Physiotherapists Board of Australia v Dopson
[2014] QCAT 458
•8 August 2014 (ex tempore)
| CITATION: | Physiotherapists Board of Australia v Dopson [2014] QCAT 458 |
| PARTIES: | Physiotherapists Board of Australia (Applicant/Appellant) |
| v | |
| Troy Dopson (Respondent) |
| APPLICATION NUMBER: | OCR327-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5, 6, 7 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Ms Amy Fagan Mr David McKenzie Mr Steven Purcell |
| DELIVERED ON: | 8 August 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following conditions are imposed on the registrant’s registration: a. Prior to resuming practice in Australia, the registrant’s performance in musculoskeletal and cardio-respiratory physiotherapy practice must be assessed by an independent physiotherapist. The: i. assessing physiotherapist is to be chosen by the registrant from a panel of three (3) physiotherapists nominated by the Australian Physiotherapy Council; ii. assessment(s) is to be conducted with reference to entry level physiotherapy standards as published in the Australian Physiotherapy Council’s ‘Australian Standards for Physiotherapy’; and iii. costs of the assessment are to be borne by the registrant. b. If the assessments referred to in condition (a) do not establish that the registrant meets entry level physiotherapy standards then the registrant must submit a supervised practice plan to the Board for approval providing for: i. the engagement by the registrant (at his own expense) of a physiotherapist approved by the Board to act as his supervisor, for the purpose of developing and reinforcing the registrant’s understanding of, and competency in, musculoskeletal and cardio-respiratory physiotherapy; ii. the supervision to comprise, at a minimum, observed clinical practice, feedback and case discussions for four (4) hours per week for two (2) months; iii. the nature and level of supervision to thereafter be adjusted as recommended by the supervisor; iv. the supervisor to provide written reports to the Board every month detailing the nature of the supervision performed and any concerns the supervisor may have. c. The supervisor referred to in condition (b): i. must be senior to the registrant by either years of experience or by position; ii. must be nominated in writing by the registrant; iii. must agree to the nomination; iv. must be approved in writing by the Board (or its delegate); and v. may be engaged, whether as owner, director, partner or employee, in the same practice as the registrant. d. Should the supervising relationship terminate (for any reason), the registrant will provide a new nomination to the Board (or its representative) in the same terms as condition (c). Such nomination must be made by the registrant within seven (7) days of him becoming aware of such termination. e. The registrant authorises the Board (or its representative) to exchange information at such time or times as the Board (or its representative) shall determine for the purposes of monitoring compliance with these conditions. f. The registrant’s performance in musculoskeletal and cardio-respiratory physiotherapy practice must be assessed, at a time considered appropriate by the registrant’s supervisor, but in no less than three (3) months from commencement of the supervised practice prescribed by the supervised practice plan and condition (b). The: i. assessing physiotherapist is to be chosen by the registrant from a panel of three (3) physiotherapists nominated by the Australian Physiotherapy Council; ii. assessment is to be conducted with reference to entry level physiotherapy standards as published in the Australian Physiotherapy Council’s ‘Australian Standards for Physiotherapy’; and iii. costs of the assessment are to be borne by the registrant. g. Within seven (7) days of changing employer and/or place of practice, the registrant will advise the Board of the change in writing. h. Upon resuming practice in Australia the registrant must notify the following persons of these conditions in writing within seven (7) days of their imposition: i. any employer, CEO (or equivalent), partner or registered practitioner of any health care facility where the registrant works; ii. every person who is or may be responsible for booking consultations with the registrant; iii. locum, recruitment or other agencies with whom the registrant is registered; and iv. other entities the registrant contracts with to provide a physiotherapy service. i. The registrant must inform the Board (or its representative) of the name/s of the person/s described in condition (h) that he has notified of these conditions in writing within seven days. j. The registrant must comply with conditions (h) and (i) before changing his position, employment or practice for so long as these conditions remain imposed upon the registrant’s registration. k. The registrant authorises the Board (or its representative) to contact and exchange information with each current and future employer, supervisor or mentor, colleague, employee, within Australia, in their practice and/or all persons who are or may be responsible for booking consultations. This contact and information exchange shall be at such time or times as the Board (or its representative) shall determine, for the purpose of monitoring compliance with these conditions. l. The registrant authorises the Board (or its representative) to inspect, take or copy such clinical records at such time or times as the Board (or its representative) shall determine for the purpose of monitoring compliance with these conditions. These may include (but are not limited to) patient files and appointment diaries. In the case of copies of records, the registrant will provide these to the Board (or its representative) at their own expense. 2. The registrant may not apply for review of these conditions until completion of the assessments nominated by condition (f), or for a period of 12 months, whichever is the earliest. 3. The disciplinary action and conditions imposed on the registrant’s registration must be recorded in the Board’s register for the period for which the conditions are in force. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where it is alleged the respondent’s professional conduct is below the standard reasonably expected of a physiotherapist – where the respondent undertook a number of assessments – where the assessment reports outlined the respondent’s deficiency – where the respondent alleged the reports were written dishonestly by the authors under duress from Queensland Health – whether grounds for disciplinary proceedings are established – whether it is necessary and appropriate to impose condition upon the registrant’s registration Health Ombudsman Act 2013 (Qld), s 314(2) Fletcher v Queensland Nursing Council [2011] 1 Qd R 111 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr C Wilson instructed by Moray & Agnew Lawyers |
| RESPONDENT: | Mr T Dopson was self-represented |
REASONS FOR DECISION
Troy Steven Dopson is a physiotherapist registered to practice in Australia, although he has, since early 2013, practiced as a physiotherapist in Hong Kong.
The Physiotherapy Board of Australia has brought disciplinary proceedings against Mr Dopson pursuant to s 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld). By operation of s 314(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal can continue to hear and determine the proceedings under the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’), as if that Act had not been repealed.
The Board alleges that Mr Dopson has engaged in unsatisfactory professional conduct as defined in paragraphs (a) and (b) of the definition of that expression contained in the dictionary set out in the schedule to the Disciplinary Proceedings Act. Those paragraphs define unsatisfactory professional conduct to include:
(a)professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers; and
(b)professional conduct that demonstrates incompetence or a lack of adequate knowledge, skill or judgment or care in the practice of the registrant’s profession.
The matters which give rise to these proceedings first came to the attention of the then Physiotherapists Board of Queensland through two letters, each dated 19 June 2009, from two separate officers of Queensland Health.
One was from Mr Brett Bricknell, then the Director Redland and Wynnum Hospitals, Director Allied Health Bayside Metro South Health Service District, and the other from Ms Debra O’Connor, Director of Physiotherapy, Metro South Health Service District, Bayside.
Each of these letters was written subsequent to Mr Dopson’s resignation from his employment with Queensland Health on 15 June 2009. At the time of resigning, Mr Dopson had been undergoing a disciplinary process related to concerns which his employer held over his clinical competence and work performance.
On the same day as he wrote to the Physiotherapists Board of Queensland Mr Bricknell also wrote to Mr Dopson acknowledging his resignation. In that letter to Mr Dopson, Mr Bricknell said:
As you are no longer an employee of Queensland Health, no further action will be taken in respect of the concerns regarding your clinical competence and work performance; however, a file notation will be placed on your personnel file indicating that you left this employment with a disciplinary matter pending. Accordingly, you should be aware that should you return to employment with Queensland Health in the future, this disciplinary process may recommence.
Mr Dopson asserts that in writing to the Physiotherapists Board on 19 June 2009, Mr Bricknell acted contrary to his letter to Mr Dopson of the same date. That is, he construes Mr Bricknell’s statement to him that no further action would be taken in respect of the concerns regarding his competence and performance as asserting that no action at all would be taken. He considers that writing to the Board was action taken contrary to that assertion.
Mr Bricknell says that the statement as to no further action being taken related to action in respect of Mr Dopson’s employment. He says that he considered it his duty to report the matters to the Board.
Mr Bricknell’s position should be accepted. Clearly the statement was made in the context of Mr Dopson’s resignation and his consequently no longer being an employee of Queensland Health. It is further evidenced from the further statements that his file would be noted that he left employment with a disciplinary matter pending, and that the disciplinary process may recommence should he again be employed by Queensland Health.
Each of the letters from Mr Bricknell and Ms O’Connor to the Physiotherapists Board referred to, and enclosed, reports which had been prepared and which had assessed Mr Dopson’s work at different times and in different contexts during his employment with Queensland Health.
Mr Dopson commenced employment with Queensland Health in the Bayside District after completing his physiotherapy degree in 2007. He had worked in the Bayside District as an indigenous cadet during his undergraduate years and during university holidays. This cadetship program guaranteed him a position as a physiotherapist upon graduation.
When he commenced work, his time was divided between the Casuarina Lodge Acquired Brain Injury Unit and the Redland Hospital. He worked at Casuarina Lodge three days per week from about March 2008 to July 2008. Throughout his time at Redland Hospital, Margrit Acason, a registered physiotherapist, was his supervisor. Ms Acason identified some performance issues which she raised with Ms O’Connor, the Director of Physiotherapy for the district. Ms O’Connor requested Ms Acason to write a performance report, which she did. The report was dated 17 November 2008. There is some confusion about the date as it is said to relate to the period of 1 August 2008 to 9 December 2008. In her evidence before the Tribunal, Ms Acason said that the period should have been from 25 March 2008. Nothing turns on the confusion concerning the dates.
Mr Dopson asserts that he was told by Ms Karen Besgrove that on one or more occasions Ms Acason had contacted Ms Besgrove to say that her assessment of Mr Dopson was being, or had been, compromised.
Ms Acason denied having said this to Ms Besgrove. She thought that she may have discussed organisational matters concerning Mr Dopson’s patients with Ms Besgrove, such as their non-return rates, but not her assessment of him. She said she did not consider herself compromised and always tried to be fair and reasonable.
Mr Dopson called Ms Besgrove as a witness. She gave evidence that Ms Acason did not say to her that her assessment of Mr Dopson was being compromised. Ms Acason had told Ms Besgrove that she felt anxious and wanted to do a good job.
In her assessment report Ms Acason identified a number of areas of deficiency in Mr Dopson’s performance. This assessment report was one of those provided to the Physiotherapists Board by Ms O’Connor and Mr Bricknell. When the matter was subsequently investigated by the Board, Ms Acason was requested to provide further information. She responded by correspondence dated 9 September 2009 in which she expressed the opinion that Mr Dopson did not pass entry level physiotherapy standards in regards to clinical standards and professional behaviour. She identified that his assessments of clients were incomplete, his treatment lacked clinical reasoning, few goals were set, there were no evaluations at the end of treatment and his documentation was poor.
She included specific examples of his incomplete documentation of chart entries. These included, as one example:
no time of treatment recorded; separate assessment form not signed; assessment form seldom complete - one example attached with a patient chart entry; left out date of recent operation; special question such as bladder and bowel problems; observation/posture; range of motion palpation; LSR; no goals; no signature; no goals or relevant non-functional goals set; social history was often left out; may have assessed ROM of a joint, but seldom documented that he cleared joints above and below; special tests seldom performed, however acted upon, eg, patient with knee pain and X-ray report of osteophyte on tibia was referred back to GP for urgent MRI for an acute meniscal tear, no McMurray test performed; no joint space palpated and frequently assessed strength, hardly ever documented, and neurological assessment.
Mr Dopson questioned Ms Acason about her qualifications and the fact that she does not hold a degree in physiotherapy. She holds a diploma in physiotherapy from Switzerland and became registered in Australia. If this questioning was intended to diminish Ms Acason’s credit or requisite experience to express the opinions which she has, it failed to do so.
It should be noted at this point that Mr Dopson believes that he was set up to fail in Casuarina Lodge. He considers that acquired brain injury, it being a specialised area, was an inappropriate placement for a new graduate. He claims to have been unsupported by his supervisor, Ms Jennifer Walbrock. He claims that through his efforts with a particular patient, he was proving wrong the assertions of Ms Walbrock and a therapy assistant, Ms Kennerly, that the patient’s function would not be improved through therapy. He was treated adversely by them as a consequence. It is clear that he believes that Ms O’Connor was behind the poor treatment he considers he received at Casuarina Lodge.
The patient to who I have referred gave evidence in the proceedings. He did so with the assistance of his mother. Despite his severe communication difficulties, which are a consequence of his acquired brain injury, he could understand the proceedings, and, with the assistance of his mother, articulate his views. His mother gave evidence separately. It is clear that they both hold Mr Dopson in high regard and considered that the treatment he provided the patient was beneficial, and better than that provided by Ms Walbrock and Ms Kennerly. I do not need to resolve these factual matters concerning Casuarina Lodge because, save for three matters to which I shall return, the events at Casuarina Lodge do not form the basis for the Board’s case against Mr Dopson. I do not consider that, even if Mr Dopson’s view of these events was to be accepted in full, that would diminish the Board’s case based upon Mr Dopson’s competence.
In order for the case to be diminished I would have to conclude that each and all of the various assessments of Mr Dopson’s performance were inaccurate, not genuinely reached and, indeed, as Mr Dopson alleges, the product of pressure being applied to the various authors, or deliberate falsification on their part. For reasons which I shall develop, I am unable to reach that conclusion.
In the case of Ms Acason, I found her to be a credible witness. I accept her evidence that in the preparation of her assessment of Mr Dopson, she attempted to be fair and reasonable. I accept that she undertook that task conscientiously, albeit that she may have been somewhat anxious to ensure that she performed the task well. Even if I were to accept that the assessment by Ms Acason was motivated by bad faith, particularly on the part of Ms O’Connor, I would not conclude that having been undertaken it reflects other than genuinely held views of Ms Acason.
Furthermore, after the matters were referred to the Board by Mr Bricknell and Ms O’Connor, they were in the Board’s hands, not those of Queensland Health. There is no basis upon which I would conclude that the matters were investigated other than by the Board conscientiously discharging its statutory obligations under the Disciplinary Proceedings Act. There is no basis upon which I would conclude that Ms Acason’s response to the Board’s investigation was, again, other than genuine and conscientious.
A further assessment of Mr Dopson’s knowledge and skill as a physiotherapist was conducted by Mr Paul Stankunas at the Redland Hospital between 10 December 2008 and 20 February 2009. Again, the assessment was performed at the request of Ms O’Connor. It was performed in the setting of the acute medical inpatient wards at the hospital. This was a different setting to that in which Ms Acason had assessed Mr Dopson. Ms Acason’s assessment had been conducted in the outpatient setting.
Mr Stankunas assessed Mr Dopson against the entry level standard for physiotherapists stipulated by the Australian Physiotherapy Council. He described Mr Dopson as having received one-on-one supervision, including support and a weekly performance review during the assessment period. Performance review meetings were attended by Mr Dopson, Mr Stankunas and Ms O’Connor. On several occasions, Mr Dopson also had a support person present at the meetings.
Mr Stankunas prepared a performance improvement report at the conclusion of the assessment period. The report measured and evaluated Mr Dopson’s performance against nine key areas of accountability. The report identified shortcomings in Mr Dopson’s performance as evaluated against each of those key areas. Ms Stankunas summarised his conclusions as follows:
Throughout the performance review Troy continually worked hard to improve his physiotherapy skills by acting on feedback discussed at the weekly performance improvement meetings. The final result, however, from this performance improvement plan is that Troy was unable to meet the areas of entry level competency outlined in the Australian Physiotherapy Standards.
At the meeting held between Mr Dopson, Mr Stankunas and Ms O’Connor and attended by Mr Dopson’s support person, a performance improvement plan was discussed. The plan had been prepared by Ms O’Connor. Mr Dopson was informed of the process which would follow. That included that a final report would be prepared by Ms O’Connor which would be delivered to the human resource manager in accordance with policy concerning the management of unsatisfactory performance. He was advised that he would continue in his clinical case load for the present time.
Although termed a performance improvement plan, the document prepared by Ms O’Connor essentially replicated the findings in Mr Stankunas’s performance improvement report. It appears from the document that the fifth and final column was intended to provide a time frame in which expected outcomes were to be achieved. Those expected outcomes were to have been identified in the third column. The fourth column was headed ‘performance measures’. One might ordinarily expect that those measures would be those against which it was to be ascertained whether the identified expected outcomes were achieved within the identified timeframe.
However, rather than set a plan for improvement in this way, the document prepared by Ms O’Connor seems to have been merely to record Mr Dopson’s performance in key areas as assessed by Mr Stankunas.
Mr Stankunas was also contacted by the investigator investigating the matters on behalf of the Board once they had been referred to it.
In a letter dated 9 September 2009, Mr Stankunas confirmed the matters to which I have already referred as to the process which was followed and expressed that the final outcome of his assessment was that Mr Dopson was unable to meet entry-level physiotherapy standards in the area of acute medical.
Mr Dopson asserts that in a private meeting that he had with Mr Stankunas at the completion of the assessment process, Mr Stankunas stated that he wanted to pass Mr Dopson on his assessment and that, if Mr Dopson was a student, Mr Stankunas would give him a mark of five, that is, a credit. He asserts that Mr Stankunas told him, however, that Ms O’Connor would fail Mr Dopson and that her report would override his own and that Mr Dopson should, therefore, resign as the matter would only end in one way. Mr Dopson deposed to those matters in an affidavit on 31 October 2012.
In that affidavit, he said that two weeks following the meeting, Mr Dopson asked Mr Stankunas if he was still going to pass him and Mr Stankunas said that he had never said that he would. When this was put to Mr Stankunas in cross-examination, he denied that he had made the statements asserted by Mr Dopson. He did not say at any stage that Mr Dopson would be passed. He said that he and Mr Dopson had discussed that it was a stressful process to go through and that, rather than doing so, it may be easier to resign. This was the course which Mr Dopson ultimately followed, but some four months later.
I prefer Mr Stankunas’s evidence. As I have observed, Ms O’Connor’s performance improvement plan was essentially an adoption of Mr Stankunas’s performance review report. If matters were as Mr Dopson asserts Mr Stankunas stated them to be, that is, that his favourable report would simply be overridden by an unfavourable report by the senior officer, Ms O’Connor, then there would be no need for Mr Stankunas to write an unfavourable report himself. The inevitability which Mr Dopson says Mr Stankunas foreshadowed would simply have come about. There would be no need for him to compromise himself by writing an unfavourable report which was contrary to his genuinely held views.
In his submissions filed on 7 December 2012, Mr Dopson asserted that Mr Stankunas had made comments to him that indicated to Mr Dopson that Mr Stankunas had been pressured by Ms O’Connor to fabricate allegations of inappropriate touching of patients in his report but that Mr Stankunas had refused to do so. Mr Dopson believes that others have fabricated such allegations and have been pressured to do so by Ms O’Connor so as to maintain a theme of inappropriate touching of patients without their consent first raised by Ms Walbrock concerning Mr Dopson’s time at Casuarina Lodge.
These alleged comments were not put to Mr Stankunas. I do not accept that he made them. Nor do I accept that Ms O’Connor made such an approach to him. I accept that Mr Stankunas’s report was prepared after he had conscientiously assessed Mr Dopson’s performance in the acute medical setting and that his conclusions were genuinely held.
Following the report of Mr Stankunas, Mr Bricknell and Ms O’Connor arranged, with the agreement of Mr Dopson, for him to undergo a four-week period of assessment by the physiotherapy department of the Logan Hospital. This was intended to ensure that there was independence to the process of Mr Dopson’s assessment.
At the Logan Hospital, Mr Dopson was assessed by Mr Gregory Fell in a musculoskeletal outpatient setting, and by Mr Bradley Lynch in an acute inpatient setting. Mr Fell’s assessment was conducted over the period from 6 April to 17 April 2009. It was conducted against the entry-level physiotherapy standards. The patients selected for the assessment were considered by Mr Fell to be appropriate for a new graduate physiotherapist to assess and treat.
Mr Fell found Mr Dopson to be deficient against each of the nine standards. His findings were contained in a report dated 21 May 2009. In a letter to the Board’s investigators dated 7 September 2009, he expressed the view that his report indicated that Mr Dopson did not meet a number of entry-level physiotherapy requirements.
In cross-examining Mr Fell, Mr Dopson directly challenged him on a number of matters contained in his report. Particularly, he challenged Mr Fell’s statement that on two occasions, he, Mr Dopson, partially undressed, or attempted to undress, a patient without consent. This involved, on Mr Fell’s version, on one occasion the unbuttoning of a patient’s blouse. He says the second occasion occurred on the day following that first occasion. Mr Dopson had been informed that his conduct was inappropriate after that first occasion. Mr Dopson also challenged Mr Fell in relation to his statement in his report that Mr Dopson had treated, in an inappropriate and potentially unsafe way, an acute post anterior shoulder dislocation patient by giving end-range shoulder external rotation exercises to be performed and suggesting the patient apply self-overpressure to cervical spine lateral flexion.
He also challenged Mr Fell on his reporting of Mr Dopson not draping female patients. He put to Mr Fell that he had fabricated these matters. The suggestion of fabrication was denied by Mr Fell. I reject the suggestion of fabrication.
Apart from the generalised suggestion that Mr Fell, like others, was a Queensland Health employee, Mr Dopson advances no sensible or logical basis as to why Mr Fell or others would fabricate such matters. There is no other evidence from which one might infer that Mr Fell would fabricate these matters.
Mr Fell presented as a credible witness. He readily conceded matters which otherwise favoured aspects of Mr Dopson’s case. Particularly, he said that he did not consider it unreasonable for a physiotherapist to have with him, when being assessed, the performance treatment sheets which he would ordinarily use in practice which may contain prompts. Mr Dopson had requested to use such sheets in a later assessment performed by Mr Patrick Swete Kelly, but his request had been refused.
Mr Fell also said that he did not consider treatment of the sacroiliac joint to be entry-level physiotherapy. Again, this was relevant to a challenge which Mr Dopson made to Mr Swete Kelly’s assessment. He acknowledges some improvement in Mr Dopson over the course of the assessment period in some areas.
I accept that Mr Fell’s opinions expressed in his assessment were genuinely held after having conscientiously assessed Mr Dopson.
Mr Lynch also assessed Mr Dopson against entry-level physiotherapy standards. His assessment was conducted between 20 April and 1 May 2009. He also considered the patients selected as being appropriate for assessment by a new graduate. Mr Lynch also found Mr Dopson to be deficient against a number of the standards.
Mr Lynch’s report also referred to two occasions when consent was not obtained from patients. The first involved Mr Dopson retying a patient’s robe cord from behind. The other involved him placing his hands laterally on the chest wall of a patient. In respect of the former, it was suggested by Mr Dopson that this was ridiculous. He conceded that he had retied a patient’s robe but that it had been from the front. He says that Mr Lynch had told him at the time that it may have been assault. Mr Lynch does not recall saying anything about an assault. However, if it was said, no matter whether the tying occurred from in front or behind, it does suggest that it occurred without the consent of the patient.
Mr Dopson accused Mr Lynch of fabricating each of those allegations. Mr Lynch refuted the accusation.
Again, I accept Mr Lynch’s denial. Whilst Mr Dopson accused him of having fabricated those matters under duress, there is no logical basis upon which I could find that duress could have been or was applied to Mr Lynch. The lack of a logical basis upon which to make such a finding was highlighted in the evidence of Mr Bricknell who was called as a witness by Mr Dopson. It was suggested to Mr Bricknell that he had influenced Mr Lynch. Mr Bricknell frankly stated that he did not know Mr Lynch.
Mr Dopson attempted to link an absence on sick leave of his supervisor for the inpatient component referred to in an email from Mr Bricknell of 19 May 2009 to some moral dilemma being faced by Mr Lynch. The attempt, in my view, entirely failed. Mr Lynch could not recall the absence, but there is no possible basis to infer that it was because he was having a dilemma as to whether he should fabricate his assessment report.
I accept the accuracy of Mr Lynch’s report. The challenge to it was that it was fabricated. Mr Dopson even suggested that Mr Lynch included positive comments in the report, also as a fabrication, to give an air of impartiality. The basis for this suggestion was that the daily notes, which Mr Lynch took, were almost entirely negative. Mr Lynch refuted that suggestion. I do also.
It is entirely understandable that in taking notes on a daily basis, Mr Lynch would make a note of matters of deficiency. That is not at all inconsistent with him including positive comments when he came to write a report of an assessment against the standards. Whilst the matters of deficiency he included in his notes would be expected to feature in his report, so too would be other matters which he could independently recall. If those matters included positive observations, one would expect their inclusion. I do not understand Mr Dopson to say that he does not possess the positive attributes, or did not conduct himself in the positive ways, as referred to by Mr Lynch in his report.
Ms Wendy Rintala is, and was at the relevant time, Director of Physiotherapy at the Logan Hospital. She prepared a report dated 21 May 2009 summarising and synthesising the two assessment reports of Mr Fell and Mr Lynch. For that reason, her evidence would add little to the proceedings had it not been for the suggestion made to her by Mr Dopson that she had applied pressure upon Mr Lynch to make his statement, that is, his statement which Mr Dopson considers a fabrication.
Ms Rintala denies the suggestion. Again, there is no reason why her denial should not be accepted. There is no evidence from which it could be inferred that she applied pressure upon Mr Lynch to make a false statement.
By now, it will have been noticed that Mr Dopson attempted to establish, without evidentiary foundation to do so, falsification of Mr Lynch’s report by improper influence having been exerted by each of Mr Bricknell and Ms Rintala.
Dr Shaun O’Leary is a highly qualified physiotherapist. He holds a Masters in Physiotherapy (Musculoskeletal) and Doctorate of Philosophy. He lectures at the University of Queensland in physiotherapy and in the musculoskeletal masters program. He is a principal research fellow with the Department of Health.
In November 2009, he was requested to prepare a report for the Physiotherapists Board by the appointed investigator. The report was prepared from a review of material provided to Dr O’Leary. From that review, Dr O’Leary identified that several elements of Mr Dopson’s practice failed to achieve entry level physiotherapy standards and that some of those elements raised safety concerns. In particular, he identified as safety concerns:
inefficient communication regarding factors such as irritability; poor understanding of when neurological assessment was indicated and incomplete neurological examination; lower limb operative patients not assessed for DVT; nonspecific and inappropriate exercise, for example, post-ACL reconstruction; inappropriate and potentially unsafe treatments being given to treatments, that is end range external rotation being given to acute post-anterior shoulder dislocation; failure to acknowledge obvious communication signs from patients; poor discharge planning; poor assessment of ambulatory capacity; poor assessment of management of cardiorespiratory patients; questionable infection control practice; significant lack of clinical reasoning.
In my view, Dr O’Leary’s report was measured. He particularly noted that at the time of the assessment, Mr Dopson had no greater than 12 to 18 months experience which, he emphasised, had been divided over a number of fields such that he had minimal experience in any one field. He also observed that whilst he felt that there were significant deficiencies identified in the reports of the various physiotherapists who had assessed Mr Dopson, he thought that there may have been some aspects which had been pitched at a level which was too high for Mr Dopson’s level of experience. In that regard, he identified:
understanding of yellow flags and relevance to prognosis; specific individualisation of management programs; specific elements of knowledge about conditions; being able to provide examples from literature regarding evidence-based approach.
He suggested that Mr Dopson required time in supervised practice to gain further experience and exposure to various conditions to develop his skills, particularly with regard to clinical reasoning and patient management.
Dr O’Leary further suggested that after a period of supervised practice, Mr Dopson again be assessed against entry level standards, but by examiners experienced with the process at that level. He suggested, as an example, Australia Physiotherapy Council examiners.
Dr O’Leary gave evidence in the proceedings. I found him to be a considered and impressive witness. He had been provided the report of Mr Swete Kelly from an assessment conducted by Mr Swete Kelly in 2012. He considered the neurological examination reported in that report to be deficient. Dr O’Leary remained of the view that a period of supervised practice, followed by assessment against entry level standards, was an appropriate course to follow.
He suggested that the supervision should be for a number of hours per week. The duration of the supervision period would be dependent upon the observations of Mr Dopson’s supervisor.
He considered that an assessment should be conducted over a number of patients. He felt that an assessment was best conducted with the physiotherapist using blank pages rather than pages containing prompts. Whilst it was common practice to use such prompts in practice, it was, in Dr O’Leary’s view, not so in an examination context.
Mr Patrick Swete Kelly conducted an assessment of Mr Dopson on 30 August 2012. Attempts to have Mr Swete Kelly conduct the assessment had been ongoing for approximately six months before it was conducted. There were issues associated with arranging the assessment which caused delay. Mr Swete Kelly was to conduct an assessment in respect of musculoskeletal physiotherapy. A cardiorespiratory physiotherapy assessment would be conducted by another physiotherapist.
Mr Dopson’s imminent departure from Australia imposed a level of urgency to have the assessment conducted.
Mr Dopson had agreed to an assessment. His only concern was that it be independent. He did not want it to be conducted at Queensland Health premises or by Queensland Health employees. Subsequent to the assessment he discovered that although Mr Swete Kelly practiced privately, he also worked for Queensland Health. Mr Dopson clearly considered this to be in breach of the terms upon which he agreed to undergo the assessment. He does not consider Mr Swete Kelly to be independent.
Furthermore, in correspondence from the Board’s solicitors seeking his agreement to the assessment, it had been said that:
The proposed assessment is of your current competence and does not involve any consideration of the history or subject matter of the complaint whatsoever.
Mr Dopson interpreted this to mean that the assessor would not be provided any information concerning Casuarina Lodge or the previous performance assessments. Whilst I do not consider that the only interpretation which was open, particularly given that the correspondence went on to say:
In our view, having the performance assessment conducted in an hospital you have no experience with and by physiotherapists who will be selectively briefed and bound by an overriding duty to assist QCAT does not present any conflict of interest
it was an interpretation which was open; and clearly the one which Mr Dopson reached.
Mr Dopson’s concerns about the independence of Mr Swete Kelly’s assessment and his suspicions in that regard were exacerbated when, in the course of Mr Swete Kelly giving evidence, it became apparent that the patient upon whom the assessment was performed was a person known to Mr Swete Kelly, an expert in anatomy, and a physiotherapist. It was also apparent that Mr Swete Kelly had had some discussions with the patient concerning the treatment provided by Mr Dopson after the assessment and in the absence of Mr Dopson.
Mr Dopson had also discovered that Mr Swete Kelly worked in a practice of which a current director is a former member of the Queensland Board.
In my view, it is unfortunate, but understandable, how the patient came to be arranged. Also, I have had the benefit of hearing from the patient himself. Mr Dopson called him as a witness.
I am satisfied that he did have a genuine history of lower back pain, the condition addressed in the assessment, and that he was episodically symptomatic at that time.
I am satisfied that he conscientiously applied himself to the task as a patient, not as a physiotherapist. He participated and responded genuinely in the course of the assessment. Most importantly, I am satisfied that he and Mr Swete Kelly did not collude or conspire to contrive a difficult assessment or adverse outcome for Mr Dopson.
For all of that, Mr Swete Kelly’s report has limitations. Those limitations are frankly acknowledged by Mr Wilson of counsel for the Board. It was only conducted in respect of one session with one patient.
In my view, Mr Swete Kelly’s report serves to support the findings made in the assessments made in 2008 and 2009 in that it identifies that Mr Dopson had still not obtained entry level standard in some areas. It also serves to support the appropriateness of a period of supervised practice followed by further assessment against entry level standards.
Mr Dopson provided a detailed response to Mr Swete Kelly’s assessment in which he acknowledged some deficiencies as observed by Mr Swete Kelly and offered some explanation for them. Some of those explanations were understandable in the context of the assessment. In his response, Mr Dopson also challenged many of Mr Swete Kelly’s observations and conclusions.
In the end, Mr Dopson believes that Mr Swete Kelly leapt to a conclusion that he had no rationale for not performing certain assessments or treatments, and that he lacked knowledge. He believes that Mr Swete Kelly attempted to support those conclusions by stating that the treatment provided was ineffective or inappropriate. Mr Dopson believes that Mr Swete Kelly did this because he is a Queensland Health employee who had reviewed the material provided to him.
In my view, the Board has established a disciplinary ground against Mr Dopson. Whilst the Board has particularised essentially all of the deficiencies identified in the assessments of Mr Fell and Mr Lynch, it is not necessary for the Board to make out all of those matters in order to establish a disciplinary ground: see Fletcher v Queensland Nursing Council [2011] 1 Qd R 111, per Muir JA at 120 and Chesterman JA at 133. It is also unnecessary to make individual findings about those matters.
The extent to which any of the matters contained in those assessment reports has been challenged has been limited. In most part, the challenge has been on the basis that the assessments were dishonest. Having rejected that challenge, the assessments stand virtually uncontested.
In my view, the Board has established that Mr Dopson has engaged in unsatisfactory professional conduct in that his professional conduct was of a lesser standard than that which might reasonably be expected of him by the public and his professional peers. In my view, the assessment against entry level standards means that it cannot be said, save for the reservations expressed by Dr O’Leary, that an unreasonable standard of expectation has been applied.
I am not satisfied that the Board has established that Mr Dopson’s professional conduct demonstrates incompetence, however I am satisfied that it demonstrates a lack of adequate knowledge, skill or judgment in the practice of his profession. I do not consider it demonstrates a lack of care. I do not consider those findings warrant Mr Dopson being reprimanded. I do consider they warrant the imposition of conditions on his registration.
Before turning to what those conditions should be, I need first to deal with another aspect of the referral. The Board also alleges that Mr Dopson engaged in conduct whereby he taped the finger of a patient at Casuarina Lodge in the position of an obscene gesture. Mr Dopson admits this. He admitted it long ago and recognised it was inappropriate. It occurred in circumstances in which the patient also had a wig and lipstick applied. This was done by the patient’s sister. It was ill-conceived, but not malicious. The patient seems to have been a willing participant, although the Board said the patient was unable to communicate. That was not the view of the patient’s sister. Mr Dopson apologised to the patient and his family. I doubt that Mr Dopson would ever do such a thing again.
Mr Dopson also admits to having given some colleagues and a relative of a patient massages. He frankly concedes this was inappropriate. He made this concession long ago. I again doubt it is conduct he would repeat. Whilst taken together or separately, this conduct could constitute unsatisfactory professional conduct, it is not conduct for which I would, in all the circumstances, reprimand Mr Dopson.
Section 241(2) of the Disciplinary Proceedings Act requires that the Tribunal do one or more of the things set out in that section if it decides the ground for disciplinary action is established against a registrant who is registered at the time of the decision. One of those things is to advise the registrant. In respect of these further matters, I advise Mr Dopson not to engage in such conduct in the future.
In my view, the imposition of conditions upon Mr Dopson’s registration is necessary and appropriate having regard to the purposes of disciplinary action as set out in s 123 of the Disciplinary Proceedings Act; particularly to protect the public and to uphold the standards of practice within the profession of physiotherapy.
I hold this view for three principal reasons. First, the assessments of Ms Acason, Mr Fell and Mr Lynch conducted in 2008 and 2009 demonstrate a consistent pattern of deficiencies over a range of areas of physiotherapy practice measured against entry level standards. Secondly, even allowing for the limitations of Mr Swete Kelly’s assessment and Mr Dopson’s explanations for them, it demonstrates that such deficiencies remained present three years later, notwithstanding continued practice throughout that time. Thirdly, the evidence in these proceedings does not persuade me that Mr Dopson’s continued practice in the period since Mr Swete Kelly’s assessment has ameliorated or removed the need for supervised practice and further assessment identified by both Dr O’Leary and Mr Swete Kelly. Mr Dopson’s evidence concerning his continued professional development suggests that his undertakings in that regard have been limited. There is little evidence but for his own about his current level of professional capacity.
Perhaps most troubling in this regard is Mr Dopson’s continued lack of insight into his own professional shortcomings and need for improvement. This lack of insight was demonstrated in these proceedings by his consistent inability to accept that any assessment made of him was objective. Rather, he discounts all such assessments as fabrications or the product of a conspiracy, as he puts it, to tear him down.
The Board has proposed conditions by way of draft orders. Conditions 1, 2 and 3 as proposed by the Board all relate to Mr Dopson undertaking courses in musculoskeletal and cardiorespiratory physiotherapy in Australia and as approved by the Board prior to his resuming practice in Australia. I do not consider those conditions are warranted on the evidence.
The Board separately seeks a condition that before resuming practice in Australia Mr Dopson should be assessed against the entry-level standards. In seeking that condition, it submits that Mr Dopson may be assessed as meeting those standards on that first occasion, in which case there will be no need for further conditions such as supervised practice. Implicit in that submission is an acceptance that Mr Dopson may, at the relevant time, be able to display competency. If that is so, then he should not be required to undertake two courses which might be proven to have been unnecessary. I do not understand the Board to have contended that Mr Dopson could never be found to meet entry-level standards unless he completed those courses.
The draft provided by the Board did not include reference to an initial assessment prior to entering supervised practice; however, I am persuaded that it is an appropriate first step, provided that it does not operate as a barrier to entering supervised practice. The Board concedes that if Mr Dopson passes that initial assessment, there would be no need for further supervised practice.
That concession means that such a condition may work in Mr Dopson’s favour. However, to address Mr Dopson’s concern as to independence, the assessor should be selected by Mr Dopson from a panel of three nominated by the Australian Physiotherapy Council. On Dr O’Leary’s evidence, this should be easily facilitated. The assessor who conducts the further assessment at the conclusion of the period of supervised practice, should that be necessary, should be selected in the same way.
The Board seeks its costs. It originally proposed to deal with these matters internally by way of a disciplinary committee. When notified of this, Mr Dopson, as he was entitled to do, elected to have the matters referred to QCAT. Having done so, it is appropriate the Board have its costs of the proceedings in the Tribunal. It has been successful. None of its costs would have been incurred if the matter was dealt with by a committee. Mr Dopson has put the Board to proof on its case, given the challenges which he has made to the veracity of the assessments upon which the Board relied.
For all these reasons, the Board should have its costs as assessed on a standard basis on the District Court scale.
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