Aggarwal v Health Ombudsman [2024] QCAT 385

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aggarwal v Health Ombudsman [2024] QCAT 385 PARTIES: RUPIN AGGARWAL (applicant) v HEALTH OMBUDSMAN (respondent) APPLICATION NO: OCR101-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 2 December 2024 HEARING DATE: 2 September 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Dick SC Assisted by: Prof S Brun, Medical Practitioner Panel Member Dr K Hames, Medical Practitioner Panel Member Dr W Grigg, Public Panel Member ORDERS: The application to review a decision filed 22 April 2024 is upheld. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Health Ombudsman made 5 April 2024 is amended as follows: (a) Condition 3 of the Schedule of Conditions is replaced with the following: 1. The practitioner must not have contact with, treat or continue to treat, a patient after becoming aware the patient may be experiencing, or has experienced, any form of domestic and family violence and must take all reasonable steps to ensure the patient is transferred to another registered health practitioner acceptable to the patient for ongoing care. The patient must be advised either by the practitioner or his place of practice that the practitioner is unavailable to continue their treatment. 2. Unless otherwise directed by the Health Ombudsman, within five (5) days of the end of every calendar month the -- 1 of 12 -- 2 practitioner must provide a report to the Office of the Health Ombudsman regarding the number of patients who have been transferred to another registered health practitioner for the reasons set out in condition 1, and must verify the report contents with his employer. The report must include: (a) de-identified patient names (initials only); (b) the date the practitioner became aware of the patient’s history; and (c) the date the patient was transferred to another registered health practitioner. ‘Contact’ with a patient includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device. ‘Communication device’ is defined as any hardware that transmits voice, video or text including those that transmit information via electronic booking applications. ‘Domestic and family violence’ means when one person behaves in a way that controls or dominates another person in a relevant relationship and causes fear for their safety and/or wellbeing - see Part 2, Division 1 and Division 2 of the Domestic and Family Violence Act 2012 for the full definition of domestic violence and relevant relationship. CATCHWORDS: PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC — where the applicant was subject to immediate registration action by the Health Ombudsman owing to being charged with a criminal offence — where the immediate registration action was imposed on the basis of being “otherwise in the public interest” — where the applicant sought review of the decision — meaning of “public interest” — where the conditions restricted the applicant’s practice — where the applicant practices in an “area of need” — where less onerous action could be taken to serve the purpose of the -- 2 of 12 -- 3 immediate registration action — decision under review amended ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the Tribunal exercises its review jurisdiction — merits review — whether the decision was the correct and preferable decision Health Ombudsman Act 2013 (Qld) ss 3, 25, 58, 59 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19–24 Colagrande v Health Ombudsman [2017] QCAT 107 Ellis v Medical Board of Australia [2020] VCAT 862 Farschi v Medical Board of Australia [2018] VCAT 1619 George v Rockett [1990] HCA 26; 170 CLR 104 I v Medical Board of Australia [2011] SAHPT 18 Liddell v Medical Board of Australia [2012] WASAT 120 Lindsay v NSW Medical Board [2008] NSWSC 40 Medical Board of Australia v Liang Joo Leow [2019] VSC 532 MLNO v Medical Board of Australia [2012] VCAT 123 Ord v Nursing & Midwifery Board of Australia [2014] QCAT 688 Pearse v Medical Board of Australia [2013] QCAT 392 Porteous v Pharmacy Board of Australia [2021] QCAT 286 WD v Medical Board of Australia [2013] QCAT 614 APPEARANCES & REPRESENTATION: Applicant: M J McCarthy instructed by Bell Criminal Lawyers Respondent: J R Jones instructed by the Office of the Health Ombudsman REASONS FOR DECISION [1] On 5 April 2024, the respondent imposed immediate registration action on the applicant’s registration as a medical practitioner. [2] One of the conditions imposed was: 3. The practitioner must not practise except in the following circumstances: a. To provide a service for the purpose of a skin check and/or diagnosing or treating skin cancer where the patient has: i. booked a consultation with the practitioner that is identifiably for the purpose of a skin check and/or seeking diagnosis or treatment of skin cancer; or ii. been referred to the practitioner by another registered health practitioner for the purpose of a skin check and/or seeking diagnosis or treatment of skin cancer. -- 3 of 12 -- 4 b. To provide a ‘voluntary assisted dying service’ to a patient who has been referred to the practitioner to access or receive a voluntary assisted dying service. [3] In respect of condition 3b, the applicant’s ‘voluntary assisted dying practitioner’ status was suspended on 18 June 2024 until a full review can be undertaken by the Queensland Voluntary Assisted Dying Practitioner Eligibility Panel. [4] The applicant seeks a review of the respondent’s decision and submits the immediate registration action is not required. Background [5] The applicant is a registered medical practitioner who, at the time of the immediate registration action, was practising as a general practitioner (GP) in the Lockyer Valley. [6] The applicant is aged 46 and after moving to Australia in 2006, he joined the Lockyer Valley practice. [7] He has no prior adverse findings or action in relation to his medical practice and no criminal history. [8] In December 2023, he was charged with two alleged offences of choking, suffocation or strangulation in a domestic setting.1 The events are alleged to have occurred on one date in March 2020. The complainant was his wife at the time of the alleged offending. The applicant and the complainant separated in 2022 and, apart from engaging in post-separation family dispute resolution, there has been no direct contact since December 2022. [9] The Tribunal has before it a copy of a Queensland Police Service Court Brief (QP9) which sets out the allegations. The QP9 does not contain sworn statements and no evidence was called at the hearing of this application on 2 September 2024. [10] The QP9 states, inter alia: The victim states that on this occasion, she was at their home address when the defendant choked her at their house on two occasions within a short time frame the same evening… [11] The QP9 notes that the complainant’s mother witnessed both events. It also notes that in April 2020 the applicant and his wife attended counselling and refers to notes made by the counsellor. The notes are discussed in depth in the applicant’s submissions. [12] The applicant denies that the alleged choking occurred. The charges are currently at the stage of a part-heard committal and the parties agree that a trial in the District Court is unlikely to be listed within two years (at the minimum). The counselling records [13] The applicant submits that the specific allegations of choking are not reflected in the records and that the QP9 should be scrutinised carefully. An immediate action 1 Contrary to s 315A of the Criminal Code 1899 (Qld). -- 4 of 12 -- 5 decision does not entail a detailed enquiry but the material available should be scrutinised carefully in order to determine the weight to be attached to it.2 [14] Put simply, the submission is that the fact that the notes do not contain a specific allegation of choking supports the applicant’s denial of choking. [15] This submission is tempered by the fact that this may have been (and probably was) a joint counselling session to assist in saving the relationship which was still extant. It is not unknown for victims of domestic violence to be reticent, sometimes for a lengthy period, as to the details of the violence. There remains the fact of corroboration by an eyewitness, albeit the mother of the complainant. The legislative framework [16] The functions of the Health Ombudsman include receiving health service complaints and identifying and dealing with health service issues by undertaking investigations, enquiries, and other relevant actions.3 Section 3(1) of the HO Act sets out as its objects: (1) The main objects of the Act are— (a) to protect the health and safety of the public; and (b) to promote – (i) the professional, safe and competent practice by health practitioners; and (ii) high standards of service delivery by health service organisations; and (c) to maintain public confidence in the management of complaints and other matters relating to the provision of health services.4 [17] Section 4 provides as follows: (1) The main principle for administering this Act is that the health and safety of the public are paramount. (2) Without limiting subsection (1), the health and safety of the public is the main consideration for— (a) the health ombudsman, when deciding what relevant action to take to deal with a compliant or other matter; and (b) the director of proceedings, when deciding whether to refer a matter to QCAT; and (c) QCAT, when deciding a matter referred to under this Act. [18] Part 7 of the HO Act confers disciplinary powers on the Health Ombudsman to take “immediate registration action” in certain circumstances. Such action is defined to include suspension of a practitioner’s registration or the imposition of conditions upon registration. Section 58(1) of the Act sets out the relevant criteria for exercising this power: 2 WD v Medical Board of Australia [2013] QCAT 614 (‘WD’). 3 Health Ombudsman Act 2013 (Qld) (HO Act) s 25(a) and (b). 4 HO Act s 3(1). -- 5 of 12 -- 6 The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if— (a) the health ombudsman reasonably believes that— (i) because of the practitioner’s conduct, or performance, the practitioner poses a serious risk to persons; and (ii) it is necessary to take the action to protect public health of safety; or … (d) the health ombudsman reasonably believes the action is otherwise in the public interest. [19] If the Health Ombudsman proposes to take immediate registration action in relation to a registered health practitioner, she must give the practitioner a notice stating the proposed action and invite the practitioner to make a submission about the proposed action.5 [20] The Health Ombudsman must have regard to any submissions made by the practitioner before deciding whether to take immediate action.6 [21] However, under s 59(4), if the Health Ombudsman is satisfied it is necessary to do so to ensure the health and safety of the individual or the public, the Health Ombudsman may take immediate registration action without complying with those show cause process steps.7 The legal tests [22] The legal tests for the Tribunal when considering an application to review a decision to take immediate action are summarised by the then-Deputy President of the tribunal, Horneman-Wren SC DCJ as follows: 1. an immediate action order does not entail a detailed enquiry; 2. it requires action on an urgent basis because of the need to protect public health and safety; 3. the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk; 4. an immediate action order may be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations; 5. the mere fact and seriousness of the charges supported by the untested statements of witnesses in a particular case may well be sufficient to create the necessary reasonable belief as to the existence of the risk; 6. the material available should be carefully scrutinised in order to determine the weight to be attached to it; 5 HO Act s 59(1). 6 HO Act s 59(3). 7 HO Act s 59(4). -- 6 of 12 -- 7 7. a complaint that is trivial or misconceived on its face will clearly not be given weight; 8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.8 [23] The approach set out in WD “must, of course, be applied in the context and circumstances of each particular case”.9 [24] The respondent further submits that the Tribunal is required to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits, so as to produce the “correct and preferable decision”.10 Reasonable belief [25] A reasonable belief “does not require proof of conduct” but rather “an inclination of the mind towards assenting to rather than rejecting a proposition.”11 [26] The respondent cites from George v Rockett: The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.12 [27] Further, the underlying facts giving rise to the relevant reasonable belief do not have to be established on the balance of probabilities.13 [28] As such, the Tribunal ought to consider the evidence of the applicant’s conduct and performance, as a whole, when determining whether it holds a reasonable belief that his conduct and performance pose a serious risk to patients. Serious risk [29] The term “serious risk” is not legislatively defined. The parties agree it means “of grave aspect, weighty or important; giving rise for apprehension; critical; to be considered as an extreme example of its kind.”14 [30] The applicant adds that determining whether he poses a serious risk requires identifying the particular aspects of his conduct or performance which are said to cause that risk. 8 WD (n 2), [8], citing Pearse v Medical Board of Australia [2013] QCAT 392, I v Medical Board of Australia [2011] SAHPT 18, Lindsay v NSW Medical Board [2008] NSWSC 40 and Liddell v Medical Board of Australia [2012] WASAT 120. 9 Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688, [9]. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(2) and s 20(1). 11 Porteous v Pharmacy Board of Australia [2021] QCAT 286 (‘Porteous’), [9]. Pearse v Medical Board of Australia [2013] QCAT 392 (‘Pearse’), [37]. 12 [1990] HCA 26; 170 CLR 104, 116 [14]. 13 Porteous, [10]. 14 Porteous, [19]. -- 7 of 12 -- 8 [31] The immediate action ought to be the least onerous necessary to address the relevant risk.15 While the health and safety of the public must remain paramount, the impact of the immediate action on the health practitioner cannot be underestimated.16 [32] The risk which may exist is the psychological harm to a victim of domestic violence if they were treated by the practitioner and later come to realise he was then the subject of such charges. Public interest [33] The term “public interest” does not have a fixed or precise content. [34] The respondent directs the Tribunal to observations made in Medical Board of Australia v Liang Joo Leow [2019] VSC 532, at [85] and [94] and quoted in Ellis v Medical Board of Australia [2020] VCAT 862 at [58].: … The meaning of public interest is informed by the example. It is necessary for the Tribunal to proceed on the basis that public confidence in the provision of services by health practitioners is an aspect of the public interest. However, the Tribunal does not need to apply the example as if it were a statutory test. Specifically, the Tribunal was not required to analyse the issue of whether public confidence would be maintained, as opposed to whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require, in the public interest, that immediate action be taken. … The concept of public confidence has no fixed meaning or content. It is a difficult concept to measure. In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors. … [35] The respondent argues that allowing the applicant to continue practising while facing these charges will undermine public confidence and trust in the medical profession. This is particularly so given the vital role played by general practitioners in the early identification, support and treatment of domestic violence victims. The interim nature of immediate registration action [36] The parties agree that the power to take immediate action is interlocutory in nature.17 The Tribunal is not required to resolve the allegations nor to make a final determination on any sanction. The Tribunal is required to scrutinise the evidence before it carefully to assess the risk alleged by the respondent and the weight to be placed on the evidence. 15 Pearse, [16], [18]. 16 Pearse, [19], citing with approval MLNO v Medical Board of Australia [2012] VCAT 123, [5]. See also, Colagrande v Health Ombudsman [2017] QCAT 107, [18]. 17 Liddell v Medical Board of Australia [2012] WASAT 120, [23]–[25]. -- 8 of 12 -- 9 [37] Immediate action, where taken, should take a form which protects the public safety and/or the public interests with as little damage to the practitioner as is consistent with the maintenance of that public safety and/or public interest.18 [38] There is a public interest in members of the health profession, in whom training and expenditure has been made, being able to practise. There is a public interest in ‘area of need’ professionals being able to practise. There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly. There is a public interest in ensuring immediate action is only taken when it is necessary to do so. [39] Here, the followings points are noted by the Tribunal: (a) the charges do not relate to a patient; (b) at a trial the credit of the witnesses will be an issue; (c) the presumption of innocence is relevant but not determinative; (d) the Tribunal’s decision is not about whether he has committed the criminal offences; (e) the charges are serious; (f) the mere fact and seriousness of the charges, in a particular case might be sufficient to create the necessary reasonable belief as to either the existence of a risk and/or that action is otherwise in the public interest; (g) visceral responses, as prevalent or legitimate they may be, do not dominate at the expense of a considered response having regard to the circumstances. The respondent’s argument [40] The respondent argues that the Tribunal’s review may involve an overlap between the ‘public interest’ and ‘serious risk’. [41] The respondent submits that: (a) public confidence may be reflected in the reputation of the profession and the willingness of members of the public to access medical treatment; (b) it may be necessary to take immediate action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole; (c) where criminal charges against a practitioner are concerned, public interest considerations will include the nature of the charge and the conduct underlying it; (d) the fact of charges having been laid, coupled with the serious nature of those charges, may provide sufficient factual basis for immediate action to be taken in the public interest; (e) unresolved criminal matters may raise serious questions about whether a practitioner is able to effect good medical care for a particular class of patient 18 Farschi v Medical Board of Australia [2018] VCAT 1619 (‘Farschi’), [48]. -- 9 of 12 -- 10 and be able to identify and respond appropriately to perpetrators of the relevant offences; (f) public interest is not a one-sided concept. Factors which must also be weighed up include: (i) the public interest included maintenance of a regulatory system which responds in a proportionate manner when allegations are made; (ii) there is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise; (iii) there is a public interest in “area of need” professionals being able to practise; (iv) there is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly; and (v) there is a public interest in ensuring immediate action is only taken when it is necessary to do so; and (g) the significant role played by general practitioners in front line services for domestic and family violence is also an important factor in the public interest consideration. The applicant’s argument [42] The applicant argues that if the applicant were to only practise in relation to skin cancer, his patients and the practice would be deprived of the many thousands of consultations he would normally provide. This is eloquently supported by letters from his colleagues and particularly from the Practice Manager. [43] As noted earlier, area of need is a consideration. [44] There has also been a considerable financial impact on the applicant. His income has been significantly reduced. The respondent is alleged to pay the mortgage on his former home and to accommodate himself. [45] He is responsible for many expenses in relation to his 12-year-old daughter and he supports his elderly parents who live in India. This is another relevant, but not determinative consideration. Decision [46] The Tribunal accepts that there is a public interest in protecting members of the public who may be adversely affected by being treated by the applicant whilst he is facing serious charges for domestic violence. Also engaged is the protection of the public confidence in the medical profession. [47] The Tribunal accepts that if a person who has been the victim of domestic violence were to be treated by the applicant and came later to realise he was facing charges, it may cause psychological harm. In those circumstances, the Tribunal is of the view that the existence of such risks involves a matter of public health and makes it necessary to take immediate action. [48] On the other hand, there is a public interest in: -- 10 of 12 -- 11 (a) members of the health profession who have been trained to do so, being able to practice; (b) proportionality, particularly where a matter is unlikely to finalise quickly; and (c) ensuring immediate action is taken when it is necessary to do so. [49] Following the course of an adjournment, the parties have communicated concerning the wording of a condition. It should be said immediately that the Health Ombudsman has not accepted the condition and has suggested the wording if the Tribunal is minded to impose it. [50] The Tribunal is satisfied the proposed condition is appropriate, in particular because the charges are not likely to be finalised for at least two years. Orders The application to review a decision filed 22 April 2024 is upheld. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Health Ombudsman made 5 April 2024 is amended as follows: (a) Condition 3 of the Schedule of Conditions is replaced with the following: 1. The practitioner must not have contact with, treat or continue to treat, a patient after becoming aware the patient may be experiencing, or has experienced, any form of domestic and family violence and must take all reasonable steps to ensure the patient is transferred to another registered health practitioner acceptable to the patient for ongoing care. The patient must be advised either by the practitioner or his place of practice that the practitioner is unavailable to continue their treatment. 2. Unless otherwise directed by the Health Ombudsman, within five (5) days of the end of every calendar month the practitioner must provide a report to the Office of the Health Ombudsman regarding the number of patients who have been transferred to another registered health practitioner for the reasons set out in condition1, and must verify the report contents with his employer. The report must include: (a) de-identified patient names (initials only); (b) the date the practitioner became aware of the patient’s history; and (c) the date the patient was transferred to another registered health practitioner. ‘Contact’ with a patient includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device. ‘Communication device’ is defined as any hardware that transmits voice, video or text including those that transmit information via electronic booking applications. ‘Domestic and family violence’ means when one person behaves in a way that controls or dominates another person in a relevant relationship -- 11 of 12 -- 12 and causes fear for their safety and/or wellbeing — see Part 2, Division 1 and Division 2 of the Domestic and Family Violence Protection Act 2012 for the full definition of domestic violence and relevant relationship. -- 12 of 12 --