Chiropractic Board of Australia v Ronan [2024] QCAT 463

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chiropractic Board of Australia v Ronan [2024] QCAT 463 PARTIES: CHIROPRACTIC BOARD OF AUSTRALIA (applicant) v JASON JOHN RONAN (respondent) APPLICATION NO/S: OCR223-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 25 July 2024 (ex tempore) HEARING DATE: 25 July 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Murphy SC Assisted by: Dr W Grigg Dr M McEwan Dr C Noble ORDERS: Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded. Pursuant to s 196(2)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), a condition is imposed on the respondent’s registration requiring the respondent to provide a certificate of currency confirming appropriate professional indemnity insurance coverage to the Board and/or Ahpra: (a) on an annual basis, by 30 November each year; (b) within seven (7) days of the renewal of the insurance cover; and/or (c) when requested by the Board and/or Ahpra. Pursuant to s 196(2)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), a further condition is imposed on the respondent’s -- 1 of 8 -- 2 registration requiring the respondent to contact each client of his practice who received treatment during the period when no professional indemnity insurance policy was held, and: (a) advise each client in writing of the fact that he did not hold professional indemnity insurance during the relevant period; and (b) provide to each client the details of a contact person at the respondent’s professional indemnity insurer who can confirm the respondent is insured for the relevant period despite the lapsing of cover Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions imposed on the respondent’s registration is five (5) years. Pursuant to s 196(2)(c) of the Health Practitioner Regulation National Law (Queensland), the respondent is fined $30,000.00, payable to the Chiropractic Board of Australia within 28 days from the date of this decision. No order as to costs. CATCHWORDS: PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent is a chiropractor — where the respondent practised without holding compulsory professional indemnity insurance — where the respondent was dishonest and misleading in his dealings with the Chiropractic Board of Australia — whether the conduct constitutes professional misconduct or unprofessional misconduct — what is the appropriate sanction — where conditions are imposed on the respondent’s registration — where the respondent is fined $30,000 — where conditions are imposed on the respondent’s registration Health Practitioner Regulation National Law (Queensland) Chiropractic Board of Australia v Northeast [2019] VCAT 1279 Chiropractic Board of Australia v Oborne [2023] VCAT 770 Psychology Board of Australia v Elzo [2020] VCAT 345 Psychology Board of Australia v McDonald [2020] VCAT 158 -- 2 of 8 -- 3 Psychology Board of Australia v Rigley [2018] VCAT 1400 APPEARANCES & REPRESENTATION: Applicant: D Freeburn instructed by MinterEllison Respondent: Self-represented REASONS FOR DECISION [1] On 22 January 2008, Dr Jason Ronan was first registered as a chiropractor. He has been registered and worked as such since. He currently practises as a sole practitioner in a regional area in Southeast Queensland. Between 31 January 2020 and 19 November 2020, he admits that he practised without holding compulsory professional indemnity insurance. The Chiropractic Board of Australia (‘Board’) brings these proceedings seeking sanction as a consequence. The legislative and regulatory framework within which the instant proceedings fall have been summarised in helpful written submissions on behalf of the Board. [2] Those submissions are respectfully adopted without being repeated in these ex tempore reasons, so too is the aetiology of these proceedings which led ultimately to the hearing today. That, too, is respectfully adopted without being repeated. The conduct alleged is contained in four grounds pressed by the Board. All conduct is essentially admitted. In broad summary the four grounds are these: (a) Ground one is that Dr Ronan engaged in professional misconduct in that between 31 January 2020 and 19 November 2020, he failed to maintain adequate and appropriate professional indemnity insurance in contravention of section 129(1) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’); (b) Ground two, in essence, is that Dr Ronan engaged in professional misconduct in that on or about 31 January 2020, he failed to comply with (or breached) his commitment to the Board, made by way of declaration on 22 November 2019 when applying to renew his registration to practise as a chiropractor, that he would not practise unless appropriate professional indemnity insurance arrangements were in place; (c) Ground three asserts that professional misconduct is established by reason of the respondent, on or about 19 November 2020, making a declaration to the Board which he knew, or ought to have known, to be false or misleading when applying to renew his registration. (d) Ground four, in essence, is that on and from 7 April 2020, Dr Ronan contravened section 130(1) of the National Law by failing to give notice within seven days of a relevant event, namely, that his professional indemnity insurance arrangements were no longer in place in relation to his practise of the profession. [3] The conduct underlying the grounds which I just outlined is admitted. It is also admitted that the alleged conduct is, in each respect, professional misconduct as defined in the National Law. -- 3 of 8 -- 4 [4] Notwithstanding that admission, it is for this Tribunal to reach its own conclusion to that effect. It can hardly be doubted, and the Tribunal finds, that failing to maintain professional indemnity insurance is conduct ‘of a lesser standard than that which might reasonably be expected of a [chiropractor] by the public or the [chiropractor’s] professional peers’,1 and thus is unprofessional conduct as defined in the National Law. [5] The failure to maintain professional indemnity insurance strikes at the heart of the safety of the public. It is a foundational safety mechanism for the patients of health practitioners. Failure to maintain that is a serious failure of professional responsibilities. In this case, that failure is intended by dishonesty and an attempt to mislead the Board. Honesty by all health practitioners in dealings with the Board is of course central to the administration of a health regulatory system designed to protect the health and safety of the public. Dishonesty in dealings within that system exacerbate the misconduct otherwise constituting unprofessional conduct. [6] There is no doubt, and the Tribunal finds, that each of the instances of conduct alleged by the Board is unprofessional conduct which falls ‘substantially below the standard reasonably expected of a registered [chiropractor] of an equivalent level of training or experience’2 to that of Dr Ronan. The Tribunal finds that each ground as alleged constitutes professional misconduct. [7] In addressing sanction, the Board properly, with respect, places particular emphasis upon Dr Ronan’s dishonesty and attempts to mislead the Board. That contention is grounded firstly in the sequence of events surrounding the failure to renew the policy. Those events should be set out and can be summarised as follows: (a) On 22 November 2019, Dr Ronan declared to the Board that he would hold professional indemnity insurance for the period of his registration. (b) On 31 January 2020, Dr Ronan’s existing professional indemnity insurance policy lapsed. (c) On 26 March 2020, Dr Ronan attempted to pay and thereby renew that insurance policy. (d) The following day, 27 March 2020, Dr Ronan was advised by his insurer that he was outside their terms. They offered to set up a new policy. On this day, Dr Ronan replied to the insurer indicating he would complete a new proposal form. (e) Nine days later, on 6 April 2020, the insurer again offered to set up a new policy for Dr Ronan. (f) Three months later, on 1 July 2020, Dr Ronan emailed the insurer seeking to set up a new policy. (g) On the following day, 2 July 2020, the insurer wrote to Dr Ronan requesting a completed proposal form. 1 Health Practitioner Regulation National Law (Queensland) s 5 (definition of ‘unprofessional conduct’) (‘National Law’). 2 Ibid s 5 (definition of ‘professional misconduct’). -- 4 of 8 -- 5 (h) The next set of events occurred four months later, on 19 November 2020, when Dr Ronan’s registration with the Board was again due. Notably, that is some nine months after the previous policy had lapsed and some seven months after Dr Ronan had indicated in an email that he was aware the policy had lapsed. (i) On 19 November 2020, at 8.15 am, Dr Ronan signed a declaration for his registration with the Board. That declaration was to the effect that he held professional indemnity insurance. That declaration was patently false. That falsity and its deception is illustrated by the fact that a new policy with his insurer was subsequently obtained, but more particularly, the insurer confirmed coverage later that morning. [8] The Board submits there are three factors described as compounding factors that exacerbate Dr Ronan’s dishonesty and the seriousness of his misconduct. First, for at least seven months, he plainly knew he did not have cover. He failed to act during that time, despite reminders from the insurer. Secondly, Dr Ronan’s practice was busy. He saw many patients during the uninsured period. Dr Ronan tells the Tribunal that the insurer has indicated cover will apply for any claim arising during the period when there was no insurance, albeit that no direct evidence is offered of the same. Thirdly, the false declaration made to the Board on 19 November 2020 can have had no purpose other than to mislead the Board. All of those submissions by the Board are accepted. [9] Dr Ronan has written comprehensive and cogent submissions. They are replete with remorse, shame and embarrassment. Yet, with all respect, they exhibit no evidence of insight or appreciation for the fact that he was dishonest in respect of an important matter. Namely, that honesty underpins and is central to a regulatory system that exists to ensure the safety and health of the public and more specifically his patients. [10] It should be emphasised, however, that no other instance of similar conduct had occurred in his then 11 years of practise which has, it should be said, included practise in two locations. Equally, there are no current complaints in respect of Dr Ronan’s treatment nor have there been in the past. He has no disciplinary history of any sort. Against that background, the Board contends that Dr Ronan should be suspended from practising for a period of three months. Other conditions are also sought which will be referred to in a moment. [11] A number of comparative decisions are referred to in the written submissions of the Board and they have been responded to in a comprehensive and helpful way in the written submissions by Dr Ronan. In their written submissions, the Board makes the point that the decisions of Psychology Board of Australia v McDonald,3 Psychology Board of Australia v Rigley (‘Rigley’),4 Chiropractic Board of Australia v Northeast5 and Psychology Board of Australia v Elzo,6 are all cases where suspensions were imposed. The point is made that in the majority of these cases there was an element of dishonesty or recklessness to a high degree that warranted the imposition of a 3 [2020] VCAT 158. 4 [2018] VCAT 1400. 5 [2019] VCAT 1279. 6 [2020] VCAT 345. -- 5 of 8 -- 6 suspension. The Board contends that similar circumstances exist here because of the dishonesty and deception to which I have previously referred. [12] In Rigley, which is another decision referred to by the Board and responded to by Dr Ronan, there was a suspension period of three months imposed. The Tribunal is of the view that the circumstances in Rigley are markedly more serious than the instant case. In that particular case, the chiropractor was without cover for some four years and the lapse in cover was discovered by a random audit. Dr Rigley had made false declarations to the Board on six separate occasions and submitted false proof of insurance documents to Ahpra. The point is made that there is potentially criminal conduct involved in that case. [13] The decision in Chiropractic Board of Australia v Oborne7 is also referred to by both the Board and Dr Ronan. In that case, the Board and Dr Oborne had agreed that there should be a suspension for one month. The Victorian Civil and Administrative Tribunal decided that a one-month suspension was inadequate and imposed a suspension of two months beginning 28 days after the decision was made. Dr Oborne was without professional indemnity insurance for a period of some four years and made false declarations on four occasions in respect of his registration with the Board for those periods. He cited personal hardships as mitigating factors which appeared to have been accepted by the Board. [14] Importantly, the point that is made in Dr Ronan’s submissions which is consistent with a number of authorities, is that determinations in other cases of similar conduct will provide useful guidance, as they did in this case. Relative consistency and proportionality remain important, but every case is different with its own combination of facts and relevant factors including the degree of seriousness of the conduct, the length of time the practitioner engaged in the conduct and the number of patients and others impacted by the conduct and the individual circumstances involved. [15] A similar point was made by the Tribunal during discussions with counsel for the Board. The Tribunal accepts that suspension is raised reasonably and is within the ambit of the sanctions available to the Tribunal in this case. The Tribunal has given careful consideration to the submissions in that respect and, in particular, to the submitted period of three months and to any lesser period of submission. The Tribunal has relied upon the advice and the experience of the members of the panel of the Tribunal and, in particular, those who are themselves practising chiropractors. The Tribunal is concerned about the impact a period of suspension may have upon patients in a context where the health and safety of the public and, in particular, Dr Ronan’s patients, is the paramount consideration. [16] We have had particular regard to the fact that Dr Ronan is a sole practitioner in a regional area. We have also carefully considered whether allowing a period of time prior to the imposition of a period of suspension might alleviate any difficulties that might imply. For example, a period of suspension for a period of time might permit the employment of a locum and the reallocation of patients to other chiropractors. We are also conscious of the fact that any period of suspension would now be served some four years remote from the conduct the subject of the proceedings. We accept, without 7 [2023] VCAT 770. -- 6 of 8 -- 7 reservation, that the conduct is serious, and that the dishonesty involved makes it particularly serious. [17] We consider the important considerations of specific and general deterrence should be reflected in a significant sanction. Ultimately, however, bearing in mind the health and safety of the public is the paramount consideration, we are not persuaded that a period of suspension should be imposed. We consider a fine of $30,000.00 the appropriate sanction. We will allow 28 days to pay that sum. [18] We consider that the protection of the public is further served by imposing two conditions upon the registration of Dr Ronan. First is the condition sought by the Board in its submissions requiring Dr Ronan to provide a certificate of currency confirming appropriate professional indemnity insurance. The second condition will require Dr Ronan to contact each patient seen during the period of non-insurance, advising of that fact; and providing the details of a contact person at the respondent’s insurer who can confirm the respondent is insured for the relevant period notwithstanding the earlier lapse of cover. The review period for each of those conditions will be five years. [19] For those reasons, the Tribunal makes the following orders: Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to s 196(2)(b)(iii) of the National Law, a condition is imposed on the respondent’s registration requiring the respondent to provide a certificate of currency confirming appropriate professional indemnity insurance coverage to the Board and/or Ahpra: (a) on an annual basis, by 30 November each year; (b) within seven (7) days of the renewal of the insurance cover; and/or (c) when requested by the Board and/or Ahpra. Pursuant to s 196(2)(b)(iii) of the National Law, a further condition is imposed on the respondent’s registration requiring the respondent to contact each client of his practice who received treatment during the period when no professional indemnity insurance policy was held, and: (a) advise each client in writing of the fact that he did not hold professional indemnity insurance during the relevant period; and (b) provide to each client the details of a contact person at the respondent’s professional indemnity insurer who can confirm the respondent is insured for the relevant period despite the lapsing of cover Pursuant to s 196(3) of the National Law, the review period for the conditions imposed on the respondent’s registration is five (5) years. Pursuant to s 196(2)(c) of the National Law, the respondent is fined $30,000.00, payable to the Chiropractic Board of Australia within 28 days from the date of this decision. -- 7 of 8 -- 8 No order as to costs. -- 8 of 8 --