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[2010] QCAT 528
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2010-10-27
Ms J
Original judgment source is linked above.
Medical Radiation Technologists Board of Queensland v Groves [2010] QCAT 528
Medical Radiation Technologists Board of Queensland
5. Mr Groves must pay the Board's costs of these proceedings or, if not agreed, within twelve months of this order, as assessed by QCIS or another costs assessor approved by the Tribunal, on the standard basis on the District Courts scale.
HEALTH PRACTITIONER - GROUND FOR DISCIPLINARY ACTION - where registrant convicted of indictable offences - where conviction occurred when registrant no longer registered - whether condition ground for disciplinary action
HEALTH PRACTITIONER - CONDITIONS OF APPLICATION FOR REGISTRATION - where offending conduct did not violate professional boundaries - where nature of profession involves contact with patients - where assessment of fitness to practice required when application is made to be registered
Health Practitioners (Professional Standards) Act 1999 ss 9(1), 9(3)(c),123,124(1)(i), 246(2)(a)(iii), (b)(iii), (d)(iii)
Pharmacist Board v Gordon [2010] QCAT 181 distinguished
Queensland Nursing Council v Dodd [2010] QDC 220 followed
The Law Society of South Australia v Rodda [2002] SASC 274 followed
**[1] Mr Groves pleaded guilty to the offence of possessing child exploitation material on 26 November 2008. The offence occurred on 3 February 2007. The penalty imposed was twelve months imprisonment wholly suspended with the condition that Mr Groves must not commit another offence punishable by imprisonment within two years from the date of sentence. Conviction of an indictable offence, as this offence is, is a ground for disciplinary action(s124(1)(i))[1].
[2] Mr Groves is no longer registered as a Medical Radiation Technologist. However, the Tribunal may conduct disciplinary proceedings about any aspect of his conduct while he was registered (s9)[2].
[3] He was registered when he committed the offence but not when he was convicted. The Board argued for an interpretation of s124(1)(i) that would allow disciplinary proceedings to be brought on a conviction that post-dated registration, if the conduct which founded the conviction occurred while the practitioner was registered.
[4] Section 124(1)(i)[3] does not, in express terms, require the conviction to have occurred whilst the practitioner was registered. The evident purpose of s9[4] is to ensure disciplinary proceedings can be brought against a practitioner no longer registered for conduct which occurred during a period of registration. If s124(1)(i)[5] is interpreted consistently with that purpose[6], the fact the conviction post-dates registration is not determinative. I accept that is the proper approach to take to interpreting that provision. If that is right, then the ground for disciplinary action is established by the fact of conviction alone.
[5] If I am wrong in adopting that interpretation, the conduct founding the conviction establishes unsatisfactory professional conduct as defined in the Professional Standards Act[7] in a number of respects.
[6] Mr Groves pleaded guilty and the conduct can be taken as established by his admission[8]. He did not contest the schedule of facts tendered by the prosecution at the sentencing hearing. That schedule discloses that Mr Groves admitted to downloading images from an internet site. He paid a monthly fee to access the site and had a password to enter it. This indicates the interest was not passing or incidental. Mr Groves made statements to his fiancé and to the police that showed he had been accessing this sort of material for some time.
[7] The police analysis of his computer equipment located 2,634 images of child exploitation material, although his admission to police was to "possibly up to 20 images'. Many images were sexualised posing or sexualised posing combined with nudity. Whilst of concern, they are at the lower end of the range of such material. Others were more serious, including images depicting sexual acts between children and adults.
(a) Professional conduct of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant's professional peers;
(d) Conduct discreditable to the registrant's profession; and
**[9] Mr Groves did not address that submission. Whilst Mr Groves' conduct did not occur within his practice as a medical radiation technologist, it reflects upon his character that he knowingly participated in criminal conduct. This brings into question whether he possesses the qualities expected of a member of the profession[9].
[10] Some of the formulations of unsatisfactory professional conduct (see (a) (b) and (c)) expressly refer to professional conduct or conduct in a professional respect. It seems to me those definitions are better applied to conduct that occurs within the practice of a professional, rather than conduct in a private capacity.
[11] The Board's submissions on penalty were not affected by which formulation was accepted as establishing unsatisfactory professional conduct. It is unnecessary to go further than to find that Mr Groves has engaged in unsatisfactory professional conduct by behaving in a way that was both improper and discreditable to his profession (see (d) and (e)).
[12] Mr Groves said he has no current intention to resume practice and could not assess now when or if he ever would do so. He did not argue that he is now fit to practice. The Board proposed conditions that would ensure a proper assessment of his fitness to practice at that time. The assessment will have regard to his mental health status and any risk he might present to the public, given his offence.
[13] The Board sought a preclusion period of 2 years 6 months, within which Mr Groves would not be able to apply for registration. Whilst disciplinary proceedings are not intended to be punitive, the proceedings are designed to protect the public, so deterrence is an appropriate consideration[10].
[14] The Board referred to the period imposed by this Tribunal in relation to a pharmacist who committed a similar offence[11]. In that case, the Tribunal accepted the practitioner was genuinely remorseful. Further, the Tribunal was not satisfied the pharmacist presented a clear risk to patients because he had not committed a contact offence with a child and it is not usual for a pharmacist to have private consultations with a client. While their conduct was similar, the pharmacist's case should be distinguished from this one.
[15] Mr Groves' conduct casts doubt on whether he was, genuinely, remorseful. At the hearing, he offered to denounce his conduct if that was what the Tribunal required, but did not offer that himself. He told the tribunal he understood his offence was not victimless and contributed to the exploitation of children. He said he developed that insight through an analytical process assisted by a psychiatrist and psychologist.
[16] That might have been more persuasive as an indication of insight if his response to an assessor's question about how he viewed his offence had not been coached. The Tribunal overheard a whispered conversation (Mr Groves participated by telephone) during which suggestions were made to him by a support person about what he should say.
[17] His conduct prior to the hearing is also revealing. Until a late stage of the proceedings, Mr Groves did not actively participate. There was some evidence he was being treated for a mental health condition. That came by way of a letter from his general practitioner, not from a professional appropriately qualified to report on his mental health status or from anybody actually treating him for it. Mr Groves could have obtained that evidence, including a psychologist's report which had been obtained for his sentencing hearing. His explanations for not doing so were not convincing.
[18] Also, Mr Groves did not comply with a Tribunal order to undergo a health assessment. That order was made so the Tribunal could be properly informed in deciding when and how to conduct the hearing. It may also have revealed that Mr Groves suffered from an impairment which could have had consequences for the disciplinary proceedings[12]. While Mr Groves may well have been confused about whether he had to bear the costs of the examination and report, he made no enquiry about that. At the hearing he was unapologetic about failing to attend as directed, laid responsibility at the feet of the Board and was apparently unconcerned he had breached a Tribunal order.
[19] His cavalier approach is consistent with the view he took of the proceedings, evident in an email to the Board[13]. He seemed to suggest the Board was behaving unreasonably. Perhaps he did not comprehend the purpose of disciplinary proceedings: to protect the public, uphold professional standards, and maintain public confidence in the profession[14].
[20] The other point of distinction between this case and that of the pharmacist relates to risk to the public. It is true that in both cases the offence was a non contact offence. However, in the pharmacist's case the Tribunal considered it was unlikely he would have contact with a client in private.
[21] In contrast, the practice of Mr Groves' profession does involve unsupervised contact with patients. That occurs in an environment in which trust is of paramount importance. Patients, including adolescent children, are usually alone with the practitioner; or, if not alone, observation may be prevented by curtains or shields. The lights are usually dimmed. Patients may be in a state of semi-undress. It is frequently necessary for the practitioner to touch the patient to correctly position them for the procedure.
[22] Taking into account concerns about risk to the public and the view the Tribunal has taken of Mr Grove's insight and remorse, the Tribunal has determined 3 years 6 months is an appropriate preclusion period.
[23] Mr Groves did not oppose a costs order in favour of the Board but questioned how it could be recovered from someone in his position: not working and on a limited pension. This is a matter for the Board to consider. It is proper that, in this case, the Board has an order that would allow it to recover the costs of proceedings met through registration fees from Mr Grove's former professional colleagues.**
[1] Health Practitioners (Professional Standards) Act 1999 s124(1)(i)
[2] Health Practitioners (Professional Standards) Act 1999 ss 9(1), 9(3)(c); Schedule Definition of Disciplinary Body
[3] Health Practitioners (Professional Standards) Act 1999
[4] Health Practitioners (Professional Standards) Act 1999
[5] Health Practitioners (Professional Standards) Act 1999
[7] Health Practitioners (Professional Standards) Act 1999 Schedule
[9] The Law Society of South Australia v Rodda [2002] SASC 274
[10] Queensland Nursing Council v Dodd [2010] QDC 220
[11] Pharmacist Board v Gordon [2010] QCAT 181
[12] Health Practitioners (Professional Standards) Act 1999 s246(2)(a)(iii),(b)(iii), (d)(iii)
[13] MJL-9, Affidavit of Michael Lucey sworn 22 April 2010
[14] Health Practitioners (Professional Standards) Act 1999 s123
Medical Radiation Technologists Board of Queensland
Groves [2010] QCAT 528