Medical Board of Queensland v DAP

SUPREME COURT OF QUEENSLAND

CITATION: Medical Board of Queensland v DAP [2008] QCA 44

PARTIES: MEDICAL BOARD OF QUEENSLAND (registrant's board/appellant) v DAP (registrant/respondent)

FILE NO/S: Appeal No 6053 of 2007 / DC No 2335 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Health Practitioners Tribunal at Brisbane

DELIVERED ON: 7 March 2008

DELIVERED AT: Brisbane

HEARING DATE: 22 February 2008

JUDGES: Keane and Muir JJA and Atkinson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. The appeal is allowed and the orders of the Tribunal set aside / 2. The registration of the respondent is cancelled / 3. The respondent must never be registered as a medical practitioner by the Medical Board of Queensland / 4. Respondent to pay the appellant's costs of its investigation of the respondent, of the proceedings before the Tribunal and of the appeal.

CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – DISCIPLINE AND REMOVAL FROM AND RESTORATION TO REGISTER – INFAMOUS CONDUCT OR MISCONDUCT IN PROFESSIONAL RESPECT – PARTICULAR CASES – where respondent convicted of four counts of sexual offences against children under 16 years – where respondent's registration previously suspended for professional misconduct – where respondent is said to be affected by an organic brain disorder – where the Tribunal cancelled the respondent's registration and ordered that he not be registered for a period of five years – whether the reasons of the Tribunal state a sufficient basis for the order made – whether the order of the Tribunal should stand / PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – where appellant substantially successful in decision below – where appellant wholly successful on appeal – whether an order for costs against the respondent should be limited to the costs incurred by the appellant during the investigation phase only / Health Practitioners (Professional Standards) Act 1999 (Qld), s 123, s 126, s 211, s 241, s 255, s 346(b), s 348 / Bawden v ACI Operations P/L [2003] QCA 293; Appeal No 3970 of 2002, 18 July 2003, applied / Camden & Anor v McKenzie & Ors [2007] QCA 136, cited / Cypressvale Pty Ltd v Retail Shops Leases Tribunal [1996] 2 Qd R 462; [1995] QCA 187, applied / Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited / Martin v Rowling & Anor [2005] QCA 128, cited / Suncorp Insurance and Finance v Hill [1998] QCA 112; Appeal No 2029 of 1997, 29 May 1998, applied

COUNSEL: W Sofronoff QC SG, with B W Farr SC, for the appellant / D R Kent for the respondent

SOLICITORS: Gilshenan & Luton Pty Ltd for the appellant / Callaghan Lawyers for the respondent

1. KEANE JA: On 18 June 2007 the Health Practitioners Tribunal of Queensland ("the Tribunal") cancelled the registration of the respondent as a medical practitioner, ordered that he not be registered for a period of five years and prescribed a number of conditions on which the respondent may reapply for registration. The Medical Board of Queensland ("the appellant"), which referred the proceeding to the Tribunal pursuant to s 126 of the Health Practitioners (Professional Standards) Act 1999 (Qld) ("the Act"), had sought the cancellation of the respondent's registration and an order that he must never be registered. The appellant contends, pursuant to s 346(b) of the Act, that the Tribunal erred in law in failing adequately to explain the reasons for its decision having regard to the matters found against the respondent, and in the light of those matters to decide that the respondent must never be registered.

2. The Tribunal also made an order pursuant to s 255 of the Act that the appellant recover only its costs of its investigation of the respondent. The appellant contends that the Tribunal erred in law in failing adequately to explain the reasons for this decision limiting the extent of the costs to be recovered by the appellant having regard to the level of success achieved by the appellant before the Tribunal.

3. In order to appreciate the arguments agitated in this Court in relation to these contentions it is necessary to summarise the facts of the case, to refer to the relevant provisions of the Act, and then to set out the reasons of the Tribunal which bear upon the registration of the respondent.

The facts

4. The respondent was first registered as a medical practitioner on 6 January 1982. He maintained that registration until 17 December 1996. He was then registered again from 17 September 1997 to 9 August 2006. On the latter date, the Board, pursuant to s 59 of the Act, suspended the respondent's registration and referred the matter, arising by reason of the respondent's convictions for certain indictable offences, to the Tribunal.

5. The disciplinary proceedings instituted against the respondent by the appellant invoked s 124(1)(i) of the Act. In particular it was alleged that:

"(a)On the 8th February, 2005 in the District Court of Queensland held at Brisbane, the Registrant was convicted of an indictable offence in respect of two counts, such counts being particularised as follows:-

Count 1:

That on a date unknown between the 31st day of December, 2003 and the 12th day of February, 2004 [the respondent] unlawfully and indecently dealt with a child under sixteen years and that child was under twelve years and that child was to the knowledge of [the respondent] his lineal descendant.

Count 2:

That on the 10th day of March, 2004 at Brisbane in the State of Queensland [the respondent] indecently dealt with a child under the age of sixteen and that child was under the age of twelve and that child was to the knowledge of [the respondent] his lineal descendant; and

(b)That on the 10th June, 2005 the Registrant was convicted and sentenced before the Supreme Court of the Australian Capital Territory in relation to the following two counts:-

Count 1:

That between the 19th March, 2004 and the 22nd March, 2004 at Canberra in the Australian Capital Territory, [the respondent] engaged in sexual intercourse with [the complainant], a person who was then under the age of sixteen years and who was to his knowledge his lineal descendant.

Count 2:

That between the 19th March, 2004 and the 22nd March, 2004 at Canberra in the Australian Capital Territory, [the respondent] engaged in sexual intercourse with [the complainant] a person who was then under the age of sixteen years and who was to his knowledge his lineal descendant."

6. The victims of the crimes of which the respondent was convicted were his own daughters. They were aged 11 and 10 years of age respectively at the time of the offences.

7. In relation to the convictions in the District Court of Queensland, the respondent was sentenced to concurrent terms of 12 months imprisonment, suspended after four months for an operational period of two years. In relation to the convictions in the ACT Supreme Court, the respondent was sentenced to three years and eight months imprisonment from 10 June 2005, with a non-parole period of 14 months.

8. The respondent had a history of previous suspension from practising medicine by reason of his having sexual relations with patients. In 1996 he was charged with misconduct in a professional respect by engaging in sexual relations with a patient between April and July 1991. He admitted to such misconduct and his registration was suspended for a period of nine months from 17 December 1996 to 17 September 1997.

9. On 20 July 2001 the Tribunal found that the respondent had again behaved in a way that constituted unsatisfactory professional conduct in that:-

(a) between 1 January 1995 and 31 December 1995 he commenced and maintained a sexual relationship with a patient; and

(b) between 1 January 1996 and 31 December 1997 he maintained a sexual relationship with a former patient in circumstances where it was improper to do so.

10. It is to be noted that the misconduct relating to the period between 1 January 1996 and 31 December 1997 occurred while the charge of earlier misconduct was pending against him. It should also be noted that, during the course of the hearing in July 2001, the respondent admitted that, during the period 1987 to 1991, he committed other similar violations with a further six female patients and the daughter of an elderly patient.

The Act

11. The Act provides for the maintenance and enforcement of professional standards on the part of members of the medical and related professions. The Act refers to the classes of professional persons who are subject to its provisions as "registrants", they being persons registered as being entitled to practise their professions under other Acts of the Parliament.

12. Part 6 of the Act is concerned with the maintenance and enforcement of professional standards by disciplinary proceedings. In this regard the following provisions are relevant to this case:

"122 Purposes of pt 6

The purposes of this part are—

(a) to state the purposes of disciplinary proceedings and disciplinary action against registrants; and

(b) to state the circumstances under which a board may start disciplinary proceedings; and

(c) to state the grounds for disciplinary action against registrants; and

(d) to provide for adjudication relating to disciplinary matters.

123 Purposes of disciplinary proceedings and disciplinary action

The purposes of disciplinary proceedings and disciplinary action against registrants are as follows—

(a) to protect the public;

(b) to uphold standards of practice within the health professions;

(c) to maintain public confidence in the health professions.

...

124 Grounds for disciplinary action

(1) Each of the following is a ground for disciplinary action against a registrant—

(a) the registrant has behaved in a way that constitutes unsatisfactory professional conduct;

…

(i) the registrant has been convicted of an indictable offence.

…

125 When disciplinary proceedings may be started

(1) A registrant’s board may start disciplinary proceedings against the registrant if it reasonably believes a disciplinary matter exists in relation to the registrant.

…

126 How disciplinary proceedings may be started

(1) A registrant’s board may start disciplinary proceedings against the registrant by—

(a) taking disciplinary proceedings itself or establishing a disciplinary committee to conduct the proceedings; or

(b) referring the disciplinary matter for hearing by a panel or the tribunal.

…"

13. Section 211(1)(a) of the Act confers jurisdiction on the Tribunal "to hear all disciplinary matters referred under section 126 by a board".

14. Under s 241(2) of the Act the Tribunal is empowered to suspend or cancel a registrant's registration. Under s 241(4), if the Tribunal cancels the registrant's registration, it must "decide the period during which the registrant must not be registered by the registrant's board", and under s 241(5) this decision may be that the registrant is never to be registered.

15. Under s 346(b) of the Act an appeal lies to this Court from a decision of the Tribunal under s 241(2) of the Act.

16. Under s 348 of the Act an appeal to this Court "may be made only on a question of law".

17. On the issue of costs, s 255 of the Act provides relevantly:

"(1) The tribunal may make any order about costs it considers appropriate for disciplinary proceedings.

(2) However, the costs allowable are only—

(a) the costs that would be allowable if the disciplinary proceedings were proceedings in the District Court; and

(b) if the board conducted an investigation of the registrant before referring the matter for hearing by the tribunal—the cost to the board of conducting the investigation."

The Tribunal's reasons

18. The appellant submits that the questions raised by it as to the insufficiency of the reasons given by the Tribunal for its orders are questions of law.¹ I have come to the conclusion that the appellant's submission must be accepted. In my respectful opinion, the Tribunal's reasons do not state a sufficient basis, whether in terms of findings of fact or otherwise, for the orders which it made.

19. The Tribunal had the benefit of reports from Dr Ian Leivesley, Prof Harvey Whiteford and Dr Paul Sandstrom. The burden of the evidence of Prof Whiteford and Dr Sandstrom was that the respondent's most recent misconduct was due, in part at least, to an organic brain disorder. Prof Whiteford considered that, in the first of the respondent's offences against his older daughter, alcohol may have had a disinhibiting effect which lessened the respondent's ability to control his actions. No such suggestion was made, however, in relation to the second occasion. There is, therefore, little reason to believe that rigorous abstention from alcohol by the respondent will ensure that there will not be any repetition of this kind of misconduct. And, in any event, the respondent did not give evidence, so that there is no real basis for thinking that he is ready and willing to abstain from alcohol.

20. Dr Sandstrom said that the respondent had "limited control" of his seizure activity. Dr Sandstrom referred to the possibility of "a more definitive treatment such as a temporal lobectomy"; but since the respondent did not give evidence before the Tribunal, there is no evidence that he is willing to undergo such a procedure even if it were likely to afford a cure for his disorder.

21. The kernel of the Tribunal's reasoning in support of the orders which it made is to be found in the following passage, which it is desirable to set out in full:

"It will immediately be obvious that these proceedings, disciplinary as they are, are not meant also to be punitive. Those issues in relation to the indictable offences have already been dealt with and addressed by the relevant Courts in Queensland and the Australian Capital Territory. That is not to say, however, that the circumstances of the commission of the offences must not be given full weight in determining the result of these disciplinary proceedings.

The registrant accepted that the offences were committed. Furthermore it is accepted by the registrant that some disciplinary action should be taken against him. That disciplinary action is said to be in an appropriate way, a suspension of his registration and not cancellation as contended for by the Board.

A number of matter[s] have been raised in the registrant's favour, which ultimately go to an enduring medical condition which was both reasonably unknown to the registrant at the time of the commission of these offences, and which it is said had some effect on his functioning. Dr Leivesley who, according to the material, has treated the registrant for some years and, in fact, has provided reports in past disciplinary proceedings, made the following comment:

'I think that he is now functioning normally as is evidence by the quality of his marriage, his work, the disappearance of his driven qualities and his much deeper understanding of himself. I think that his future prognosis is good and that he's unlikely to engage in sexual behaviour with his patients in the future and that he no longer presents a danger to the community.'

This is the report Dr Leivesley provided for the proceedings in 2001. He has also provided a report in relation to these proceedings. The condition which it is said is suffered by the registrant is one of temporal lobe epilepsy. That condition is variously described by Dr Leivesley, psychiatrist, Professor Whiteford, psychiatrist and Dr Paul Sandstrom, urologist. It is relevant to consider in short compass some of the opinions expressed.

Professor Whiteford, who provided reports for both the Queensland and the Australian Capital Territory offences, and in these proceedings are marked GDF6 and GDF7 respectively, was not of the opinion that [DAP] was in a dissociated or fugue state arising from any seizure, which he experienced at the time of commission of the offences. He said, however, in respect of the Queensland offences:

'It is likely that he was experiencing the disinhibiting effects of both the alcohol (having consumed three glasses of wine over two hours) and some form of epileptic phenomena.'

In relation [to] the offences committed in the Australian Capital Territory, Professor Whiteford said:

'[DAP] had consumed an excessive amount of alcohol (eight standard drinks over three and a-half hours). He would have been experiencing the disinhibiting effects of alcohol and possibly some form of epileptic phenomena (consistent with the headache requiring analgesic medication and the partial amnesia for the incident.)'

I cannot conclude that DAP was at the relevant time suffering from a mental impairment which had the effect that he was not able to control the conduct required for the offence, having regard to the provisions of sections 27, 28 and 29 of the ACT Criminal Code.

Dr Sandstrom opined that the registrant was a man who, unknown to him at the time of committing the offences, was suffering from an organic brain disorder of temporal lobe epilepsy. Dr Sandstrom said:

'Finally, individuals collected with such seizure disorders in association with alcohol usage may exhibit a greater propensity towards personality disinhibition.'

Dr Leivesley, psychiatrist to whom I have already referred, provided this opinion:

'The offences would most likely not have occurred without a substantial contribution from an organic brain disorder.'

The Tribunal is of the opinion that whilst the condition said to have been suffered by the registrant and which is accepted by the Tribunal, explains to some extent his conduct, it is not a complete answer nor defence to his conduct.

Having regard to the principles to which I have already referred in terms of section 123 and the object of the Act (section 6), it is, in the Tribunal's view, taking into account all the circumstances and including what is accepted by the Tribunal as being a potential for rehabilitation, that the registrant's registration should be cancelled, but it should be cancelled for a period of five years, rather, that the registration should be cancelled and according to section 241(4).

The Tribunal has decided that the period during which the registrant must not be registered by the Registrants Board is five years."

22. The most important of the conditions imposed by the Tribunal on any future registration of the respondent is that he should be restricted in his clinical practice to treating patients over the age of 18 years.

23. The Tribunal gave no reasons for the limited order which was made in the appellant's favour in relation to the costs of the proceedings.

Discussion

24. It is tolerably clear that the Tribunal concluded that the respondent was not fit to be registered as a medical practitioner as at the time of the Tribunal's determination. That conclusion was clearly inevitable, and is clear enough from the orders made by the Tribunal even though no express finding was made to that effect by the Tribunal.

25. What is not apparent from the reasons of the Tribunal is how it reached the conclusion that, having regard to the nature of the offences in question, the respondent's recidivism and the history of previous suspensions of his registration as a medical practitioner, the orders appropriate to achieve the purposes stated in s 123 of the Act were for a cancellation of the respondent's registration and that the respondent not be registered for a period of five years with any renewed registration to be subject to the conditions prescribed by the Tribunal.

26. It may be accepted that the Tribunal was of the view that the respondent's present unfitness to be registered as a medical practitioner was due, in part, to the organic brain disorder referred to by the medical witnesses. In this regard, however, whatever be the source of the respondent's criminal sexual proclivities, it is undeniable, and, indeed, tragically clear, that the respondent has proved himself to be incapable of being trusted not to take advantage of women with whom he comes into contact, especially where he occupies a position of trust and control in the relationship between doctor and patient.² It may be that the respondent is not morally culpable for the consequences of his organic brain disorder, but the Act is concerned with whether the respondent is entitled to the confidence of the public, not whether he has forfeited that confidence through his moral blameworthiness. An eye surgeon who suffers seriously from uncontrolled Parkinson's disease may be unfit to practise as an eye surgeon even though he or she is morally blameless. To the extent that, as the Tribunal found, the respondent's "condition explains his conduct", the persistent nature of his condition suggests that the respondent's unacceptable conduct will persist too.

27. It has consistently been said in this Court that a decision-maker is "required to give reasons which disclose what was taken into account and in what manner … unexplained conclusions are not sufficient".³ With two qualifications perhaps, the reasons given by the Tribunal do not disclose what was taken into account by the Tribunal, and in what manner, to arrive at a conclusion that a cancellation for five years was appropriate rather than absolute cancellation. The first qualification to this statement concerns the Tribunal's reference to the organic origin of the respondent's misconduct as something which served to explain, but not excuse, his misconduct. But, as I have observed, the organic origin of the respondent's conduct is no basis for concluding that the respondent may one day be fit to be registered as a medical practitioner: if anything the converse is the case. What is relevant is whether the condition which renders the respondent unfit to be registered is one which is likely to resolve over time. This point leads to the second qualification to my statement that the Tribunal's reasons do not show what matters were taken into account to determine that a five year period of non-registration, as opposed to an order that he never be registered, was appropriate to achieve the purposes stated in s 123 of the Act, or how those matters were taken into account.

Orders

35. I would make the following orders:

(a) The appeal is allowed and the orders of the Tribunal set aside.

(b) The registration of the respondent is cancelled.

(c) The respondent must never be registered as a medical practitioner by the Medical Board of Queensland.

(d) The respondent must pay the appellant's costs of its investigation of the respondent, of the proceedings before the Tribunal and of its appeal to this Court.

36. MUIR JA: I agree with the reasons of Keane JA and with the orders he proposes.

37. ATKINSON J: I agree with the reasons of Keane JA and the orders proposed by his Honour.

Footnotes

1. Martin v Rowling & Anor [2005] QCA 128 at [3]; Camden & Anor v McKenzie & Ors [2007] QCA 136 at [29]. ↩

2. The terms of the Hippocratic Oath reflect the special nature of the medical practitioner's obligation: "I will not abuse my position to indulge in sexual contacts with the bodies of women or of men." ↩

3. Cypressvale Pty Ltd v Retail Shops Leases Tribunal [1996] 2 Qd R 462 at 476 – 477; Suncorp Insurance and Finance v Hill [1998] QCA 112; Bawden v ACI Operations P/L [2003] QCA 293 at [29]. ↩

4. Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 644 [185]. ↩