PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - OTHER MATTERS - where the Board brought proceedings for nine grounds of disciplinary action that the Board had commenced investigating prior to the repeal of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ('Disciplinary Proceedings Act') - where the Board brought a further ground that the Registrant had been convicted of various indictable offences contrary to s 124(1)(i) of the Disciplinary Proceedings Act - where the conviction occurred after the repeal of the Disciplinary Proceedings Act - where the Board submits there conviction is connected to the Board's prior investigation - whether the tenth charge can be brought under the Disciplinary Proceedings Act

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY - where the Board brought nine grounds of disciplinary action against the Registrant - where the grounds relate to the unlawful and indecent assault of persons by the Registrant - where the Registrant was convicted of nine counts of sexual assault in the District Court at Ipswich - whether the conduct satisfies unsatisfactory conduct - whether it is appropriate to cancel the Registrant's registration - whether it is appropriate that the Registrant must not be registered by the Board for a period of five years - whether it is appropriate that the Registrant pay the Board's costs of the proceeding

Health Practitioner Regulation National Law (Queensland), s 55(1)(h)(i), s 289(2)(b)

Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 124(1), s 241(2)(i), s 242(4)

Medical Board of Australia v Martin [2013] QCAT 376

Nursing & Midwifery Board of Australia v Clydesdale [2013] QCAT 191

R v Moodley [2013] QCA 253

[1] The Medical Board of Australia brings disciplinary proceedings against the respondent, Dr Nemalan Seshagiri Moodley, pursuant to s 124(1) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ('Disciplinary Proceedings Act'). The conduct in respect of charges 1 to 9 to which the proceedings relate occurred prior to the repeal of the Disciplinary Proceedings Act upon the commencement of the Health Practitioner Regulation National Law Act 2009 (Qld) on 1 July 2010. However, by operation of s 289 of the Health Practitioner Regulation National Law (Queensland) ('National Law') the Disciplinary Proceeding Act continues to apply to the conduct because it was conduct which the Board had commenced dealing with by way of a complaint and investigation prior to the repeal of the Disciplinary Proceedings Act.

[2] Each of charges 1 to 9 in the referral relate to the unlawful and indecent assault of persons by Dr Moodley. I will return to that conduct shortly.

[3] The referral also contains a tenth ground in the alternative, or further to, the other nine grounds. It is that Dr Moodley has been convicted of various indictable offences contrary to s 124(1)(i) of the Disciplinary Proceedings Act. The certificate of conviction which has been tendered in the proceedings establishes that Dr Moodley was convicted of nine counts of sexual assault in the District Court at Ipswich on 3 December 2012. He was convicted on his own plea of guilty. Those convictions quite evidently occurred at a time after the repeal of the Disciplinary Proceedings Act. The Board submits that the Tribunal is able to deal with that tenth charge concerning the convictions as a separate basis of a separate disciplinary proceeding ground by operation of s 289 of the National Law. In that regard it relies upon an earlier decision of the Tribunal in the Medical Board of Australia v Martin [2013] QCAT 376.

[4] In my view, the circumstances in Martin are distinguishable from those which exist in this case. In the case of Martin there was a separate ground which related to conduct by Dr Martin in August 2011. That is, also subsequent to the repeal of the Disciplinary Proceedings Act. However, the conduct of Dr Martin related to responses provided by him to an investigator concerning matters which were then under investigation by the Board.

[5] The Tribunal determined at [17] that, under s 289(2)(b) of the National Law, the notification was to continue to be dealt with under the Disciplinary Proceedings Act as if that Act had not been repealed. Therefore, the investigation was to continue in accordance with Part 5, Division 5 of the Disciplinary Proceedings Act. The requirement to give information which was imposed by s 79 of the Disciplinary Proceedings Act continued to apply; and a failure to give that information could still offend against s 79. Such a failure could also still constitute grounds for disciplinary proceedings under s 124(1)(d) or (f) of the Disciplinary Proceedings Act, notwithstanding that the failure to provide the information occurred after 1 July 2010.

[6] However, the Tribunal's decision in Martin must be limited to circumstances where the offending conduct which occurs after 1 July 2010 is in respect of matters preserved by the transitional provisions of s 289(2)(b).

[7] In my view, that is not the case in respect of the convictions of Dr Moodley in December 2012. The convictions related to the very matters which form the substance of charges 1 to 9, however, it is a separate and distinct legal process. It was the consequence of criminal charges separately and distinctly having been proffered against him by the Queensland Police and for which he was prosecuted. In my view, ground 10 cannot sustain a disciplinary charge.

[8] Upon conviction of the matters to which grounds 1 to 9 of the referral relate Dr Moodley was, on 8 January 2013, sentenced to imprisonment for a period of four years in respect of the charges, which was to be suspended after a period of 16 months in prison.

[9] Dr Moodley appealed against the sentence imposed by the learned trial judge. He was successful in the appeal, and the sentence of imprisonment of four years was set aside, and in its place was substituted a sentence of three years in respect of count 9 to be suspended after 12 months, with an operational period of three years, and in respect of each of counts 1 to 8, a sentence of 12 months imprisonment was imposed to be served concurrently with the sentence imposed in respect of count 9.

[10] The leading judgment in the Court of Appeal was delivered by Holmes JA, with whom Fraser JA and Douglas J agreed: see R v Moodley [2013] QCA 253. Her Honour recorded the fact that Dr Moodley had pleaded guilty to nine counts of sexual assault committed on six female patients in the conduct of his practice. She described that all the offences entailed Dr Moodley, while clothed, rubbing his genitals against the female patients' bodies while performing physical examinations of them. Her Honour's description of the offences bears recording in these reasons. Her Honour described the offences as follows:

The six complainants were aged between 34 and 40, with the exception of one who was only 17 years old. The offences giving rise to the first two counts occurred in 2003. In the first of those cases, the patient was lying on an examination bed while the applicant examined her stomach. In the course of doing so, he rubbed his erect penis from side to side against her right hip for a minute and a half. In the second case, while performing a pap smear and while he had his fingers inserted into the patient's vagina, the applicant rubbed his erect penis up and down her back for a minute or so. Both those women made complaints to police but were dissuaded from pursuing them.

In December 2008, another patient of the applicant had a similar but more protracted experience. She was being examined for back pain and, in the course of the examination, was lying on her stomach. The applicant massaged her neck and shoulders and then rubbed his erect penis against her upper thigh and hip. At his direction, she rolled onto her side with her back to him. She felt his penis rubbing against her bottom for a period of about 10 seconds. The applicant then told her to stand and bend. While she was doing so, he felt her lower back and then rubbed his erect penis against her bottom for about 10 seconds. As she moved away from him, he took hold of her pelvis and held her, pushing and rubbing his penis against her while making groaning noises. She made a complaint to a friend, a nurse and a doctor but was persuaded not to take the matter further. She, like the patients who had been assaulted in 2003, renewed her complaint in 2009 after hearing that the applicant had been charged with similar offences.

The remaining assaults occurred between March and October 2009. The fourth complainant was being examined for back pain and was required to lie on her stomach. The applicant leant over her and pressed his erect penis against her hip and buttocks, then put his knee on the examination table, leant over her again and briefly rubbed his erect penis against her thigh. The fifth complainant (the 17 year old) was also being examined for back pain. She was made to lie on her side on an examination table. The applicant pulled her body towards him and rubbed his penis from side to side against her bottom. Then he asked her to stand and bend over. He pulled her towards him, pushed himself up against her and rubbed his penis against her for two or three minutes.

The sixth complainant was the subject of four different assaults. On each of the four occasions involving her, the applicant rubbed his genitals against her buttocks while she was lying on the examination table. On the fourth occasion, he had also made her stand and bend and touched his genitals to her buttocks. It was also said in the schedule of facts that on one of the four occasions he had conducted a breast examination on the patient, in the course of which he had rubbed her nipples between his fingers and said "nice". It is not clear whether the rubbing of the nipples was said to be beyond the parameters of a breast examination, but the offending relied on seems to have been not that act but a distinct incident during the same consultation in which the applicant rubbed his genitals against the patient's buttocks while he massaged her back.

[11] Holmes JA observed that the learned sentencing judge had said 'that the case involved not only a breach of trust by a practitioner towards female patients, but a gross abuse of his power which, not surprisingly, had significant impacts on the women concerned.'

[12] Holmes JA went on to describe, in her own terms, the assaults as being 'relatively fleeting and having occurred while the applicant was fully clothed.' Her Honour observed that 'None of the offences were penetrative or involved actual flesh to flesh contact.'

[13] She further observed that the more serious offences were the two in which there was a longer course of conduct with the applicant rubbing his penis against a recumbent complainant, making her stand and then holding her while he rubbed his penis against her and the incident in which the rubbing occurred while the applicant was actually conducting a pap smear. Her Honour described the offending as an 'appalling breach of the trust implicit in the doctor-patient relationship.'

[14] Her Honour considered that the sentence to be imposed by the court, even setting aside the learned trial judge's sentence, was required to recognise the repetition of the offences and the gravity of the breach of trust involved. Her Honour also observed that there had been limited cooperation in the administration of justice and that all of the complainants had had to give evidence at Dr Moodley's committal. I am told that he only pleaded guilty on the morning of the commencement of his trial.

[15] Dr Moodley has not participated in these proceedings either. It must immediately be recognised that he is at a disadvantage in doing so.

[16] On 3 April 2014, a solicitor in the firm representing the Medical Board of Australia had telephone contact with Dr Moodley's brother. The brother informed the solicitor that Dr Moodley had been deported from Australia one day after his release from the Wolston Correctional Centre where he had served his sentence and was the subject of a permanent exclusion from Australia. It was, however, apparent that documents he forwarded to Dr Moodley's brother would be forwarded on to Dr Moodley. On that basis, on 9 May 2014, I ordered that service of documents on Dr Moodley in the future conduct of the proceedings, including notice of this hearing issued pursuant to s 92 of the Queensland Civil and Administrative Act 2009 (Qld), be effected by sending the documents by prepaid ordinary post to the address of his brother.

[17] In an affidavit filed by leave this morning, Mr Templeton, a solicitor also in the employ of the Board's solicitors, has deposed to having served notice of this hearing in accordance with those directions and having spoken to Dr Moodley's brother who has confirmed that he received the various pieces of correspondence including the notice of hearing and that he had forwarded a copy of all those documents and correspondence to his brother by post. In a conversation conducted yesterday, the brother indicated that his understanding was that Dr Moodley would not be appearing in the proceedings. By that, I take it to mean either in person or otherwise. He is obviously prohibited from appearing in person. It is also apparent from an examination of the file, and Mr Templeton has confirmed it with discussions with the Registry, that the notice issued pursuant to s 92 of the QCAT Act was forwarded in accordance with the directions made on 9 May 2014.

[18] The Board alleges that the conduct, in respect of each of the nine grounds to which I have referred, constitutes unsatisfactory professional conduct as defined in the schedule to the Disciplinary Proceedings Act contrary to s 124(1)(a) of the Act, in that it is each of the following:

(a) professional conduct that is of a lesser standard than that which might reasonably be expected of the respondent by the public or the respondent's professional peers;

(e) conduct discreditable to the respondent's profession; [and]

[19] The conduct, in my view, certainly satisfies the definition of unsatisfactory conduct in each of those ways. It is certainly conduct of a lesser standard than that which might reasonably be expected of Dr Moodley by the public or his professional peers. In Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191, the Tribunal also considered the meaning of the expressions 'infamous conduct in a professional respect', 'misconduct in a professional respect' and 'conduct discreditable to the profession' as used in the definition of unsatisfactory professional conduct in the Disciplinary Proceedings Act. The Tribunal concluded that each of those terms is very close in meaning to each of the other terms.

[20] In respect of infamous conduct in a professional respect, the conduct will satisfy that definition where there has been a 'breach of the rules of the profession which would rightly incur the strong reprobation' of the registrant's professional colleagues_._ Here, there was obviously such a clear and serious breach.

[21] It was equally clearly misconduct in a professional respect and conduct discreditable to the medical profession.

[22] Dr Moodley remains registered as a medical practitioner in Queensland, although his registration is currently under suspension. He had first been registered in Queensland on 19 November 2001 under what was then special purpose registration under s 135 of the Medical Practitioners Registration Act 2001 (Qld). His registration was renewed, such that he held registration at the time of the introduction of the National Law and continued to do so. However, on 22 October 2009, the Board resolved to suspend his registration. That suspension has not been set aside or otherwise removed. Although Dr Moodley has not applied to renew his registration or made any fresh application for registration since the time of his suspension, the registration remains current, it having been transitioned to registration, albeit suspended, under the National Law.

[23] The Board seeks an order by way of sanction cancelling Dr Moodley's registration.

[24] The nature of disciplinary proceedings is that they are protective. They are not punitive. Notwithstanding Dr Moodley's disadvantage in not being able to participate in the proceedings, he has had notice of them and notice of all the charges for some considerable time. There is no evidence at all before the tribunal which would, in any way, satisfy it that Dr Moodley is a person who ought continue to hold registration as a medical practitioner in Queensland. There is no evidence of any insight or remorse in respect of his conduct. As already observed, there was no demonstration of such insight or remorse until such time as he pleaded guilty to the charges which was, as I observed, after each of the complainants had given evidence and been cross-examined at the committal proceedings.

[25] A requirement for registration is that the person is a fit and proper person to hold registration in the profession. See s 55(1)(h)(i) of the National Law.

[26] On the basis of the offending conduct and the lack of any other evidence, I am of the view that Dr Moodley is not a fit and proper person to hold registration as a medical practitioner. It is appropriate that, pursuant to s 241(2)(i) of the Disciplinary Proceedings Act, his registration be cancelled.

[27] Subsection 241(4) of the Disciplinary Proceedings Act requires the Tribunal, in circumstances in which it cancels a registrant's registration, to also decide the period during which the registrant must not be registered by the Board.

[28] The Board has submitted that an order prohibiting future registration for a period of five years ought be imposed. In support of that submission, the Board has drawn to the Tribunal's attention a number of comparative cases. It is difficult to draw too close a comparison with any one particular case, because, in all such matters, the facts will differ greatly as between cases, particularly, the cases will vary as to the nature of the offending, the period of which the offending occurred, the number of persons concerned and whether the offending occurred in the course of the practice of the practitioner. In proposing a prohibition period of five years, the Board does so mindful of the fact that the suspension of Dr Moodley took effect in October of 2009. That is, effectively, five years ago. That, in my view, is a favourable concession for the Board to make in this case.

[29] On the basis of the comparable decisions which have been provided to me, a total period of suspension of up to 15 years might be supported. However, in my view, the period of prohibition which the Board proposes of five years will serve the protective purposes which the Act and proceedings such as these is intended.

[30] It is to be noted that Dr Moodley will inevitably face other difficulties in relation to attainting any registration after that period of time. First, he seems to face some immigration difficulties and, beyond that, it will still be a requirement that he satisfy the Board that he is, at that time, a fit and proper person to be registered as a medical practitioner.

[31] The Board also seeks its costs. That, in this case, is entirely appropriate. As the Tribunal has observed in the past, the Board is funded, in large part, by the subscriptions of members of the profession of good standing. It is incumbent upon the Board to bring proceedings such as these. It ought have its costs in those circumstances.

[32] I will make orders in terms of the draft which have been provided which I will initial and place with the papers.