Chiropractic Board of Australia v O’Neill [2023] QCAT 553

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chiropractic Board of Australia v O’Neill [2023] QCAT 553 PARTIES: CHIROPRACTIC BOARD OF AUSTRALIA (applicant) v BENJAMIN O’NEILL (respondent) APPLICATION NO/S: OCR287-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 6 December 2022 (decision) 30 June 2023 (reasons) HEARING DATE: 6 December 2022 HEARD AT: Brisbane DECISION OF: Judicial Member Jones Assisted by: Dr R Bailey Dr C Noble Mr K Walsh ORDERS: Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal decides that, with respect to allegations 1 and 2, the respondent is found to have engaged in professional misconduct. Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal decides that, with respect to allegation 3, the respondent is found to have engaged in professional misconduct, such misconduct being limited to only that declaration made on 30 November 2020. Pursuant to section 196(1)(b)(ii) of the National Law, the Tribunal decides that with respect to allegation 4, the respondent is found to have engaged in unprofessional conduct. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to section 196(2)(b) of the National Law, the Tribunal imposes conditions on the respondent’s registration in terms of the attached schedule for a period of 5 years. -- 1 of 10 -- 2 Pursuant to section 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of 3 months. No order as to costs. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – CHIROPRACTORS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT – where the applicant Board has referred the respondent chiropractor to the Tribunal seeking disciplinary findings and orders – where the Board alleges, and the practitioner accepts, that he failed to maintain professional indemnity insurance – where the Board alleges, and the practitioner accepts that he made declarations to the Board that were false – where the Board alleges, but the practitioner has disputed that the false statements were made knowingly or recklessly – where there is substantial agreement on characterisation of the conduct and sanction – whether the Tribunal finds that the false declarations were made knowingly or recklessly – whether the practitioner’s conduct in respect of each of the grounds of the referral should be characterised as professional misconduct or unprofessional conduct – whether the practitioner’s registration should be suspended for a particular period of time Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) APPEARANCES & REPRESENTATION: Applicant: C Wilson instructed by Clayton Utz Lawyers Respondent: No appearance REASONS FOR DECISION [1] This is the matter of the Chiropractic Board of Australia (‘Board’) and Dr Benjamin O’Neill. This proceeding is concerned with an application brought by the Board (‘applicant’) against Dr Benjamin O’Neill (‘respondent’). [2] On 6 December 2022, the Tribunal made the following findings and orders: Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), the Tribunal decides that, with respect to allegations 1 and 2, the respondent is found to have engaged in professional misconduct. Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal decides that, with respect to allegation 3, the respondent is found to have engaged in professional -- 2 of 10 -- 3 misconduct, such misconduct being limited to only that declaration made on 30 November 2020. Pursuant to section 196(1)(b)(ii) of the National Law, the Tribunal decides that with respect to allegation 4, the respondent is found to have engaged in unprofessional conduct. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to section 196(2)(b) of the National Law, the Tribunal imposes conditions on the respondent’s registration in terms of the schedule for a period of 5 years. Pursuant to section 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of 3 months. No order as to costs. [3] These are the reasons underpinning those findings and orders. Background and Allegations [4] By reference to the amended statement of agreed and disputed facts, the following facts, matters and circumstances are largely uncontroversial. The respondent gained registration as a chiropractor on 21 December 2000. In or around January 2011, the respondent began working at Mortlock Chiropractic Centre as a self-employed chiropractor. The respondent holds a Bachelor of Science and Master of Chiropractic. [5] On or about 10 February 2020, the Australian Health Practitioner Regulation Agency (‘Ahpra’) referred certain conduct, being the subject of these proceedings, to the Office of the Health Ombudsman to take further action. [6] On or about 4 March 2020, the Health Ombudsman referred the conduct to Ahpra to be dealt with under the National Law. On or about 20 August 2020, Ahpra notified the respondent of the Board’s decision to investigate and invited him to provide written submissions in response. On or about 7 September 2020, the respondent provided a written response to Ahpra and on or about 2 July 2021, the Board determined to refer the matter to this Tribunal, pursuant to section 193(1)(a) of the National Law. [7] Thereafter, there were a number of amended documents including an amended statement of agreed and disputed facts, amended allegations and an amended response to the amended allegations. The allegations consist of four grounds. [8] Ground one was that between approximately 1 December 2017 and 6 January 2020, the respondent practised as a chiropractor and had failed to maintain adequate and appropriate professional indemnity insurance. That failure to maintain adequate and appropriate professional indemnity insurance was in breach of section 129 of the National Law and the Board’s professional indemnity insurance arrangements registration standard.1 [9] Ground 2 was that in the course of these proceedings, the Board became aware of the respondent’s failure to maintain appropriate professional indemnity insurance between 16 January 2020 and 27 August 2020. During that time, the respondent 1 Chiropractic Board of Australia, Professional indemnity insurance arrangements registration standard, 1 July 2010. -- 3 of 10 -- 4 continued to practise as a chiropractor, having failed to arrange appropriate professional indemnity insurance. [10] Ground 3 was concerned with that on 29 November 2018, the respondent completed an online registration renewal whereby he declared that he had met all of the Board’s registration standards for the previous registration period in circumstances where he had not complied with the obligation to maintain appropriate professional indemnity insurance. [11] Further, on or about 30 November 2019, the respondent made a declaration to the Board that he had, in fact, met all the Board’s registration standards for the previous registration period in circumstances where he was not compliant with the relevant insurance policy obligations. It is further asserted that on or about 30 November 2020, the respondent made a declaration to the Board that he had met all of the Board’s registration standards for the previous registration period in circumstances where he was not, in fact, compliant with the relevant standards. [12] Ground 4 was that, on at least one occasion, the respondent failed to notify the Board in writing about a ‘relevant event’ being that ‘appropriate professional indemnity insurance arrangements are no longer in place’ pursuant to section 130(1) of the National Law. [13] The only disputed matter set out in the amended statement of agreed and disputed facts was that the respondent:2 denies that on or about 29 November 2018, 30 November 2019 and 30 November 2020, [he] knowingly or recklessly made false declarations regarding his professional indemnity insurance arrangements to Ahpra and the Board. [The respondent] contends that these declarations were a result of his own error, and not as a result of [him] knowingly or recklessly making a false declaration. [14] On the day of the hearing, the applicant was represented by Mr Wilson of counsel. Despite attempts to contact the respondent as late as 5 December 2022, there was no appearance on his behalf. That is not at all surprising as on 5 December 2022, the respondent forwarded an email to the associate to the Deputy President of the Tribunal that he had previously sent to the Board’s solicitor. The email to the Board’s solicitor stated as follows: [Board’s solicitor] could you please take care of this for so I’m not wasting the courts time tomorrow. I won’t be in attendance at the hearing tomorrow I have changed my position. I now agree my two PI breaches and subsequent behaviour should be considered reckless. Happy to accept the board’s proposals in full. Yes I understand what all that means. But no, it won’t be necessary to have a QCAT proceeding as I don’t disagree with the boards position or proposed course of action from here etc. I’m currently on Bribie Island my mother will pass away very soon and as I’ve mentioned earlier I’m caring for her. 2 Amended Statement of Agreed and Disputed Facts, filed on 25 August 2022, [27]. -- 4 of 10 -- 5 I am not playing the sympathy card hoping for a better outcome my position stated above is my position even without these circumstances being considered given my mental yes did start to deteriorate even back when the breaches occurred - but it’s on me that I only sought help now. This might at least help the board make sense of some of my illogical rants I sent to them. My mental health isn’t bad - it’s horrendous and I was admitted into the Beaudesert hospital for psychiatric care recently. I have ceased all chiropractic and am currently on a mental health care plan with a psychologist that I was referred to by the GP. Could you please pass this info on to the relevant people – If you are unable to do that could you email me back and let me know who it is I should be in contact with. Thanks [Board’s solicitor] all the best. I’ve attached some documentation- the care plan documentation can also be forwarded but I don’t feel it’s necessary - I’d just rather follow the Board’s recommendations. Sent from my iPhone [15] Notwithstanding that the respondent does not disagree with the findings and relief sought by the applicant, it is for this Tribunal to be satisfied that the relief in all the circumstances is appropriate. The relief initially sought by the applicant was as follows:3 The Board submits that on the present material, the following sanction ought presently to be within the Tribunal’s contemplation: 1. Dr O’Neill be reprimanded; 2. Dr O’Neill have conditions placed on his registration (outlined in Annexure A), with the conditions to be reviewed by the Board after five years; and 3. Dr O’Neill’s registration be suspended for a period of six months. [16] In respect of the suspension period, the applicant submitted as follows:4 In respect of the suspension period sought, the Board considers Dr O’Neill’s referred conduct to be a level of seriousness that exceeds the cases referred to […] due to the cumulative effect of: (a) the repeated nature of Dr O’Neill’s non-compliance with his professional indemnity insurance obligations; (b) the significant combined length of Dr O’Neill’s non-compliance periods; (c) Dr O’Neill’s failure to obtain professional indemnity insurance for the second period occurred when he was clearly on notice of his earlier non-compliance and aware of the additional risk to the public exposed by it; 3 See Board’s submissions [44]. 4 See Board’s submissions [48]. -- 5 of 10 -- 6 (d) Dr O’Neill’s failure to inform the regulator of the second period as required under the National Law; (e) Dr O’Neill’s otherwise repeated disregard for providing truthful statements to the regulator even when on notice; (f) Dr O’Neill’s lack of cooperation in the investigation and in these proceedings; and (g) Dr O’Neill’s lack of genuine remorse and insight. [17] Notwithstanding the concession made by the respondent in respect of the relief sought previously, written submissions had been filed on his behalf. Those submissions were prepared by Potts Lawyers. Before proceeding further, I would observe that I have found the written submissions filed on behalf of the applicant and the respondent to have been very helpful. On behalf of the respondent, it was submitted as follows:5 The Respondent agrees with the Applicant, at paragraph 13 of the Applicant’s submissions, that the Tribunal’s task is to assess the Respondent’s conduct against the requisite thresholds for professional misconduct and unprofessional conduct as alleged. The Respondent agrees with the Applicant that, at paragraph 27 of the Applicant’s submissions, that the Respondent’s conduct with respect to Grounds 1 to 3 ought to be considered to constitute professional misconduct under limbs (a) and/or (b) of the definition of that term in s 5 of the National Law. The Respondent contends with the Applicant, at paragraph 27 of the Applicant’s submissions, concerning Ground 4 in that Ground 4 ought to be considered to constitute professional misconduct under limbs (a) and/or (b) of the definition of that term in s 5 of the National Law. Despite this, the Respondent agrees with the Applicant, at paragraph 28 of the Applicant’s submissions, in that Ground 4 constitutes the lesser threshold of unprofessional conduct under limb (a) of the definition of that term in s 5 of the National Law, and the Respondent submits that the Tribunal ought to find that Ground 4 is only unprofessional conduct. [18] It was also submitted on behalf of the respondent as follows:6 The Respondent submits that a suspension of one month is an appropriate sanction. The Respondent agrees with paragraph 45 of the Applicant’s submissions, insofar as that a suspension is warranted: a) in the circumstances to reflect the serious nature of the Respondent’s conduct, which is the subject of these proceedings; b) in the circumstances to deter other practitioners from similar conduct as a matter of general deterrence, rather than specific deterrence; and c) to maintain public confidence in the profession by reinforcing high ethical professional standards. With respect to paragraph 45 of the Applicant’s submissions, the Respondent otherwise contends that: 5 Respondent’s submissions [38]-[41]. 6 See respondent’s submissions [74]-[76]. -- 6 of 10 -- 7 a) a six-month suspension is onerous and is not warranted in the circumstances; b) there is no evidence, nor should a reasonable inference be made, to support the Applicant’s submission that a six-month suspension is necessary nor proportionate to protecting the public from ‘further misconduct by the practitioner’; c) no authorities submitted by the Applicant in the Applicant’s submissions support the proposition that a six-month suspension is appropriate, and in fact, even when a practitioner has demonstrated some element of dishonesty (which is clearly not the case in the present circumstance) in respect of their conduct concerning the practitioner’s professional indemnity insurance, the practitioner received a three-month suspension in those circumstances. [19] In this matter, it is agreed between the parties that the facts and circumstances surrounding allegations 1, 2 and 3 constitute professional misconduct. It is also not disputed that the respondent should be the subject of a reprimand and be subject to the conditions on his practise as proposed by the applicant. As already stated, the fact that the parties agree on an outcome is not the end of the matter. It is the duty of the Tribunal to determine what the correct outcome ought to be. [20] That said, the fact there is such agreement is an important consideration, and in this case, the Tribunal is in agreement with the views of the parties in respect of allegations 1, 2 and 3, subject to the following. [21] The only matters left in dispute then are whether: (a) the conduct that is the subject of allegation 4 constitutes professional misconduct or unprofessional conduct; and (b) a term of suspension of six months ought to be imposed or whether it should only be for one month. [22] In respect of the first of those matters, overall, the conduct involved in allegation 4 is less serious in the view of the Tribunal, than that involved in respect of allegations 1, 2 and 3. [23] It is also important to bear in mind that this is the first time that the respondent has been the subject of disciplinary proceedings. Contrary to the submissions made on behalf of the applicant, the Tribunal is also satisfied that the respondent is deeply embarrassed about what has occurred, and has, in fact, apologised in writing for his actions, or more accurately, his failure to act. There are also a number of character references that speak very highly of him as a person. [24] Finally, in this regard, at this stage of his life, the respondent was going through a number of serious and troubling issues associated with his separation from his wife, who had historically dealt with the respondent’s professional indemnity insurance. In this regard, the unchallenged evidence of the respondent in paragraph 17 of his affidavit is as follows: My former wife had historically arranged for payment of insurances for my practice at Mortlock. She used to manage and deal with all administrative matters associated with my practice at Mortlock. I noticed that during the separation period that money was being deducted from my business bank account for insurance. I assumed that these payments included my professional indemnity insurance. -- 7 of 10 -- 8 [25] Later, at paragraph 28 to 30, the respondent’s unchallenged evidence is as follows: I understand that in the Referral, the Board allege[s] that I knowingly or recklessly made false declarations to Ahpra/the Board regarding my professional indemnity insurance arrangements on or about 29 November 2018 and 30 November 2019. I did not make those declarations either knowingly or recklessly, but rather as result of my own error, being that I honestly but mistakenly believed that I had professional indemnity insurance during the Relevant Period, and that I made a genuine error given the matters set out above. I first became aware that I did not have cover in January 2020 when I attempted to arrange a policy with AON. When I made the declarations on or about 29 November 2018 and 30 November 2019, I truly believed that I had professional indemnity insurance. I did not knowingly submit declarations in circumstances where I knew they were false. Similarly, I did not recklessly submit those declarations as I did not know that at the time those declarations were submitted that I did not have professional indemnity insurance. As discussed above, when I saw in my business bank account money being deducted for insurance payments I mistakenly thought that those payments included professional indemnity insurance when in fact they were only for income protection insurance. [26] On balance, the Tribunal has reached the conclusion that the finding in respect of allegation 4 should be one of unprofessional conduct rather than professional misconduct. [27] In respect of allegation 3, the Tribunal also accepts that the respondent did not knowingly make a false declaration. In the respondent’s amended response to allegation 3, it was pleaded as follows: With respect to paragraph 3 of the notice of allegations the Respondent: a) Admits that the declarations he made while completing his online registration renewal on or about 29 November 2018 and 30 November 2019 were incorrect regarding his professional indemnity insurance arrangements. b) Denies that he made false declarations either knowingly or recklessly as the allegation is untrue. Particulars [28] The respondent’s incorrect answers during the online registration renewal with respect to his professional indemnity insurance arrangements were a result of the respondent’s own error and not a result of the respondent knowingly making a false declaration or recklessly making a false declaration. That it was an error can be accepted, but it was an error that could have been readily avoided by simply checking the facts before making the subject declaration. To that extent, the conduct of the respondent, while not being deliberate or knowingly made, could be characterised as being careless rather than reckless. But at the end of the day, in the circumstances of this case, nothing really turns on how his conduct is actually characterised. [29] Turning then to the issue of suspension; in proceedings such as this, the imposition of a suspension from practise is not to punish the practitioner. At all times, the primary concern of the Tribunal is the health and safety of the public. As a part of that, the public’s trust and confidence that health care professionals will conduct their affairs -- 8 of 10 -- 9 appropriately must be maintained. In this case, there is no question that there is no need for a suspension to keep the respondent away from practise because in some way, he might pose some sort of threat to patients under his care. Rather, any imposition of a suspension is intended to send an appropriate message of deterrence. [30] Here, there seems to be little need for personal deterrence, however, general deterrence looms particularly large in cases such as this. On balance, the Tribunal does not consider that a period of suspension of only one month would send a meaningful message of deterrence, given the nature of the conduct involved in this case, where the respondent practised without appropriate insurance coverage for some 32 months. [31] Turning then to the position of the applicant. Counsel for the applicant submitted to the effect that it was necessary to send a harsh message of general deterrence, because, to use his words, this sort of problem just ‘keeps coming up’.7 [32] In this regard, during his oral submissions, counsel for the applicant said:8 Six months. Now, perhaps if I put it as bluntly as this, the Board is focusing on this aspect of practise and registration and is seeking to elevate its observation. That is, the way that practitioners observe their obligations, and the disapproval with which failure to observe those observations is going to be treated. Six months is, candidly, a significantly greater period of suspension, significantly relevant to the others that have previously been imposed. I can’t do other than confront that head on. We’re asking the Tribunal to draw a line in the sand, to adopt a metaphor. I also recognise, and I don’t want to just throw that at the Tribunal, but it is a jurisdiction where regard is had to comparisons. One has to approach it with a view of, most commonly in these cases, specific deterrence of the practitioner, which I don’t suggest is a particularly heavy obligation here because of the fact that he’s come to this point, he’s going to be under restrictions and so on, but general deterrence. [33] And one can see, in my submission from that table, and from indeed the large number of authorities identified in the submissions, it is a problem that keeps coming up. [34] Mr Wilson candidly told the Tribunal that a suspension of six months was not supported by an analysis of the comparative cases. In this regard, Mr Wilson said:9 The Board seeks six [months], and as I say, recognises that would be a longer period of suspension than we have been able to find in any comparative case. But we do so knowing that, and still seeking it. [35] As I have already referred to, the subject conduct occurred during a particularly distressing period in the respondent’s life. Also, it was not the result of any deliberate conduct on his part. It is also relevant, here, that this is the first time the respondent has had any complaint made about his professional conduct. While not a decisive factor, it is also relevant that the respondent is a sole practitioner. As Mr Wilson accepted, a six-month suspension of a sole practitioner had the potential to have a significant adverse impact on the commercial viability of his practice. 7 See Hearing Transcript, p 1-15 at line 32. 8 See Hearing Transcript, p 1-15 at lines 6-32. 9 See Hearing Transcript, p 1-17 at lines 11-17. -- 9 of 10 -- 10 [36] On balance, having regard to the nature of the conduct making up the foregrounds, and taking the mitigating factors in favour of the respondent into account, the Tribunal has concluded that a period of six months is unnecessarily onerous, and considers that the respondent’s right to practise should be suspended for a period of three months. It is for the reasons expressed above that the Tribunal made the findings and orders that it did on 6 December 2022. -- 10 of 10 --