Chiropractic Board of Australia v Brubaker [2015] QCAT 30

CITATION: Chiropractic Board of Australia v Brubaker [2015] QCAT 30 PARTIES: Chiropractic Board of Australia (Applicant/Appellant) v Dr John Mark Brubaker (Respondent) APPLICATION NUMBER: OCR103-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Ms Felicity Gundelach Mr Andrew Vincent Mr Paul Murdoch DELIVERED ON: 19 January 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Dr Brubaker’s registration is suspended for a period of 2 months from the date of these orders. 2. Dr Brubaker’s registration will be subject to the following conditions from the date the suspension is lifted: a. Within 7 days of resuming practice as a chiropractor, Dr Brubaker must: i. nominate in writing a chiropractor for the Board to approve as his supervisor (‘the supervisor’). If the Board does not approve the nominee, Dr Brubaker must make a further nomination in writing within 3 days; and ii. give to the Board a written authority allowing a representative of the Board (who does not have to be a Board member) to access Dr Brubaker’s place of practice to -- 1 of 9 -- 2 inspect and copy the clinical records of Dr Brubaker’s patients; iii. allow the supervisor access to the clinical records of Dr Brubaker’s records as is necessary to facilitate these conditions. b. Within 7 days of receiving approval of the supervisor from the Board, Dr Brubaker must provide a copy of the Tribunal’s reasons, a copy of this order and a written authority and direction to the supervisor to report to the Board as to the adequacy of his clinical records: i. at the end of every second month calculated from the date of the authority and direction to the supervisor; ii. if the supervisor holds a concern about Dr Brubaker’s clinical record keeping; iii. if requested by the Board to provide a report about Dr Brubaker’s clinical record keeping. c. Dr Brubaker must: i. within a fortnight of satisfying paragraph 2(b) and by no later than 4:00pm on the second Friday of each subsequent fortnight, give to the supervisor a schedule (‘the schedule’) which details the following matters about the patients to whom Dr Brubaker provided treatment in the previous fortnight: 1. the names of the patients; and 2. the date and time of each consultation ii. within 48 hours of receiving a request (whether written or verbal) from the supervisor for a copy of patient files, provide to the supervisor a copy of the patient files requested. d. Within 12 months of the date of these orders, Dr Brubaker must complete a tertiary level course of education addressing clinical record-keeping (such course to be nominated in -- 2 of 9 -- 3 writing by Dr Brubaker and approved in writing by the Board) and provide to the Board evidence of completion of the course. 3. The review period for the conditions imposed on Dr Brubaker’s registration is 12 months. It is the expectation of the Tribunal that upon review of the conditions by the Board after 12 months, the Board will remove the conditions if Dr Brubaker has complied with the conditions and the supervisor has not raised any concerns about Dr Brubaker’s clinical record keeping. 4. All costs and expenses in relation to the matters set out in paragraph 2 are to be borne by Dr Brubaker. 5. Dr Brubaker is to pay the Board’s costs of and incidental to these proceedings on the standard basis in accordance with the District Court scale of fees to be assessed by Hickey & Garrett or QICS (as the Board elects) within 28 days after these orders. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the respondent admitted to providing false or misleading information to an investigator and failing to maintain appropriate health records – where the parties jointly proposed a sanction – whether the proposed sanction was appropriate Health Practitioner Regulation National Law (Queensland), s 3(2), s 196(2) HQCC v Maher [2013] NSWCHT 1 Law Society of New South Wales v Freeman (1994) NSWLR 408 Medical Board of Australia v Bhamjee [20123] QCAT 259 Medical Board of Australia v Martin [2013] 376 Medical Board of Australia v Putha [2014] QCAT 159 Medical Board of Australia v Van Opdenbosch [2012] QCAT 703 -- 3 of 9 -- 4 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The Chiropractic Board of Australia has referred disciplinary proceedings to the Tribunal, pursuant to s 193 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), comprising six charges of conduct warranting disciplinary action. The charges are as follows: 1. Between 19 January 2011 and 24 January 2011 Dr Brubaker provided false or misleading information to an investigator. 2. Between 21 January 2011 and 24 January 2011, after being issued with a notice to produce stated information and documents under s 1 of Schedule 5 of the National Law, Dr Brubaker failed to give the requested information to an investigator. 3. Between 19 January 2011 and 24 January 2011 Dr Brubaker obstructed an investigator in the exercise of a power. 4. Dr Brubaker failed to maintain clear, appropriate, accurate, complete, contemporaneous and up to date health records. 5. In correspondence to the Board on 26 August 2010, Dr Brubaker stated that he had undertaken remedial action on his patient records, and falsely stated that all visit annotations from 16 August 2010 were current and complete; that new patient histories, examinations and diagnoses recorded in patient records had never been inadequate; and that all annotations in the respondent’s patient records were a true assessment of the patient’s visit, condition and treatment. 6. Dr Brubaker repeatedly failed to comply with relevant parts of the National Law in breach of the Board’s Code of Conduct for Chiropractors. [2] The Board did not pursue charges 2, 3, 5 and 6. Dr Brubaker has admitted the conduct which is the subject of charges 1 and 4, but not in respect of all the particulars of charge 1 as referred by the Board. [3] The parties jointly submit that the respondent’s conduct amounted to unprofessional conduct in regards to charge 1, and professional misconduct in regards to charge 4. Background [4] Dr Brubaker is the former owner of the New Era Chiropractic Clinic in Sandgate. He also practised at this location. The conduct which is the subject of these proceedings occurred at this practice. -- 4 of 9 -- 5 [5] In August 2010 the Board received two notifications raising concerns that Dr Brubaker was failing to properly maintain patient files. The Board resolved to investigate the matter and on 19, 21 and 24 January 2011 an investigator attended Dr Brubaker’s practice. During the investigation the investigator had discussions with Dr Brubaker and conducted audits of patient files. Charge 1 [6] On 19 January 2011 Dr Brubaker informed the investigator that, although he had previously failed to maintain patient records, after being notified of the complaint he had updated those records and now all his patient records were up to date. [7] On 21 January 2011 Dr Brubaker informed the investigator that additional archived files located in a filing cabinet in his office were the only other files in his clinic and that the investigator had inspected all patient files. [8] On 24 January 2011 Dr Brubaker informed the investigator that, while there may be a couple of other files in another room, all were up to date. [9] Dr Brubaker admits that each of these statements was false and misleading. [10] The parties, by joint submission on sanction, submit that Dr Brubaker’s conduct amounts to unprofessional conduct. Relevantly, this is defined in s 5 of the National Law as: professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers [11] The parties submit that Dr Brubaker’s conduct is clearly of a lesser standard than would be expected of him by the public and his peers. His conduct was, at least, misleading. However, it is submitted that his conduct was fleeting in nature having arisen in reaction to questioning from the investigator. Therefore, it is said that his conduct was reactive rather than being a calculated and deliberate attempt to deceive. [12] It is of concern that Dr Brubaker behaved in such a way on three separate occasions over a period of six days. The parties’ description of the conduct as being “fleeting” therefore seems somewhat misplaced. It may have been on the first occasion, but he would then have known that he had made a misleading statement. Yet he compounded matters by making a second misleading statement two days later, and then a third three days after that. [13] Nonetheless, I am satisfied that the parties joint submission that this conduct amounted to unprofessional conduct should be accepted in the circumstances. -- 5 of 9 -- 6 Charge 4 [14] Dr Brubaker admits that between 1 May 2009 and 15 January 2011 he failed to make any clinical notes of at least one consultation in the majority of approximately 432 patient files held at his practice. [15] The parties submit that Dr Brubaker’s conduct amounts to professional misconduct. Relevantly, professional misconduct is defined as: (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.1 [16] The parties submit that Dr Brubaker’s conduct can be viewed as either a single event of conduct, and therefore amounts to professional misconduct under subparagraph (a) of the definition, or as numerous events and therefore amounts to professional misconduct under subparagraph (b) of the definition. [17] The taking of accurate and detailed clinical records is essential for good continuity of care of patients as such records function to refresh the practitioner’s memory of the patient’s medical history and treatments. Patient records also function as an important record for other practitioners who may later take over the patient’s care.2 [18] Dr Brubaker’s failings in making clinical notes were extensive having related to hundreds of patients over a twenty month period. It amounted, as is admitted, to professional misconduct. Sanction [19] Having decided that Dr Brubaker has behaved in a way that constitutes unprofessional conduct in respect of charge 1 and professional misconduct in respect of charge 4, it is appropriate that the Tribunal impose a sanction under s 196(2) of the National Law. [20] The parties submitted a joint draft order with their joint submissions on sanction. Provided the draft order is appropriate and within a permissible range of sanctions in all the circumstances of the case, the Tribunal ought not depart from the jointly submitted draft order. There are sound public policy reasons for not doing so.3 [21] The parties seek an order that Dr Brubaker be suspended, reprimanded and, upon the lifting of the suspension, have conditions imposed on his 1 Section 5 of the National Law. 2 Medical Board of Australia v Bhamjee [2013] QCAT 259 (‘Bhamjee’). 3 Medical Board of Australia v Martin [2013] QCAT 376. -- 6 of 9 -- 7 registration. The conditions relate to the establishment of a supervisor relationship and the completion of a course of education addressing clinical record keeping. [22] The purpose of these proceedings and the imposition of a sanction is to provide for the protection of the public.4 However, to ensure the public is appropriately protected, sanctions imposed by the Tribunal must also act to deter practitioners generally and the individual from conducting themselves in a like manner in the future.5 [23] In making submissions regarding the appropriateness of the sanction the parties have referred the Tribunal to the cases of Medical Board of Australia v Van Opdenbosch6, HQCC v Maher7 and Bhamjee. [24] As the parties note, due to the significant number of patient records and significant period of time over which Dr Brubaker failed to keep appropriate records, comparative cases provide little guidance. [25] Van Opdenbosch imposed a sanction that is below the appropriate range of sanction in this matter, but of the three comparative cases it provides the most guidance to the Tribunal. The Tribunal in Maher also imposed a sanction that is below the appropriate range of sanction in this matter. [26] Bhamjee involved further conduct that was far more serious than Dr Brubaker’s conduct. Because of this the sanction imposed in that matter provides little assistance to the Tribunal in determining a permissible range of sanctions in the circumstances of this case. [27] In Van Opdenbosch the Registrant failed to properly document consultations with three patients in relation to prescribing behaviour. In addition to conditions limiting his ability to prescribe, the Tribunal imposed conditions on his registration establishing a supervisor relationship and requiring completion of further education regarding clinical record keeping. [28] The failure to properly document in Van Opdenbosch involved only three patients and did not appear to be over a significant period of time. Thus the sanction imposed by the Tribunal in the form of conditions is below the appropriate range in the circumstances of this case. Imposing such a sanction would not provide adequate deterrence to other practitioners or Dr Brubaker from engaging in similar conduct again. [29] In Maher the Chiropractic Tribunal of New South Wales reprimanded the Registrant and imposed conditions on his registration. The Registrant’s failure to make and keep appropriate client records related to two patients. The records were substantially written in Japanese and the Tribunal found that a reading of those notes did not give a clear indication of the 4 Section 3(2)(a) of the National Law. 5 Law Society of New South Wales v Freeman (1994) 34 NSWLR 408. 6 [2012] QCAT 703 (‘Van Opdenbosch’). 7 [2013] NSWCHT 1 (‘Maher’). -- 7 of 9 -- 8 examinations undertaken, the findings made on those examinations, or the treatment provided. [30] The Registrant’s conduct in Maher with regards the documentation of consultations was far less serious than in this matter. The allegations related to only two patients when compared with 432 in this matter. Further, while the records were unclear about important aspects, the Registrant still maintained a record of all consultations. Dr Brubaker did not. [31] The Registrant in Maher was also found to have committed five other instances of unsatisfactory professional conduct, while Dr Brubaker has been found to have behaved in a way that constitutes unprofessional conduct in respect of one other charge. [32] In comparing the sanction imposed in Maher, the Tribunal must keep in mind those distinguishing factors as outlined. For these reasons, especially considering the less serious nature of the Registrant’s conduct in relation to appropriate records keeping, the sanction imposed in Maher is below the range of appropriate sanctions in this matter. [33] The additional conduct in Bhamjee involved inappropriately and excessively prescribing restricted medication and breaching prescription requirements. While the Registrant failed to properly record some medical information for 16 patients, his conduct with regards the other charges, particularly the inappropriate and excessive prescribing, was far more serious. The Tribunal cancelled the Registrant’s registration and he was precluded from reapplying for registration for a period of five years. [34] Dr Brubaker’s conduct with regards the failure to make clinical records was more serious than that in Bhamjee. However, the Registrant’s further conduct in Bhamjee was particularly dangerous to the public and therefore required a more serious sanction. [35] In these circumstances the parties submit that, in addition to imposing similar conditions on Dr Brubaker’s registration, he should be suspended for two months. The parties submit that in all the circumstances a suspension of two months will appropriately address the respondent’s conduct, protect the public, uphold standards of practice and maintain public confidence. [36] The parties submit that the completion of a course of education is important to ensure Dr Brubaker understands not only the matters which clinical notes must address, but the rationale behind this obligation. The conditions proposed are similar to those imposed on the Registrants’ registration in Van Opdenbosch and Maher. [37] The parties also seek the establishment of a ‘supervisor relationship’ by imposition of conditions on Dr Brubaker’s registration. The parties submit that the onerous regime of reporting will ensure the supervisor is well equipped to monitor Dr Brubaker’s record keeping and thereby provide -- 8 of 9 -- 9 protection to the public. Further, the conditions will likely be in place for a period after the course of education is undertaken. Therefore this regime will ensure that Dr Brubaker has learned from that course of education. [38] The parties submit that a review period of 12 months is appropriate. [39] In determining an appropriate sanction the Tribunal must also take into account mitigating factors. Relevantly, Dr Brubaker has not been subject to previous disciplinary action, has cooperated in these proceedings and has made frank admissions of his conduct. He has also expressed insight into the seriousness of his conduct and has agreed to pay the Board’s costs. [40] The Tribunal is satisfied that the suspension of Dr Brubaker’s registration for a period of two months and the imposition of each of the proposed conditions upon his registration is appropriate. So too is the proposed review period. [41] The parties also propose that Dr Brubaker be reprimanded. The parties submit that this is an appropriate order to signify to the profession and the public alike that the respondent’s conduct is not acceptable. [42] In Medical Board of Australia v Putha8 the Honourable J.B. Thomas AO, Judicial Member, noted that when the Tribunal intends to make a more serious order, it is unnecessary to also make an order reprimanding the Registrant.9 I respectfully agree. Costs [43] The parties seek an order that Dr Brubaker pay the Board’s costs of and incidental to this proceeding. This order is appropriate and I will make such order. 8 [2014] QCAT 159. 9 Ibid at [37]. -- 9 of 9 --