain the standards in the profession, the sanction to be imposed must take into consideration the fact that it is difficult, if not impossible, to make a judgment as to the risk of reoffending. In the absence of any explanation for the conduct or even an acceptance of the findings of the SACAT, there can be no confidence that the respondent will not reoffend. The respondent’s conduct was significantly below the standard required in the profession. It was deliberate, dishonest, and prolonged. It caused harm to patients, a colleague and his employer. There was a risk that even greater harm could have been caused, in relation to a patient’s ability to see, Ms McKernan’s mental state, and Specsavers’ reputation and relationship with its patients. It was mere luck that such harm did not eventuate.
The respondent’s conduct was clearly in breach of the Board’s Code of Conduct for Optometrists. It was in breach of the Board’s expectation in regard to record keeping, working with professional colleagues, and, arguably, the requirements in respect of confidentiality and privacy, as the respondent had no permission to access the patient’s records, and did not do so for any legitimate purpose.
In my view, in order to protect the public, maintain confidence in the profession and to send a message to the profession that such conduct cannot be tolerated, a significant period of disqualification was required. I am of the view that a period of twelve months was not sufficient to achieve these purposes. A period of disqualification of five years more appropriately serves these purposes.
Ground 4 is established.
Conclusion
The appeal is allowed. I set aside the SACAT’s disqualification of the respondent from applying for registration as an optometrist for a period of twelve months. In its place, I disqualify the respondent from applying for registration as an optometrist for a period of five years, such period to commence on Wednesday 5 August 2020.
I will hear the parties on the question of costs.
2
3
1