PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - OTHER MATTERS - where the practitioner was convicted by a jury of sexual assault of a patient - where the practitioner was sentenced to nine months imprisonment, wholly suspended for 18 months - where the Health Ombudsman took immediate action in relation to the practitioner under s 58 of the Health Ombudsman Act 2013 (Qld) - where the immediate action imposed a condition that the practitioner must not have contact with female patients - whether the Tribunal believes the action is necessary to protect public health or safety

Evidence Act 1977 (Qld), s 79

Health Ombudsman Act 2013 (Qld), s 57, s 58, s 63

Health Practitioner Regulation National Law Act 2009 (Qld), s 155, s 156(1)(a)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Azam v Medical Board of Australia [2013] QCAT 611, cited

Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409, cited

I v Medical Board of Australia [2011] SAHPT 18, followed

Liddell v Medical Board of Australia [2012] WASAT 120, cited

MLNO v Medical Board of Australia [2012] VCAT 1613, cited

Pearse v Medical Board of Australia [2013] QCAT 392, followed

Shahinper v Psychology Board of Australia [2013] QCAT 593, cited

WD v Medical Board of Australia [2013] QCAT 614, cited

P J Davis QC with J R Jones instructed by Ashurst Lawyers

G R Rice QC instructed by the Office of the Health Ombudsman

[1] Dr Colagrande is a cosmetic surgeon. On 17 February 2017, the Health Ombudsman decided to take immediate action in relation to him under s 58 of the Health Ombudsman Act 2013 (Qld) (Health Ombudsman Act). Acting under s 59(4) of the Health Ombudsman Act, the action was taken without first giving Dr Colagrande an opportunity to make submissions orally or in writing; the Health Ombudsman having been satisfied that the taking of action without complying with the show cause process was necessary to ensure the health and safety of the public.

[2] The immediate action was to impose a condition on Dr Colagrande's registration. The principal condition was that "The practitioner must not have contact with female patients." Contact was defined to include consultation, interview, examination, assessment, prescribing for, advising, treating or otherwise seeing patients.

[3] At the time of giving Dr Colagrande notice of the immediate action, Dr Colagrande was invited to make submissions regarding the action taken. He did so but on 23 February 2017, the Health Ombudsman confirmed his earlier decision.

[4] Pursuant to s 63 of the Health Ombudsman Act, Dr Colagrande has sought a review of that decision under the Queensland Civil and Tribunal Act 2009 (Qld) (QCAT Act). Section 20(2) of the QCAT Act 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. The purpose of the proceeding is to produce the correct and preferable decision.[1]

[5] There is no dispute that the Tribunal in conducting the review is able to consider evidence of matters which have occurred after the decision under review was made. Being a hearing de novo, it is also not disputed that the original decision-maker (here, the Health Ombudsman) bears the onus to show that the decision made is the correct and preferable one. The onus will be on the Health Ombudsman to convince the Tribunal that the correct and preferable decision is a condition prohibiting the practitioner from seeing female patients.

[6] The functions of the Tribunal in reviewing a decision are set out in s 24 of the QCAT Act and include confirming, amending or substituting another decision for the decision.

[7] The Tribunal must decide on the evidence before it whether it reasonably believes that, because of his conduct, Dr Colagrande poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety.

[8] The approach to be taken by the Tribunal to the determination of that question has been considered in a number of cases dealing with the equivalent provision under the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). The provisions of s 58(1)(a) of the Health Ombudsman Act mirror the provisions of s 156(1)(a) of the National Law.

[9] However, the prescribed action which can be taken by the Health Ombudsman, in contrast to the National Board, is limited to suspension or imposition of conditions on the practitioner's registration. It does not include accepting an undertaking or the surrender of registration, as is permitted under the National Law.[2]

[10] In Pearse v Medical Board of Australia,[3] Judge Horneman-Wren referred to the decision of the South Australian Health Practitioner Tribunal in I v Medical Board of Australia where the Tribunal said:

The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed inquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public.[4]

[11] The action is interim in nature. That is not to say, however, that the material available to the decision-maker need not be carefully scrutinised in order to determine the weight to be attached to it.[5]

[12] In this case, the practitioner has been convicted by a jury of sexual assault of a patient and sentenced to nine months imprisonment, wholly suspended for an operational period of 18 months.

[13] In making submissions on behalf of Dr Colagrande, it was said that Dr Colagrande accepts, while still maintaining his denial of the allegations, that the jury's verdict is relevant to the exercise of the powers by the Health Ombudsman. It was said:

[14] The applicant, while refuting the complainant's allegation and whilst pointing out that there is no suggestion of any further incident in the last two years, accepts his conviction creates the reasonable belief. It is conceded immediate action can be taken.

[15] The issue for determination by the Tribunal is therefore what action the Tribunal reasonably believes is necessary to take to protect public health or safety.

[16] Dr Colagrande's position, both in these proceedings and in earlier submissions to the Health Ombudsman, is that the imposition of chaperone conditions would remove any risk to public health or safety. The proposed chaperone conditions would extend to both consultations and operations. In terms of consultations, it is now proposed that those appointed to act as chaperones will be agency nurses, either registered or enrolled nurses. Dr Colagrande no longer proposes that his employees, either receptionists or employed nurses, will act as chaperones. It is apparent from the submissions made that those acting for Dr Colagrande have responded to legitimate concerns expressed on behalf of the Health Ombudsman to the use of those directly employed by Dr Colagrande as chaperones.

[17] Despite that change, the Health Ombudsman's position remains that the protection of public health and safety requires a condition that Dr Colagrande have no contact with female patients.

[18] In determining this issue, it is accepted that any immediate action taken ought be the least onerous to address the relevant risk.[6] In Pearse v Medical Board of Australia,[7] Judge Horneman-Wren approved the observations made in MLNO v Medical Board of Australia that:

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.[8]

[19] It is not disputed that the current condition as imposed by the Health Ombudsman has resulted in Dr Colagrande being effectively unable to work. Whilst accepting that evidence, the question for the Tribunal must always be what action is necessary to protect public health and safety.

[20] The Health Ombudsman says that given the practitioner's history of dishonest conduct, the use of a chaperone would not be sufficiently effective. In his letter dated 17 February 2017, the Health Ombudsman stated:

While I acknowledge that chaperone conditions can be a sound risk management strategy in certain circumstances, they are only effective if a practitioner is honest at all times, for example in ensuring the chaperone is always present in consultation with patients, and by keeping an accurate and up-to-date chaperone register capable of being monitored and checked for accuracy. Given your history of dishonest conduct, which involved forgery and a deliberate intention to deceive, I do not consider that the issue of a chaperone in your practice will be sufficiently effective in managing the serious risk your conduct poses to female patients.

Given the evidence before me, I am of the view that no suitable alternative exists but to impose conditions on your registration which prevent you from treating women, so that I can protect public health and safety and discharge my duty as a health ombudsman under the Health Ombudsman Act 2013.

[21] The letter of 17 February 2017 details the dishonest conduct to which the Health Ombudsman was referring. The conduct to which reference was made at that time occurred when Dr Colagrande was applying for a position at the King Edward VII Hospital, London as a visiting assistant in 2003. In applying for that job it was found that Dr Colagrande falsified certain information in his curriculum vitae (CV) and forged a General Medical Council (GMC) registration certificate.

[22] The CV was found to contain the following falsifications:

1. Dr Colagrande falsely stated that he qualified from the University of Queensland in 1994 but did not qualify until 1998.

2. Dr Colagrande falsely stated that he had been a general surgery registrar, plastic surgery registrar and had trained in orthopaedic and plastic surgery as well as in A&E, when he did not in fact have the surgical experience described.

[23] In terms of the GMC registration certificate, it was found that Dr Colagrande had indicated in the certificate that he had been awarded provisional registration on 1 December 1994 and full registration on 1 December 1995, when in fact he had been awarded provisional registration on 20 April 1999 and full registration on 14 May 1999. Dr Colagrande subsequently admitted the forgery.

[24] The GMC panel in giving its decision stated:

The falsification of your GMC certificate and CV was a sophisticated and deliberate act of dishonesty which required some method and consideration on your part to falsely provide additional years of training and experience.

[25] The panel went on to say "that whilst there is no evidence that patients were put at risk as a result of your actions, the panel remain concerned at the scale and extent to your exaggeration of your own training and skills."

[26] Dr Colagrande was dealt with at that time. His registration was suspended by the GMC and in Australia for a period of 12 months. The Health Ombudsman submitted that conduct such as that never leaves the practitioner, but it is difficult to put too much weight on events which occurred over 13 years ago.

[27] In making submissions, Mr Rice QC for the Health Ombudsman referred to additional acts of dishonesty which he submitted cast doubt on "the efficacy of the reliability and trustworthiness of the applicant in complying with chaperone conditions."

[28] Mr Rice referred to the criminal process having run its course and that, given the guilty verdict in circumstances where the applicant gave evidence, then at the least "the core components of what he said must have been rejected." That means, it was submitted, that certain other information given by the applicant to the Australian Health Practitioner Regulation Authority (AHPRA) must have also been incorrect.

[29] Mr Rice referred to the contentions made by the applicant to police, AHPRA and the Health Ombudsman that the allegations were not true and furthermore that the complaint had been a fabrication. Mr Rice said that, having regard to the jury's verdict, that cannot be accepted as true.

[30] In addition, Mr Rice referred to the electronic medical records made by Dr Colagrande of the consultation with the complainant. The pertinent part of the records contained the following entry, "She states she wants to come back. Acting a little strange and sexually suggestive. I ignored her strange behaviour."

[31] Mr Rice said on any view, given what the jury found, that is not an accurate note as to what occurred.

[32] Next, Mr Rice referred to the email exchanges between the Health Ombudsman and the practitioner's solicitors on the night of 17 February 2017, following notification of the immediate action on the afternoon of 17 February 2017. The communication concerned an application for an exemption from the immediate action in relation to an operation due to be performed early Monday morning. In the solicitor's correspondence to the Health Ombudsman seeking the exemption, it was said that the patient had travelled interstate for the surgery. That statement was not true. The Health Ombudsman submitted that the instruction for the making of that statement must have been given to the solicitor by the doctor and it cannot be explained as a misunderstanding by the solicitor. It is said, on behalf of the Health Ombudsman, it is a cogent allegation of dishonesty.

[33] Mr Rice also referred to the content of certain further medical records in relation to when the patient, on whom the surgery was being performed on the Monday morning (following the immediate action on the Friday), was notified of the immediate action and of the fact that Dr Colagrande would not be able to attend the patient's post-operative care.

[34] The patient records note the patient as having been told in relation to the post-operative care the Monday morning before the surgery. The Health Ombudsman said it is simply implausible that a doctor, having been in communication with a patient on the weekend in preparation for that surgery, would leave that important matter to be discussed on the morning of the surgery. The Health Ombudsman says that implausibility is supported by the patient's own version of events. The patient says she was not told until several days [after the surgery]. The Health Ombudsman says that behaviour calls into question the honesty and accuracy of the entry on 20 February 2017.

[35] Mr Rice stated that these matters are "pertinent to the reliance that could be placed on any records that might arise from the implementation of a chaperone protocol". He said, if there is "good reason to think that patient records are not honest and accurate, then how can such concerns be allayed arising from the implementation of a system which depends in a large part on the completion and accuracy of records that reflect what's going on."

[36] In response to the alleged dishonesty associated with the conviction, Mr Davis QC stated Dr Colagrande's position remains that he denied the allegations to the jury and he denies them now. Mr Davis referred to s 79 of the Evidence Act 1977 (Qld) which provides that a certificate of conviction is only "evidence of the facts underlying the conviction, which are the elements". Mr Davis submitted that the Tribunal cannot find someone to have been actively dishonest about something, without making findings as to the underlying facts.

[37] The Tribunal is in no position to assess the underlying facts. The conviction is evidence of the sexual assault. There is no basis to extend its effect to an assessment of the practitioner's general honesty.

[38] In terms of the alleged dishonesty associated with the making of a request for an exemption from the condition to perform the surgery on the Monday morning and the communications with the patient regarding the post-operative care, Mr Davis took the Tribunal to evidence which raised questions as to the accuracy of some of the statements made by the Health Ombudsman. It certainly could not be said who was to blame for the confused state of the communications between the solicitor and the Health Ombudsman on the Friday night nor when the patient was told of the post-operative care arrangements. Any findings on those issues would require the relevant witnesses to be called and cross-examined.

[39] In any event, the Tribunal was not being asked to make final findings of fact. The position taken by the Health Ombudsman relies on the Tribunal accepting there is "good reason to think that patient records are not honest and accurate." The Tribunal is not satisfied the evidence allows such a conclusion.

[40] Mr Davis said the Tribunal also cannot ignore the deterrent aspects already in place. Dr Colagrande is on notice and if he were to breach the proposed chaperone arrangements, his lucrative practice as a cosmetic surgeon will cease. Dr Colagrande is on a suspended sentence and a repetition of the conduct will lead to a loss of liberty.

[41] Finally, the Tribunal was referred by the Health Ombudsman to the report entitled, "Independent review of the use of chaperones to protect patients in Australia" (Report), which was released by the Medical Board of Australia (MBA) and AHPRA on 11 April 2017, the day of the hearing. The Press Release accompanying the release of the Report stated that the MBA and AHPRA have accepted all recommendations in the Report.

[42] In tendering the Report, Mr Rice said that the Health Ombudsman accepts that, in any given instance, it is for the Tribunal to make up its mind about a situation. He said, the Tribunal can be, perhaps, assisted by knowing why the regulator does the things that it does.

[43] The purpose of the review detailed in the Report was to consider whether, and if so in what circumstances, it is appropriate to impose a chaperone condition on the registration of a health practitioner to protect patients while allegations of sexual misconduct are being investigated. The recommendations included that the use of mandated chaperones in response to allegations of sexual misconduct be abandoned. It also recommended, however, that if mandated chaperones are used then it should only be in exceptional circumstances and subject to limits including increased monitoring of the practitioner, providing more information to the patient, prescribing those who can act as chaperones and increasing the education of the chaperones.

[44] The Tribunal accepts that the contents of the Report and its acceptance by the MBA and AHPRA are relevant matters to have regard to in reaching its decision. The Tribunal, nevertheless, has a statutory obligation to take such action that it reasonably believes is necessary to protect public health or safety. The Tribunal cannot, just as the Health Ombudsman cannot, approach its task by simply adopting the recommendations contained in the Report without regard to the merits of the case.[9] In each case, it is a matter for the Tribunal to determine whatever action is taken is necessary to protect public health or safety.

[45] On the facts here, Mr Davis referred to the now well investigated single incident of assault. He said, we know there is no suggestion of a sexual assault by the doctor upon the patient before 1 May 2015, there is no suggestion of a sexual assault by him after that time and we are now almost two years down the track. He said we know what the high water-mark is of the allegation, and that is that there was a spontaneous assault of a patient in a consultation room. Mr Davis correctly submitted, the question for the Tribunal is whether, in those circumstances, the chaperone conditions proposed alleviate the risk.[10]

[46] This is not a case where it is suggested that the practitioner is a sexual predator or has shown any tendency towards that type of conduct. The Tribunal is satisfied that, with a properly framed set of chaperone conditions, public health and safety will be protected by the imposition of conditions less onerous than the present one. The conditions imposed by the Health Ombudsman on 17 February 2017 will be set aside once the new conditions are formalised.

[47] The Tribunal considers that further conditions should be added to the draft proposed by Dr Colagrande and that the wording of some of the conditions in the proposed draft should be amended. An alternative draft set of conditions which take into account submissions made on behalf of the practitioner and the recommendations contained in the Report will be provided to the parties. Before formalising its order, the Tribunal will allow the parties to make oral submissions on the draft conditions proposed.

[48] After publication by the Tribunal of its reasons and delivery of an alternative draft set of conditions, the parties were invited to make and did make oral submissions about the draft conditions.

[49] The hearing was extensive and involved a detailed consideration of each of the conditions proposed and the alternatives advocated on behalf of the practitioner and the Health Ombudsman. Given that this is a case for immediate action where a prompt decision of the Tribunal is desirable, it is unnecessary to traverse each of the amendments advocated and why amendments have been made to the draft and why some of the changes advocated by the Health Ombudsman have not been accepted.

[50] It is sufficient to say that the conditions proposed are in the Tribunal's view reasonable and sufficient for the protection of the public. In determining the appropriate conditions, the Tribunal has had the benefit of the insight of the assessors.

[51] The consequence is that there will be orders in terms of the conditions in the schedule attached to these reasons.

[52] Orders are made requiring the parties to make submissions on costs.

1. The practitioner must not treat, consult, assess or examine (consultation) any female patient in person without another person ('the practice monitor') present and directly observing for the entire consultation.
2. The practice monitor must:

1. be at least 18 years of age and have at least five years post-registration experience; 2. not have any familial relationship with the practitioner;

1. not be, or have been, a patient of the practitioner;

1. agree to be contacted by the Office of the Health Ombudsman; 2. prior to acting as a practice monitor, be provided with a copy of the reasons for decision of the Tribunal including a copy of the conditions; and 3. prior to acting as a practice monitor, be provided with a copy of any Information Sheet for Practice Monitors as provided by the Office of the Health Ombudsman to Dr Colagrande.
2. The practice monitor must be present at the consultation rooms of Dr Colagrande during opening hours on every day that consultations with female patients have been booked, and otherwise at all times when Dr Colagrande is at his consultation rooms and is available to see female patients.
3. The practice monitor for consultations at the consultation rooms of Dr Colagrande must be:
   1. registered with the Nursing and Midwifery Board of Australia or such other registration board as approved by the Office of the Health Ombudsman; and
   2. employed by Carestaff Nursing Services Pty Ltd or such other independent nursing or other agency as approved by the Office of the Health Ombudsman.
4. The practice monitor for surgery and consultations performed at the Canossa Private Hospital is permitted to be Dr Wayne Edwards or another registered health practitioner who is employed by the Canossa Private Hospital and pre-approved by the Office of the Health Ombudsman.
5. The practitioner shall require any independent agency, with whom he has an agreement for the provision of practice monitors, to provide within five business days of the end of each calendar month after the commencement of these conditions, a list of all practice monitors provided to Dr Colagrande during that month.

1. The practitioner is required to ensure that each female patient is made aware prior to the first consultation following the commencement of these conditions of the need for a practice monitor to be present at all times during the consultation.

1. require any staff member employed by the practitioner and responsible for scheduling appointments to inform all female patients at the time of making a booking of the requirement for a practice monitor to be present for the entire consultation with Dr Colagrande and that the reason for the practice monitor is that it is a condition imposed on Dr Colagrande's registration by the Queensland Civil and Administrative Tribunal (Tribunal);
2. within 48 hours of the commencement of these conditions:
   1. cause a notice to be placed on the homepage of his website notifying patients of the practice monitor condition and that the reason for it is that it is a condition imposed on Dr Colagrande's registration by the Tribunal; and
   2. cause an A4 notice to be placed in all consultation and treatment rooms notifying patients of the practice monitor condition; and

1. require all female patients to sign and date an acknowledgment form in the terms attached to these conditions.

1. Within five business days of the commencement of these conditions, and/or within five business days of an employee commencing employment with the practitioner:

1. the practitioner is required to inform each employee of the requirement for the practitioner to have a practice monitor present for all consultations with female patients; 2. the practitioner is to provide each employee with a copy of the published reasons for decision of the Tribunal including a copy of these conditions;

1. the practitioner is to ensure each employee signs an acknowledgement form indicating the employee has received the information referred to in paragraphs 8(a) and (b) above.
2. For the purposes of these conditions, an employee is taken to include all employees and/or contract staff engaged by the practitioner.

1. The practitioner is required to maintain an up to date practice monitor logbook for all female patients. The practice monitor logbook must consist of a separate page for each female patient and must include for each consultation:

1. the name of the female patient and the practice monitor; 2. the date and time of the consultation;

1. a contemporaneous signature of the practice monitor, patient and practitioner; and

1. the contact phone number of the practice monitor.
2. The practice monitor must sign the handwritten medical record prepared by Dr Colagrande following the first consultation of any female patient and a copy of that record must be retained electronically as part of the patient's medical records.

1. An authorised person/s from the Office of the Health Ombudsman may conduct site visits at the practitioner's place of practice to confirm:

1. the practitioner's understanding of the requirements of these conditions; 2. the practice monitor logs comply with the requirements of these conditions;

1. the presence of the practice monitor notice in the places and in a form consistent with the conditions;

1. the relevant staff understand their role in relation to advising female patients that a practice monitor is required to be present and directly observe any contact in person between the practitioner and the patient at all times; and 2. the practice monitors understand their role and compliance requirements as outlined in these conditions_._
2. At the site visit, the authorised person/s from the Office of the Health Ombudsman must be given access to the following:

1. the completed practice monitoring logs; 2. patient medical records;

1. employee acknowledgement forms; 2. the practitioner's patient appointment diary (or equivalent); 3. the practitioner's daily patient lists; 4. patient billing data; and 5. Medicare and/or Private Health billing data, if any.
2. Site visits conducted by the Health Ombudsman shall be conducted:
   1. During the period from 21 April 2017 to 30 May 2017 at such times and frequencies to be determined by the Health Ombudsman; and
   2. Thereafter at such times and frequencies to be determined by the Health Ombudsman but so that there is no more than one site visit in each calendar month.
3. The practitioner must ensure that a copy of the practice monitor logbook is provided to the Office of the Health Ombudsman within five business days of the end of each calendar month. At that time, the practitioner will provide a monthly statutory declaration stating that he has complied with the conditions on his registration.

1. Within five business days of changing residential or practice address or commencing a new place of practice, the practitioner must provide written notification to the Office of Health Ombudsman of that change and provide the new address details.
2. If, in the event of a medical emergency, the practitioner is unable to comply with a condition, any such incident must be notified to the Office of the Health Ombudsman within two business days. For the purposes of these conditions, a medical emergency is an incident where it is not possible or reasonable to have a patient with a serious or life threatening condition seen by another practitioner or transferred to the nearest hospital.

1. These conditions continue to have effect until:
   1. further order of the Tribunal following an application by, either the practitioner or the Health Ombudsman, or referral by the Health Ombudsman to the Tribunal; or
   2. the Health Ombudsman removes the conditions under section 65 of the Health Ombudsman Act 2013.

1. The practitioner must pay his own costs associated with complying with these conditions.

[2] Health Ombudsman Act, s 57; cf National Law, s 155.

[3] [2013] QCAT 392.

[4] [2011] SAHPT 18.

[5] Liddell v Medical Board of Australia [2012] WASAT 120; WD v Medical Board of Australia [2013] QCAT 614.

[6] Pearse v Medical Board of Australia [2013] QCAT 392, [18]; Shahinper v Psychology Board of Australia [2013] QCAT 593, [22]-[23]; Azam v Medical Board of Australia [2013] QCAT 611, [37].

[7] Pearse v Medical Board of Australia [2013] QCAT 593, [22].

[8] [2012] VCAT 1613, [5].

[9] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409, 420-421.

[10] The conditions proposed are contained in the Draft Order prepared on behalf of Dr Colagrande, being Exhibit 3.