Pearse v Medical Board of Australia
[2013] QCAT 392
•16 August 2013
| CITATION: | Pearse v Medical Board of Australia [2013] QCAT 392 |
| PARTIES: | Dr Glen Pearse (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR190-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 15 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: |
| DELIVERED ON: | 16 August 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Medical Board of Australia on 10 July 2013 to take immediate actions is set aside. 2. The Application for miscellaneous matters filed by Dr Pearse on 19 July 2013 seeking a non-publication order and a closed hearing is refused. 3. The publication of information that may identify the complainants is prohibited. 4. The parties have liberty to apply in respect of costs. |
| CATCHWORDS : | HEALTH PRACTITIONERS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where the Board made a decision to take immediate action against the registrant and imposed conditions on registration – where the registrant sought an appeal of the Board’s decision – where it was submitted that the appeal to the tribunal was not a hearing de novo in the widest sense of the term – where the enabling act provides that the appeal to the Tribunal is a review as provided fro under the Queensland Civil and Administrative Tribunal Act 2009 – whether the hearing before the Tribunal is a hearing de novo – whether evidence regarding matters occurring after the decision to take immediate action could be considered by the Tribunal HEALTH PRACTITIONERS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where a complaint was made by a patient regarding the registrant – where the complaint alleged the registrant had behaved inappropriately during an intimate examination – where the Board made a decision to take immediate action against the registrant and imposed conditions on registration – where the registrant sought an appeal of the Board’s decision – where it was submitted that the Tribunal could not form the requisite reasonable belief that the registrant’s conduct posed a serious risk to persons and required immediate action to be taken – where it was submitted that a reasonable belief that the conduct alleged actually occurred is required – whether a reasonable belief that the conduct occurred needs to be formed before taking immediate action – whether the Tribunal on review formed a reasonable belief that the registrant’s conduct posed a serious risk to persons and it is necessary to take immediate action Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 398C(1)(b), s 398ZC(a), s 398ZC(b), Attudawage v Medical Board of Australia (No. 2)[2011] QCAT 452, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms K Mellifont QC of counsel, instructed by Avant Law |
| RESPONDENT: | Ms K McMillan QC of counsel, instructed by Rodgers Barnes & Green |
REASONS FOR DECISION
On 16 August 2013 the Tribunal delivered ex tempore reasons in this matter. These written reasons have been prepared from the transcript of the ex tempore reasons and include references to material in the proceedings and citation of authorities.
On 4 July 2013, the Queensland Medical Interim Notifications Group of the Medical Board of Australia (“the Committee”) decided to take immediate action against Dr Pearse under section 156 of the Health Practitioner Regulation National Law (Queensland) (“National Law”).
Dr Pearse was notified of the decision by a letter from the Australian Health Practitioner Regulation Agency (AHPRA) dated 10 July 2013. That letter informed him that unless he offered undertakings in the form proposed by the Committee, by 16 July 2013, conditions would be imposed upon his registration. The proposed undertakings were in the same terms as the conditions which he was informed would be imposed in default of the undertakings being provided.
Section 156(1)(a) of the National Law is in the following terms,
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if –
(a) the National Board reasonably believes that –
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
…
Immediate action is defined by section 155 as follows,
Immediate action in relation to registered health practitioner or student means –
(a) the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or
(b) accepting an undertaking from the health practitioner or student; or
(c) accepting the surrender of the health practitioner’s or student’s registration.
Dr Pearse initially sought a stay of the decision. That stay was refused by the Tribunal, in a decision published on 26 July 2013, because s 398ZC(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (“Disciplinary Proceedings Act”) prohibits the Tribunal from staying a decision to take immediate action. Section 398ZC(b), however, requires the Tribunal to finalise the review as quickly as possible. To meet this requirement, the Tribunal programmed the matter for an expedited hearing on 15 August 2013. At the hearing the Tribunal indicated it would deliver it’s decision the following day, 16 August 2013.
The immediate action taken by the Board
In its letter of 10 July 2013, the Committee expressed that it held the requisite belief required under section 156 as follows:
On the basis of the evidence before it, the Committee reasonably believes that you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety because:
1. The Committee has reviewed the submission made on your behalf by your lawyers.
2. You must be afforded procedural fairness.
3. The basis of the Committee’s ‘reasonable belief’ is that it has taken into account all known considerations including:
a. the allegations of fact contained in the notification made by the patient, and
b. a prior notification about you, and
c. your submission.
4. The basis of the Committee’s decision is that you pose a ‘serious’ risk to persons is:
a. that the allegation is that you have violated professional boundaries in your examination of the patient,
b. the denial of the allegations by you, and
c. the risk to persons, if the allegations are proved, is a serious risk.
5. The Committee has decided that it is necessary to take the action the Committee has decided to take as the only way to ensure that events of the kind alleged do not occur is to impose chaperone undertakings.
6. The restrictions on your practice are to ensure services are provided safely and the services provided are of the appropriate quality.
7. The decision of the Committee provides protection to the public by ensuring that only practitioners who are qualified to practice in a competent and ethical matter practise the profession.
Dr Pearse did not offer the undertakings proposed. Rather, on 19 July 2013, he filed an application in the Queensland Civil Administrative Tribunal for a review of the Committee’s decision.
The decision of the Committee followed a notification having been received by AHPRA from a patient of Dr Pearse. That notification followed a complaint having been made to the Health Quality and Complaints Commission on 12 June 2013. The complaint concerned a consultation between the patient and Dr Pearse on 16 April 2013.
[10] In her complaint, the complainant described the incident as follows:
On the Tuesday the 16th April 2013, I went into see Dr Glen Pearse for a general annual checkup and pap smear. I asked [Doctor] if he could check for a lump on the side of my groin, because I was going to have my breast checked, I took off my top and pulled my shorts and underwear down to my knees, he was feeling my groin for the lump and then said, “I could do this all day.” My first thought was, “oh my god”. When he finish[ed] checking my groin he then quickly pulled down my shorts and underwear. It shocked me and then I thought “he must be in a hurry.” As he got up I had to pull away because he went to kiss my nipple. I then stepped out of my shorts and underwear, feeling shocked and scared.
Then I moved over to the bed for the pap smear praying that he wouldn’t do anything down there, he said to me to relax and I thought, “it’s a bit damned hard.”
I decided not to ask him to check my breasts because I was so uncomfortable. I then got up after my pap smear and got dressed, before I left, he apologised and said “I’m so sorry and it will not happen again, but I couldn’t resist.”
[11] The complainant also referred to events which had occurred in a follow-up consultation. Although the complainant referred to the date of that follow-up consultation as 18 April 2013, it seems uncontentious that, in fact, it occurred on Monday, 22 April 2013. The complainant described the follow-up visit in her complaint in these terms:
On Friday 18 April 2013 I got a phone call from the surgery saying my results are in and Dr Pearse would like to see me.
Just before the phone rang my son was out the door with an appointment with Dr Pearse so I asked if I could go in straight after my son so he could come in with me on my appointment while I got my blood results.
I could not look at Dr Pearse I was so uncomfortable I did not know which way to look, he then asked [my son] to leave so he could talk to me in private, [my son] left.
Dr Pearse apologised again and I told him I was going to another [doctor]. He then said he wasn’t himself and said that his mother in law was in hospital that day having her 1st dose of chemo therapy and his mum was in hospital too with what ever it was at that time.
I tuned out because my first thought was he is panicking now over what happened, he then said he had spoken to a college(sic) about it all, and then he said please come back I promise it will not happen again. Then I left.
[12] The Committee had notified Dr Pearse by letter dated 17 June 2013 that it was proposing to take immediate action against him. In that notification, the Committee also stated that it reasonably believed that Dr Pearse’s conduct posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety. It provided Dr Pearse with the opportunity to provide a written submission. This was in accordance with the show cause process in s 157 of the National Law intended to accord natural justice to a registrant against whom immediate action is proposed.
[13] In that letter of 17 June 2013, the Committee also referred to a prior notification concerning Dr Pearse as forming part of the basis for its reasonable belief. The prior notification to which the Committee referred, in both its letters of 17 June 2013 and 10 July 2013, was a matter in which an allegation had been made against Dr Pearse in 1995. The Tribunal need say no more about the substance of that matter, or what became of it, as the Board now does not rely upon it for the purpose of these proceedings. Nor does the Board rely upon it in a disciplinary proceeding against Dr Pearse, which it referred to the Tribunal on 15 August 2013. However, it is to be noted that the fact of that prior notification, which the Committee considered to be similar to the complaint to which the June 2013 notification related, appears to have been a significant consideration in the Committee forming the belief that Dr Pearse posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety.
[14] The conditions which the Committee imposed upon Dr Pearse’s registration included as condition 2 that,
The practitioner must not assess, treat, consult or examine any female patient (of any age), unless the patient is accompanied by a chaperone to be chosen by, or consented to by, the female patient. The chaperone must be:
a. Over eighteen (18) years of age,
b. Either a person that accompanied the female patient to the consultation, or a staff member of the facility where the practitioner works, and
c. Be present during the entire consultation.
The parties’ positions
[15] Dr Pearse submits that the Board did not, and could not on the evidence available, form the requisite view that because of his conduct, performance or health he posed a serious risk to persons and it was necessary to take immediate action to protect the public.[1]
[1] Submissions on behalf of the registrant filed 13 August 2013, [11] – [12], [23] – [26].
[16] Alternatively, he contends that if the Tribunal does hold a reasonable belief as to those matters an undertaking could be accepted from him, or conditions imposed upon his registration, which are narrower and less restrictive than those currently contained in condition 2.[2]
[2] Ibid, [42].
[17] For its part, the Board no longer seeks to support the conditions in the form imposed by the Committee. In submissions filed on behalf of the Board on 13 August 2013, the Board submitted that the Tribunal should substitute another decision to that previously made by the Committee.[3] The conditions for which the Board now contends are more narrow than those that are currently imposed on Dr Pearse’s registration.
[3] At [21] and Annexure ‘A’.
[18] Essentially, the conditions now proposed in substitution would limit the requirement for Dr Pearse to only consult with female patients in the presence of a chaperone to circumstances in which his assessment, treatment, examination of, or consultation with the female patient was in relation to an intimate examination. The Board makes this submission because it accepts that the alleged conduct the subject of the complaint, arose from an intimate examination and that any conditions imposed ought address the relevant risk specifically, and otherwise be the least onerous possible.[4]
[4] Submissions on behalf of the Board, [22] – [23].
[19] This approach to the imposition of conditions, for which both parties now advocate, is consistent with authority. In MLNO v Medical Board of Australia,[5] the Victorian Civil and Administrative Tribunal said, “Whilst the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.”
[5] [2012] VCAT 123, [5].
[20] The Board’s alteration of its position in respect of what are appropriate chaperoning conditions is, perhaps, not surprising. At its meeting of 4 July 2013, at which it decided to impose the present conditions on Dr Pearse’s registration, the Committee considered a show cause agenda paper.[6] That paper had been approved by Mr Matthew Hardy, the Director Regulatory Operations Queensland, in the office of AHPRA. In that agenda paper, a change was suggested to the conditions then proposed by the Board. The show cause agenda paper observed, under the heading “Change to proposed conditions”:
j.When considering taking immediate action, the Committee should consider placing the least onerous restrictions on a practitioner’s practice whilst still protecting the public from serious risk of harm. For both [complainants], alleged sexual misconduct appears to have occurred in the context of intimate examinations. There have been no notifications concerning Dr Pearse acting inappropriately with female patients during consultations where intimate examination was not involved.
k.Therefore, it is considered that the public would be adequately protected by Dr Pearse having a chaperone present only during intimate examinations of female patients. This appears appropriate given the context the allegations have been made.
[6] Affidavit of Matthew Hardy filed on 8 August 2013, exhibit MH-4.
[21] Accordingly, the agenda paper recommended chaperone conditions be limited to circumstances relating to the performance of intimate examinations on female patients. Notwithstanding these observations and recommendations in the agenda paper, the Committee decided to impose chaperone conditions on all consultations between Dr Pearse and female patients.
[22] The Committee’s decision of 4 July 2013 records, at paragraph 5 under the heading “Reasons”, that:
The Committee has decided that it is necessary to take the action the Committee has decided to take as the only way to ensure that events of the kind alleged do not occur is to impose chaperone conditions, but to accept undertakings.
[23] It is to be understood from this that the particular immediate action which the Committee considered necessary was the imposition of the more onerous conditions which it had proposed, and which it did impose. The Committee’s decision does not disclose its reasoning as to why, contrary to the observations and recommendations in the agenda paper, it considered that to be so.
The nature of the proceedings
[24] It is important to emphasise that the Tribunal is not conducting an appeal from the Committee’s decision, in the strict sense. Although s 199(1)(e) of the National Law provides that a person subject to a decision to impose conditions on his or her registration may appeal against that decision to QCAT, it being the appropriate responsible Tribunal under section 199(1) of the National Law, and section 398C(1)(b) of the Disciplinary Proceedings Act, the nature of the appeal is governed by s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld). Section 9 provides that a reference in the National Law to an appeal to QCAT, as the responsible Tribunal, is a reference to a review of the decision as provided under the QCAT Act. Part 1, Division 3 of the QCAT Act governs the Tribunal’s review jurisdiction. Section 20(2) provides that the Tribunal is required to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
[25] In Attudawage v Medical Board of Australia (No. 2)[7], the then Deputy President of the Tribunal, Judge Kingham, described the exercise of the Tribunal’s jurisdiction in the following way:
[The Tribunal] has all the functions of the Board for the decision under review. The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide it by way of a fresh hearing on the merits. It may confirm the Board’s decision or set it aside, and either substitute its own decision or return it for reconsideration by the Board with any directions it considers appropriate. It is a new determination of the rights of [the registrant] applying the law at the time of the rehearing and according to the evidence offered at the time of the rehearing.
[7] [2011] QCAT 452, at [10].
[26] Both parties in written submissions contend that the Tribunal must conduct a review on the merits. Both parties also refer in their submissions to the decision of the Court of Appeal of the Supreme Court of Victoria in Kozanoglu v Pharmacy Board of Australia[8]. There, the court said at [95]:
In our opinion, the appeal to VCAT, under the National Law was not, as Senior Counsel for the respondent at one point submitted, a rehearing de novo in the widest sense of that term. It would not have been permissible, for example, for the respondent to adduce evidence of facts and matters that had occurred after the notification had been provided to the IAC to justify, retrospectively, the decision to take immediate action.[9]
Later, at [119], the Court said:
In our respectful opinion, both the approach taken in South Australia, and that taken in Tasmania, are erroneous. The appeal to a responsible Tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error. [10]
[8] [2012] VSCA 295.
[9] Ibid at 22, [95].
[10] Ibid at 28, [119]
[27] In order properly to understand the conclusion reached by the Court at [119], and whether it should be applied to the review of an immediate action decision by QCAT, the Court’s reasoning on the issue must be carefully considered.
[28] The Court commenced, at [98], with reference to the four distinct types of appeal identified by Mason J, as his Honour then was, in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd.[11]
[11] (1976) 135 CLR 616, at 619-22.
[29] A passage from Mason J’s judgment in Sperway not directly referred to by the Victorian Court of Appeal, but included within a passage identified in footnotes, was the following much rehearsed statement of principle for determining the nature of an appeal conferred by statute:
But in the end the answer will depend on an examination of the legislative provisions, rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi‑judicial function, classifications which are too general to be of decisive assistance. Primarily, it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of a rehearing.[12]
[12] Ibid at 621-622; referenced in Sperway at 22, [98] footnote 13.
[30] At [101] to [105], the Court of Appeal referred to Shi v Migration Agents Registration Authority[13] and the High Court’s unanimous rejection of the argument that, on a review of a decision of the Migration Agents Registration Authority, the Administrative Appeals Tribunal should have limited its review to the facts and circumstances prevailing at the time of the Authority’s decision.
[13] (2008) 235 CLR 286.
[31] In Shi, Kirby J had said,
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make “a decision in substitution for the decision so set aside,” as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.[14]
…
There is … a general approach deriving, in particular, from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the “decision” in question may sometimes, exceptionally confine the Tribunal’s attention to the state of evidence as at the particular time.[15]
[14] Ibid at 299-300, [41]; see also [50] and [60].
[15] Ibid at 301, [46].
[32] Hayne and Heydon JJ also said, to like effect:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.[16]
[16] Ibid at 315, [99].
[33] Kiefel J, with whom Crennan J agreed, said:
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[17]
[17] Ibid at 328, [143].
[34] The Victorian Court of Appeal went on, at [105] – [106], to say:
Shi establishes that, ordinarily, an administrative Tribunal is entitled to have regard to events which occur in the intervening time between the original decision and the review process, unless that position is altered by the terms of the decision-making power.
Turning to a consideration of the relevant legislation in this case, it would be unlikely that the legislature, in enacting the National Law contemplated that an appeal from a decision to take immediate action would involve a rehearing de novo, in the fullest sense of that term. The IAC (as delegate of the Board) is expected to act, as the name of the ‘immediate action’ regime suggests, immediately. That suggests a temporal limitation, and also a certain standard of speediness on the Board’s part. There must be a certain point in time to which the decision to act is ‘immediate’. It is the circumstances existing at that time that are relevant, and the belief spoken of in s 156 must be formed on the basis of those circumstances.
[35] The Court found that the fact that the decision was to take immediate action meant that s 156 imposed the kind of point of time limitation to which their Honours had referred in Shi.
[36] Although s 156 of the National Law, as considered in Kozanoglu, was in the same terms as the Queensland provision, the Victorian legislation which gave effect to the National Law did not include an analogous provision to section 9 of the Health Practitioner Regulation National Law Act 2009. In my view, section 9 of that Act, together with s 20(2) of the QCAT Act, establish the nature of an appeal as being a full hearing de novo.
[37] The Tribunal is able to consider evidence of matters which have occurred after the decision under review was made. It is not limited to hearing only evidence that bears directly upon the position as it was when the original decision was made.
[38] The issue is of some significance in this case. One of the matters of which the Tribunal has heard evidence is that, after receiving the complaint from AHPRA and until he ceased work, Dr Pearse had initiated and observed a practice of having a chaperone present for intimate examinations. Further, he deposed to an intention to continue that practice even in the absence of a finding by the Tribunal that immediate action is required.
[39] Dr Pearse’s reasons for doing this is said to be to protect himself from false complaint. Whatever the reasons, it is to be taken into account by the Tribunal. The Board did not contend that these events, having occurred after the decision was taken to impose immediate action, were not relevant to the Tribunal’s review as they did not bear directly upon the position as it was when the original decision was made. That is, it did not contend that the power should be exercised in the limited way identified by the Victorian Court of Appeal in Kozanoglu.
[40] Because it is conducting a fresh hearing on the merits the Tribunal must determine whether it holds a reasonable belief that because of Dr Pearse’s conduct he poses a serious risk to persons, and that is necessary to take immediate action in the form of imposing the conditions in the terms now sought by the Board to protect public health and safety. The proper approach to those issues to be taken by the Tribunal has been considered in a number of cases.
[41] In I v Medical Board of Australia[18] the South Australian Health Practitioners Tribunal said:
The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public. This is clear from s 156 which requires action where there is risk to a person or the need to protect public health or safety.
The Tribunal adopts the approach of the New South Wales Supreme Court in Lindsay v New South Wales Medical Board ((2008) NSWSCR 40) as authority for the proposition that material upon which an immediate action order might be based may “include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations.”[19]
…
… A complaint that is trivial or misconceived on its face will clearly not be given weight and the nature of the allegations will be highly relevant to the issue of whether an order is justified.[20]
[18] [2011] SAHPT 18.
[19] Ibid at 6, [26] – [28] (citations footnoted in original).
[20] Ibid at 6, [28].
[42] Then, at [30] to [31], the Tribunal concluded on this issue as follows:
The appellant submitted that s 156 necessitated established conduct before a reasonable belief of a risk to persons could be reached sufficient to take immediate action. The submission continued there was no more than allegations of conduct before the Board and that they did not constitute ‘conduct’ for the purpose of the section. In any event, the allegations were hotly denied. The documentation was not tended as evidence of the truth of the matter and ought not to be received.
As indicated above, the Tribunal takes the view that this is not a matter of proving conduct but one of whether there was a reasonable belief that because of conduct, Dr I was a serious risk to persons. We are not of the view that the considerations in Lindsay were substantially different from those before this Tribunal.
[43] This approach was approved by the Western Australian State Administrative Tribunal in Liddell v Medical Board of Australia.[21]The Tribunal observed, after referring to the decision of the New South Wales Supreme Court in Lindsay v New South Wales Medical Board:
The practicality of that approach is readily apparent. Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made, (as in I v Medical Board of Australia) it would be impractical for s 156 to require that the Medical Board make urgent findings of fact as to the practitioner’s guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner.
That is not, of course, to say that material available to the Board need not be carefully scrutinised in order to determine the weight to be attached to it. The requirement to provide the practitioner with an opportunity to make submissions prior to the Board taking immediate action, and to have regard to those submissions, reinforces that obligation.[22]
[21] [2012] WASAT 120.
[22] Liddell at 10, [21] – [22].
[44] Ms Mellifont QC, who appeared for Dr Pearse, submitted that in this case applying a test of careful scrutiny of the material available does not permit the alleged conduct to support a reasonable belief as to the requisite risk. Ms Mellifont submits that determining whether the Tribunal has a reasonable belief as to the requisite matters requires consideration not just of the allegations, but also the full circumstances of the complaint, which are open to criticism it is said, and the denials of Dr Pearse.
[45] Ms Mellifont submits that the words “because of” as used in section 156(1)(a)(i) require the Tribunal to form a reasonable belief that the conduct alleged actually occurred and that this requires, as found in George v Rockett,[23] an inclination of the mind towards assenting to, rather than rejecting, the proposition.[24] However, the High Court stated in George v Rockett that the grounds which can reasonably induce the inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[25]
[23] (1990) 170 CLR 104.
[24] Submissions on behalf of the registrant, [12] & [16] – [20].
[25] At 119.
[46] In my view, the Board or the Tribunal may reasonably believe that there is a serious risk to persons because of a registrant’s conduct without the level of belief as to the fact of the conduct contended for by Ms Mellifont.
[47] Ms Mellifont criticises the evidence of the complainant and says that it demonstrates an unreliability on the part of the complainant. Further, it is contended that the version of events given by the complainant as to her own conduct both immediately before and after the alleged boundary violation by Dr Pearse is inherently improbable. I do not consider a finding to that effect could be made at this time when both the complainant and Dr Pearse have sworn to events which are at odds. Such matters cannot be determined until a full hearing of the evidence has been held.
[48] Whilst this is not an appeal from the Committee’s decision as such, I am of the view that the approach taken by the Board as to how it formed the belief it did can inform the Tribunal’s consideration of whether it too holds that belief. It is quite apparent that the Board’s belief was based upon, at least in part, the existence of two complaints which it considered to be similar in nature. In its decision the basis for its reasonable belief was expressly stated to include the prior notification.
[49] So too, the show cause agenda paper which it considered in making its decision contained a recommendation that the new information concerning that complaint be considered. In addition to that recommendation the agenda paper also referred to reasons to take immediate action as:
a. The basis of the Committee’s ‘reasonable belief’ is that it has taken into account all known considerations including:
i. the allegations of fact contained in the notification made by the patient; and
ii. a prior notification in respect of the practitioner with similarity to the current notification.
b. The basis of the Committee’s decision that the practitioner poses a ‘serious’ risk to persons is:
i. that the allegation is that the practitioner has breached professional boundaries in his intimate examination of the patient; and
ii. the risk to persons, if the allegations are proved, is a serious risk.
[50] The section entitled ‘Background’ records, amongst other things, the following:
f.[The earlier complainant’s] complaint, dated 11 April 1995, provided the following information:
i.On 24 March 1995 during a consultation with Dr Pearse for a pap smear and breast examination, [the complainant] advised the practitioner about her weight gain.
ii. When [the complainant] undressed in preparation for the pap smear Dr Pearse commented that she had a ‘gorgeous figure’.
iii.[The complainant] was not initially offered a sheet to cover herself when she got undressed.
iv.When Dr Pearse finished preparing the equipment for the pap smear, he stood in front of [the complainant], again commented on her gorgeous figure, and then pinched her stomach.
v.During the pap smear and afterwards, Dr Pearse made suggestive comments about [the complainant’s] statement that she was ‘loosing her grip’ while he had been taking a cervical swap. Dr Pearse also commented to the patient, ‘you’ll be right to kiss soon’ after she stated that she was to cease smoking.
vi.When conducting the breast examination, Dr Pearse continued to comment on [the complainant’s] figure. While the practitioner was examining the patient’s left breast, his other hand rested on top of her public hair line.
vii.[The complainant] said the examination of her nipples was particularly probing, and that Dr Pearse used only two fingers.
viii.During examination of [the complainant’s] breasts, Dr Pearse said, ‘this is very hard to do’ and ‘I could stand here and do this all day’.
ix.When [the complainant] began to dress following examination, Dr Pearse put his right hand between her legs on the outside of her vagina. The patient pushed his hand away to which he responded ‘sorry, I know I should stop, but it’s hard, usually you have to do this to big fat ladies’.
x.After [the complainant] was fully dressed, Dr Pearse said ‘sorry’ once again. He then performed a blood test and the patient recalled his hands were ‘rather shaky’.
[51] The background goes on to record:
g. In the course of the former Medical Board of Queensland (MBQ) investigation, information was also obtained from Dr Kym Trevor who worked with Dr Pearse. Dr Trevor provided the following information:
i.On 24 March 1995, he received a phone call from a friend of [the complainant] who told him that [the complainant] was very upset and had suffered ‘a bad experience’ whilst seeing Dr Pearse. The friend elaborated that [the complainant] had been touched and spoken to in an improper manner.
ii. Dr Trevor saw [the complainant] and her parents on the following day, ‘who were all upset and concerned about what had taken place’. Dr Trevor spent an hour with them in counselling and advised them to make a written complaint to the MBQ or Health Rights Commission (HRC).
h.On 20 August 1996 the MBQ determined that on the evidence available a prima facie case of professional misconduct against Dr Pearse could not be sustained.
[52] The analysis which appears in the show cause agenda paper in section 7 includes the following:
a. The further information retrieved from the archived complaint about Dr Pearse from [the complainant] indicates that the belief that Dr Pearse engaged in sexual misconduct in connection with the practise of his profession, is reasonably founded. There are noted similarities from [the earlier complainant’s] complaint and the current notification, including
i.Inappropriate sexual comments and touching during intimate examination.
ii.Similarity in the alleged comments from Dr Pearse when examining [the earlier complainant], specifically, ‘I could stand here and do this all day’ and [the more recent complainant], ‘I could do this all day’;
iii.Similarity in the alleged comments from Dr Pearse when examining [the earlier complainant], specifically, ‘Sorry, I know I should stop, but it’s hard, usually you have to do this to big fat lady’s (sic)’ and the comment to [the more recent complainant], ‘I’m so sorry and it will not happen again, but I couldn’t resist’.
iv.Subsequent apologies from Dr Pearse to both [the earlier complainant] and [the more recent complainant].
b.There is no indication/evidence, of collusion between [the earlier complainant] and [the more recent complainant] and this would appear unlikely to be the case 18 years post [the earlier complainant’s] complaint to the MBQ. Therefore, it could be stated that the features of the incident involving [the earlier complainant] lend weight in supporting [the more recent complainant’s] version of events.
c.[The more recent complainant] was noted to be acting ‘strangely’ by Dr Pearse’s receptionist post consultation on 16 April 2013 and requested her records be transferred to another practice. Dr Pearse’s submission states the following:
One of the receptionists at the practice had advised him (Dr Pearse) a few days before the consultation that [the more recent complainant] had been acting a bit strangely and enquired about her having her records transferred.
d.In [the earlier complainant’s] matter, following the alleged incident with Dr Pearse, she and her family spoke to Dr Trevor who described them as ‘all upset and concerned about what had taken place’. Dr Trevor advised [the earlier complainant] to make a complaint to the MBQ.
[53] The contention that those matters were relevant to the consideration as to whether or not a reasonable belief of serious risk and the necessity for immediate action to be taken, persisted in the submissions filed on behalf of the Board. Section 4 of those submissions refers to the complaints in plural and refers to the Board having considered two complaints in its decision to take immediate action, including that of the earlier complainant.
In the course of proceedings in the Tribunal Exhibit 3 was tendered, which was what purported to be a record of decision of the Board made on the morning of the hearing, 15 August 2013, which seemed to record, at paragraph 1, that the committee had decided to impose chaperone conditions for intimate examinations on the registration of Dr Pearse.
[55] A further record of decision was provided by the Board to the Tribunal, which became Exhibit 4.
[56] Exhibit 3 contains the following
Decision
1.The Committee decided to impose chaperone conditions for intimate examinations on the registration of the practitioner.
2.The Committee decided that it is unnecessary for this notification to be further investigated.
3.The Committee decided that the behaviour of the practitioner in his consultation with [the more recent complainant] on 16 April 2013 constituted professional misconduct under the Health Practitioner Regulation National Law Act, as in force in each state and territory (National Law)
4.To refer the practitioner to the Tribunal under section 193(1)(a)(i) of the National Law and instruct RBG to file a referral in the terms attached to the advice.
Reasons
1.The chaperone conditions for intimate examinations are sufficient to protect the public health and safety.
2.The sworn affidavit of [the more recent complainant] is sufficient evidence that the behaviour of the practitioner in his consultation with her on 16 April 2013 constituted professional misconduct under the National Law.
[57] Exhibit 4 contains the further heading ‘Conditions’ under which the details of the conditions the Board sought to have imposed were stated. Those terms were more restricted than those originally imposed, and were, in fact, in the terms that were then being sought by the Board. It also contains the following amendment to the information which appeared in the ‘Decision’ section of Exhibit 3:
Amended Decision
1.The Committee had previously decided to impose chaperone conditions on the registration of the practitioner.
2. The Committee today decided:
a.it is unnecessary for the notification to be further investigated,
b.the behaviour of the practitioner in his consultation with [the more recent complainant] on 16 April 2013 constituted professional misconduct under the Health Practitioner Regulation National Law Act, as in force in each state and territory (National Law), and
c.to refer the practitioner to the Tribunal under section 193(1)(a)(i) of the National Law and instruct RBG to file a referral in the terms attached and seek chaperone conditions in the form below.
[58] Whilst this was said to be an amended decision, Exhibit 3 appears to record a decision by the Committee to impose chaperone conditions for intimate examinations, while Exhibit 4 records a decision to instruct RBG to seek chaperone conditions. At the hearing it was said that the decision the Committee made was an amended decision, but it wasn’t clarified whether by this it was meant that the Committee purported to amend the decision originally made under s 156, or whether the amended decision was that having made a decision to impose conditions (seemingly without power to do so), the Committee then sought to amend that decision to one to instruct RBG to seek the chaperone conditions in these proceedings.
[59] In any event, no submissions have been provided by the Board as to why conditions which it sought as recently as the 13 August 2013 in its written submissions, of a more limited nature but based also upon the fact of a prior complaint, are now supported in the absence of any such earlier complaint forming part of the Board’s case. None of the matters concerning the earlier complaint to which I have referred in the agenda paper which were considered by the Committee, and which seem to have formed part of the basis for it forming a reasonable belief, now form any part of the circumstances advanced by the Board upon which a belief as to serious risk and the need for immediate action could be based.
[60] There is also the matter of Dr Pearse now having introduced chaperoning procedures for intimate examinations. There is also the fact of his good character, attested to in the references tendered on his behalf,[26] and the apparent absence of any other complaint in his 18 years of practice.
[26] Exhibit 1.
[61] For those reasons, I am unable to form the belief that Dr Pearse poses a serious risk to persons or that immediate action is necessary to protect public health and safety.
[62] I allow the application and set aside the conditions.
Costs
[63] The issue of costs is reserved, each party has liberty to apply.
Non-publication order
[64] Each party made an application before the Tribunal for orders pursuant to s 66 of the QCAT Act in respect of the non‑publication of certain matters. Dr Pearse also sought an order under s 90 for a closed hearing.
[65] Section 66 of the QCAT Act provides that
(1)The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order –
(a)the contents of a document or other thing produced to the tribunal;
(b) evidence given before the tribunal;
(c)information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
[66] The Tribunal may make such an order only if it considers the order is necessary, relevantly here, “for any other reason in the interests of justice”.[27]
[27] QCAT Act, s 66(2)(e).
[67] Section 90 of the QCAT Act provides that:
(1)Unless an enabling Act ... provides otherwise, a hearing of a proceeding must be held in public.
(2) However, the tribunal may direct a hearing or a part of a hearing to be held in private if the tribunal considers it is necessary –
…
(e) for another reason in the interests of justice.
[68] There is no doubt that the matters which have been raised and agitated in these proceedings have had an impact upon Dr Pearse professionally. Notwithstanding that, the clear intent of the QCAT Act is that matters such as these, generally, as with those in courts, the proceedings of the Tribunal will be public and records of the proceedings will be available.
[69] I am also mindful of the fact that there is now extant a disciplinary referral before the Tribunal in which all of these matters will similarly be aired.
Although having allowed Dr Pearse’s application to set aside the conditions imposed by immediate action taken under s 156, I am not of the view that it is in the interests of justice that there be a non‑publication order or that the proceedings be closed under s 90. In reaching that conclusion I have considered R v edical Board of Australia[28] and I v Medical Board of Australia where de‑identification orders were made. There were in each of those matters different considerations leading to such an order. In the former there were particular considerations as to the ability of members of the public to identify complainants if the doctor himself was identified, this was because of the small size of the community in which he practiced. In I there was another matter which intervened, which was section 71A of the Evidence Act 1929 (SA) which had particular application given that the doctor there had been charged with criminal offences.
[28] [2013] WASAT 28.
[71] Separately, the Board makes application for a non‑publication insofar as the complainants’ identities is concerned. The information provided to the Tribunal in regards to the complainants is of a personal and sensitive nature. In my view, it is appropriate that an order be made under s 66 prohibiting the publication of information that may enable the complainants to be identified.
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