Chiropractic Board of Australia v Zaphir [2014] QCAT 307

CITATION: Chiropractic Board of Australia v Zaphir [2014] QCAT 307 PARTIES: Chiropractic Board of Australia (Applicant) v George Zaphir (Respondent) APPLICATION NUMBER: OCR016-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 26 May 2014 HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Keith Charlton; Dr Mark Pickford; Ms Alison Christou DELIVERED ON: 26 May 2014 (ex tempore) DELIVERED AT: Brisbane ORDERS MADE: 1. A ground for disciplinary action has been established against George Zaphir. 2. George Zaphir has behaved in a way that constitutes unprofessional conduct. 3. Had George Zaphir remained registered, the Tribunal would have ordered that his registration be cancelled for a period of two (2) years. 4. George Zaphir is not permitted to reapply for registration for a period of 12 months from 26 May 2014. 5. George Zaphir must pay the costs of the Chiropractic Board of Australia of and incidental to the proceeding in a sum to be agreed or assessed on the District Court scale. 6. Publication of the contents of any document or any evidence given in this proceeding which would identify any of the patients is prohibited. -- 1 of 11 -- 2 CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – where disciplinary proceedings containing two grounds were referred to the Tribunal under the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’) and the Health Practitioner Regulation National Law (Queensland) (‘National Law’) – whether the Tribunal can hear referrals under both the Disciplinary Proceedings Act and the National Law PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – CHIROPRACTORS – where the respondent was has been convicted of 11 offences under the Health (Drugs and Poisons) Regulation 1996 (Qld) and 47 offences under the Medical Practitioners Regulation Act 2001 (Qld) – whether the respondent has engaged in unsatisfactory professional conduct – whether the Tribunal should impose conditions on an application for future registration – whether the Tribunal should impose conditions on future registration PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – CHIROPRACTORS – where the respondent the respondent provided services to a chiropractic practice – where the respondent’s registration lapsed on 30 November 2010 – where it is alleged the respondent continued to provide chiropractic services – whether the respondent engaged in unprofessional conduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – CHIROPRACTORS – where disciplinary proceedings were successful – where the respondent sought adjournment to unsuccessfully challenge convictions – whether the respondent should pay the applicant’s costs Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 124, s 126, s 211(1)(a), s 213, s 227, s 243(2)(b), s 288, s 289, s 398C(1)(a), s 398K, s 398M, s 398S Health Practitioner Regulation National Law (Queensland), s 116(1)(c), s 193, s 196, -- 2 of 11 -- 3 Health (Drugs and Poisons) Regulation 1996 (Qld), s 146(3) Medical Practitioners Registration Act 2001 (Qld), s 157(6), s 160(2), s 161(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 54 Nursing Midwifery Board of Australia v Fankhauser [2013] QCAT 395 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr C Wilson instructed by Lander & Rogers Lawyers RESPONDENT: Dr G Zaphir (self-represented) REASONS FOR DECISION [1] On the 23rd of January 2012, the Chiropractic Board of Australia referred a disciplinary proceeding to the Tribunal. The disciplinary proceeding as referred contained two grounds. Each was a ground arising under s 124(1) of the Health Practitioners (Professional Standards) Act 1999 (Qld). By amendment, that Act has had its name changed and is now the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’). [2] The referral concerned Dr George Zaphir. Dr Zaphir is the holder of a doctorate in chiropractics and uses the title “Dr” as a consequence of that. He is not, however, a medical practitioner and has never been registered as such. He did hold registration as a chiropractor until November 2010. [3] By leave of the Tribunal, an amended referral was filed by the Chiropractic Board of Australia on 4 April 2013. That amended referral amended the grounds as brought in the original referral and also added a third ground for disciplinary proceedings against Dr Zaphir. That third ground was referred not under the Disciplinary Proceedings Act but rather under s 193 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) which is a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). A Jurisdictional Issue [4] As a preliminary issue, I raised with the parties in the hearing whether the Tribunal could deal with a referral under both s 126 of the Disciplinary Proceedings Act and s 193 of the National Law. The matter has not previously been determined, to my knowledge, in the Tribunal. The Tribunal has, in at least one earlier matter, determined a disciplinary referral brought for conduct arising separately under the Disciplinary Proceedings Act and the National Law. However, in that earlier matter, -- 3 of 11 -- 4 the issue was not ventilated as to whether those referrals could be dealt with together. [5] Matters referred under s 126 of the Disciplinary Proceedings Act are dealt with in the Tribunal under the Disciplinary Proceedings provisions in Part 6, Division 6 of that Act. Matters referred to the Tribunal under s 193 of the National Law are dealt with by the Tribunal as “NRAS disciplinary proceedings” in respect of “NRAS disciplinary matters” under Part 12A of the Disciplinary Proceedings Act. [6] Section 211(1)(a) confers jurisdiction on the Tribunal to hear all disciplinary matters referred under s 126 by a board. Similarly, s 398C(1)(a) confers jurisdiction on the Tribunal under the National Law to hear matters referred by a national board under s 193. So, quite clearly, it is the Tribunal which is conferred with jurisdiction in respect of referrals arising under either law. [7] Section 213(2) requires the Tribunal to be constituted by a judicial member in respect of matters referred under s 126. So too, s 398K requires the Tribunal to be constituted by one judicial member in respect of NRAS disciplinary proceedings arising under, amongst other things, s 193 of the National Law. Section 213(1) requires the Principal Registrar to choose assessors to assist the Tribunal in respect of matters referred under s 126. So too, s 398M requires the Principal Registrar to choose assessors to assist the Tribunal in the hearing of a proceeding arising or referred under s 193. [8] Section 227 provides that, in deciding a question of fact before the Tribunal, the constituting member may have regard to the views of an assessor assisting the Tribunal as the member considers appropriate. An almost identical provision appears in s 398S in respect of matters referred to the Tribunal under the National Law. [9] So, insofar as conferral of jurisdiction and the constitution of the Tribunal is concerned, the Tribunal is to be constituted in the same way in respect of either a matter referred under the Disciplinary Proceedings Act or one referred under the National Law. It is to be assisted in each instance by assessors drawn from both the profession concerned and the public panel. [10] There is, however, a distinction in the sanctions which can be imposed by the Tribunal in respect of disciplinary proceedings found to be made out under the Disciplinary Proceedings Act and those under the National Law. For example, under the Disciplinary Proceedings Act, particularly section 243(2)(b): The Tribunal may impose conditions on the future registration of a person who is no longer registered and/or conditions under which that person may reapply for registration in the relevant profession. [11] Those powers are not conferred upon the Tribunal under s 196 of the National Law. -- 4 of 11 -- 5 [12] Notwithstanding the distinction between the sanctions which can be imposed under each piece of legislation, I am of the view that the Tribunal is able to hear a matter referred under the Disciplinary Proceedings Act and a matter referred under the National Law in the one proceeding. [13] Because of the way in which the transitional provisions operate, particularly ss 288 and 289 of the National Law, one can readily conceive of circumstances in which disciplinary proceedings arising under the Disciplinary Proceedings Act which are required to be dealt with by the Tribunal as though the Disciplinary Proceedings Act had not been repealed might exist at a time at which there are also matters discovered in the course of investigation which relate to proceedings which would have to be brought under the National Law. To require there to be two separate proceedings seems to be the antithesis of the way in which the Tribunal is to deal with matters under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), particularly bearing in mind the obligations imposed upon the Tribunal pursuant to s 28 of that Act, particularly s 28(3)(d), requiring the Tribunal to act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act, and a proper consideration of the matters before the Tribunal permit. Section 54 of the QCAT Act also permits for the consolidation of two or more proceedings concerning the same or related facts and circumstances. [14] For those reasons, I am content to deal with all of the grounds contained in the amended referral filed in April 2013. Dr Zaphir’s Conduct [15] The amended referral contains three grounds; however, ground 2 is not maintained by the Board in these proceedings. The parties have filed, today, a statement of agreed facts. Ground 1 of the amended referral is brought pursuant to s 124 (1)(g)(i) of the Disciplinary Proceedings Act and alleges that Dr Zaphir has been convicted of 11 offences against s 146(3) of the Health (Drugs and Poisons) Regulation 1996 (Qld). [16] It also alleges that he has been convicted of 46 offences against the Medical Practitioners Registration Act 2001 (Qld). Those 46 offences comprise two offences under s 157(6), the conduct in respect of which concern that, in writing prescriptions, Dr Zaphir took a title which indicated, or could reasonably be understood to indicate, that he was a medical practitioner or person authorised to or qualified to practice medicine; 38 offences under s 160(2) of the Medical Practitioners Registration Act 2001 (Qld), concerning the use of the title “doctor” without that title being followed by words or initials indicating a doctoral field; and six offences under s 161(1)(a) of that Act, for holding himself out to be a medical practitioner registered under the Medical Practitioners Registration Act 2001 (Qld) and using the restricted title “doctor” when he was not authorised to do so. -- 5 of 11 -- 6 [17] The fact that Dr Zaphir has been convicted of those offences is beyond doubt. Verdict and judgment records relating to each of those offences have been tendered in the proceedings. Dr Zaphir, however, maintains that notwithstanding those convictions, and given the matters which he says led to them – that is, particularly, that he was pressed into pleading guilty by his lawyers and that they failed to advance on his behalf facts and arguments in his favour – that I should find that a disciplinary ground has not been made out against him in respect of those matters. [18] It is clear that Dr Zaphir appealed in respect of at least some of the convictions. The convictions were entered in respect of the 11 offences against s 146(3) of the Health (Drugs and Poisons) Regulation 1996 (Qld) on 20 February 2009. By notice of appeal, signed by Dr Zaphir as the appellant on 19 March 2009, he appealed to the District Court of Queensland under s 222 of the Justices Act 1886 (Qld). The appeal was, however, restricted to the sentence which was imposed by the learned magistrate. He had been fined $9,000 and a conviction was recorded. The appeal was dealt with by his Honour Judge Wall QC of the District Court on 2 June 2010, when his Honour allowed the appeal to the extent of setting aside the fine of $9000 and substituting in lieu a fine of $6750. He did not upset the learned magistrate’s orders recording convictions. I am told that the basis for the review of the fine imposed was that the magistrate committed error in the calculation of the fine by applying an incorrect penalty unit in the calculations. [19] Somewhat curiously, on 15 March 2013, Dr Zaphir lodged another appeal against the orders entered on 20 February 2009. That matter was dealt with by his Honour Judge Koppenol of the District Court on 18 October 2013, when his Honour: refused an application to adjourn brought by Dr Zaphir; refused the application to extend time; and dismissed the appeal with costs. [20] Dr Zaphir, in the course of making submissions today, has further suggested that he intends to again challenge the convictions in the Magistrates Court. I do not know on what legal basis he proposes to do so. [21] The matters of which Dr Zaphir were convicted were serious. In the learned magistrate’s sentencing remarks of the 20th of February 2009, her Honour described the conduct for which Dr Zaphir had been charged in relation to the contraventions of the Health (Drugs and Poisons) Regulation 1996 (Qld). Her Honour observed that Dr Zaphir was interviewed by the complainant in the proceedings, who was an environmental health officer, and during that interview had acknowledged that he knew that he had to be endorsed to prescribe restricted drugs and that he knew that he had no such endorsement. In the interview he advised that he had not previously appreciated that the drugs concerned were S4 drugs and had thought them to be natural products, and that upon learning that they were S4 drugs had ceased to prescribe them. -- 6 of 11 -- 7 [22] That is a description of events which Dr Zaphir maintains in these proceedings. Her Honour observed, though, that the offences that were then before her, took place subsequent to that interview. It seems that Dr Zaphir and a medical practitioner by the name of Dr James Bamford and a pharmacist at the Broadbeach Amcal Pharmacy had entered into that arrangement whereby, if Dr Zaphir wished for a patient of his to be dispensed with an S4 drug, he completed a form which contained his details, the pharmacist’s details, the patient’s details, and the drugs to be dispensed. The form was then faxed to the pharmacy, whereupon someone at the pharmacy would write a prescription on Dr Bamford’s blank prescription pad left at the pharmacy. Dr Bamford would attend the pharmacy and sign the prescription forms, which had been written out by pharmacy personnel. Dr Bamford never consulted any of the patients to whom those prescriptions were issued. The drugs which were prescribed through that process included thyroid extract and hydrocortisone. [23] Her Honour rejected a submission made by Dr Zaphir’s counsel on that occasion that Dr Zaphir thought that they were natural products, with perhaps the exclusion of Viagra and the thyroid extract. However, as her Honour noted, it was clear that before the offences were committed Dr Zaphir had become aware, that the hormone replacement therapy drugs were S4 drugs. As her Honour observed, ‘Indeed, it was for this very reason that the arrangement was entered into between Dr Bamford, the Broadbeach Amcal Pharmacy and the defendant’. [24] Those matters were reflected in her Honour’s reasons for refusing to exercise her discretion not to record convictions. Her sentencing remarks reflect that notwithstanding the fact that Dr Zaphir had no criminal history, the acts constituting the offence were done deliberately and with the very specific intention of circumventing the legislative requirements of the relevant regulation. In her Honour’s view, that was compelling reason for the recording of a conviction. [25] The matters concerning s 160(2) of the Medical Practitioners Registration Act 2001 (Qld) involved Dr Zaphir writing out prescriptions and pathology forms for patients using the title “doctor” without that title being followed by the initials or words indicating that the doctorate that he held was in chiropractics. Dr Zaphir, in making submissions today, observed that he had been found guilty of not using the initials DC. In my view, that view which Dr Zaphir holds demonstrates a lack on insight on his part into the seriousness of the matters for which he was convicted. [26] The requirements of the legislation are for obvious protective purposes. That Dr Zaphir seems still to fail to understand that he was not merely being convicted of a failure to use initials outside of a context where the requirement to use those initials is so that people are not misled as to whether or not a person is a medical practitioner is of some concern. [27] The matters concerning s 161(1)(a) of the Medical Practitioners Registration Act 2001 (Qld) concerned two patients to whom Dr Zaphir held himself out to be a medical practitioner. -- 7 of 11 -- 8 [28] The Board has quite clearly established the disciplinary ground under s 124(1)(g) of the Disciplinary Proceedings Act. In my view, they have also satisfied s 124(1)(a) and established that Dr Zaphir has behaved in a way that constitutes “unsatisfactory professional conduct” as defined by that Act. [29] The matters referred under the National Law concern s 116 of that legislation, particularly s 116(1)(c) proscribes a person who is not a registered health practitioner from knowingly or recklessly claiming to be registered under the National Law or to hold himself or herself out as being registered under that law. [30] The matters which form the basis for the alleged contravention of s 116(1) relate to a period of time when Dr Zaphir provided services to a chiropractic practice in Ipswich. Dr Zaphir entered into arrangements with that practice on or about 24 May 2010. At that time Dr Zaphir entered into a contract or agreement with that practice under which his primary duties included the provision of chiropractic treatment to patients. He was required under the terms of the agreement to maintain registration to practise as a chiropractor in the state of Queensland. [31] It is to be recalled that this registration came to an end when it lapsed on 30 November 2010. Dr Zaphir applied for “Fast Track registration” by application completed by him on 11 February 2011. In that application he identified that the expiry date for his registration was 30 November 2010. He accepts, and the conclusion is compelling, that he must have known from at least the time of completing that registration application that he did not hold registration under the Act. However, he had asserted in the proceedings before me that, being aware that there were difficulties associated with his registration, he brought those matters to the attention of the owners of the practice, and thereafter limited his activities in that practice to musculoskeletal therapy, naturopathy and other treatments which did not require registration as a chiropractor. [32] I reject that evidence. The persons concerned in the practice were called. Whilst Ms Lyndall Daley, who was the other chiropractor in the practice, accepted that there had been some discussions between Dr Zaphir and herself concerning musculoskeletal work, and that she had observed him performing other forms of therapy, I do not in any way accept that her evidence was that his practice was limited so as not to be providing chiropractic services during that period of time. Indeed, in an affidavit Ms Sheridan Daley, who is the practice manager at the practice, refers to a further agreement having been provided to Dr Zaphir in or about May of 2011. She deposes to the fact that, for reasons of administrative oversight, the practice records do not contain a signed copy of the document. [33] However, from questions which Dr Zaphir asked of Ms Lyndall Daley, it is apparent that he concedes that such an agreement was entered into at or about that time. Under that further agreement, the recitals include that the company wished to engage an independent contractor to provide -- 8 of 11 -- 9 “chiropractic services” to the company, and that the contractor represented that he possessed the necessary expertise to provide “chiropractic services” and possessed the necessary expertise to perform those services. The agreement identified the services to be provided by the contractor included the provision of “chiropractic treatment”. [34] In my view, given that that agreement was entered into in or about May of 2011, it must have been at a time when Dr Zaphir knew that he did not hold registration. He was obliged by clause 7.4 of the agreement to, amongst other things, hold and maintain all necessary licences and professional qualifications that applied to him or the services which were being provided. [35] Ms Sheridan Daley also deposes to Dr Zaphir having provided a copy of the documents relating to his professional indemnity insurances. It is apparent from that document that the period of cover was from 14 February 2011 to 14 February 2012, and that the indemnity cover was particularly in relation to what is described in section 9 of that document as being “chiropractor’s liabilities”. In the event, Dr Zaphir volunteered to cease working for that organisation, or providing services to it, when difficulties associated with his registration were raised. [36] In my view, the Board has made out the disciplinary ground based upon a contravention of s 116(1)(c) in respect of its referral under s 193 of the National Law. I should also record that I am of the view that that conduct constitutes unprofessional conduct within the meaning of the National Law. [37] I propose to deal first with the sanctions to be imposed pursuant to s 243 of the Disciplinary Proceedings Act in respect of the matters referred under s 126 of that Act. Section 243 provides for the sanctions which might be imposed upon a person who, at the time of the Tribunal’s decision, is not registered for the relevant profession but who was previously a registrant. Section 243(2)(b)(vi) permits the Tribunal to indicate another form of disciplinary action mentioned in s 241(2) which would have been taken if the person were registered. Section 241(2) deals with the action that can be taken by the Tribunal if it finds a disciplinary ground established in respect of the person who is registered at the time of the Tribunal’s decision. [38] Section 241(2)(i) provides for the cancellation of the registrant’s registration and I indicate that I would have ordered the cancellation Dr Zaphir’s registration for a period of two years. In those circumstances, s 243(3) requires the Tribunal to decide the period during which Dr Zaphir must not again be registered by the Board and I decide that that period is a period of 12 months from today’s date. [39] The Board has also sought orders pursuant to s 243(2)(b)(ii) of the Act requiring or imposing a condition that Dr Zaphir shall not apply for registration for a period of one year from the date of these orders. In my view, where s 243(2)(b)(ii) provides that the Tribunal may impose -- 9 of 11 -- 10 conditions under which the person may reapply for registration in the relevant profession, that is something different to an order under s 243(3) stating a period during which the person must not again be registered by the Board. In my view, in light of the order under s 243(3), the condition sought is impermissible and would, in fact, be surplusage. [40] The Board also seeks an order pursuant to s 243(2)(b)(ii) seeking a condition under which Dr Zaphir may reapply for registration, being that he first complete a tertiary model in ethical decision-making before applying for registration. For reasons which the Tribunal discussed in the Nursing Midwifery Board of Australia v Fankhauser [2013] QCAT 395, such a condition is permissible under s 243(2)(b)(ii) in respect of a matter referred under s 126 of the Disciplinary Proceedings Act, however, would not be permissible in respect of orders made under the National Law. [41] Whilst it is certainly within the Tribunal’s jurisdiction to make such a condition now, given that the way this matter has proceeded with a referral under both the Disciplinary Proceedings Act and the National Law, and given that the legislature, in enacting the National Law, has removed the ability for the Tribunal to impose conditions on future registration, in my view, an appropriate exercise of discretion in this matter is to decline to make an order by way of a condition which would burden any future registration application. There appears to me to have been a clear legislative intent to place matters concerning conditions of registration upon the Board and the Tribunal should not, in these circumstances, as a matter of discretion, burden that future exercise of the Board’s own discretion. [42] Similarly, I would decline to make an order by way of conditions to be imposed on a future registration under s 243(2)(b)(iii); the Board having sought a condition concerning the circumstances in which Dr Zaphir should practice under any further registration granted. Again, in my view, an appropriate exercise of discretion in this matter would be to decline to impose such a condition. It should be a matter for the Board when it comes to consider any further application for re-registration by Dr Zaphir. [43] The Board has sought an order that Dr Zaphir pay its costs of and incidental to these proceedings in a sum agreed or to be assessed. The Tribunal has observed on a number of other occasions that in disciplinary proceedings such as these where the Board, funded as it is by the registration fees of members of the profession, those members of good standing should not carry the burden of disciplining a member of the profession who has transgressed in their professional responsibilities. For those reasons, I am of the view that the Board should have its costs in this case. [44] In ordering that Dr Zaphir pay the Board’s costs, I would also observe that this matter has had a long history in the Tribunal, much of which has been occasioned by Dr Zaphir seeking adjournments so that he could challenge the convictions in the Magistrates Court which would then, of course, have changed the complexion of the case being brought by the Board. As a -- 10 of 11 -- 11 consequence of those matters, the Board has had to prepare this case on the footing that Dr Zaphir was challenging the convictions in the Magistrates Court and that it would therefore have to prove all of the substantive facts and allegations which went to the matters which might otherwise have been proved by the certificates of conviction. The Board has, accordingly, prepared a detailed and comprehensive case, much of which, of course, has been now unnecessary because of the fact of the convictions not having been upset. However, that has occasioned great cost, one suspects, in the preparation of this case. In my view, it is entirely appropriate that Dr Zaphir should have to pay the costs which have been brought about, in large part, as a consequence of his own conduct of his case, which was a matter for him. [45] I order that Dr Zaphir is to pay the costs of the Chiropractic Board of Australia of and incidental to the proceedings in a sum to be agreed or assessed on the District Court scale on the standard basis. [46] The Board also seeks an order pursuant to s 66 of the QCAT Act restricting the publication of the contents of any document filed in the proceedings or any evidence given before the Tribunal which would identify any of the patients whose records are included in the voluminous material which has been filed. I make that order. -- 11 of 11 --