1. That the practitioner must not consult, assess, examine or treat any female person from the ages of 16 and over without a chaperone being present at all times who is at least 18 years of age and meets at least one of the following criteria: * (i) Either a person that has accompanied the patient to the consultation; or * (ii) Any other individual with the consent of the patient including a member of the staff; or * (iii) An adult guardian. 2. At the time of the consultation, assessment, examination or treatment of any female person from the age of 16 and over, the practitioner must record the full name of the chaperone in the patient's clinical record.

1. The practitioner must maintain a patient log/chaperone report to be completed in indelible ink at the time of the consultation, assessment, examination or treatment of any female person from the age of 16 and over which must contain: * (i) The date and time of the consultation. * (ii) The name of the patient. * (iii) The full name of the chaperone. * (iv) The chaperone's signature confirming they were present during the entire doctor/patient interaction.

1. The patient/chaperone report must be forwarded to the Board by the practitioner at the end of every calendar month. 2. The practitioner authorises representatives of the Board to inspect, take or copy patient clinical records, log books, appointment diaries and/or patient log/chaperone reports for any female patient from the age of 16 and over at such time or times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner's registration. 3. The practitioner will provide a monthly statutory declaration that they have complied with the Board's requirements and the conditions of their registration, such statutory declaration to be provided to the Board at the end of every calendar month. 4. The practitioner must provide the Board with all clinical records of any female patient from the age of 16 and over nominated by the Board at such time or times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner's registration. 5. The practitioner must authorise insurance funds and Medicare Australia to provide information to the Board about his treatment of patients for the purpose of monitoring conditions imposed on the practitioner's registration. 6. The practitioner must notify in writing any current and any future employers, CEO or equivalent of any healthcare facility where he works and colleagues he works with of the conditions imposed on the practitioner's registration within seven days of their imposition or prior to commencing any future employment. 7. The practitioner must provide the Board with a list of name of employers, CEOs or equivalent and persons to whom he has notified of the conditions imposed on his registration within seven days of their imposition or within seven days of commencing future employment. 8. The practitioner must notify the Board of any and all changes in his practice, such notification to include the name and address of any employer, partner or person for whom or with whom the practitioner is working and the address at which the practitioner is practising.

1. The practitioner authorises representatives of the Board to contact and exchange information with each employer and hospital or facility where he works at such time or times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner's registration.

1. The practitioner will provide to the court any documentary evidence required by these conditions within the timeframes specified. 2. Failure to comply with these conditions may be a ground for health conduct or performance action against the practitioner. 3. All costs and expenses in relation to the terms set out in these conditions are to be at the practitioner's expense. 4. The existence and the details of these conditions will be entered in the Board's national public register in accordance with section 225(k) of the Health Practitioner Regulation National Law Act 2009.
2. The respondent will, at his own cost, undertake further education and counselling with Dr Brian Kable or other Board-approved counsellor with respect to professional responsibilities and professional obligations.
3. The respondent will, at his own cost, arrange for Dr Kable and if applicable, other Board-approved counsellor, to provide a written report to the Board on the completion of the counselling or earlier in response to any areas of concern.
4. The respondent pay the applicant's costs of the investigation and the costs of the disciplinary proceedings, the latter on a standard basis on the District Court scale agreed at $85,000.00.

HEALTH PRACTITIONER - DISCIPLINARY PROCEEDINGS - sexual and inappropriate conduct toward a female patient - where registrant failed to comply with immediate action conditions - where registrant wrote and caused three letters to be sent - where the first letter was send to the patient at her home address advising that proceedings were being brought for defamation - where the second and third letters were forged and purported to be written by the patient - where the second letter was addressed to the Chairman of the Medical Board of Australia and advised that all allegations be withdrawn - where the third letter was addressed to the patient's solicitors and advised that amicable settlement had been reached - where certain allegations admitted - where professional misconduct admitted - where parties jointly proposed suspension and subsequent chaperone and reporting conditions when treating female patients for a period of 12 months upon resumption of practice - registrant to undertake education and counselling and report to the Board- registrant to pay the Board's costs as agreed.

Health Practitioner Regulation National Law Act 2009

MBA v Henderson (2011) QCAT 90

C J Wilson of Counsel instrcuted by Moray & Agnew Lawyers

David Tait QC of Counsel instructed by Thynne & Macartney

[1] The Medical Board of Australia has applied for a finding that the registrant has engaged in professional misconduct and for sanctions pursuant to section 196 of the Health Practitioner Regulation National Law Act 2009. On the 13th of June 2012, the Board referred disciplinary proceedings to QCAT pursuant to section 193 of that legislation. At that time, the referral related to an instance of inappropriate conduct amounting to sexual misconduct which occurred on the 9th of September 2011. A statement of agreed facts has been placed before the tribunal.

[2] The agreed facts in relation to that particular allegation are that at the relevant time, the registrant practised at the Donald Road Medical Centre at Cleveland. M, who is the complainant in this matter, was his patient at the time. On the 9th of September 2011, she attended that practice in order that her young daughter undergo a health check and, as I understand it, whilst that was occurring she herself consulted with the registrant for the purpose of receiving treatment and advice regarding two moles located at the top, back and inner part of her right thigh.

[3] At that time she was wearing black shorts which had a broken seam in the front. The registrant examined those moles located in the position that I've just stated with a dermascope and digioderm scanner. During the course of the examination he said to the patient words to the effect of 'are you trying to give me an erection', and he also made the patient aware of the fact that she had a hole in her pants. At the conclusion of the examination when the patient was leaving the consultation room, the registrant tapped the patient's buttock without her consent. The registrant has accepted that his comment or comments and behaviour were inappropriate and amount to sexual misconduct.

[4] On the 22nd of May 2012, prior to any referral, the Board imposed conditions on the registrant by way of immediate action pursuant to section 156 of the legislation. The conditions imposed included a requirement that he not examine or treat any female person without a chaperone present, being a chaperone who is at least 18 years of age. The registrant was obliged to record the name of the chaperone at the time of any relevant examination or treatment and to maintain a patient log chaperone report to be completed at the time of each examination or treatment recording the date and time, patient's name, chaperone's name and the chaperone's signature. The conditions further obliged the registrant to provide the patient log/chaperone report to the Board at the end of every month accompanied by a statutory declaration by the registrant as to compliance with the conditions.

[5] The registrant failed to comply with conditions imposed which resulted in the referral being amended twice to incorporate those breaches. During the period 22nd of May 2012 to 25 October 2012 he breached the conditions of registration on 142 separate occasions. In respect of those 142 consultations, he conducted at least a third of them without a chaperone present in contravention of clause 1. He failed to record consultations with female patients in the chaperone log on at least 130 occasions in contravention of clause 3. He failed to obtain the chaperone's signature on the patient log/chaperone report on at least 132 occasions, again, in contravention of clause 3. He permitted a young woman who was - had not yet reached the age of 18 years to act as a chaperone on at least 16 occasions in contravention of clause 1. And he declared in statutory declarations dated the 23rd of July 2012, 3rd of August 2012, 2nd of September 2012 and 3rd of October 2012 that he had complied with the conditions imposed on his registration in circumstances where he knew he had not.

[6] Amended grounds for disciplinary action was filed on the 27th of September 2013 which added these 142 instances of failure to comply with those conditions in addition to the original instance of misconduct. A further amended ground for disciplinary action was filed on the 29th of November 2013. That alleged an additional 41 occasions of failure to comply with chaperone and reporting conditions between the 26th of October 2012 and the 31st of July 2013. In relation to those breaches, for each of the 41 consultations, he failed to record consultations with female patients in contravention of clause 3. He failed to obtain the chaperone's signature on the patient's log/chaperone report for each of the 41 consultations, again, in contravention of clause 3. And he declared in statutory declarations dated the 4th of November 2012, 2nd of December 2012, 4th of February 2013, 5th of March 2013, 3rd of April 2013, 3rd of May 2013 and 4th of June 2013 that he had complied with the conditions imposed on his registration in circumstances where he knew that he had not.

[7] By his amended response filed on the 11th of October 2013, the registrant disputed several aspects of his initial inappropriate behaviour but admitted making inappropriate comment and that that amounted to sexual misconduct. He also admitted his breaches of the conditions that have just been detailed.

[8] A further amended response was filed on the 6th of December 2013 in which he disputed some aspects of the allegation of inappropriate conduct but continued to admit that there was at least one incident of sexual misconduct comprising his comment to the patient to the effect of, 'Are you trying to give me an erection? Please move away from me.' But again, continued to admit his failure to comply with the conditions. Some explanation was given for those breaches but his conduct was in no way excused.

[9] On the 10th of August 2012 the registrant wrote to the patient at her home address advising that he was bringing proceedings against her for defamation of character and had engaged lawyers to act for him. Then in early 2014 he wrote and caused two letters to be sent. The first was addressed to the Chairman of the Medical Board of Australia and dated 24th of January 2014. The second also dated 24th of January 2014 was written by the registrant and addressed to the patient's solicitors. She had previously briefed a firm of solicitors to commence proceedings against the registrant and he had, prior to the 24th of January 2014, received and been served with the statutory notices as required by the Personal Injuries Proceedings Act of 2003.

[10] Both of those letters were forged. The letter to the Chairman of the Board, purportedly written by the patient, asserted that the patient had engaged in a plan to frame the registrant in relation to the original inappropriate conduct and advised that the patient wished to withdraw all allegations against him. The second letter to the patient's solicitors, again purported to be written by the patient, advised that the patient and the registrant had reached an amicable settlement and that the patient no longer wished to proceed with the action. As I have indicated in the course of submissions this morning, the behaviour of the registrant in sending these letters was extraordinary to say the least and in every sense of the word dishonest.

[11] On the 20th of March 2014 a further amended response was filed by the registrant which relied upon the matters set out in the forged letter to the Board and denied the previously admitted sexual misconduct. He continued to admit the breach of the conditions imposed however. On the 15th of April 2014, the Board filed an application to further amend the referral to include, in addition to the previous allegations of inappropriate conduct and failure to comply with conditions, the further allegations that he had attempted to improperly influence persons in respect of this proceeding and the personal injury proceedings, and leave to allow that amended referral to be filed was given this morning.

[12] By the statement of agreed facts, the Board and the registrant have agreed that the registrant's conduct on the 9th of September 2011 including the words that were uttered were inappropriate and amounted to sexual misconduct. They have also agreed that the registrant breached the conditions imposed by the Board in relation to the 142 consultations between the 22nd of May and the 25th of October 2012 and the 41 occasions between the 26th of October 2012 and the 31st of July 2013. The registrant has agreed that he wrote to the patient on the 10th of August 2012 advising that he would bring proceedings for defamation of character and that he wrote the two forged letters that have been referred to previously.

[13] It has been submitted that the initial instance of sexual misconduct was at the lower end of the scale and I agree with that categorisation of the behaviour. Had that matter alone proceeded to hearing, a likely consequence would have been a reprimand and a chaperone and reporting conditions similar to those imposed by the Board by way of immediate action. When one considers that behaviour together with the extensive breaches of the chaperone reporting conditions, which are in and of themselves very serious behaviour, then the continued and flagrant disregard of the chaperone conditions shows, at least at that time, a lack of insight and little regard or respect for the protective functions performed by the Board in imposing such conditions. I have been referred to the decisions of MBA v Henderson (2011) QCAT 90 and ACCC v Rolleston (2013) NSWNT 12 in that regard.

[14] It has been submitted that repeat offending should be taken seriously and that a failure to penalise may have the effect that other members of the profession are not properly deterred and that public confidence is lost as a consequence, and I agree with that submission. It has also been submitted that compliance with conditions is fundamental and there is no dispute in that regard whatsoever.

[15] It has been submitted by legal representatives for the Board that before the forged correspondence came to light, a period of suspension of the order of four to six months might have been an appropriate outcome. I make no finding in that regard. But as I have indicated, the most recent conduct involving the forgery of letters demonstrates dishonest behaviour of a significant nature and for at least at the time that that correspondence was sent, showed a demonstrable lack of remorse and lack of insight into the significance of the earlier conduct. Dishonesty, there is no doubt, is a demonstration of significant misconduct in and of itself. An absence of remorse and insight is relevant to sanction, and whether a registrant truly understands his or her error is also a relevant feature. The Board has submitted that the statement of agreed facts and the registrant's agreement as to proposed penalty now, at least belatedly, does demonstrate a degree of insight and remorse. I accept that it has that effect, although I note that it is very belated indeed. Very much in the registrant's favour is the fact that he has no previous record of disciplinary proceedings, is a practitioner of 30 years experience which includes community and professional activities, and is well regarded by at least some of his patients. Of course, disciplinary jurisdiction is exercised for the protection of the public and the protection of the profession.

[16] Taking into account the fact that this hearing has proceeded by way of admission, thus saving what would have in all likelihood been a three to four day trial, I suspect, that is a relevant consideration to the determination of overall penalty. An agreed position on penalty has been reached by the parties. That agreed position in summary form is that there should be a finding of professional misconduct, the registrant be reprimanded, that is registration be suspended for a period of two years, that following suspension and on resumption of practice, he is to be subject to chaperone and reporting conditions for a period of 12 months, that he is undertake education and counselling and a report of such counselling is to be provided to the Board, and that the registrant has to pay the Board's costs that are agreed. Taking all relevant matters into consideration, the agreed position as to penalty is appropriate in all of the circumstances with the one exception that has already been discussed in oral submissions this morning, that being in relation to the age - the upper age limit that had been agreed upon for the female patients that he might see in the future without a chaperone being necessary.

[17] Accordingly, the tribunal finds as follows, that the respondent's - that is, the registrant's conduct constitutes professional misconduct and the following orders are made:

1. The registrant is reprimanded.

   1. His registration as a medical practitioner is suspended for a period of two years from the date of this order.

   2. The following conditions are imposed on the registrant's registration as a medical practitioner for a period of one year following the suspension and on his resumption of clinical practice:

      1. That the practitioner must not consult, assess, examine or treat any female person from the ages of 16 and over without a chaperone being present at all times who is at least 18 years of age and meets at least one of the following criteria:

         1. Either a person that has accompanied the patient to the consultation; or

         2. Any other individual with the consent of the patient including a member of the staff; or

         3. An adult guardian.

      2. At the time of the consultation, assessment, examination or treatment of any female person from the age of 16 and over, the practitioner must record the full name of the chaperone in the patient's clinical record.

      3. The practitioner must maintain a patient log/chaperone report to be completed in indelible ink at the time of the consultation, assessment, examination or treatment of any female person from the age of 16 and over which must contain:

         1. The date and time of the consultation.

         2. The name of the patient.

         3. The full name of the chaperone.

         4. The chaperone's signature confirming they were present during the entire doctor/patient interaction.

      4. The patient/chaperone report must be forwarded to the Board by the practitioner at the end of every calendar month.

      5. The practitioner authorises representatives of the Board to inspect, take or copy patient clinical records, log books, appointment diaries and/or patient log/chaperone reports for any female patient from the age of 16 and over at such time or times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner's registration.

      6. The practitioner will provide a monthly statutory declaration that they have complied with the Board's requirements and the conditions of their registration, such statutory declaration to be provided to the Board at the end of every calendar month.

      7. The practitioner must provide the Board with all clinical records of any female patient from the age of 16 and over nominated by the Board at such time or times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the practitioner's registration.

[18] There is a non-publication order in relation to the name of the complainant, M.