PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT OR UNPROFESSIONAL CONDUCT - GENERALLY - where the practitioner provided false documents to the registering authority - whether reprimand is an appropriate sanction

Health Practitioner Regulation National law (Queensland), s 5, s 193, s 196

Medical Board of Australia v Putha [2014] QCAT 159

Medical Board of Australia v Win [2015] VCAT 1289

Pharmacy Board of Australia v Vue [2013] QCAT 236

APPLICANT: Mr C Wilson of counsel instructed by Moray & Agnew Lawyers

RESPONDENT: Mr A Forbes of Landers & Rogers Lawyers

**[1] On 31 July 2015, the Medical Board of Australia (Board) referred to the Queensland Civil and Administrative Tribunal (Tribunal) disciplinary proceedings against the practitioner, Dr Kyaw, pursuant to s 193(1)(a) of the Health Practitioner Regulation National Law (Queensland) (National Law).

[2] The grounds for the referral were originally that the practitioner gave the Board at the time of making his application for limited registration information and documents that were false or misleading in a material particular and improperly obtained registration with the Board.

[3] By the time the matter had come before the former Deputy President, Judge Horneman-Wren SC, the referral had been amended in paragraph 11 to delete the allegation that 'the practitioner improperly obtained registration with the Board' and instead alleged that 'the practitioner had behaved in a way that constitutes professional misconduct'.

[4] The practitioner has admitted that he included false information in his application for limited registration dated 24 September 2012. In the practitioner's Curriculum Vitae (CV) in the section headed 'Detailed practising history', the practitioner had referred to a period of work as a general practitioner in Myanmar in the period from October 1999 until April 2003.

[5] Subsequently, after having been granted limited registration and following a request for a certificate of registration status, the practitioner had also provided a certificate of registration status purportedly signed under the hand of the Chairman, Myanmar Medical Council. The certificate of good standing contained the following words: 'This is to certify that Dr Htin Aung Kyaw M.B.B.S. (1998) had registered under the Myanmar Council Law Bearing Registration Number 15723 Dated 18 June 2003'.

[6] In a statutory declaration made by the practitioner on 20 July 2013 and given to the Australian Health Practitioner Regulation Agency (AHPRA), acting on behalf of the Board, on 30 July 2013, the practitioner admitted:**

**_(a) the certificate had in fact been purchased from an entity that was not the Myanmar Medical Council, and was fraudulent; and

(b) he did not practice clinical medicine in the period from October 1999 to June 2003._**

[7] On 24 July 2014, the parties had filed joint submissions as to sanction together with a statement of agreed facts. No affidavits had been filed on behalf of either party, though the Tribunal had before it the agreed bundle of documents.

[8] The parties submitted in the joint submissions filed on 24 July 2014 that the Tribunal reprimand the practitioner and order the reprimand to remain on the register for 2 years. In the joint submissions, the parties distinguished an earlier decision of the Tribunal of Medical Board of Australia v Putha.[1] In those submissions, that decision was distinguished on the grounds that the present respondent had not been advantaged by his conduct and that his conduct would not have altered his eligibility for registration.

[9] This matter was listed for a hearing on the papers on 19 November 2014 before the former Deputy President.

[10] On 4 December 2014, the former Deputy President at a directions hearing, requested the parties to further address the statement made in paragraph 15 of the joint submissions that 'No advantage was gained by the Practitioner by reason of the false and misleading information he provided.'

[11] On 26 November 2015, the parties filed a second statement of agreed facts and each party filed further submissions. In the second statement of agreed facts at paragraph (m), it was stated that:**

The practitioner has not received any benefit or advantage from his misconduct and would have been eligible for registration in any event based on his clinical experience in Jamaica.

**[12] No affidavit material was filed on behalf of the applicant Board addressing the issue as to whether an advantage had been gained by the practitioner by reason of the false and misleading information.

[13] An affidavit was filed by the respondent practitioner affirmed on 28 October 2015. In that affidavit at paragraph 1, the practitioner stated:

I understand it would not have made a difference to obtaining registration with the Board. That is to say, if I had not lied I still would have gained registration.

The practitioner was not cross-examined on that statement.

[14] In its supplementary submissions filed 24 November 2015, the Board maintained that Putha was to be distinguished because the false statement in that case facilitated the practitioner attaining registration and employment which she would otherwise not have obtained. However, the Board said, 'the Board does not maintain the joint submission (at paragraph 15) that the present Respondent has not been advantaged by his conduct.'[2] In making his oral submissions, counsel for the applicant Board said:

So we don't really believe we can argue that he hasn't received any advantage by it. Having said that, the specific matter that was false would not have made any difference had he told the truth.[3]

Counsel stated that it was 'a subtle distinction' but said 'the Board considered it was important to identify that.'[4]

[15] In the course of oral submissions, counsel for the applicant Board, when asked, did not seek to resile from the position as detailed in the second Statement of Agreed Facts.

[16] Further, counsel for the Board acknowledged the practitioner's 'Relatively extensive period in practice documented and not in dispute.'[5] The practitioner had worked in various roles in Jamaica from January 2005 to September 2012. Prior to that, he had performed his medical internships, firstly in Myanmar from July 1998 to June 1999 and then in Jamaica from December 2003 to December 2004.[6]

[17] The focus of the applicant Board became the fact of the dishonesty. Counsel submitted that 'it's the dishonesty aspect which attracts the sanction.'[7] Counsel continued:

It might set an unfortunate precedent ... if there were to be some distinction between dishonesty which got - actually achieved a result, and dishonesty which wouldn't have made any difference anyway.[8]

[18] However, under the statutory scheme, there does appear to be a distinction. That distinction is clear from the wording of s 193 of the National Law, which in subsection (1) subparagraph (a) draws a distinction between 'professional misconduct' or 'the practitioner's registration was improperly obtained because the practitioner (or someone else) gave the Board information or a document that was false or misleading in a material particular.' Here, it was the latter provision that was originally relied upon. Subsequently, the original referral was amended to refer only to the practitioner having behaved in a way that constituted 'professional misconduct'. Mr Forbes for the practitioner reminded the Tribunal of that distinction in the course of his oral submissions.

[19] In terms of the statutory scheme, if either ground is established, then under s 196 of the National Law the Tribunal may decide to do one or more of a number of things. It is accepted, and there can in fact be no doubt, that the provision of false documents to the registering body amounts to 'professional misconduct'.

[20] In oral submissions, counsel for the applicant Board said that a broad range of sanctions has been imposed where false documents have been provided to the registering body and that it is difficult on a review of past authorities to necessarily detect any consistency. Mr Forbes for the respondent practitioner, however, considered there were 'two rough lines of authority'[9] consistent with the distinction in the National Law.

[21] Certainly, the decision in Putha's case is clearly distinguishable.[10] In Putha's case, it seems to have been accepted that the registering Board granted the practitioner a type of registration which she would not otherwise have been granted but for the false statement made that she had been in continuous practice in India between 2002 and 2007. The comments made by the presiding member, the former Honourable Justice James Thomas, that cancellation of registration is a very appropriate order in most cases where registration has been obtained by fraud, simply do not apply to the facts here.

[22] The decision involving Dr Win seems more comparable with the facts here.[11] In Win's case, like here, it seems to have been accepted that had the doctor disclosed the true facts in terms of her recency of practice, there was no suggestion that the Board would have refused to register her or required further information to justify registration. In that case, the Tribunal reprimanded the doctor; albeit in a joint submission the parties had agreed a caution was the appropriate sanction. The basis for the imposition of a reprimand, as distinct to a caution, was said by the Tribunal to be:

To ensure it is clear to her, other practitioners and the community, that any professional misconduct, and her behaviour in particular, is unacceptable for a medical practitioner.[12]

[23] Likewise, there would seem to be no reason as to why in this case a reprimand could not achieve the same message to Dr Kyaw and other practitioners.

[24] Further, here, unlike in Win's case, there is no suggestion of any need for further education or any other condition. Dr Kyaw has an exemplary record in terms of his performance as a medical practitioner. Dr Kyaw has never had any concerns or complaints raised in relation to his conduct or performance, either in Australia or during his lengthy period of practice in Jamaica.[13] Dr Kyaw has the support of his current employer, Maria Clinic, Casino.[14]

[25] Further, in considering sanction, of significance is his genuine remorse which is demonstrated by his complete cooperation with the Board, the statement made in these proceedings[15] and his acceptance that his conduct amounts to 'professional misconduct' for which he should be disciplined.[16]

[26] It is also relevant that he has already experienced 10 months out of work as a consequence of his dealings with the Board and he and his family have been under enormous financial pressures and been forced to have lengthy periods of separation.[17]

[27] Taking all these matters into consideration, the Tribunal will make an order that Dr Kyaw is reprimanded.

[28] Given the nature of the conduct, it would seem to the Tribunal appropriate for such record to remain on the register for a period of two years, though ultimately that is a question for the National Board.[18]

[29] In matters such as this, when it is found a practitioner has erred and the bringing of the proceedings is justified, the Board is appropriately awarded its costs. As is clear from the second affidavit of Dr Kyaw affirmed on 1 December 2015, consistent with an agreement previously reached between the parties, Dr Kyaw has paid the Board's costs in the amount agreed.

[30] The Board has requested that nevertheless an order for costs should appear as part of the public record of the Tribunal.[19] On behalf of the respondent, it was accepted (albeit hesitantly) that the public record should reflect that the practitioner has paid costs.[20]

[31] Accordingly, for the completeness of the public record, reference to the payment of the agreed amount of $4,000.00 will be made in the order and the order will appropriately state that there will be no further order as to costs.**

[1] [2014] QCAT 159

[6] Para 4, Affidavit affirmed 28 October 2015

[10] Medical Board of Australia v Putha [2014] QCAT 159

[11] Medical Board of Australia v Win [2015] VCAT 1289

[13] Para 63, Affidavit affirmed 28 October 2015

[15] Paras 18 and 61, Affidavit affirmed 28 October 2015

[16] Para (l), second Agreed Statement of Facts

[17] Paras 33 to 40, Affidavit affirmed 28 October 2015