Medical Radiation Practice Board of Australia v BRG [2025] QCAT 455

• [6] Although there is some dispute in the material there is no dispute that, at the relevant times (being when the respondent breached the conditions of various TPOs), he was registered as a medical radiation practitioner.[3] Allegation one relates to a TPO obtained by his former wife, AM, on 14 December 2020, which was served on the respondent on 17 December 2020, at which time he was removed from the family home.[4]
• [7] In breach of that TPO, the respondent attended the residence of AM and their four children on 6 of January 2021.[5] He had attempted to contact AM in the leadup to that date. That conduct breached the TPO, and on 29 of January 2021, he pleaded guilty to breaching that TPO and was released on entering into a recognisance conditioned that he be of good behaviour if called upon within six months. No conviction was recorded.[6]
• [8] Allegations two to five relate to admitted breaches of two further TPOs made respectively on 31 August 2021 ('August 2021 TPO') and 12 October 2021 ('October 2021 TPO'). These breaches were dealt with in the Ipswich Magistrates Court on 24 November 2022, when the respondent pleaded guilty to all five offences and was placed on a nine month probation order with no conviction recorded, and there was a condition that he participate in counselling and/or programs as directed by a community correction officer.[7]
• [9] The relevant admitted conduct (as set out in the statement of agreed and disputed facts) is as follows:

(a) In relation to allegation one, the respondent admits that, in the days leading up to 6 January 2021, he attempted to contact AM via text message and telephone, and on that date, he attended the residence of AM and the children.[8]

(b) In relation to allegation two, he admits that, on 19 September 2021, he attended a park located at Springfield Central when AM and the children were present, and he parked in the carpark of the park whilst AM and the children were there. By attending the park and interacting with the children in close proximity to AM, he breached the August 2021 TPO.[9]

(c) In relation to ground 3, he admits that, on 3 October 2021, he received a Skype contact from one of his children, pursuant to an oral agreement with AM, and as there was no agreement in writing, this was a contravention of the TPO. Further:

(i) on 9 October 2021, at approximately 8.19am, he sent a text message to AM without her permission;

(ii) on 3 December 2021, at approximately 10.43pm, he sent an email to AM without her permission;

(iii) on 4 January 2022, at approximately 8.55am, he sent an email to AM without her permission;

(iv) on 15 January 2022, he sent an email to her;

(v) on 16 January 2022, he sent her a text message; and

(vi) on 19 January 2022, he sent an email to her without her permission.[10]

(d) In relation to allegation four, he admits that, on 3 May 2022, he dropped off his cousin's daughter (i.e., his niece) to his own childrens' school, and on the afternoon of 3 May 2022, he went back to the school, at approximately 2.45pm, to pick up his cousin's daughter.[11] By attending the school and interacting with the children named in the order, he breached the October 2021 TPO.

(e) In relation to allegation five, he admits, similarly, that on 23 May 2022, he dropped off his niece at the school where his children also attended and that afternoon, he returned and picked up his niece, which constituted a breach of the October 2021 TPO.[12]

(f) In relation to allegation six, he admits that he did not notify the Board of the court outcomes in relation to the five charges, as required by section 130 of the National Law, within the required time limit.[13]

• [10] It is common ground that the respondent has no other criminal history, either before the court appearance on 29 January 2021, or since his appearance on 24 November 2022 in the Ipswich Magistrates Court.
• [11] In his affidavit, the respondent refers to a Domestic and Family Violence Protection Order which remains in effect until 29 July 2027. He is able to have video calls with his children every Wednesday. However, he notes that, and in his affidavit filed this morning, he indicates that agreement has been reached between he and his ex-wife as to arrangements in relation to the children.

• [12] It is for the Board to prove its allegations and to prove that the admitted conduct constitutes professional misconduct. The Board contends that the admitted conduct satisfies the definition of that term as set out in all three limbs of the section 5 National Law definition. This submission by the Board is encapsulated in paragraph 14 of Ms De Luchi's written submissions, who submits that the conduct is serious in nature, having as a maximum penalty three years' imprisonment.
• [13] Ms De Luchi further submits that it is a reasonable expectation of the community, and the respondent's peers, that if a protection order is issued against a practitioner, they rigorously abide by all conditions of that order. Breaches of protection orders (even if minor) on their face are unlawful. Successive breaches can heighten the risk of harm to a person who has sought protection from the Court.
• [14] It is her submission that the respondent's repeat offending demonstrates a blatant disregard for the law, and the conditions of a court order, designed to protect individuals from domestic and family violence. She submits that the offending is aggravated because it continued even after charges had been laid, the respondent had entered into a good behaviour bond and after the Board had begun its initial investigation. She also refers to the relevant conditions in the Code of Conduct effective from June 2022.
• [15] In his submission, the respondent, through the agency of Mr Taylor of counsel, emphasises that although his admitted conduct necessarily involved an acceptance of the fact that, in relation to each contravention, his conduct amounted to 'domestic violence' as defined in section 8 of the DFVP Act, he emphasises that none of the admitted conduct involves actual physical and/or attempted physical violence; and that on a number of occasions (for example, in relation to allegation three), his breaches of the relevant TPOs, by sending an email or a text, appeared to be in response to an actual or implied request from AM. This is important because the Board has proceeded on the basis of the agreed facts, and not on the basis of some of the other material in the brief, which alleges much more serious misconduct.
• [16] In his affidavit, Response and other communications with the Board in the hearing brief, the respondent pleads a level of ignorance in relation to the significance of complying with the conditions of TPOs, and in particular, in relation to allegation one, a level of shock occasioned by his removal from his home on 17 December 2020.
• [17] It can be accepted that, in relation to the December TPO, and the dramatic consequences of it to the respondent, a level of shock and confusion is reasonable. However, once he had pleaded guilty to the first breach, in court on 29 January 2021, a man of his obvious intelligence and intellect must have well known the importance of strictly observing the conditions of each and every order. As the admitted facts indicate, he breached other TPOs over a period of eight months from 19 September 2021 to 23 May 2022 on five occasions.[14]
• [18] In light of the central submission of the Board and given its accepted responsibility of proving that the conduct admitted constitutes professional misconduct, the Tribunal must be careful to ensure that it considers only the conduct admitted, and proved, in making its decision.
• [19] In relation to the first breach contained in allegation one, a very experienced Magistrate remarked that the breach of the order did not involve any threats or actions which suggested violence. In sentencing the respondent for the offences forming the basis of allegations two to five, the Magistrate remarked that each offence individually would be regarded as a minor offence. His Honour also remarked that the allegations did not bring the respondent within the category of imprisonment, and as indicated, a nine-month probation order was imposed and a conviction was not recorded. I agree with the submission made by Mr Taylor that the remarks by the presiding magistrates and penalties imposed are of assistance to the Tribunal in its assessment of the nature of the offending, and I agree that it places the conduct at the lower level of seriousness of contraventions of a protection order.
• [20] The respondent accepts that, by his conduct, he has breached the Code of Conduct (effective from March 2014) for medical radiation practitioners by not acting in accordance with the law. Codes such as this one are admissible as evidence as to what constitutes professional conduct or practice for health professionals.[15]

The most concerning aspect of the respondent's conduct, in the context of these disciplinary proceedings, is that he continued to breach the conditions of TPOs after appearing in court on 29 January 2021.[16] It is correct, as the Board submits, that there is now a significant line of authority that emphasises that domestic violence is not acceptable and may amount to professional misconduct. In its submission, and in support of this proposition, the Board has referred the Tribunal to a number of authorities, including three decisions of this Tribunal, namely Health Ombudsman v Abela [2023] QCAT 312 ('Abela'); Medical Board of Australia v Mandy [2023] QCAT 269 ('Mandy') and Health Ombudsman v HCG [2020] QCAT 166 ('HCG'). The conduct in those cases was more serious, and indeed much more serious in the cases of Abela and HCG.

• [21] Mandy is a helpful comparable decision. The conduct there by a registered medical practitioner was similar to the conduct here, but more serious and more extensive. His conviction for breaching what I infer were the conditions of a domestic violence protection order involved 35 breaches, and some of the impugned communications with the respondent's ex domestic partner contained a 'repeatedly critical tone'. The Tribunal described the conduct as akin to 'coercive behaviour'.
• [22] None of the impugned communications here involved criticism of AM or the children, nor could the admitted contact be described as 'coercive'.
• [23] As against that, the conduct occurred over a period of time, and in relation to the four later offences, when the respondent had already experienced a court appearance and suffered the consequences of a breach of the law. This must have alerted him to the importance of complying with the conditions of court orders. The fact that he did not tends to undermine public confidence in the profession.
• [24] I am conscious of the relevant definitions of 'unprofessional conduct' and 'professional misconduct' set out in section 5 of the National Law. It can be accepted that not every conviction for a criminal offence will necessarily be 'substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience'. However, given the above factors, and bearing in mind the interpretation of the word 'substantial' in Fittock v Legal Professional Conduct Commission (No 2) [2015] SASCFC 167 at [110], I am satisfied, to the requisite standard, the respondent's conduct here, when considered as a whole, constitutes professional misconduct.

• [25] The principles relating to the imposition of sanction are well known and need not be repeated here. Primarily, the purpose of disciplinary response to admitted conduct of an unprofessional nature is protective and not punitive.
• [26] The respondent has, in my view, shown remorse and some insight into the nature of his conduct by pleading guilty to all charges at the earliest opportunity in court and cooperating with the Board and the Tribunal in relation to these proceedings. As noted earlier, the respondent has no criminal or disciplinary history.
• [27] His good character is demonstrated by the material annexed to his affidavit, which is not challenged by the Board. That material satisfies the Tribunal that the respondent is an outstanding and hardworking employee who goes above and beyond what is required to ensure a high quality of care. The material also satisfies the Tribunal that he has a very important role in his community, which is of significance and importance in relation to community cohesion in difficult times that are confronting our community. He has also contributed to the wider community through his work. He is also a highly respected leader of the Sudanese community in south-east Queensland, and has contributed greatly to the welfare of young people within that community.
• [28] As Magistrate Shepherd indicated during the respondent's first sentencing on 29 January 2021, the respondent is an intelligent, hardworking, contributing member of the community and has made significant contributions to the cultural community which he belongs, as well as to the general community.[17]
• [29] Given that the last breach occurred in May 2022, which is over three years ago, in my opinion, the respondent is completely rehabilitated and specific deterrence is of little relevance. I accept, however, that general deterrence is important. Domestic violence of any kind by a registered health practitioner has the real tendency to undermine public confidence in the respondent's profession within the healthcare system.
• [30] The Tribunal in Mandy cited what was said in Healthcare Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [92]:[18]

Our orders, however, must also uphold the standards of the members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means that practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour.

• [31] It is not entirely clear from the reasons in Mandy that the 35 breaches were of a domestic violence protection order, but I am prepared to infer that they were. This is because, as the Tribunal stated, Dr Mandy pleaded guilty and was fined $1,000 and no conviction was recorded.
• [32] In that case, as here, the Board sought orders that involved a suspension of up to six months. That is, enforced time out of practice. That submission was not accepted by the Tribunal, and in lieu, a reprimand was imposed.

The comments made by the Judicial Member at [18] of the reasons were made after her Honour had imposed the orders by way of sanction. Her Honour's comment about the growing community awareness of the abhorrence and corrosive nature of domestic violence has continued to grow in the community over the last 10 years. Apart from the distinguishing features relating to conduct, which I have referred to in some detail, these comments made by her Honour, after she made orders, do not support the Board's submission given that the impugned conduct here also occurred a long time ago.

• [33] Any order involving exclusion from practice would, in my opinion, be punitive in the circumstances of this case.
• [34] A reprimand is a significant sanction involving, as it does, notification on the public register for a period of up to five years subject to the decision of the Board. Given the respondent's complete rehabilitation, his high profile role - both in his profession and community - and given his extraordinary life history, for my part, I would recommend to the Board that it consider removing the reprimand from the public register at an earlier date.
• [35] The orders of the Tribunal are as follows:
  1. Pursuant to s 196(1)(b)(iii) of the National Law, the practitioner has behaved in a way that constitutes professional misconduct;

1. Pursuant to s 196(2)(a) of the National Law, the practitioner is reprimanded;
2. There is no order as to costs.

[1] Hearing Brief, filed in the Tribunal on 6 December 2024, 11-21 ('HB').

[18] Medical Board of Australia v Mandy [2023] QCAT 269, 3 [8].