Chiropractic Board of Australia v Crowe [2023] QCAT 358

[2023] QCAT 358 QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL REID, Judicial Member Assisted by: MS FELTON DR BAILEY DR MCEWAN No OCR 325 of 2021 CHIROPRACTIC BOARD OF AUSTRALIA Applicant v CROWE, Keiran Respondent BRISBANE THURSDAY, 25 MAY 2023 DELIVERED ON TUESDAY, 13 JUNE 2023 JUDGMENT [1] JUDICIAL MEMBER: In this matter, the Chiropractic Board of Australia (the applicant) seeks orders against Dr Crowe (the respondent) arising from his failing to have appropriate professional indemnity insurance (PII) from 16 May 2019 up to on or about the 6th of January 2020. The contest before us related to both the factual circumstances about such matters and, also, whether he should be suspended from -- 1 of 12 -- 2 practising as a chiropractor for a period of up to about three months, as the applicant submits. It is not disputed that the respondent’s conduct amounts to unprofessional conduct and that he ought to be reprimanded and that a condition ought to be placed on his registration that he provide annually for a period of five years to the Board and to Australian Health Practitioner Regulation Agency (Ahpra) proof of his professional indemnity insurance. [2] The respondent gave evidence before the Tribunal and was subjected to cross- examination by counsel for the applicant and to extensive questioning by members of the Tribunal. In my view, it is appropriate to find that in relation to a number of matters, the respondent was less than frank in his evidence. It is also appropriate to find that he was reckless in relation to the renewal of his professional indemnity insurance in May 2019 and thereafter in not ascertaining his lack of insurance and not effecting insurance so as to protect his clients and, indeed, himself. It is also appropriate to find that he was at least reckless in completing declarations to Ahpra and to the Board about his insurance on each of the 2nd of September and the 23rd of December 2019 and the 23rd of October 2020. [3] Dr Crowe was first registered as a chiropractor on the 12th of November 2010 and, from the 1st of December 2012, was self-employed as a chiropractor. His practice was in Coolangatta and, I interpose, was significantly adversely affected by border closures due to COVID in 2020. This was, of course, after relevant events, but might be relevant to the question of penalty. [4] In 2017/18, he held appropriate professional indemnity insurance with a company known as Insurance House. His policy was due to be renewed on the 16th of May 2018. One month earlier, on the 16th of April, a reminder to renew his policy was emailed to him (see page 155 of the hearing brief). He did nothing to renew it. A further reminder was emailed to him on the 2nd of May (see page 153). He again did nothing. -- 2 of 12 -- 3 [5] At 10.11 am on the 18th of May, Insurance House again emailed him (see page 152). A renewal request number was provided to him. The respondent must have been prompted to act because, at 10.50 am, Insurance House again emailed the respondent, advising the renewal request “has been approved” (see page 151). In order to finalise the policy, it was necessary for the respondent to click on the link set out in the email. He must have done so because at 10.57 am Insurance House emailed him again (see page 149) stating, “Welcome back”, and noting the renewal of his policy. [6] This chronology is, of course, not directly relevant to the subject allegations, since he effected professional indemnity insurance for the period from 18 May 2018 to 18 May 2019 – it is the period thereafter that he was uninsured – but the history is relevant for two reasons. In his evidence, the respondent denied reading emails about his insurance in May 2019. He also denied receiving them in May 2018, as I have said. All emails were to the same email address, which the respondent acknowledged was his. One explanation he gave for his conduct was that the emails from the insurer must have gone to his junk mail, yet he did not indicate he had made any search of his junk mail. No evidence, other than his assertions he had not received them, was given to the Tribunal. [7] The sequence of events in May 2018, in my assessment, supports the view that such assertions are false. The rapidity with which he responded after receipt of the emails at 10.11 am and 10.50 am on the 18th of May, with the resultant “Welcome back” email at 10.57 am on that day, strongly indicate he read those emails and acted on them. I conclude that he did and that his failing to respond to the earlier emails of the 18th of April and the 2nd of May 2018 was due to his neglect. For some reason, it appears he was prepared to let the matter draw out to the last moment. Whether this was due to financial pressures or otherwise, I simply do not know, since he did not indicate why that had occurred to the Tribunal. [8] On both the 1st of April and the 16th of April 2019, Insurance House sent the respondent reminders to renew his professional indemnity insurance (see pages 157 -- 3 of 12 -- 4 and 159 of the hearing brief). He said in evidence he had, as in 2018, not seen those emails. On the 16th of May 2019, he was advised that the policies had lapsed (see pages 166 and 167). This time, for whatever reason, he did not effect insurance at the last moment, as he had in 2018. In an email to Ahpra of the 29th of January 2020 (see page 47 of the hearing brief), he said in relation to the failure to renew the policy in May 2019, that: I assumed that it would be automatically renewed, as it had been in previous years. [9] I do not accept that to be so. It is clear from what occurred in April and May 2018 that he did not have any reason to believe the policy would be automatically renewed. That did not occur then and he could have had no expectation of automatic renewal in 2019. Rather, he, for whatever reason, chose to engage in brinkmanship in 2018 and in 2019, but in 2019, by his recklessness, he failed to renew the policy. I do not accept that he did not receive those emails. It is incomprehensible he would not have done so. They were addressed to his usual email address. He gave evidence of employing a receptionist. No evidence was called from her in relation to this alleged non-receipt of the Insurance House emails. [10] I do not conclude he deliberately determined not to obtain professional indemnity insurance. To do so would have been nonsensical. He had a practice and he and his fiancée had a young child. They had, he said, bought a house. All that would have been placed at risk if a claim had been made at a time he was uninsured. Rather, I conclude he must have been under significant personal, financial or other strain which affected his capacity to arrange his affairs properly. In such circumstances, he recklessly omitted to renew his professional indemnity insurance. [11] I am assisted in coming to the conclusion that his omission to effect insurance was reckless and not deliberate by subsequent events. On 10 July 2019, he was sent an audit notice by Ahpra. On 2 September 2019, he made a declaration in response to the audit notice that he was compliant with the Board’s professional indemnity -- 4 of 12 -- 5 insurance arrangements. This is, of course, the first of the three allegations about knowingly or recklessly making false declarations. In my view, it is improbable that if he had deliberately and knowingly not renewed his professional indemnity insurance, that he would have made that declaration. It is more consistent with the conduct of a person who has recklessly but unknowingly omitted to effect insurance. [12] On 19 November 2019, Ahpra notified the respondent that he did not have insurance after 18 May 2019 (see pages 48 and 49 of the hearing brief). The respondent did not reply to that email until the 19th of December (see page 48). He advised that he had been trying to chase up his certificate of currency with Insurance House. He gave no evidence to the Tribunal of what steps he had taken to “chase it up”. In a written statement of 8 September 2022 (see hearing brief page 221), the respondent said he had read this email on or about the 9th of December and: believe I applied for a new PII policy, requesting that it be backdated. [13] He said in that statement he believed backdating policies was “common practice”, and so: I continued to practise as a chiropractor with the knowledge that I had an active application in place and that I would be covered by a PII policy [14] He says – wrongly, in fact – that he was made aware on the 23rd of December that Insurance House was no longer providing professional indemnity insurance for chiropractors and, so, on that day he stopped practising. He also says in that statement that he obtained a new policy on or about the 31st of December 2019 and resumed practising on the 2nd of January 2020: believing … I would be covered under a backdated policy. [15] He says he did not in fact receive confirmation of this policy until the 23rd of January and it was then only backdated to the 6th of January 2020. More contemporaneous emails of the respondent show also that some of the content of this statement of 8th of September 2020 is incorrect. -- 5 of 12 -- 6 [16] In the email of the 29th of January 2020 to Ahpra (see page 47 of the brief), he said he attempted to renew his policy with Insurance House and spoke to them in early January 2020, and was only then told they no longer insured chiropractors. He said he then – that is, early in January 2020 – contacted insurer Aon. On 17 August 2020, he told Ahpra that this was on the 6th of January (see page 94 of the brief, the contents of which the respondent accepted when giving oral evidence as true). The conclusion from this sequence of events is that he practised, as he accepted, in the period from 2 January 2020 to 6 January 2020, prior to his contacting Aon, and when he had not been provided with a policy document by Insurance House. [17] The fact he contacted Aon only on the 6th of January is no doubt the explanation for that company’s policy being backdated only to that date. To say in statements that he was surprised at that was dishonest. For example, on the 24th of August 2022, he said in a written statement (see pages 217 to 219 of the brief) that he practised as a chiropractor from 2 January 2020 to 6 January 2020. He says he did so in circumstances where prior to those dates he had contacted Aon and, so, cannot say why the policy ultimately was backdated only to 6th of January. [18] In the circumstances, I find: (1) the respondent’s failure to effect insurance after 18 May 2019 was due to his reckless conduct in ignoring emails from Insurance House and in failing to have in place any proper system to ensure that he had professional indemnity insurance; and (2) his practising over the periods from 9 December 2019 to 23 December 2019 and from the 2nd to the 6th of January 2020 must have been at a time he had no proper reason for believing he had professional indemnity insurance unless it could be shown that something he did after the 9th of December 2019, when he found out his insurance had not been renewed, gave him reason to believe insurance had been effected with Insurance House. -- 6 of 12 -- 7 [19] The respondent said in his statement of the 8th of September 2022 that he believed he applied for insurance around 9 December (see page 221 of the brief). On 9 December 2019, Dr Crowe says he found out his policy had lapsed and that he was uninsured. He says he then applied for a new policy with Insurance House and kept practising until the 23rd of December. He says he did so as he requested the policy be backdated to 9 December. He says he did not receive any email confirming this policy but saw online that his policy application had been accepted. This appears to be a reference to an email from Insurance House to Dr Crowe at 8.01 am on the 9th of December (see page 168 of the hearing brief). It is not apparent why he would not have received other emails from Insurance House if he received this email sent to the same email address. [20] In any case, that email from Insurance House related to a quote from Insurance House. Dr Crowe was asked to log in to review the quotation and proposed policy, and if satisfied with it, to: pay directly with your Credit Card and be covered instantly. [21] He was also told in that email to: note cover is not active until you accept and pay for this quote A link was provided. He failed to do so, conduct that was reckless in the extreme. On Saturday 4 January 2020, Insurance House emailed Dr Crowe at 11.23 pm to advise that the quotation had expired. [22] As I noted earlier, on Monday the 6th of January 2020, Dr Crowe must have contacted Insurance House and, in fact, ascertained that they were no longer insuring chiropractors. He must then have immediately contacted Aon and arranged a policy (see the file note of Ahpra at page 94 of the hearing brief, which, as I have said, was accepted as accurate by Dr Crowe when giving oral evidence). The Aon policy was, he said, confirmed on about the 23rd of January and backdated to the 6th of January, the date that he contacted them (see page 221 of the hearing brief). -- 7 of 12 -- 8 [23] Against that background, it can be seen that Dr Crowe’s assertions on the 23rd of December 2019 and the 22nd of October 2020, that when completing his application for registration as a chiropractor he met all Board standards in the preceding registration period, were false. Why he did so, knowing at the time that he was being audited, is almost incomprehensible. I suspect he did not take the declarations sufficiently seriously. He should have. His statement was false and he must have known that to be so. An earlier declaration of 2 September 2019 to similar effect was made at a time when he was unaware he was uninsured. However, it seems to me that in circumstances where the failure to insure in May 2019 was reckless, that it must follow the statement should also be seen as having been made recklessly, though not knowingly. [24] Ultimately, in relation to the allegations, I find: (1) that on or about 16 May 2019 until on or about 6 January 2020, Dr Crowe failed to maintain professional indemnity insurance in breach of the Board’s standards and section 129 of the Health Practitioner Regulation National Law (Queensland) (National Law); (2) that from on or about 9 December 2019 to 23 December 2019, and from 2 January 2020 to 6 January 2020, Dr Crowe practised in circumstances where he was aware he lacked PII insurance in breach of those standards and statutory provisions; (3) on 2 September 2019, Dr Crowe recklessly made a false declaration to Ahpra and to the Board regarding his PII insurance; and (4) on 23 December 2019 and 22 October 2020, Dr Crowe knowingly made false declarations to Ahpra and/or to the Board regarding his PII insurance. [25] We were referred to a number of cases by counsel for the applicant in support of the submission that Dr Crowe ought be suspended from practice for a period of up to about three months. In Chiropractic Board of Australia v Carbery [2018] VCAT 147, -- 8 of 12 -- 9 the respondent, as in Dr Crowe’s case, was found to have engaged in professional misconduct by both failing to maintain professional indemnity insurance and in making a false declaration to Ahpra during the renewal of his registration to practise as a chiropractor. [26] Dr Carbery was reprimanded and a condition was imposed that he provide annually to the Board and to Ahpra a certificate of currency of indemnity insurance for a period of five years. He was not, however, suspended from practice. The Tribunal found in that case that Dr Carbery’s failure was attributable to significant personal and financial stressors. He was found to be contrite, remorseful, embarrassed and insightful, and it was accepted he would never let the failures happen again. I will refer to such matters shortly when discussing Dr Crowe’s own behaviour. Importantly, the Tribunal in that case said at paragraph 10: the purpose of Determinations is protective not punitive although they will usually feel like some sort of punishment by the practitioner. They are designed to protect the public and maintain professional standards in the eyes of the public and the practitioner’s peers. [27] In Chiropractic Board of Australia v Northeast [2019] VCAT 1279, the respondent had also failed to maintain professional indemnity insurance and made false declarations in renewing his registration in both 2014 and 2015. The Tribunal again, at paragraph 10 of that decision, emphasised the protective object of sanctions and that they were not to impose punishment per se. In paragraph 11 of the Tribunal’s reasoning, it noted a number of matters which the Board had submitted justified a period of suspension. At paragraphs 16 and 17, the Tribunal held the practitioner’s conduct in not having insurance was, at the very least, “at the high end of reckless”, and also that he was significantly reckless in making the false declarations, but did not deliberately mislead. [28] In Psychology Board of Australia v Rigley [2018] VCAT 1400, the Tribunal was concerned with a more serious case in which the respondent was without insurance -- 9 of 12 -- 10 for some four years and made six online applications for registration which contained false assertions. In that case, Ms Rigley was reprimanded, suspended for three months and a condition imposed requiring her to provide a certificate of currency annually for at least five years. At paragraphs 58 and 59, the Tribunal said: We had the opportunity of observing Ms Rigley in the witness box. It was apparent to us that this has been a very distressing and salutary experience for her. Ms Rigley was remorseful and understood the gravity of her conduct and described the effect that it could have on her patients. She showed insight into her conduct. She was aware that her conduct could bring the reputation of the profession into question. She noted that the three months suspension would affect her clients and would also impact on her financially. We were satisfied that the period of suspension is meaningful without being punitive. Being unable to practice one’s profession for that period has personal, financial and reputational consequences. Those are relevant to general deterrence and the maintenance of the standard and reputation of the profession. It sent a clear message to Ms Rigley that her conduct was unacceptable and would also serve as a deterrent to other psychologists. [29] In this case, I find that Dr Crowe’s conduct was significantly worse than that of Dr Carbery. Dr Crowe was embarrassed by his conduct but I do not feel he was contrite or remorseful or, at least, not so to the extent that one might have expected. He was not an impressive witness. He sought to find justification for his conduct where none existed. Like Dr Carbery, I find his conduct had its genesis in personal or financial stressors but Dr Crowe did little to illuminate those to the Tribunal. In my view, this case bears greater similarity to that of Dr Northeast, whose conduct was said, at the very least, to be at the high end of reckless. [30] There was a deliberateness in Dr Crowe’s conduct, at least with respect to the latter two declarations and his practising, especially in January 2020. The central issue that remains, however, concerns the issue of possible suspension. The object of sanctions -- 10 of 12 -- 11 in this jurisdiction is, as I have sought to emphasise, the protection of the public. In part, this involves consideration of issues of both specific and general deterrence and the maintenance of professional standards in the eyes of the public [31] I am conscious that Dr Crowe recognised, in giving evidence, that he had failings in areas of his practice as a chiropractor which required mentoring from a more senior practitioner. He said he had been undertaking this at his own expense from January 2023 and that this cost him about $1,600 per month. His practice earns gross income of about five to six thousand per month, he said. He has an employed receptionist. I mentioned already the significant adverse effects of the COVID border closures on his practice. [32] Ultimately, I have concluded, with some misgivings, that in circumstances where there is no complaint about his clinical practice, that the public safety is best protected not by suspending Dr Crowe from practice, as the Board submitted, which would necessarily be only for a relatively short period of up to three months, but instead by allowing him to practice and ordering that Dr Crowe, for a period of two and a-half years, engage in monthly mentoring at his own expense with a chiropractor chosen by him from a panel of three chiropractors nominated by the Board. A copy of these reasons is to be provided to that mentor to assist him or her with an understanding of Dr Crowe’s issues. [33] Consequently, subject to submissions about the precise form of the order, I will make orders substantially in compliance with the draft order, being Exhibit 5 before me, but with the obvious amendment to the period of suspension sought by the Board. So, in the circumstances, the Tribunal orders: (1) it is found that Dr Crowe engaged in professional misconduct as that term is defined in paragraphs (a) and (b) of section 5 of the National Law; (2) Dr Crowe is reprimanded; (3) a condition is imposed on Dr Crowe’s registration requiring him to provide a -- 11 of 12 -- 12 certificate of currency of professional indemnity insurance on an annual basis to be reviewed by the Board after five years; (4) Dr Crowe is to undertake monthly mentoring at his own expense with a chiropractor chosen by him from a panel of three practitioners nominated by the Board, for a period of two and a-half years, and a copy of these reasons is to be provided to that mentor to assist him or her with an understanding of Dr Crowe’s issues; and (5) there will be no order as to costs. -- 12 of 12 --