Asinas v Medical Board of Australia [2025] QCAT 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Asinas v Medical Board of Australia [2025] QCAT 44 PARTIES: ADRIAN ASINAS (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) APPLICATION NO/S: OCR298-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 24 February 2025 HEARING DATE: 4 November 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Dick SC ORDERS: The decision under review made by the Medical Board of Australia on 6 November 2023 to refuse the applicant’s application for general and specialist registration is: (a) set aside; and (b) substituted with the applicant’s application for general and specialist registration being granted subject to the conditions set out in these reasons. There is no order as to costs. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – where applicant accessed child pornography – where registration was cancelled and applicant reprimanded – where psychiatric evidence produced at hearing provided low risk of reoffending – proof of reformation of character – whether the applicant practitioner’s registration should be reinstated and if conditions should be imposed Health Practitioner Regulation National Law 2009 (Queensland) Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Coe v Health Care Complaints Commission [2013] NSWNMT 12 Dawson v Law Society of NSW [1989] NSWCA 58 -- 1 of 8 -- 2 Ex Parte Tziniolis; Re Medical Practitioners’ Act (1966) 67 SR (NSW) 445 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Jeremy Buddle v Medical Board of Australia [2022] TASCAT 117 Reimers v Medical Council of New South Wales [2015] NSWCATOD 38 Re Mansoor Haider Zaidi [2006] NSWMT 6 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: L Nixon, solicitor of Turks Legal REASONS FOR DECISION [1] This is an application to the Tribunal by way of a review against the decision of the respondent to refuse the applicant’s general and specialist registration. [2] The respondent formed the reasonable belief that it should refuse the applicant’s registration because: (a) having regard to his criminal history, it is not in the public interest for him to practice as a medical practitioner; and (b) he is not a fit and proper person to hold general and specialist registration in the profession. [3] This review is a hearing de novo. The Tribunal’s task is to arrive at the correct and preferrable decision as at the date of the hearing. [4] In summary, the Tribunal may: (a) confirm or amend the respondent’s decision; (b) set aside the respondent’s decision and substitute its own decision; or (c) set aside the decision and return the matter for recommendation to the respondent, with directions as considered appropriate. [5] The applicant seeks orders setting aside the respondent’s decision and granting him registration so that he may take up an offer of employment with Plexus Healthcare treating patients in an aged care facility in Victoria. [6] The respondent seeks that the Tribunal confirm its decision. [7] The decision-maker is required to use their best endeavours to assist the Tribunal so that it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decisionmaker’s role is not adversarial. However, in discharging its obligations, the decisionmaker -- 2 of 8 -- 3 must properly test the evidence relied upon by the applicant to perform its function of assisting the Tribunal.1 [8] Ms Nixon, appearing for the Medical Board of Australia (‘Board’), fulfilled both functions admirably. [9] The applicant was self-represented and despite being understandably anxious and somewhat verbose presented his case competently. Background [10] On 11 February 2020, the applicant pleaded guilty to one count of using a carriage service to access child pornography. He was convicted of two offences. For the Commonwealth offence, he was sentenced to 15 months imprisonment and released on giving security by recognisance in the sum of $2,000 that he be of good behaviour for two years. [11] For the Queensland offence, the applicant was sentenced to 15 months imprisonment suspended for two years. He is a reportable offender until 10 February 2025. [12] In May 2021, the applicant appeared before the Tribunal in respect of his behaviour. The Tribunal was satisfied he had behaved in a way that constituted professional misconduct. He was reprimanded and his registration was cancelled for 18 months from 31 October 2021. [13] At the end of the disqualification period, the applicant sought registration and was refused. It is that refusal which is under review. The Hearing [14] At the hearing, the applicant called Dr Robert Moyle, psychiatrist; Dr James Freeman, forensic psychologist; Dr Gavan Palk, forensic psychologist; and Mr Joe Rapattoni and made himself available for cross-examination. [15] At the outset, the Board accepted that the evidence confirms that the applicant is highly qualified with three degrees related to health. He has degrees in medical technology, nursing and medicine. [16] Further, the three expert witnesses in their reports concluded the applicant does not exhibit signs of sexual deviancy or paraphilic disorder. [17] The applicant has for many years had a therapeutic relationship with Dr Palk. Drs Moyle and Freeman indicated in their reports that the relationship with Dr Palk has led to the applicant demonstrating appropriate remorse, insight and empathy to victims of child exploitation material. [18] All the experts agree that the applicant poses a very low risk of reoffending and that while risk can never be entirely eliminated, it can be managed through ongoing support and monitoring. [19] Dr Moyle gave evidence that whilst he initially had concerns about the applicant’s ability to recognise the difficulties of his behaviours and to reflect upon himself, his relationship with Dr Palk had produced a considerable change in those factors. 1 QCAT Practice Direction 3 of 2013. -- 3 of 8 -- 4 [20] Dr Freeman gave evidence that the applicant was able to articulate remorse and the benefits of his engagement with intervention with Dr Palk. [21] He also opined that the applicant did not appear to have any defects of insight and self-awareness which could impact his work as a doctor. [22] Dr Palk gave evidence describing a relapse prevention plan including allowing full access to his devices to a family member and other cognitive therapies which would allay the fear that returning to a stressful role would cause a relapse. He also saw value in the applicant working in a group practice. [23] Each of the experts agreed that a graduated return to work or a transitioning to work would be of benefit in reducing stressors. [24] Mr Rapattoni spoke of the aged care sector being an area of need. He was fully aware of the charges, convictions and the history of the applicant’s rehabilitation. He had the ability as managing director to assist with a gradual return to practice. [25] Plexus has no operational facilities in Queensland but has two group practices in Victoria. In Perth, the situation is different but Plexus could choose another general practitioner to act as supervisor and he would have nursing support. [26] The applicant proposed very stringent conditions if allowed to practice. These conditions are attached. They allow for the graduated return to work through levels of supervision, only practicing at approved locations, attendance with an approved health professional for 12 months, and not practicing in relation to patients under 18 years of age for 12 months. [27] Before this Tribunal, the evidence of the medical experts is uncontradicted by other evidence. The evidence of the medical practitioners is strongly in favour of the proposition that, despite his convictions and allowing for the lapse of time and therapeutic intervention, it could not be said that he is not a fit and proper person to hold registration in the profession. [28] The respondent has helpfully and correctly set out the meaning of public interest in paragraphs 70-80 of its original written submission before this Tribunal. The guiding principles are set out in s 3A of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), as follows: 3A Guiding principles (1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount – (a) protection of the public; (b) public confidence in the safety of services provided by registered health practitioners and students. [29] Because the applicant seeks both general and specialist registration, the suitability provisions of both ss 55 and 60 of the National Law are relevant to the Tribunal’s consideration. -- 4 of 8 -- 5 [30] In applying the public interest test what is required is an assessment of all the circumstances and the moral culpability for the applicant.2 [31] The issue of public interest goes beyond questions of risk to persons and the need to protect public health and safety and may extend to the protection of public confidence in the profession. [32] Ms Nixon helpfully pointed the Tribunal to the case of Jeremy Buddle v Medical Board of Australia [2022] TASCAT 117. In particular, the following relevant principles extracted from the decision of Haber v Health Care Complaints Commission [2018] NSWCATOD 16 have assisted the Tribunal in forming its decision. [33] The onus lies on the applicant for reinstatement to demonstrate the he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, [24] (‘Ameisen’). [34] The purpose of the jurisdiction is to protect the public and is not for the punishment of the former practitioner: s 53A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Reimers v Medical Council of New South Wales [2015] NSWCATOD 38, [13]. [35] There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they have reformed, are afforded a second chance: Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12, [23]. [36] ‘Clear proof’ is required to establish that there has been a reformation of character: Ex Parte Tziniolis; Re Medical Practitioners’ Act (1966) 67 SR (NSW) 445, 461. In this respect, the applicant is ‘in a more disadvantageous position than an original application. He must in effect displace the decision for deregistration that has been made’: Ameisen [24]. [37] Otherwise, the factual matters in Buddle were different to those pertaining here: (a) Buddle was diagnosed with a paedophilic disorder. Evidence was given that it was a lifelong condition. That evidence is absent here. (b) Buddle’s offence took place over a four year period. The time here was three weeks. (c) Buddle was sentenced to an actual sentence of imprisonment. That did not occur here. (d) After his conviction, Buddle collected legal images of prepubescent boys and masturbated while watching them. The present applicant has desisted from any such conduct. (e) Buddle lived alone. The present applicant lives with his family. His partner has been supportive throughout. 2 Medical Board of Australia v Liang Joo Leow [2019] VSC 532. -- 5 of 8 -- 6 (f) There was evidence from experts that Buddle might have difficulties dealing with mental health or even dementia patients. There is no such expert evidence in respect of the applicant in this Tribunal. [38] The Tribunal is comfortably satisfied that it has before it ‘clear proof’ of reformation of character and that the applicant has demonstrated that he can be trusted to practise in a way that conforms to the professional standards which would be expected of him if he is terminated. [39] The applicant has proposed stringent conditions which address transitioning to work, supervision, psychological treatment and that he not practise in relation to patients under 18 years of age for a further 12 months. [40] In light of the evidence before this Tribunal, the respondent’s decision of 6 November 2023 is set aside. [41] The applicant’s general and specialist registration is reinstated on the following conditions: Practice Conditions 1. SUPERVISED PRACTICE ACROSS ENTIRE PRACTICE AREA 1.1 From the date of imposition of conditions, the practitioner must not practice other than under the supervision of an approved Medical Practitioner (the supervisor). No supervisor is currently approved. The level of supervision required is Indirect Level 1 (present) supervision for the first 3 months, transitioning to Indirect Level 2 (accessible) supervision for another 3 months, and then Remote supervision for 6 months. 1.2 The practitioner must comply with the Supervised practice framework in force at the date these conditions are imposed and then as updated from time to time. 1.3 The practitioner must provide the following, using the approved forms: 1.3.1 Acknowledgement that they have read and understood the requirements of this condition within three (3) calendar days of the date of imposition of conditions; 1.3.2 Nomination for a supervisor; 1.3.3 Acknowledgement from each nominated supervisor; 1.3.4 Nomination of a senior person at each practice location; 1.3.5 Acknowledgement from each nominated senior person. Use 1.4 for remote and indirect level II supervision levels 1.4 The practitioner must cease practice if no supervisor is approved, the approval of a supervisor is not published above, or a supervisor is not available to provide the required level of supervision at any time on or after the date of imposition of conditions. Use 1.5 for indirect level I and direct supervision levels 1.5 The practitioner must: -- 6 of 8 -- 7 1.5.1 cease practice if no supervisor is approved, the approval of a supervisor is not published above or is not available to provide the required level of supervision at any time; and 1.5.2 not be the only Medical Practitioner at any practice location. 1.6 After a supervisor has been approved and published, the practitioner must provide supervisor and senior person reports, in the format required, on a quarterly basis or as otherwise required. 1.7 For the purposes of this condition, the requirement to be supervised does not include working in management/administration/policy. ‘senior person’ is defined as another person senior by position or experience. Where possible a senior person should be another registered health practitioner. ‘practice/practising’ and the level of supervision are defined in the Supervised practice framework. 2. ATTEND PROGRAM OF TREATMENT 2.1 From the date of imposition of conditions, the practitioner must not practice other than at practice locations that are approved and published below. No practice locations have been approved. 2.2 The practitioner must comply with the AHPRA Protocol: Attend a program of treatment in force at the date these conditions are imposed and as updated from time to time. 2.3 The practitioner must attend a program of treatment with a nominated treating mental health professional from whom they are receiving treatment of their health condition (treating practitioner) for a period of 12 months, with the frequency of sessions to be determined by the treating mental health professional. 2.4 The practitioner must nominate a senior person at each practice location (senior person). 2.5 the practitioner must not be the only Medical Practitioner at any practice location. 2.6 The practitioner must comply with the AHPRA Protocol: Practice limitations in force at the date these conditions are imposed and as updated from time to time. ‘Treating mental health professional’ is defined as a registered health practitioner, psychiatrist, general practitioner, nurse practitioner, addiction specialist, psychologist, or an alcohol, tobacco and other drugs counsellor or the equivalent. 3. RESTRICTED PRACTICE/RESTRICTED PATIENTS 3.1 From the date of imposition of conditions, the practitioner must not practise other than at practice locations that are approved and published below. No practice locations have been approved. -- 7 of 8 -- 8 3.2 After publication of a practice location, the practitioner must: 3.2.1 not practise if they are the only Medical Practitioner at any practice location; 3.2.2 not practise for more than 20 hours per week for the first 3 months; not practise for more than 30 hours per week for the succeeding 3 months before transitioning to full-time practise; 3.2.3 not practise in relation to the following defined patient group(s) (with a review period of 12 months): For the purposes of this condition, Patients under 18 years of age. 3.3 The practitioner must comply with the AHPRA Protocol: Practice limitations in force at the date these conditions are imposed and then as updated from time to time. 3.4 The practitioner must: 3.4.1 complete a period of audits, with the first audit within 30 days of approval of a practice location and thereafter on a quarterly basis or as otherwise required; 3.4.2 comply with the AHPRA Protocol: Practice limitations and the AHPRA Protocol: Audit in force at the date these conditions are imposed and then as updated from time to time. [42] There is no order as to costs. -- 8 of 8 --