Podiatry Board of Australia v AB

[2024] QCAT 458

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Podiatry Board of Australia v AB [2024] QCAT 458

PARTIES:

PODIATRY BOARD OF AUSTRALIA

(applicant)

v

AB

(respondent)

APPLICATION NO/S:

OCR008-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 October 2024

20 February 2025 (reasons)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Ms A Downey-Smith
Ms K McEntegart
Mr M Halliday

ORDERS:

1. In respect of grounds 1 and 2 of the referral, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) the respondent has behaved in a way that constitutes professional misconduct.

2. In respect of ground 3 of the referral, pursuant to s 196(1)(b)(ii) of the National Law, the respondent has behaved in a way that constitutes unprofessional conduct.

3. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.

4. Pursuant to s 196(2)(b) of the National Law, conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.

5. Pursuant to s 196(2)(c) of the National Law, the respondent must pay a fine of $4,000 to the Podiatry Board of Australia within six (6) months of the date of this decision, failing which the Tribunal will reconvene to reconsider the sanction.

6. Pursuant to s 196(2)(d) of the National Law, the respondent’s registration is suspended for four (4) weeks, commencing eight (8) weeks from the date of this decision.

CATCHWORDS:

PROFESSIONS AND TRADES — OTHER HEALTHCARE PROFESSIONALS — DISCIPLINARY PROCEEDINGS — where the respondent is a podiatrist — where the respondent practised without professional indemnity insurance — where the respondent made inaccurate declarations to Ahpra — where the parties jointly submitted the respondent took reasonable steps to prevent future occurrence of the conduct — where the respondent cooperated in the investigation process and displays a significant level of insight and remorse — whether the conduct constitutes professional misconduct or unprofessional conduct — what is the appropriate sanction — where the respondent is reprimanded — where the respondent is fined — where conditions are imposed upon the respondent’s registration — suspension of registration

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The Podiatry Board of Australia (‘Board’) referred the matter of the respondent’s conduct to the Queensland Civil and Administrative Tribunal (‘Tribunal’) pursuant to the Health Practitioner Regulation National Law (Queensland) (‘National Law’) on 8 January 2024. 

Background

1. At all material times, the respondent was registered as a podiatrist and was required to comply with the previous code of conduct (in place from 17 March 2014 to 29 June 2022) (‘Code’) and the Board’s Registration Standard: Professional Indemnity Insurance Arrangements (1 July 2016) (‘PII Standard’). 

2. The particulars of the conduct in question are that between 14 August 2015 and October 2017, the respondent was employed as a podiatrist at a podiatry clinic.  During that employment, he did hold professional indemnity insurance through Guild Insurance, paid under a group insurance obtained by his employer. 

3. On or about 21 October 2017, he practised as a podiatrist and was the owner and/or director of his own clinic in north Brisbane.  Between those dates, he did not hold professional indemnity coverage with any insurance provider and practiced as a podiatrist without such arrangements in place. 

Submissions

1. The parties have provided joint written submissions.  The grounds are as follows:

   (a)ground one relates to the failure to have appropriate professional indemnity insurance;

   (b)ground two relates to the fact that the respondent made declarations to Ahpra when applying to renew his general registration to practice as a podiatrist which were inaccurate and/or in circumstances where he was reckless as to the accuracy of the declarations; and

   (c)ground three relates to conduct in that he breached s 131 of the National Law by failing to advise the Board of a relevant event within seven days. Not holding professional indemnity insurance is a relevant event pursuant to section 130(3)(iii) of the National Law. Eventually, the respondent did advise Ahpra in February 2022 of the relevant event but failed to do so within the required time.

2. The parties agree that the first two grounds constitute professional misconduct and ground three is unprofessional conduct.  The Board accepts that the behaviour was reckless, rather than deliberate, but the parties agree that, as a registered podiatrist, the practitioner ought to have been aware of his responsibilities.  The parties agree the Board bears the onus of proof and they have satisfied the Tribunal of the relevant facts and matters on the balance of probabilities in accordance with the Briginshaw Test.[1] The parties agree the main guiding principle of the administration of the National Law is that the health and safety of the public are a paramount consideration. The parties are in agreement on all the facts and the appropriate characterisation but concede that it is ultimately a matter for the Tribunal to exercise its discretion.

   [1]Briginshaw v Briginshaw (1938) 60 CLR 336.

3. In relation to ground one, the Board submits, and the practitioner agrees, that there is a strong body of authority indicating that a practitioner’s failure to hold adequate professional indemnity insurance comfortably satisfies requisite thresholds for professional misconduct.  Even in circumstances where the failure to hold the insurance was a consequence of inadvertent oversight of an administrative nature.  In considering the matter, the Tribunal must assess the degree of seriousness of the practitioner’s conduct and should consider whether there is more than one incidence of unprofessional conduct. 

4. Both parties agree that the practitioner’s conduct undermines public confidence in health practitioners and that the public must be confident that practitioners hold adequate insurance so that the practitioner is liable for any loss or damage, as opposed to the patient themselves or the public. 

5. The joint submission cites a number of cases, which the Tribunal reads, understanding the caveat that other cases are for the purpose of guidance and that each case must be considered afresh on its own facts.  The cases here have provided a good outline of the types of sanction that have been ordered in the past by the Tribunal here and in other jurisdictions.  Without going into those cases in any detail, they are comparable to the cases here, except for one fact, that the parties agree that the practitioner’s conduct here may be seen as more serious because he was without insurance for a substantially longer period of time. 

6. In respect of ground three, the parties submit the practitioner did not deliberately mislead the Board into believing he held insurance cover, but that ignorance to the fact that he did not hold that cover is not a reasonable excuse.  The Tribunal accepts that.  The parties agree that not only has the practitioner admitted to the conduct, but he also acknowledges the importance of honest dealings with the Board and the parties submit that the practitioner’s expression of insight in the circumstances is clear indication of his good character. 

7. The Tribunal must determine that the practitioner has behaved in a way that constitutes professional misconduct, and although the parties agree, that has to be an independent opinion by the Tribunal.  However, it would be unusual for the Tribunal to depart from the agreed submissions and sanctions unless there was a justification for doing so.  As the practitioner is registered, the Tribunal may make an order to:[2] 

   (a)caution or reprimand the practitioner;

   (b)impose a condition on the practitioner’s registration;

   (c)impose a fine of not more than $30,000 payable to the board;

   (d)suspend the practitioner’s registration for a specific period;

   (e)cancel the practitioner’s registration;

   (f)disqualify the practitioner from applying for registration for a specific period;

   (g)prohibit the practitioner, either permanently or for a stated period, from providing any health service or a specified health service or using any title or a specified title; and/or

   (h)impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the practitioner.

   [2]Health Practitioner Regulation National Law (Queensland) ss 196(2), (4).

8. The parties agree the practitioner self-notified on realising he had not maintained adequate professional indemnity insurance and made numerous attempts to successfully obtain retroactive cover.  He has undertaken education regarding the standards required for professional indemnity insurers.  He has joined the Australian Podiatry Association to ensure he remains up-to-date on the developments of the profession and his insurance obligations.  He has updated his practice policies and procedures to ensure that hard copies of his policy wordings are placed at reception and are at front of mind at all times.  He has confirmed that his broker has also set up a bring-up system and automatic renewals are in place.  He implemented a bring-up system to ensure nothing is missed.  The parties submit that practitioner has taken reasonable steps to ensure the conduct of this nature does not occur again.  He has cooperated in the investigation process and has displayed a significant level of insight and remorse. 

Orders

1. In all those circumstances, the Tribunal finds that:

2. In respect of grounds 1 and 2 of the referral, pursuant to s 196(1)(b)(iii) of the National Law the respondent has behaved in a way that constitutes professional misconduct.

3. In respect of ground 3 of the referral, pursuant to s 196(1)(b)(ii) of the National Law, the respondent has behaved in a way that constitutes unprofessional conduct.

4. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.

5. Pursuant to s 196(2)(b) of the National Law, conditions are imposed on the respondent’s registration in the form of Annexure A to this decision.

6. Pursuant to s 196(2)(c) of the National Law, the respondent must pay a fine of $4,000 to the Podiatry Board of Australia within six (6) months of the date of this decision, failing which the Tribunal will reconvene to reconsider the sanction.

7. Pursuant to s 196(2)(d) of the National Law, the respondent’s registration is suspended for four (4) weeks, commencing eight (8) weeks from the date of this decision.

Annexure A

The conditions sought by the Board to be imposed on the Practitioner as sanction (d) are as follows:

1.1  The practitioner must provide a certificate of currency in respect of appropriate professional indemnity insurance coverage to the Podiatry Board of Australia (‘Board’) and/or the Australian Health Practitioner Regulation Agency (‘Ahpra’):

(a)on an ongoing annual basis, by 30 November each year; and

(b)within seven days of the policy anniversary date.

1.2  The practitioner is to provide to Ahpra the name of his professional indemnity insurer, together with an acknowledgement that Ahpra may contact the professional indemnity insurer for verification:

(a)within 14 days of the notice of the imposition of these conditions; or

(b)within seven days of any change to his professional indemnity insurer.

1.3  All costs associated with compliance with the conditions on his registration are at the practitioner’s own expense.