The Registrant v A Health Profession Board of Austraia - [2013] QCAT 485

CITATION:

The Registrant v A Health Profession Board of Austraia [2013] QCAT 485

PARTIES:	The Registrant (Applicant)
v
A Health Profession Board of Australia (Respondent)

APPLICATION NUMBER:

OCR312-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 August 2013

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON:

18 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Pursuant to s 345(1)(c) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (“the Act”), the orders made by the Health Practitioner Tribunal on 20 February 2006 are to be vacated from the date of this order.

2. Pursuant to s 345(1)(c) and s 241(2)(b) of the Act the conditions detailed in Annexure “A” be imposed upon the Registrant’s registration from the date of this order.

3. Pursuant to s 345(1)(c) and s 241(2)(c) of the Act, the Tribunal approves the undertaking offered by the Registrant that he will not treat any patient under the age of 18 years, except where a prudent general practitioner would consider it an emergency circumstance, and that in any such emergency circumstances the Registrant will provide to the Health Profession Board within 72 hours written notification of the emergency treatment and a copy of treatment records.

4. Pursuant to s 345(1)(c) and s 241(3) of the Act, the Registrant is not permitted to apply for review of the conditions detailed in Annexure “A” for a period of three years from the date the conditions commence.

5. Pursuant to s 345(1)(c) and 242(2) of the Act, the Health Profession Board must record:

a. the fact only of the undertaking and;

b. the fact and detail of the conditions detailed in Annexure “A” in the register for the period during which they are in force.

6. Each party bear their own costs of and incidental to this proceeding.

7. Pursuant to s 66 of the Queensland Civil and Administrative Act 2009 the publication of information that may identify the Registrant is prohibited, except for the purpose of complying with this order and the conditions on the Registrant’s registration, until further order of the Tribunal.

CATCHWORDS :

HEALTH PRACTITIONERS – LICENCES AND REGISTRATION – where the registrant was convicted of a criminal offence – where the registrant was the subject of disciplinary proceedings in the Health Practitioner Tribunal – where the registrant sought a review of the sanction imposed by the Health Practitioner Tribunal – where the registrant submitted he was unable to gain work due to requirements that the conditions be published on the Board’s register and to certain persons – whether the sanction imposed upon review should be recorded on the Board’s register – whether the Tribunal should make a non-publication order in regards to the registrant

Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 59, s 123, s 241, s 241(2), s 242(2), s 337, s 345, s 345(1)(c), s 345(5)
Health Practitioner Regulation National Law (Queensland), s 126, s 127
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 66(2)(e)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr B Wright of counsel, instructed by Spranklin McCartney Lawyers
RESPONDENT:	Mr A Forbes of DLA Piper Australia

The Registrant has filed an application for the review of conditions which currently exist in respect of his registration as a practitioner.
On 5 August 2013 the Tribunal, constituted by myself, assisted by two assessors from the Registrant’s profession and another assessor, heard the Registrant’s application. At the end of the hearing I delivered my reasons ex tempore. These are the revised reasons published with the benefit of the transcript and with references to the relevant material inserted.
The Registrant’s registration has been subject to conditions since 2 May 2003. Conditions were first imposed upon his registration by the then Health Profession Board of Queensland pursuant to s 59 of what was then the Health Practitioners (Professional Standards) Act 1999, which is now the Health Practitioners (Disciplinary Proceedings) Act 1999 (‘Disciplinary Proceedings Act’).
On 27 February 2004 the Registrant was subject to criminal proceedings which resulted in a conviction on his own plea of guilty. He was made subject to a probation order for a period of three years. As a consequence of that conviction, the Registrant was also subject to reporting obligations under the Child Protection (Offender Reporting) Act 2004. Those reporting obligations ceased on 27 February 2012.
On 20 February 2006, the then Health Practitioners Tribunal (‘HPT’) imposed conditions upon The Registrant’s registration. The conditions imposed, insofar as the substantive conditions themselves are concerned, were in the same terms as those which had been previously been imposed by the Health Profession Board of Queensland in 2003.
There were additional conditions imposed by the HPT including, by order 8, that the details of both the disciplinary action and the conditions imposed on the Registrant’s registration by the order would be placed on the Board’s register for so long as he remained registered. Order 7 of those orders permitted review of the conditions after a period of three years.
It is common ground between the parties that the Tribunal has power to review the conditions imposed, and I am satisfied that s 337 of the Disciplinary Proceedings Act confers jurisdiction upon the Tribunal to conduct this review of the order of the HPT.
Disciplinary proceedings, such as those which led to the imposition of the orders by the HPT, are protective in nature, not punitive. They are protective in the sense that their purpose is to protect the public, uphold the standards of practice within the health professions and maintain public confidence in the health professions.[1]
[1] Disciplinary Proceedings Act, s 123.
It is quite clear from the evidence before the Tribunal on this occasion that the orders have had the practical effect of impacting detrimentally on the Registrant’s ability to practise. That detrimental effect goes beyond that which is necessary to protect the public and the profession. It has become punitive.
His evidence, which is unchallenged, is that prospective employers who are otherwise willing to engage his services demonstrate a reluctance to so engage him once the conditions presently imposed on his registration are revealed. Those conditions include a condition that all employers, partners and employees of the practice are to be notified of the conditions.
The requirement to disclose the conditions to all employees within a practice in which the Registrant works has proven particularly problematic. Once informed, those employees react adversely to the Registrant. There is documentary evidence which supports the Registrant’s evidence in that regard.[2] These documents demonstrate the very fact of which he complains. That is, that prospective employers who are otherwise considering his services withdraw offers or cease to be inclined to employ him once those conditions (including particularly that all employees in the practice must also be told) are revealed.
[2]Exhibit 4, Application for review of conditions or undertakings dated 9 July 2012, attachment LH8.
Of course, the mere fact that conditions operate with this practical effect would not mean that they ought be removed or varied if they remained necessary or appropriate to achieve the protective purposes referred to above. Inherent in conditions being imposed upon a practitioners registration is that this will impact upon the practitioners ability to practice. It remains necessary and appropriate for any employer of the Registrant to be aware of the Tribunal’s order and any conditions imposed.
The Tribunal has been greatly assisted by the evidence of the Registrant’s treating psychologist, Mr Scott Bowden, and a psychiatrist, Dr Jim Rodney, to whom the Registrant has been referred and has seen at regular intervals at the behest of the Board for the purposes of reporting to the Board as to his current condition. Whilst Mr Bowden was not called to give evidence, a number of his reports provided over a period of time are in evidence before the Tribunal. Dr Rodney has also provided a number of reports over time, which are in evidence, and he gave evidence in the hearing.
In his most recent report of 8 April 2013, Dr Rodney reported on the prognosis of the Registrant as follows:
As I indicated to the Board last year, I feel there is very little evidence whatsoever that this gentleman is likely to be recidivistic with his past sexual offences. He has now reconciled and living again with his wife after a four year separation, and this appears to be a very productive experience. He enjoys being a house husband and looking after his children on a daily basis.
I can see no reason why this gentleman could not go back to adult practice. The major obstacle in the past has not been that he could get employment, but when he indicates to the supervisor or practice owner of his restrictions, they reject him because of the conditions of the Board. This then basically prevents him from returning to [practice].
He has insight into his problems about returning to [practice]. I do believe that he would require some type of refresher course and with that facility, I think he would be very safe and capable of being a competent … practitioner.
The indication provided in the previous year to which Dr Rodney referred was contained in a report to the Board dated 7 February 2012. In that report Dr Rodney said in respect of the Registrant’s prognosis,
I agree with his Psychologist, and have stated in the past, that I do not think he is at risk of reoffending in any way. In an ideal world, he could still require some supervision from a senior practitioner, but unfortunately this has become a major impediment in his life. Any applications that he makes and states these facts from the Board, basically precludes him from getting a job either privately or publicly as a … practitioner. I think the prognosis for his illness is good.
The most recent report provided by Mr Scott Bowden is dated 26 March 2013. Under the heading “Likelihood of recidivism”, Mr Bowden says,
While a relapse into former problematic behaviours cannot be completely ruled out, it is my opinion that this risk is low because of the considerable growth and changes [the Registrant] has experienced over the past several years. ... As an additional safeguard however, I would recommend that he continue with some form of ongoing accountability over the long term (e.g. periodic therapy, or a support group).
Under the heading “Suitability to return to work as a [health practitioner]”, Mr Bowden says,
As stated above, I believe the risk of sexually inappropriate behaviour and/or a return to depressive illness is low. However, I would recommend that should he return to [practice], this would ideally be initiated on a part-time basis to ensure that stress levels do not become excessive and overwhelm the coping resources he has developed.
The illnesses to which both Mr Bowden and Dr Rodney refer in their reports are not restricted to the identified illness associated with the Registrant’s offending behaviour in the past. He also has suffered considerably from depression, which has had most unfortunate impacts on his life. Fortunately, in more recent times, the medical evidence suggests that those conditions have improved markedly and do not impact upon his ability to practice.
Importantly, in his evidence to the Tribunal, Dr Rodney identified the risk of mental illness to the Registrant as presently being associated with his own mental welfare, as opposed to a risk of recidivist behaviour associated with his earlier offending conduct.
Whilst the Registrant’s application sought the removal of the conditions, as they presently exist on his registration, it emerged, in the course of his evidence, that he was prepared to be restricted in his practice by certain further conditions on his registration and by the provision of an undertaking restricting his practice.
The parties held discussions in light of those indications by the Registrant, and have provided to the Tribunal what was proposed as an agreed order in these proceedings. Subject to one matter addressed below, the proposed order is appropriate. The agreed order would be to the effect that the Registrant would enter into an undertaking restricting his practice in the future to persons over the age of 18 years. The proposed order also would impose certain conditions on his practice directed towards his ongoing psychological care; dealing with the fact that he has not recently been in practice and ensuring that he is clinically proficient so as to return to practice; and providing for his supervised practice at various levels for a period of time and a graduated return to work.
Importantly, those conditions and undertakings direct themselves to all the issues which have been identified by both Mr Bowden and Dr Rodney associated with the risk, insofar as there is any residual risk, to the public, and also the risk to the Registrant’s own mental health. They seem to the Tribunal, therefore, to be undertakings and orders appropriately directed to all the issues which would be necessary for the Tribunal to be satisfied that the protective nature of the proceedings is still achieved whilst, at the same time, facilitating a return to practice for the Registrant, which has, to this point, been frustrated somewhat by the practical operation of the present conditions.
The conditions also require the Registrant to provide any employer and supervisor with a copy of the conditions and the Tribunal’s order. This will ensure employers and supervisors of the Registrant are fully informed but will avoid the problems which have been experienced because of the requirement to inform all employees.
The matter which has been included in the proposed order which does not seem appropriate is a qualification to the imposition of the review period for the conditions. Section 241(3) of the Disciplinary Proceedings Act requires the Tribunal to state a period of not more than 3 years within which the Registrant may not apply for review of the decision to impose conditions on his registration.
The draft order sets a review period of 3 years. The parties originally provided a draft which allowed the parties to agree to changes to the conditions ‘to assist in its practical application, or where conditions no longer apply.’ In the course of the hearing I indicated to the parties that I thought any such change ought be subject to review by the Tribunal. To reflect those observations the draft now proposed by the parties has provision for changes to be agreed by them in the circumstances identified and for any proposed conditions to be filed with the Tribunal for review.
Upon further reflection, however, I consider that such an order would, purport to confer jurisdiction upon the Tribunal which it does not have. The review period set under s 241(3) prohibits review by the Tribunal during the period under Part 9 Division 4 of the Disciplinary Proceedings Act.
The prohibition against review of conditions by the Tribunal under Part 9 Division 4 during a review period does not leave the parties with no avenue to vary the conditions. Sections 126 and 127 of the Health Practitioner Regulation National Law (Queensland) provide that conditions may be changed or removed by the Board in certain prescribed circumstances.
In my view, these provisions provide the statutory framework within which any agreement to vary the conditions may be reached. Once agreed within that statutory framework, there would be no need for review by the Tribunal. An order which required any agreement to be filed with the Tribunal for review would burden the powers under s 126 and s 127 in a way which the legislation does not contemplate.
Because the orders and undertakings would be made pursuant s 345 of the Disciplinary Proceedings Act directing itself towards matters addressed in s 241 – it is necessary for the Tribunal to consider the question of the recording of the detail of the conditions and undertakings on the Board’s register.[3]
[3] Disciplinary Proceedings Act s 345(5).
Section 242(2) of the Disciplinary Proceedings Act requires that in making of a decision under s 241(2), in this case pursuant to s 345 of that act, the Tribunal must also decide whether details of the undertaking or conditions must be recorded in the Board’s register for the period during which those conditions or undertakings are in force. Section 242(2) states the Tribunal must decide that details of the conditions or undertaking must be recorded in the register, unless the Tribunal reasonably believes it is not in the interests of users of the registrant’s service or the public to know the details. In this instance, the Tribunal has formed the view that it reasonably believes it is not in the interests of users of the Registrant’s services or the public to know the details of the undertaking provided.
The reason for this belief is that the detail of the undertaking merely identifies that, save in certain emergency circumstances, the Registrant has undertaken never to treat patients under the age of 18 years. By operation of the undertakings, it is only persons over the age of 18 who will be users of the Registrant’s services. On all the evidence, no such persons are, or ever have been, at any risk and therefore require no protection through knowledge of the detail of those undertakings. Further, those details themselves would not be particularly informative to a user of the Registrant’s services or the public more generally and could lead to inferences being drawn as to the reasons for such an undertaking, which may be false. In those circumstances, it is not in the interests of the users of the Registrant’s services or the public to know the details. For those reasons, the Tribunal will order that the detail, as opposed to the fact, of the undertaking not be recorded in the Board’s register.
The parties were directed to perfect the draft order and to provide a copy to the Tribunal, together with the signed undertaking of the Registrant, the approval of which is also sought of the Tribunal. These were filed in the Tribunal on 22 August 2013. The Tribunal will order that pursuant to s 345(1)(c) the decision of the HPT made on 20 February 2006 be changed from the date of the order. The changes to the HPT order reflect the substance of the draft order filed, although the precise terms of the order have been amended somewhat by the Tribunal.

Non-publication order

The Registrant applies for an order, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009, in respect of the publication of these proceedings. As is evident from the reasons themselves, matters of publicity concerning these matters have proven detrimental to the Registrant. Of course detriment alone would not be a reason to make a non-publication order.
One of the matters, if satisfied, which may lead to such an order being made, is that publication of information that may enable a person affected by the proceeding to be identified is not in the interests of justice.[4] Given the observations that I have made about inferences being drawn which might be false, it seems to me that it is an appropriate matter to make an order for the non-publication of information that may identify the Registrant, until further order of the Tribunal. This will prevent information from the file relating to the proceedings and these proceedings themselves being published in a manner that would identify the Registrant.
[4] QCAT Act, ss 66(1)(c) and 66(2)(e).

To facilitate this decision and the reasons for decision being in a form that can be published the Registrant will be identified as the Registrant and the Health Profession Board of Australia will be identified as a Health Profession Board of Australia.
The non-publication order will not extend to the publication of the terms of the order, including the conditions, to any employer or supervisor of the Registrant, as contemplated by the order itself. Nor will it extend to the recording of the fact of the undertaking and the fact of and the detail of the conditions on the Board’s register.