Health Ombudsman v Duggirala [2021] QCAT 326

Health Practitioner Regulation National Law (Queensland), s 5

Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336

Craig v Medical Board of Australia [2001] SASC 169; (2001) 79 SASR 545

General Medical Council v Spackman [1943] AC 627

Health Care Complaints Commission v Cheng [2017] NSWCATOD 51

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102

Health Ombudsman v Arora [2019] QCAT 200

Health Ombudsman v DKM [2021] QCAT 50

Legal Services Commissioner v Randall [2019] QCAT 217

Medical Board of Australia v DAP [2008] QCA 44

Medical Board of Australia v Duggirala [2015] QCAT 557

Medical Board of Australia v Lee (Review and Regulation) [2020] VCAT 568

R v Jones [2011] QCA 19

Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; [1957] 97 CLR 279

C Templeton instructed by the Office of the Health Ombudsman

• [1] This is the referral of a health service complaint made about Sudheer Babu Duggirala (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
• [2] The applicant seeks that the Tribunal find the respondent has behaved in a way that constitutes professional misconduct and make consequent orders by way of sanction.
• [3] The respondent does not resist a finding that he has behaved in a way that constitutes professional misconduct. The parties differ as to appropriate orders by way of sanction.

• [4] The respondent is 62 years of age and was aged 59 years at the time of the conduct the subject of the referral. The respondent was born and educated in India, obtaining the degree of Bachelor of Medicine, Bachelor of Surgery in 1982. He practised as a general practitioner in India before emigrating to Australia.
• [5] The respondent was granted limited registration as a medical practitioner by the Medical Board of Australia on 13 April 2005. According to the affidavit of the respondent filed in these proceedings, inability to secure necessary supervision meant that he did not actually commence practice as a general practitioner in Australia until March 2006. He then practised as a general practitioner until September 2008.
• [6] The respondent obtained a fellowship at the Royal Australian College of General Practitioners in 2011. On 15 April 2012, the respondent was granted limited specialist general practice registration subject to conditions. The respondent was registered and practicing as a general practitioner at the time of the conduct the subject of the referral.

• [7] The respondent has a very relevant prior disciplinary history. After commencing practice as a general practitioner in March 2006, the respondent practiced at the Morayfield Shopping Centre Medical Clinic. On or about 5 October 2006, patient TC[1] consulted the respondent at that clinic regarding tonsilitis, a sore throat and a headache. The practitioner felt the glands on her throat and then put his hands down the front of her top and felt her breasts under her bra. The respondent did not warn her before feeling her breasts and did not explain the reason for feeling her breasts. The respondent commented on the fact that patient TC had a nipple ring.
• [8] An expert opinion obtained from a general practitioner by the Board opined that the breast examination technique was inappropriate because the respondent put his hands down the front of the patient's top without explanation, and that his comments about nipple rings were inappropriate and unprofessional.
• [9] On or about 27 October 2006, patient CH[2] consulted the respondent to obtain a prescription for a change of her contraceptive pill. Without asking her permission or explaining his motives, the respondent started to touch her stomach and breasts. The patient alleged that the respondent grabbed and felt her breasts five times during the course of the consultation. After asking the patient to lie on a bed, the respondent felt her stomach and breasts again, asked her to undo her skirt to check her genital area, and after she pulled her underpants down a bit, touched her genital area and, without asking her permission, lifted each of her legs in turn and looked up her skirt. The patient objected to the respondent attempting to remove her underpants.
• [10] Following complaints by patients TC and CH and following an investigation, the Medical Board of Queensland established a disciplinary committee to hear and determine the complaints. After a hearing on 12 November 2008, the committee was satisfied that the respondent:

(a) used inappropriate techniques when conducting intimate examinations of both patients;

(b) failed to elicit informed consent from the patients prior to the examinations;

(c) failed to provide valid explanation to the patients of the examinations conducted;

(d) asked inappropriate questions of the patient TC; and

(e) failed to maintain appropriate record-keeping standards in that he failed to record the reasons for examinations and examination findings.

• [11] The committee decided that the respondent had acted in a way that constituted unsatisfactory professional conduct, as defined by the Health Practitioners (Professional Standards) Act 1999 (Qld).
• [12] The committee resolved, pursuant to section 162(2) of that Act that the respondent, had he been currently registered,[3] would have been cautioned with respect to his conduct.
• [13] The committee accepted the respondent's offer to provide undertakings which were to have effect from re-registration with the Board. Those undertakings offered by the respondent on 12 November 2008 included an undertaking that the respondent would not conduct any breast or genital examinations of any female patient without a female chaperone being present.
• [14] The respondent was re-registered on 15 April 2012, subject to conditions on his registration that required the presence of a chaperone when conducting genital or breast examinations of female patients.
• [15] On 15 August 2013, the respondent breached the conditions on his registration by conducting an examination of a female patient without a chaperone present. On 10 October 2013, the Queensland Medical Interim Notifications Group took immediate registration action against the respondent and suspended his registration.
• [16] On 11 April 2014, the Medical Board of Queensland referred disciplinary proceedings to the Tribunal against the respondent. The referral related to the respondent's examination of a pregnant female patient on 15 August 2013. The patient had presented to the respondent at the practice on 14 August 2013 with a genital condition. The respondent performed an examination of the patient on that occasion. He performed such examination in the presence of a chaperone, consistent with the conditions then imposed upon his registration.
• [17] The patient returned to the practice on 15 August 2013 to be informed of the results of a swab taken on the 14 August 2013. When the patient re-presented on 15 August 2013, she had a rash on her upper body and an exacerbation of the symptoms from the previous day. The respondent performed an examination of the patient but, on this occasion, in the absence of a chaperone, the examination included an examination of the upper body of the patient, including her breasts, and of her genitals.
• [18] The decision of the Tribunal[4] records the respondent's concession that the examination was in breach of the chaperone conditions then imposed on his registration. The respondent further conceded that the examination was conducted as follows:

(a) the respondent examined the patient by moving his hands over her belly and then up near her bra;

(b) the patient asked the respondent whether she needed to remove her bra and the respondent required that she did not;

(c) the respondent then moved his hands around the patient's neck and then put his hands under her top and down her bra;

(e) the respondent then moved his hands and lifted her bra and touched her breasts with his hands;

(f) the respondent asked the patient to pull her panties down;

(g) the patient pulled her panties down to between her upper thigh and her knees, with her skirt remaining in place; and

(h) the respondent lifted the patient's skirt and began to feel around her genitals and palpitated the mons pubis.

• [19] The respondent conceded before the Tribunal that the conduct of the examination in such manner, and in the circumstances where it was in contravention of conditions requiring a chaperone, constituted professional misconduct within the meaning of section 5 of the Health Practitioners Regulation National Law (Queensland) (National Law).
• [20] The then Deputy President, Judge Horneman-Wren SC, stated as follows:

The ability to practice a health profession is a privilege which is conferred upon persons qualified to do so but who also exhibit the requisite professional and personal standards which are necessarily demanded of persons who are afforded the privilege of conducting medical practice. Ultimately, it is the protection of the public as well as the reputation of the profession which is to be achieved through regulation of health practices or health practitioners. One means by which that protection of the public is achieved is through the capacity of a national board, in this case, the Medical Board of Australia, to confer upon a practitioner the privilege of practice subject to conditions. It is a very serious matter indeed when a person who is privileged to practice subject to conditions chooses to breach those conditions, no matter what the circumstances of the breach might be.

A medical practitioner who breaches conditions imposed, particularly conditions which are so evidently imposed to protect the public, must expect that sanctions will be imposed which severely affect the person's capacity to practice in the profession. Here, Dr Duggirala has been suspended from practice for almost now 18 months. The parties have jointly proposed further sanction to be imposed upon Dr Duggirala which would involve a further actual period of suspension of five months. That is, Dr Duggirala would be suspended from actual practice for a period of approximately 23 months in total.[5]

• [21] The Tribunal accepted that the jointly proposed position of the parties that the respondent be suspended for a period of five months which, in light of an 18-month period of suspension leading up to the hearing, resulted in an effective preclusion from practice of about 23 months in total, was appropriate.
• [22] The Tribunal further ordered, pursuant to section 196(2)(b) of the National Law, that upon any return to practice, the respondent would be subject to the following conditions:

(a) he shall not treat any female patients for a period of 12 months from the date of any return to practice; and

(b) following the expiration of that period of 12 months following return to practice, the respondent must not conduct any breast or genital examinations of any female patient without a female chaperone being present.

• [23] The respondent was subject to those conditions ordered by the Tribunal at the time of the conduct the subject of this referral. The reasons of Judge Horneman-Wren SC concluded as follows:

...if Doctor Duggirala were to again conduct himself in a manner which was in breach or further breach of the conditions which are imposed upon his registration, that would be a very serious matter which must necessarily put in peril, one would think, his continued capacity to practice in the profession.[6]

• [24] The respondent recommenced practice on 7 October 2015.

• [25] At the time of the conduct the subject of the referral, the respondent was employed as a general practitioner at a medical practice at Rothwell. On 15 May 2018, the complainant had her first appointment with the respondent at that practice. The complainant had received a positive result from a home pregnancy test and made an appointment in order to take a blood test to confirm the pregnancy. The respondent referred the complainant for a blood test the next day.
• [26] At about 4.00 pm on 18 May 2018, the complainant returned for a second appointment with the respondent in order to obtain the results of the blood test. The respondent advised the complainant that the blood test had confirmed that she was pregnant. The respondent questioned the complainant about whether she was suffering from any pregnancy symptoms and asked the complainant whether she felt any soreness in her breasts. The complainant told the respondent that there was nothing she was worried about in terms of any soreness to her breasts. The respondent told the complainant that she needed to look after herself because it was her first pregnancy and reached over with his hand and stroked the complainant's stomach. This made the complainant feel uncomfortable.
• [27] The respondent then asked the complainant again whether she was sure she was not experiencing any pain in her breasts. The complainant responded that her right breast might have been a little sore, but it was not something that she was concerned about. The respondent then said words to the effect, "Well, I am going to check anyway, if that's okay." The respondent asked the complainant to stand up and lift up her top. The complainant complied, standing up in front of the respondent and lifting her shirt, exposing her bra. The complainant asked whether the respondent wanted her to lift up her bra also, to which the respondent replied in the affirmative. While seated in front of the complainant, the respondent reached out and felt the complainant's left breast and squeezed it a number of times. The respondent then told the complainant that he would check her right breast. He then grabbed her right breast and squeezed it a few times.
• [28] The complainant put her bra and shirt back on and sat down across from the respondent. The respondent asked the complainant if she had anything else that she was worried about. The complainant told the respondent that she had an old muscle injury in her right hip that had been sore for the past six months and was worried how that might affect her as the pregnancy progressed.
• [29] At the respondent's request, the complainant stood up again and the respondent used his hands to touch and rub the complainant's left hip. The respondent pulled down the left side of the complainant's pants and underwear just above her pelvic bone and prodded between her pelvic bone and hip with two fingers. The respondent then pulled down the other side of the respondent's pants and underwear to just above her pelvic bone and repeated the prodding on that side. The respondent told the complainant to use a heat pack on the area and had a further brief discussion about the complainant's work and the next steps of the pregnancy before the appointment ended.
• [30] The records made regarding the consultation by the respondent included that the complainant had advised of "no breast pain," and included no reference to the respondent conducting the breast examination or hip examination.
• [31] There was no chaperone present during the consultation.
• [32] An expert opinion obtained in the course of investigation of the respondent's conduct concluded that the breast examination was not medically indicated and was performed in a non-medical manner. The hip examination was also medically incorrect, not indicated and used opportunistically to gain access to the suprapubic area of the patient. It was concluded that the performance at the consultation was not a correct medical procedure but had elements of an assault on the patient.
• [33] The complainant left the appointment feeling uncomfortable and spoke to family about what had happened. The same evening, she sent an email to the regional manager of the Medical Practice outlining her concerns about the respondent's actions during the consultation. That email included the following statement:

I left then feeling uneasy and replayed the appointment in my head, not feeling right about it. I rang my husband saying I'm not sure if that was right. I felt quite shaken and after coming to terms with it, realised that I felt uncomfortable with what had happend [sic], and why did he need to feel my breasts? And why he needed to touch my hips? I called my mum in law and she then refereed [sic] me to you, because she did not agree either what happens is the correct way a meeting with a doctor should be.

I'm feeling upset because I feel I should have picked up on it when I was in there, but i trusted I was in good hands with a doctor?

• [34] On 21 May 2018, the regional manager advised the respondent of the complainant's email. The respondent denied that his touching of the complainant had been inappropriate and told the manager that his examination of the complainant's breasts had been necessary. When questioned, he offered no explanation as to why he had not had a chaperone present.
• [35] The regional manager passed the complainant's email on to the Australian Health Practitioner Regulation Agency (AHPRA). On 28 May, AHPRA notified the respondent they intended to suspend his registration and invited him to make submissions in his defence.
• [36] On 5 June 2018, the respondent made oral submissions before the Sexual Boundaries Notification Committee of AHPRA. The respondent admitted to touching the complainant's breasts but claimed it was done in the course of a breast examination and with the complainant's consent. The respondent also admitted to moving the complainant's pants down but said that this was done accidentally in the course of examining her hip. The respondent said that his examination of the complainant was done in the absence of a chaperone because he was behind in his consultations and because he was of the understanding that staff members had left for the weekend. In fact, there were three female staff members working at the time listed as chaperones on the respondent's chaperone register and who were available to be present during the consultation.
• [37] On the same day following the hearing, the respondent's registration as a medical practitioner was suspended. The respondent's registration has remained suspended since that time.
• [38] With the complainant's consent, AHPRA referred the matter to police on 13 June 2018. The complainant subsequently spoke with police and made a formal complaint on 22 June 2018. On 20 October 2018, the respondent was charged with sexual assault in contravention of section 352 of the Criminal Code.
• [39] On 7 September 2020, the respondent pleaded guilty to an offence of sexual assault in the District Court at Brisbane. The respondent was sentenced to 12 months imprisonment wholly suspended for an operational period of 18 months. The respondent remains subject to that suspended sentence with the operational period continuing until 6 March 2022.

• [40] The conduct of the subject of the referral is thus: the sexual assault of the patient, which occurred in circumstances in contravention of the conditions on the respondent's registration that he not conduct breast examinations of female patients in the absence of a chaperone.
• [41] As earlier noted, the respondent does not contest a finding of professional misconduct. The Tribunal has no hesitation in finding that the conduct, the subject of the referral, readily meets both limbs (a) and (c) of the definition of "professional misconduct" in section 5 of the National Law.

• [42] It is, of course, important to note that the purposes of sanction in this jurisdiction are protective, not punitive. There is no element of further punishment of the respondent for the conduct for which he has already been punished in the District Court. The main consideration for the Tribunal is the paramount guiding principle of the health and safety of the public.[7]
• [43] The imposition of sanction in this jurisdiction may serve one or all of the following purposes:

(a) preventing practitioners who are unfit to practise from practising;

(b) securing maintenance of professional standards;

(c) assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;

(d) bringing home to the practitioner the seriousness of their conduct;

(e) deterring the practitioner from any future departures from appropriate standards;

(f) deterring other members of the profession who might be minded to act in a similar way; and

(g) imposing restrictions on the practitioner's right to practise so as to ensure that the public is protected.[8]

• [44] The protective purposes of sanction include the maintenance of professional standards and the preservation of public confidence in the medical profession. In order to achieve such objectives, it may be necessary to cancel the registration of practitioners who are not fit to practise, including those who have been guilty of serious conduct.[9]
• [45] Mitigating factors in the respondent's favour include his plea of guilty to the criminal charge and his cooperation by way of admissions which have facilitated the conduct of the proceedings before the Tribunal. The respondent also relies upon character references from other practitioners.
• [46] The respondent sought to place some reliance, in mitigation of his conduct, upon the contents of a report of Dr Storor, specialist psychiatrist, dated 24 August 2020, which was also relied upon during the course of the sentencing proceedings in the District Court. Such a report was provided in Dr Storor's capacity as the respondent's treating psychiatrist. Dr Storor noted that he had not had the opportunity to interview the respondent for the purposes of an independent medico-legal report.
• [47] Dr Storor reported a history, given by the respondent, that the reason he had examined the patient on 28 May 2018 without a chaperone was due to him being behind in his work that day and suffering excessive anxiety. He reported a history of anxiety for over 10 years. He told Dr Storor that when he was anxious, he did not think clearly and became overwhelmed. He said that a sense of confusion caused by running behind time and becoming increasingly anxious had led to him examining the female patient and the complaint arising. He said that he was flustered and had not examined the patient properly. He said that the decision to examine the patient without a chaperone was a "hasty decision" caused by his state of anxiety on the day.
• [48] Dr Storor diagnosed the respondent with a generalised anxiety disorder. As to whether or not the respondent's medical condition might provide any explanation for his behaviour in relation to the offence, Dr Storor stated as follows:

It is quite possible that an anxious state of mind caused by a busy patient load and time pressure occurring on a background of longstanding Anxiety Disorder, including panic attacks, could have caused Dr Duggirala to behave in the manner that he did on the day in question, when he examined the female patient without a chaperone, and when apparently his examination technique caused the young woman to believe that he had touched her inappropriately.

These events, of course, occurred over two years ago and were before Dr Duggirala was under my care, and therefore I have no direct knowledge of his mental state at the time of the alleged offence. Therefore, it is difficult to get a clear answer as to whether Dr Duggirala's condition of Generalised Anxiety Disorder caused him, or contruted [sic] to him, behaving in the way he did on the day in question.

Given the known history and the past periods of suspension and the Board's requirement that he have a female chaperone present, it is difficult to believe that Dr Duggirala could have behaved in the way he reportedly did, if not for him being unduly influenced in some manner. There is no suggestion of him using alcohol or other substances, and there is no evidence of cognitive impairment. Therefore, Dr Duggirala's explanation, that at the time of the stated offence he was overwhelmed by anxiety and acted in a confused and hasty manner, is plausible.

• [49] The learned sentencing Judge in the District Court noted the limitations of the opinion expressed by Dr Storor and the concession by his counsel in those proceedings that the part that any generalised anxiety disorder played in the offending did not seem to be of a "high order". I note that the report of Dr Storor received no mention in the learned sentencing Judge's sentencing remarks. It was apparently not regarded as a mitigating factor of any significance, and certainly not regarded as explaining the conduct of the respondent.
• [50] I accept the submissions, on behalf of the applicant, that the explanation given by the respondent for his conduct to Dr Storor is inconsistent with the uncontested facts of the respondent's conduct, given that the patient was merely seeking confirmation of the results of a blood test to confirm her pregnancy and, if indeed the respondent was anxious because of pressures of time and the need to see other patients, it makes no sense that he would take the time to undertake the physical examination he did in the absence of a chaperone. The only reasonable conclusion is that he did so for his own sexual gratification, consistent with the way he had behaved with other patients on previous occasions. I do not accept that the generalised anxiety disorder diagnosed by Dr Storor had any substantial part to play in the respondent's conduct.
• [51] I also note that such explanation is quite inconsistent with the respondent's subsequent plea of guilty to an offence of sexual assault, which in the circumstances of this factual scenario, carries with it an admission of an illicit sexual intent.[10]
• [52] It does the respondent no credit that he would persist in attempting to downplay the seriousness of his conduct by reference to the contents of the report of Dr Storor.
• [53] The respondent also seeks to rely upon the fact that he has, subsequent to his sentencing in the District Court, completed a course of education in relation to maintenance of appropriate professional boundaries with a focus on misconduct and has placed before the Tribunal a copy of a report of Dr Wendy McIntosh of Devarr Consultancy Training & Development, dated 5 January 2021, with an appended reflective essay composed by the respondent and an additional question and answer document in relation to safe professional and sexual boundaries.
• [54] In his reflective essay, the respondent states, inter alia, as follows:

I had not much insight and consequences of my attitude when I breached the conditions on my registration. Later, I had to face Legal and criminal charges. I was determined not be [sic] involved in any sexual misconduct in future. I wanted to educate my self and avoid consequences that a professional faces in his carrier [sic] by breaching and violating sexual boundaries.

My understanding of sexual boundaries and misconduct before completing this educational module were very limited. The amount of knowledge I gained after doing the course has been tremendous.

...

Before completing this educational module, I was not aware of the therapeutic space between the professional and the patient.

...

After completing this course, I had achieved a lot of insight in maintaining sexual boundaries. Few examples that enlightened my [sic] enhanced my knowledge are given below A doctor/nurse should avoid unnecessary physical examinations, this may constitute sexual assault, breaching sexual boundaries is unethical and harmful for patients, they may suffer from emotional/physical harm and loose [sic] trust on doctors/nurses. There should be no place for sex between doctor/nurse and the patient either in the guise of a consensual sexual relationship or in the form of sexualised comment, they should not comment about the dress, body stature or indecently assault a patient. During examination they should never ask patients to undress more than necessary and should respect their dignity by appropriately covering their body, this would also be considered as boundary violation.

• [55] It is difficult to accept the statements made by the respondent as to his limited understanding of professional boundaries before undertaking the course of education he refers to. Not only would the matters he refers to as new knowledge be readily apparent to even a junior practitioner of normal intelligence, the respondent himself had gone through two previous disciplinary processes resulting in sanctions for very similar behaviour. Either the respondent is being disingenuous as to his lack of understanding of professional boundaries prior to undertaking the education or he is so lacking in empathy and insight as to the inappropriateness of such behaviour, notwithstanding the experience of prior sanctions, such that his character must be regarded as entirely incompatible with that expected of a member of a caring profession.
• [56] The applicant submits that the respondent's registration should be cancelled and that he should be disqualified from applying for re-registration indefinitely and further be permanently prohibited from providing any health service. The applicant submits that the sexual connotations of the respondent's conduct, aggravated by the earlier similar offending, demonstrates a gross defect of character rather than any error of judgment. It is submitted that orders providing a further opportunity for re-registration would likely erode professional standards and diminish public confidence in the profession. It is submitted that the respondent's character is so indelibly marked by the conduct the subject of the referral and his earlier conduct that he cannot be properly regarded, now or in the future, as a fit and proper person to hold registration as a medical practitioner.
• [57] The respondent submits that, although a cancellation of the respondent's registration is appropriate in the circumstances, the Tribunal would not be satisfied that any disqualification from applying for re-registration should be indefinite. The respondent submits that any disqualification from applying for re-registration should not be any longer than 12 months, given the period of more than three years to date during which the respondent's registration has been suspended.
• [58] In addition to those mitigating factors earlier noted and those further factors contended on behalf of the respondent that have been earlier discussed, the respondent refers to the salutary deterrent effect of the criminal proceedings and sentence and adverse media publicity upon the respondent.
• [59] The respondent refers to the support he enjoys from family, friends and peers who have provided character references. The respondent relies upon an affidavit of Dr Singh, general practitioner, who deposes that, if the respondent was to secure employment with one of Dr Singh's general practices, that Dr Singh would ensure that the respondent would treat male patients only and that a supervisor would be assigned to the respondent to ensure compliance with any conditions imposed on his registration. If considered necessary, a permanent chaperone could be employed to be present throughout all the respondent's consultations.
• [60] The respondent submits, given these matters and given conditions that could be placed upon the respondent's registration upon re-registration that he not treat female patients, complete mandated annual professional development relevant to professional boundaries and be supervised upon return to practice, that the respondent presents no real risk of again engaging in the type of conduct that he has in the past.
• [61] The respondent submits that, in those circumstances, the Tribunal would not be satisfied that he is permanently unfit to practise. He has demonstrated the potential for rehabilitation, apparently enjoys the confidence of Dr Singh to practice as a doctor under appropriate conditions, and the Tribunal would not be satisfied that his character is so indelibly marked as to render him permanently unit to practice.
• [62] The respondent accurately points to the fact that decisions of this and other Tribunals involving much more serious sexual misconduct by health practitioners have resulted in orders providing for finite periods of preclusion from practice.[11]
• [63] The respondent refers in particular to the decisions of the Tribunal in Medical Board of Australia v Azam [2017] QCAT 156 and Medical Board of Australia v Azam (No. 2) [2017] QCAT 206, where the sexual conduct by the practitioner was aggravated by the practitioner's repeated breaches of chaperone conditions, falsification of the chaperone register and other conduct designed to hide his misconduct, and the lack of insight and remorse of the practitioner demonstrated by his denial of the allegations in the Tribunal proceedings, but nevertheless resulting in orders for sanction involving a finite rather than indefinite disqualification from applying for re-registration.
• [64] Without wanting to diminish the seriousness of the respondent's conduct the subject of the referral, and the impact of that conduct upon the complainant, it is quite true that the conduct is significantly less serious than those decisions referred to by the parties where finite periods of preclusion from practice were ordered.
• [65] However, the conduct of the respondent must be seen in the context of his relevant disciplinary history. It demonstrates a continued propensity towards breaching of professional boundaries with patients and failure to adhere to conditions upon his registration specifically designed to prevent such misconduct.
• [66] It is true that the factors referred to by the respondent as reducing the likelihood of him again engaging in such conduct are relevant in considering appropriate orders for sanction. As earlier noted, the paramount consideration for the Tribunal is the health and safety of the public. It is relevant that the prosecution and sentencing of the respondent and the experience of these proceedings is likely to have a personal deterrent effect. However, personal deterrence is only one of the considerations for the Tribunal in determining appropriate protective orders of sanction. The protective purposes of sanction include the maintenance of professional standards and the preservation of public confidence in the medical profession. In order to achieve such objectives, it may be necessary to cancel the registration of practitioners who are not fit to practise, including those who have been guilty of serious misconduct. This serves to maintain public confidence by signalling that those whose conduct does not meet required standards will not be permitted to practice.[12]
• [67] Although dated, the following judicial comment is no less true today:

The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour.[13]

• [68] A useful list of factors that might be considered in determining whether a practitioner is a fit and proper person to hold registration as a medical practitioner is found in the judgments of the New South Wales Court of Appeal in McBride v Walton,[14] quoting from the Medical Tribunal below:

To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine one must consider:

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.

(a) The respondent's professional misconduct can only reasonably be viewed as showing a gross defect of character. The respondent's professional misconduct, when considered in the context of his prior disciplinary history, can only reasonably be viewed as showing a gross defect of character and cannot satisfactorily be explained as an error of judgment;

(c) The misconduct was not an isolated episode but a repetition of the type of conduct engaged in by the respondent on prior occasions and then attracting sanction;

(d) The motivation for the misconduct was the gratification of the respondent's own sexual desires;

(e) The conduct and the previous conduct of the respondent demonstrates deficiencies in the underlying qualities of character of the respondent; and

(f) The respondent has been suspended since 5 June 2018 and, notwithstanding the evidence as to education undertaken by him during that time, the Tribunal cannot be satisfied that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.

• [70] The evidence before the Tribunal compels a conclusion that the respondent is not presently a fit and proper person to hold registration in the medical profession. At the very least, the protective purposes of sanction require that he be precluded for a further period of time before being permitted to attempt to satisfy the Board that he is fit to be re-registered.
• [71] A finite period of preclusion would be appropriate if the Tribunal concluded that upon the end of that period, there is a real prospect that the respondent would then be a fit and proper person to practice his profession. On the other hand, an indefinite disqualification is required if the Tribunal concludes that there are no grounds to believe that the respondent may become fit to practise as a medical practitioner.[15]
• [72] The question is whether "the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person" to be registered as a medical practitioner.[16] Consistent with the standard of proof required,[17] and the catastrophic consequences to the practitioner of such a finding, a finding of permanent unfitness should not be lightly made.[18]
• [73] Whether or not the respondent should be regarded as permanently unfit to practise is a matter on which reasonable minds might differ. Indeed, it is a matter upon which the opinions of the professional assessors assisting me have differed. I have taken into account the advice of all the assessors, consistent with the nature of their role as provided by section 127 of the HO Act. However, the Tribunal is constituted by myself and myself alone, and thus, the decision falls to me.
• [74] Bearing in mind all the evidence before the Tribunal and after considering the advice of the assessors, I have concluded that the conduct of the respondent, viewed in the context of his prior disciplinary history, so indelibly marks the respondent's character as to compel the conclusion that he cannot properly be regarded, now or in the future, as a fit and proper person to hold registration as a medical practitioner.
• [75] The respondent's professional misconduct is of such a nature that it is incompatible with the personal qualities essential to practise a caring profession. By his repeated engaging in such conduct, the respondent has, effectively, forfeited the privilege of ongoing membership of an honourable profession.[19] Given the nature of the respondent's professional misconduct, in the context of his prior disciplinary history, affording the respondent the opportunity of re-registration would be likely to erode professional standards and diminish public confidence in the profession.
• [76] The respondent's registration as a health practitioner will be cancelled and he will be disqualified from applying for registration as a registered health practitioner indefinitely.
• [77] Given that the respondent will remain unregistered, there is no utility in a reprimand. The findings and orders of the Tribunal will serve as denunciation of the respondent's conduct.
• [78] Such orders adequately meet considerations of general deterrence, protection of the public and protection of the reputation of the profession. The further order by way of permanent prohibition of providing any health service sought by the applicant is not required so as to further address those matters. Its only utility in the context of the protective purposes of sanction would be the protection of consumers of health services who might be at risk of mistreatment by the respondent. Given the nature of the respondent's propensity towards misconduct, there seems to be no reason why a prohibition order should not be limited to provision of health services involving contact with female patients. A prohibition order in any wider terms would not seem to be required to meet the protective purposes of sanction and may well have a punitive effect.
• [79] I note the submissions on behalf of the applicant that, if the respondent was to provide any health services as an unregistered health practitioner, that would be in circumstances where he would not have the supervision of a professional Board. The same could be said about compliance with a prohibition order in the terms sought by the applicant. The Tribunal should proceed on the basis that the provisions of sections 90P and 90Q of the HO Act would tend to encourage compliance with a prohibition order in more limited terms than that sought by the applicant.
• [80] So, the orders of the Tribunal will be as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the Tribunal cancels the respondent's registration;

3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified for applying for registration as a registered health practitioner indefinitely; and

4. Pursuant to section 107(4) (b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service involving direct contact with any female patient or client.

[1] Using the anonymisation adopted in the reasons of the disciplinary committee of the Medical Board of Queensland in its reasons dated 20 November 2008.

[3] Other material before the Tribunal suggests that the respondent's registration may have been cancelled in August 2008, most likely with respect to the same conduct.

[4] Medical Board of Australia v Duggirala [2015] QCAT 557.

[5] Medical Board of Australia v Duggirala [2015] QCAT 557 at [6] and [7].

[8] Craig v Medical Board of Australia [2001] SASC 169; (2001) 79 SASR 545 at 553 - 555.

[9] Health Ombudsman v DKM [2021] QCAT 50 at [51].

[10] R v Jones [2011] QCA 19.

[11] Health Care Complaints Commission v Safi (No. 4) [2017] NSWCATOD 102; Health Care Complaints Commission v Cheng [2017] NSWCATOD 51; Medical Board of Australia v Lee (Review and Regulation) [2020] VCAT 568; Health Ombudsman v Arora [2019] QCAT 200; amongst others.

[12] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].

[13] General Medical Council v Spackman [1943] AC 627 at 634 per Viscount Simon LC.

[15] Medical Board of Australia v DAP [2008] QCA 44.

[16] Health Ombudsman v DKM [2021] QCAT 50 at [59] and cases cited therein.

[17] Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336.

[18] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; [1957] 97 CLR 279 at [296].

[19] Health Ombudsman v DKM at [61]; Legal Services Commissioner v Randall [2019] QCAT 217 at [8].