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Medical Board of Australia v Dr Christopher Kwan Chen Lee [2019] TASHPT 3 (16 April 2019)

Last Updated: 12 September 2019

[2019] TASHPT 3

JURISDICTION: HEALTH PRACTITIONERS TRIBUNAL

CITATION: Medical Board of Australia v Christopher Kwan Chen Lee (Ref No 11/2018) [2019] TASHPT 3

PARTIES: MEDICAL BOARD OF AUSTRALIA

v

LEE, Christopher Kwan Chen

HELD AT: Hobart

REFERENCE NO(S): 11/2018

HEARING DATE(S): 25 March 2019 and by written submissions dated 14, 25 and 26 March 2019

DELIVERED ON: 16 April 2019

DECISION OF: Chairperson Webster

CATCHWORDS: Medical practitioner – professional misconduct – inappropriate comments posted online by respondent – reprimand, suspension and imposition of conditions

Health Practitioner Regulation National Law Act 2009 (QLD); Health Practitioners Tribunal Act 2010; Health Practitioner Regulation National Law (Tasmania) Act 2010; Tasmanian Board of the Medical Board of Australia v Lyall [2015] TASHPT 3; Pharmacy Board of Australia v Meaney [2017] TASHPT 1; Medical Board of Australia v Roberts [2014] WASAT 76; Adamson v Pharmacy Board of Tasmania (No 2) [2004] TASSC 82; Craig v The Medical Board of South Australia [2001] SASC 169; Ziems v Prothonotory of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279; Queensland College of Teachers v Teacher EAJ [2014] QCAT 29; HCCC v Davis (No 2) [2013] NSWNMT 25; Medical Board of Australia v Karam [2012] QCAT 198; Healthcare Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149; Khan v Medical Council of NSW [2016] NSWCATOD 88; Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328; Honey v Medical Practitioners Board of Victoria [2007] VCAT 526.

DETERMINATION: The respondent is guilty of professional misconduct and appropriate sanctions are imposed.

REPRESENTATION:

Counsel:

Applicant: S. Taglieri SC

Respondent: In person

Solicitors:

Applicant: Australian Health Practitioner Regulation Agency

Respondent: Nil

[2019] TASHPT 3

REASONS FOR DETERMINATION

Introduction

1. On 20 December 2018 the applicant referred to the Tribunal pursuant to s193 of the Schedule to the Health Practitioner Regulation National Law Act 2009 (QLD) (“the National Law”) and s21(1) of the Health Practitioners Tribunal Act 2010 conduct of the respondent which it asserts amounts to professional misconduct. The National Law set out in the schedule to the Health Practitioner Regulation Law Act 2009 (QLD) has been adopted by the Tasmania Parliament and applies as a law of this State[1].

2. This case concerns the professional consequences for a medical practitioner, Dr Lee, who made inappropriate statements or comments on online internet forums or chat sites.

3. The respondent received a notification about comments the respondent posted online while he was residing in Hobart between 9 December 2016 and 10 December 2016 which identify him as a medical practitioner. An investigation was conducted as a result of the receipt of that notification and further online posts were discovered by the investigator.

4. The first directions hearing in this matter was conducted by me on 10 January 2019. Dr Lee, who appeared on his own behalf at that hearing, indicated he was prepared to proceed immediately to conciliation. The matter was therefore adjourned for that purpose after the applicant agreed to provide an amended application which set out the orders sought by way of suspension and particulars of the conditions it wished me to attach to the respondent’s registration.

5. This matter proceeded to conciliation on 22 January 2019. At that mediation Dr Lee was accompanied by his supervisor Dr Weeraratne who is an emergency physician and the current Director of Emergency Medicine Training at the Latrobe Regional Hospital and Knox Private Hospital in Victoria. He worked closely with Dr Lee when he worked as a registrar at Latrobe Regional Hospital within the Emergency Department in 2018 and 2019.

6. As a result of the conciliation the parties were able to agree on an outcome in relation to this application. A joint submission was provided to the Tribunal and it was signed by the solicitor for AHPRA, Mr Shears, and Dr Lee, and it is dated 14 March 2019. That submission was provided to the Tribunal on that day and thereafter the matter was set down for hearing on 25 March 2019. At that hearing details of a prior matter emerged and I received written submissions from the applicant as to that matter on 25 March 2019 and Dr Lee responded on 26 March 2019.

These Proceedings

7. This application alleges Dr Lee’s conduct on the dates and at the times particularised below constitutes professional misconduct under the National Law and at common law. The conduct consists of making numerous inappropriate and offensive statements or comments online in public forums in which the respondent was readily identifiable from his own words and photographs as an Australian medical practitioner. The following statements or comments were made by the respondent on the online forum http://forums.hardwarezone.com.sg:

“I beg to differ. This kind will NEVER learn. She needs to be abandoned in India and repeatedly raped in order for her to wake up her idea.” [09-12-2016, 9:45pm] “Doctor cannot be scathing? Doctor cannot be vulgar? Doctor cannot scold people? Fug you all lah.” [09-12-2016, 9:45pm] “I will not conform to your ridiculous moral standards and your expectations of what a doctor should or should not say.” [09-12-2016, 9:45pm] “I am a medical practitioner. I also have a foul mouth and call a spade a spade.” [09-12-2016, 9:45pm] “I can just as easily condemn your mother for a whore (if the situation warranted it) as I can save your life or even hers.” [09-12-2016, 9:45pm] “I am what I am. Doctors are not produced from a cookie cutter mold [sic]. Deal with it.” [09-12-2016, 9:45pm] “Don’t live in Singapore. For someone to get their license revoked over something like this is bloody nonsensical.” [09-12-2016, 9:48pm] “I’m not pinoy [Filipino], you dumb SOB [Son of a bitch].” [09-12-2016, 9:51pm] “I work in the ER.” [09-12-2016, 9:53pm] “I didn’t go to med school for six years and gain entry to the Australasian College of Emergency Medicine to let some anonymous moron call me a nurse and a fake doctor. My qualifications are as genuine as your stupidity.” [09-12-2016, 10:02pm] “Life’s a stage. I live for the applause. Free forum, baby; anyone can start a thread on anything. Suck it up.” [09-12-2016, 10:29pm] “I’m not at home right now. I’m at the hospital, although I’m not actually working. My wife is on night shift and I’m here to keep her company and help her with stuff if she requires assistance.” [09-12-2016, 10:31pm] “Nah, I’m a lesbian in mind only. I think I just need some alcohol.” [09-12-2016, 11:42pm] “You really ought to meet me in real life. My online personality is exactly the same as my offline one. I don’t just talk big here. I talk big EVERYWHERE.” [10-12-2016, 07:51pm] “Thank you for redirecting; I didn’t even initially realise that we were going off topic. The original issue at play here is that people are criticising me for being a blunt, heartless foul mouthed bast@rd on an Internet forum.” [10-12-2016, 08:00pm] “What would you rather me say, hmm? That hers was a misguided outburst? That she should be let off the hook? Well that ain’t my style, mister. If I don’t’ like you, there won’t be any kid gloves. Some women deserve to be raped, and that supercilious little bitch fits the bill in every way.” [10-12-2016, 10:16pm] “You give her too much credit. She’s too bloody thick skinned to know guilt or regret. If I turn out to be wrong, though, it won’t be any skin off my nose. With her suicide, nothing of value would be lost.” [10-12-2016, 10:42pm]

8. The following statements or comments were made by the respondent on the online profile Wikidot (http://edmw.wikidot.com/nachtsider) being posted on a date on or before 9 January 2018 in which the respondent describes himself as follows:

“A mongrel doctor who claims to know all manner of shit on earth. He works and resides in Australia, and is also well known to practice Sintua religiously. It is rumored [sic] that his hospital in Australia has the highest casualties in the world due to him not attending to his dying patients and consistently posting ran jiao weis in edmw. He has a chio Ceylonese wife and will piak and/or play with her tits almost everyday. There’s some tiagong that he was forced into the marriage because his wife had threatened to report him to police for raping her, after he spiked her curry then upped her after their graduation prom night. Famous for being a shortie.”

9. The following statements or comments were made by the respondent on the online forum http://forums.hardwarezone.com.sg/ being posted on a date on or before 16 January 2018:

“If my marriage fell apart, it would not end in divorce. It would end in murder.”

10. On 3 December 2017, a date after the respondent had received notice that he was subject to a notification under the National Law, on an online forum http://forums.hardwarezone.com.sg/ referring to an article about an Egyptian lawyer who was sentenced to three years in prison for saying that women who wear ripped jeans should be raped in punishment, he stated:

“I’m surprised they didn’t give him a medal instead.”

11. On a date on or about 3 January 2016, the respondent on the online forum http://edmw.longluntan.net/ stated in response to another person’s post of “walao...rape rape la...why must kill young people...fuck man” with:

“What do you expect them to do, if the victim has seen their faces?”

The Joint Submission of the Parties

12. The respondent admits he wrote the online posts and published them on the dates and at the times alleged.

13. The respondent is now 31 years of age and he was employed by the Tasmania Health Service between February 2016 and February 2018. He is now based in Box Hill, Victoria. He told me at the hearing he graduated from the University of Melbourne in 2012 and was thereafter an intern at the Bendigo Base Hospital. He was then a resident in the Acute Care Stream of that hospital in 2014 and 2015. He was then a Registrar of Emergency Medicine at the Royal Hobart Hospital in 2016. He moved to the Launceston General Hospital in the same role in 2017. In 2018 he returned to Victoria and became the Emergency Registrar at Traralgon. He commenced an identical position at Box Hill Hospital in 2019. He advised me the hospitals at Traralgon and Box Hill were part of Eastern Health in Victoria.

14. At the time he posted his online comments the respondent says he was relatively young and inexperienced and he had a brash and opinionated bent to his conduct on social media. It is agreed he did not fully appreciate that posting comments on a Singaporean online forum would have consequences on his practise of medicine in Australia.

15. The joint submission stressed that despite the respondent’s above mentioned online conduct he has not permitted his socio-political and other personal views to colour or influence his medical practise and he has certainly never been discriminatory or derogatory towards the groups of individuals that his comments are alleged to be inflammatory of. He says it can be demonstrated that no violations surrounding direct patient care can be attributed to the respondent through his entire medical career, and a recent clinical supervisor can confirm the respondent has constantly conducted himself in a professional and compassionate manner while in the workplace.

16. Attached to the joint submission was a letter of support which has been provided by Dr Weeraratne who is an emergency physician with more than 27 years experience in emergency medicine in Australia. He is currently the Director of Emergency Medicine Training (an appointment endorsed by the Australasian College for Emergency Medicine) at Latrobe Regional Hospital and Knox Private Hospital. He says in his letter of support he worked closely with the respondent when he worked as Registrar at Latrobe Regional Hospital within the Emergency Department in 2018 and 2019. The respondent was equivalent to a second in charge of that department and he had significant responsibility in his role. Dr Weeraratne says the respondent has excellent knowledge, clinical skills, patient care and advocacy and leadership. He has come to this view after observing the respondent closely. He also says the respondent is warm, engaging and affable and has excellent communication skills. Finally he says the respondent is professional and punctual and he has an excellent work ethic. Dr Weeraratne is fully aware of the conduct the respondent has admitted to having attended the conciliation with him.

17. The applicant says that in relation to the claims in paragraphs 14 and 15 it has no means of confirming them. I have no hesitation in accepting what Dr Lee says given it was clear to me at the hearing he understood the gravity of his conduct and the position he has put himself in. In addition he appears to have admitted his conduct and attempted to finalise this matter as soon as reasonably possible. In those circumstances I could not imagine he would seek to mislead the Tribunal.

18. When I asked him some questions he confirmed he authored the posts, he rejected them and would endeavour not to repeat such conduct. He says they were not made in the context of patient care and he has not allowed his views to ever colour his care of patients. He did not appreciate posts on forums overseas would have any bearing on his practise of medicine in Australia. He says his care of patients has never been the subject of a complaint. He has treated many patients from the ethnic and gender groups mentioned in the posts and he has not behaved in a discriminatory fashion towards those patients. He said he understood the posts could be perceived as inflammatory, misogynistic or racist in tone and the posts were clearly associated with him. It is clear from the posts and the photographs he posted he is a registered medical practitioner.

19. The respondent says the initial posts were made in the context of a socio-political situation in Singapore/Malaysia where as a result of certain events a local female college student made disparaging remarks about servicemen. Others, including the respondent, took exception to her comments which his 2016 posts were responding to. He concedes anger with the content of her posts clouded his judgement. He agreed with my suggestion it would be wise for him to stay away from such forums in the future.

20. Tendered by consent during the hearing were the following documents:

(a) Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014 (“the Code”);

(b) National Board policy for registered health practitioners – Social Media Policy, March 2014; and

(c) Two photographs which the respondent posted on the hardwarezone forum mentioned above which depict the respondent with his degrees obtained from the University of Melbourne and in medical attire. The photograph of the respondent in medical attire also shows him wearing his employee identification card and a stethoscope.

Prior Disciplinary Matters

21. During the hearing on 25 March 2019 I asked whether or not there were any prior matters. Dr Lee was candid in his response. He said there was a prior matter for which he was issued a caution and it related to his inappropriate access of a patient’s hospital records.

22. After the hearing I was provided with further details of that matter by the applicant. The information I was provided was that Dr Lee was the subject of a notification which led to disciplinary action being taken against him by the Board and on 23 July 2018 the applicant issued a caution to Dr Lee in the following terms:

“The practitioner is cautioned in relation to accessing Royal Hobart Hospital patient [patient’s name] health records on 21 occasions, between July 2015 and December 2016 (inclusive), which was inappropriate because it was done without consent or clinical need.”

23. The applicant submitted the conduct that resulted in the imposition of a caution is not of the same nature as the conduct referred to in this application. Nevertheless, it was submitted that in each instance the conduct which Dr Lee engaged in demonstrates he has difficulty appreciating and acting at all times in a professional and ethical manner, as is required, for him to meet the expected and accepted standards of a medical practitioner. I was referred to s8.1 of the Code which will be referred to below.

24. In response Dr Lee wanted me to be aware of the circumstances surrounding the issue of the caution and therefore he provided me with a copy of the letter he received from AHPRA of 24 July 2018 which sets out the terms of the caution, the documentation which the Board took into account in reaching its decision and the reasons for its decision. The reasons he gave for his conduct are also set out in that letter. In his email to the Tribunal of 26 March 2019 he accepts his actions were wrong. He says his actions were entirely without malice and did not “pertain to direct patient care”.

Findings of Fact

25. Given the admissions of the respondent I find as facts the particulars set out in paragraphs 7 to 11 above. I also accept as facts the matters contained in in paragraphs 13-16, 18 and 19.

Does the Respondent’s Conduct Amount to Professional Misconduct?

26. The respondent does not dispute that in the circumstances of this case a finding of professional misconduct is appropriate.

27. Insofar as the categorisation of the admitted conduct is concerned, the Tribunal can determine in respect of all or some of those matters set out in paragraphs 7-11 the respondent:

(a) behaved in a way that constitutes unsatisfactory professional performance;

(b) behaved in a way that constitutes unprofessional conduct; or

(c) behaved in a way that constitutes professional misconduct[2].

28. The meaning of those terms has been previously discussed by this Tribunal in the decisions of Tasmanian Board of the Medical Board of Australia v Lyall [2015] TASHPT 3 and Pharmacy Board of Australia v Meaney [2017] TASHPT 1 wherein the decision of Medical Board of Australia v Roberts [2014] WASAT 76 has been discussed. I have considered the general principles set out in those cases for the purposes of this case.

29. Each of the terms in paragraph 27 is defined in the National Law[3] and in summary they are:

(a) Unsatisfactory professional performance means the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

(b) Unprofessional conduct means professional conduct which is of a lesser standard than might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers.

(c) Professional misconduct includes unprofessional conduct of a 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. Additionally, where more than one instance of unprofessional conduct, when considered together, amounts to conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience then this amounts to professional misconduct. It includes conduct whether that conduct occurs in connection with the practice of the health practitioner’s profession or not, which is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

30. I accept the definition of “professional misconduct” in paragraph 29 is an inclusive one and is not an exhaustive statement of that term. The definition therefore includes conduct that may not fall within any of the matters contained within the definition, for example matters established at common law or under previous disciplinary legislation.

31. The term “unprofessional conduct” is defined by including examples and is an exhaustive statement of that term. It is conduct of a less serious nature than professional misconduct and must be judged in accordance with the standards of the practitioner’s peers. This term has both a performance component and a conduct component. As explained in Medical Board of Australia v Roberts (supra) at [181]:

“The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner’s professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect the practitioner’s suitability to continue to practise the profession.”

32. In Medical Board of Australia v Roberts (supra), the Tribunal went on to say at [182]:

“Unsatisfactory professional performance, on the other hand, has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience). It is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs...[i]t is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.”

33. The comments in Medical Board of Australia v Roberts (supra) are confined to medical practitioners as the respondent in that case was a consultant paediatrician, however the statutory definitions do not distinguish between health professions and therefore apply to all health professionals.

34. Professional misconduct, by reference to common law principles, includes behaviour on the part of a member of a profession that would reasonably be regarded as disgraceful or dishonest by members of that profession of good repute and competency[4].

35. As the respondent was a registered medical practitioner at the time he posted the comments online set out in paragraphs 7 to 11, the Code is relevant to the characterisation of his conduct. Paragraph 8.1 of the Code says the following:

“In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.”

36. Paragraph 8.1 goes on to say the guidance contained in section 8 of the Code which is titled “Professional Behaviour” emphasies the core qualities and characteristics of “good doctors” which are outlined in paragraph 1.4 of the Code. Paragraph 8 then goes on to deal with such matters as professional boundaries, reporting obligations, medical records, insurance, advertising, medical reports, certificates and giving evidence, medico-legal, insurance and other assessments, the contents of a curriculum vitae, investigations, conflicts of interest and financial and commercial dealings.

37. Parts of paragraph 1.4 of the Code are worth repeating here. It is headed “Professional values and qualities of doctors”. Its first three paragraphs are as follows:

“While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practise. Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality.”

38. The respondent was also subject to the social media policy referred to in paragraph 20(b) which has been adopted by the applicant and published on its website. Under the heading “Introduction” to that policy the following statement is made:

“Whether an online activity is able to be viewed by the public or is limited to a specific group of people, health professionals need to maintain professional standards and be aware of the implications of their actions, as in all professional circumstances. Health professionals need to be aware that information circulated on social media may end up in the public domain, and remain there, irrespective of the intent at the time of posting.”

39. The social media policy reminds the reader that “[w]hen using social media, health practitioners should remember that the National Law, their National Board’s code of ethics and professional conduct ... apply.”

40. I asked the respondent what his knowledge of the Code and the social media policy was. He did not appreciate the extent to which the Code operated and he only vaguely knew about the social media policy. He is, of course, as a practising medical practitioner, obliged to have a full knowledge and understanding of the principles set out in the Code and how the Code influences his practise of medicine and of policies adopted by the applicant including the social media policy. It is clear that by making the online posts the respondent breached the Code and the social media policy.

41. The parties submitted, and I agree, the online posts convey socially unacceptable and extreme sentiments which are disrespectful of women and comment upon violence towards or sexual abuse of women. Some of the online posts might reasonably be interpreted as being racially discriminatory and contrary to acceptable social norms in Australia. All of the online posts had the potential to incite radical views, antagonise the reader and they had the potential to cause harm to the public. In addition some of the posts involved the use of vulgar language, expressions of committing violence and crime all of which are inconsistent with the good repute of medical practitioners and the relationship of trust between medical practitioners and patients who are, of course, members of the public.

42. A reasonable person reading the online posts, could reasonably infer from the tenor of them the respondent, despite his submissions to the contrary, would not ethically and professionally treat particular patients or fully abide by the Hippocratic oath expected of medical practitioners in Australia.

43. I take the view that any individual online post made by the respondent fell substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience as the respondent. When all the posts are taken together the conduct is all the more grave. The respondent’s conduct constitutes several instances of unprofessional conduct, which together amount to professional misconduct as defined in subsection (c) of the definition of professional misconduct under the National Law; see paragraph 27 above.

44. It is acknowledged the online posts were not made in the course of practising medicine and were posted after hours. Despite this there is a clear nexus between the posts and the respondent’s profession as he identified himself as a medical practitioner and his assertion that he is a medical practitioner was supported by several photographs he posted on the same online forum. One of the photographs, as mentioned in paragraph 20(c), shows his graduation certificates from the University of Melbourne which bear his name. Another photograph shows the respondent in hospital clothing with a hospital identity card and stethoscope. The comments and the photographs clearly identify the respondent as a medical practitioner. I accept the submission of the parties that practitioners of good repute in the medical profession would regard his conduct as disgraceful and dishonourable, meaning that it constitutes professional misconduct at common law as well.

45. It is clearly arguable that the nature of the online posts and the number of them might demonstrate conduct inconsistent with the respondent being a fit and proper person to hold registration in the medical profession.

46. Many pieces of legislation which deal with professional vocations require a member of that profession to be a fit and proper person or a person of good standing and repute. The question of whether the respondent is a “fit and proper” person to practise must be considered in the context of the definition of what constitutes professional misconduct for the purposes of the definition of that term in s5 of the National Law.

47. Professional misconduct in terms of the definition set out in paragraph (c) in s5 of the National Law only requires a practitioners conduct to be “inconsistent with the practitioner being a fit and proper person to hold registration in the profession” (my emphasis).

What Consequential Orders are Appropriate?

48. The parties seek the following consequential orders:

“a. the respondent be reprimanded; b. the respondent be suspended for a period of six weeks; and

c. a condition be imposed on the respondent’s registration requiring him to undertake education on ethical behaviour and communications, particularly in the use of social media. Particulars of the conditions sought to be imposed are annexed and marked ‘A’.”

49. Particulars of the conditions are attached to this decision and marked “A”.

50. In making orders under the National Law it is important to understand the Tribunal’s primary purpose is protection of the public and the Tribunal makes orders with the purpose of maintaining standards of and public confidence in the medical profession. As the Court said in Craig v The Medical Board of South Australia [2001] SASC 169 at [41]:

“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.”

51. The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Therefore, the impact which an appropriate penalty would have upon a practitioner who is guilty of misconduct, and any personal hardship imposed on such a practitioner, are secondary considerations[5].

52. The appropriate sanction is to be considered at the time of imposing the sanction and not by reference to the date of the conduct[6].

53. Suspension is of course a less serious consequence for the respondent than cancellation of his registration because suspension is for a specified and limited period. The proper use of a suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he or she lacks the qualities of character which are necessary attributes of a person entrusted with the responsibilities of a practitioner[7]. That is suspension is appropriate where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.

54. In determining an appropriate sanction I have previously said a number of matters require consideration[8]. The matters which previous cases have considered are inter-related and are not mutually exclusive. There may, of course, be other relevant matters depending upon the circumstances of each case. The matters are as follows:

(a) Any need to protect the public against further misconduct by the practitioner[9].

(b) The need to protect the public from similar conduct, through general deterrence, of other practitioners[10].

(c) The need to protect the public and maintain confidence in the profession by reinforcing high professional standards, denouncing transgressions and thereby articulating the high standards expected of the profession[11] such that even where there may be no need to deter a practitioner for repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval[12].

(d) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner[13].

(e) Whether the practitioner has breached any Act, regulations, guidelines or code of conduct issued by the relevant professional body and whether the practitioner has done so knowingly.

(f) Whether the practitioner’s conduct demonstrates incompetence, and if so, to what level.

(g) Whether or not the conduct was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability in the future[14].

(h) The practitioner’s disciplinary history[15].

(i) Whether or not the practitioner understands the error of his or her ways, including an assessment of any remorse and insight (or lack thereof) shown by the practitioner. It has been said a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community[16].

(j) The desirability of making available to the public any special skills possessed by the practitioner.

(k) The practitioner’s personal circumstances at the time of the conduct and at the time of imposing the sanction. The weight to be given to personal circumstances cannot, however, override the fundamental obligation of this Tribunal to provide appropriate protection of the public interest in the honesty and integrity of practitioners and in the maintenance of proper standards of such practice[17].

(l) The Tribunal may consider any other matters relevant to the practitioner’s fitness to practice and other matters which may be regarded as aggravating or which mitigate its seriousness[18]. Generally speaking, mitigating factors such as no previous misconduct or a practitioner’s service to the profession are of considerably less significance in this jurisdiction than in the criminal process because this jurisdiction is protective, not punitive[19].

55. I was referred to the facts and penalty in a number of cases by way of comparison to this case. The first case was Ziems v The Prothonotary of the Supreme Court of New Wales [1957] HCA 46; (1957) 97 CLR 279. In that case Mr Ziems had practised as a barrister for approximately 18 years until he was convicted in 1956 of manslaughter and sentenced to imprisonment for a period of 2 years. The facts were that Mr Ziems had appeared in court in Newcastle until 4:00pm on the day of the crime and had thereafter attended to private matters. At 10:00pm that day he remonstrated with another patron of a hotel at which he was staying who had thrown some bottles of beer against a wall and used disgusting language which was directed at two young women. A fight ensued and Mr Ziems was violently and savagely assaulted. A sergeant of police intervened and advised Mr Ziems to attend hospital. It was on the drive to hospital Mr Ziems collided with an oncoming motorcycle on the wrong side of the road and the motorcycle rider died of his injuries. The Crown case against Mr Ziems was the accident occurred because he was under the influence of alcohol. It was Mr Ziems’ case he was not intoxicated but was suffering from shock and concussion as a result of the serious injuries he had sustained in the hotel. He was convicted and sentenced. Thereafter the Supreme Court of New South Wales removed his name from the roll of barristers on the ground of his conviction and sentence. On appeal the High Court held, by a majority of three to two, that Mr Ziems should have only been suspended from practice during the period of his imprisonment and not disbarred. The thrust of the majority decision is that the approach of a court to a case of personal misconduct is very different from its approach when dealing with professional misconduct and personal misconduct may show that the person is not a fit and proper person to practice but that is not necessarily so. The vital question is not whether Mr Ziems had been convicted of a criminal offence but whether his conduct was such that he was unfit to remain a member of his profession.

56. The next case was Queensland College of Teachers v Teacher EAJ [2014] QCAT 29. The facts of that case are that the respondent’s marriage broke down in or about 2006. Between 2007 and 2012 her two adolescent children were subject to various notifications raised with the Department of Child Safety. Those notifications resulted in orders being made under the Child Protection Act 2009 which included supervised contact, suspended contact and the taking into foster care of one of the children between September 2009 and March 2012. As a result of the marriage breakdown and involvement of Child Safety, the respondent engaged in behaviours towards those she saw involved in these events that culminated in charges and convictions against her in the criminal justice system. Firstly in February 2008 she was convicted of common assault, two counts of wilful damage, three counts of breaching a domestic violence order and one count of unlawful stalking, for incidents between 2005 and 2008. These incidents involved her former husband and his new partner. No convictions were recorded but she was ordered to pay restitution, have no contact with the subject of the stalking incident for 5 years and she was placed on 12 months’ probation. She received a warning in October 2008 from the Queensland College of Teachers Professional Practice & Conduct Committee in relation to those incidents. Secondly on 24 November 2009 she was convicted of a serious assault on a person in the lawful execution of their duty the particulars of which were that she verbally abused and spat in the face of a Child Safety Officer from the Department of Child Safety. A conviction was recorded against her and she was placed on 18 months’ probation with conditions. In July 2010 she received another reprimand from the Professional Practice & Conduct Committee of the Queensland College of Teachers. Thirdly on 20 October 2011 she pleaded guilty and was convicted of using a carriage service to menace, harass or cause offence in relation to incidents between 5 and 8 November 2010. These incidents involved using her son’s Facebook account to send multiple abusive message to her son in care and his foster parent. She was sentenced to 3 months’ imprisonment to be suspended on recognisance of $1,000.00 and she was placed on probation for 2 years. It was that conduct which resulted in the Queensland College of Teachers referring a matter to the Tribunal for disciplinary action. In that case the respondent claimed her personal life had nothing to do with her teaching however the Tribunal did not agree and said that personal conduct was capable of relevance to a professional discipline if there is a relationship between conduct and relevant professional standards and responsibilities. In that case the Tribunal considered the manner in which a teacher behaves with a child in his or her private and family life is relevant to the professional standards and responsibilities of a teacher. If there is no recognition of appropriate boundaries in a teacher’s private relationship with children, it is reasonable to infer that appropriate boundaries in professional teacher/student relationships may be unrecognised and appropriate standards transgressed in a professional setting. In that case the Tribunal cancelled the respondent’s registration for a period of 2 years with conditions noted on the register.

57. An analogy was drawn between that case and this case in that although the internet postings occurred in the respondent’s private time they were disseminated publicly because AHPRA received a notification. It was noted the respondent’s posts were published on the internet far and wide and there was a high risk of damage to the professional standing of the medical profession in the public eye.

58. The third case was HCCC v Davis (No 2) [2013] NSWNMT 25. In that case the Tribunal found conduct alleged against Mr Davis proved which amounted to unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration as a registered nurse and professional misconduct was also found. The conduct concerned his treatment of four elderly dementia patients. In relation to the first patient he made the patient beg on his hands and knees for a cigarette and would laugh when the patient did so and he continued to laugh even when told by other nursing staff to stop. He did this in order to make fun of the patient. In relation to the second patient he, on several occasions, placed his thumb inside the mouth of the patient for a number of minutes and then would laugh upon witnessing that patient suck his thumb and continue to laugh when told by other nursing staff to stop. In relation to the third patient, on two separate occasions while that patient was watching television, he put his hand down the patient’s pants in the area of the patient’s genitals. In relation to the fourth patient he put his face near the patient, called him “Daddy”, tried to kiss him on the forehead and despite being physically pushed away and being told “I am not your daddy and I don’t like you” he continued with this behaviour. He also caused distress to this patient by being unnecessarily involved in that patient’s care when he was not required. Accordingly it was alleged in relation to the four patients he failed to have regard to their dignity and respect and he breached the ANMC National Competency Standards for the Registered Nurse and the Code of Ethics for Nurses in Australia. He also, in relation to the four patients, failed to recognised the responsibility to prevent harm and accordingly breached the National Competency Standards for the Registered Nurse, ANMC. By reason of the matters referred to either individually or cumulatively he engaged in inappropriate and/or unwelcome conduct of an harassing nature towards the patients.

59. When it became time to determine the penalty it was submitted that the gravity of the proven behaviour needed to be seen on a background of Mr Davis’s previous behaviour between 2000 and 2009. In September 2000 his employer conducted an investigation into the use by him of inappropriate and offensive language to his Nursing Unit Manager. He received a warning for this behaviour. In November 2006 there was a complaint against him because he commented to another staff member within earshot of a patient that the patient was a “stupid bitch”. After that incident the patient discharged herself without medical clearance as a result of his comments. In May 2008 four complaints were proven against him. They related to incidents on the nights of 17 and 18 May 2008. The first of these was that he touched a patient’s toes for no clinical reason. The second allegation was he repeatedly told the same patient she was beautiful. The patient described his repeated comments as similar to “pick up lines that might be used in a pub”. The next allegation was that on the same day he said to the same patient, while washing her, that the reason she had six children was because she likes sex. There was also another allegation that he said to another staff member, within earshot of the patient, that the reason she had six children was because she was a Catholic. He was directed to attend counselling. The purpose of the counselling was to address the established pattern of inappropriate behaviour and comments over an 8 year period.

60. After taking those matters into account in conjunction with the proved conduct in relation to the current complaint, Mr Davis’s registration as a nurse was cancelled. It was ordered that at least 4 years lapse from the date of the order before he could apply to be registered again. He was also prohibited, for a period of 4 years from the date of the orders, from providing health services, whether they be private, public or volunteer services.

61. The next case was Medical Board of Australia v Karam [2012] QCAT 198. In this case the Medical Board of Australia brought disciplinary proceedings against the respondent alleging unsatisfactory professional conduct when he temporarily held an acting appointment as Trainee Registrar in Obstetrics and Gynaecology at a hospital in Queensland from late 2006 to early 2007. His contract was not extended because of complaints from patients and staff, largely about his attitude and poor communication skills. The respondent made admissions about a pattern of communicating with colleagues that reflected poorly on his professionalism. His communications with colleagues on a number of occasions were argumentative and disrespectful. During one incident he argued with two registered nurses in the presence of a patient about to undergo an emergency Caesarean section for foetal distress. He also argued with anaesthetist colleagues about patient matters or clinical procedures. He communicated poorly with colleagues responsible for the care of two patients he treated. He failed to give a full account of the condition of one patient; for the other he failed to provide the relevant practitioner with any account at all. He failed to keep appropriate clinical records for the two patients and he breached the confidence of a patient, who overheard him doing so, by disclosing a matter to a member of staff. These incidents were not isolated and the respondent conceded they demonstrated a pattern of inappropriate communication. They also suggested contempt for his colleagues and they revealed a lack of concern for patients. A finding of unsatisfactory professional conduct was made. Although the conduct of Dr Karam is not comparable to the respondent in this case, reliance is placed on a number of posts. They were not isolated and it demonstrates inappropriate behaviour. In the case involving Dr Karam he was prohibited from working in obstetrics for a period and also subject to conditions.

62. In Healthcare Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 the respondent was suspended for a period of 3 months and at the expiration of the suspension her registration was subject to certain conditions. In that case the Tribunal found complaints of unsatisfactory professional conduct and professional misconduct proved. The circumstances of the case involved inappropriate sexual relations between the practitioner and a patient or patients and the treating of a patient in circumstances of a very close personal friendship between the patient and the practitioner. The proceedings also raised the issue of what are appropriate communications between a patient and a practitioner using text messaging or social media; i.e. Facebook. In relation to text messaging there was regular text communication with one of her patients and they had a close personal relationship and she discussed her own personal affairs, including matters relating to her family law proceedings. They also discussed the patient’s financial affairs and problems associated with the breakdown of his marriage. It was also conceded that in the second half of 2009 after she conducted a genital examination she was well aware of the possibility of a sexual relationship developing between herself and the patient. The number of mobile text messages and telephone calls were clearly significant and many were late at night or in the early hours of the morning. She also used Facebook and provided flippant messages to patients.

63. The final case was Khan v Medical Council of New South Wales [2016] NSWCATOD 88. In that case the practitioner appealed from a decision to suspend his registration. His appeal was out of time so the appeal decision focusses upon the application for an extension of time which was ultimately refused. It details complaints of misconduct against the practitioner with respect to communications he had engaged in with three of his patients. There was a further complaint referable to the prescription of the drug Seroquel to two of the patients. The communications were text messaging and telephone calls of a personal and sexual nature which were in breach of therapeutic boundaries. There is also reference to the conduct of an examination of eight patients which were not clinically indicated and which were inappropriate. The medical practitioner had worked as a general practitioner and he tended to treat a number of patients for mental health issues as well as rheumatology. It appears because of difficulties he was having in his own marriage he started reaching out to female patients in the hope that he could develop a relationship with them and discuss his problems. His inappropriate communications with client’s were only part of the conduct which led to the suspension.

64. In relation to the matters set out in paragraph 54 subparagraph (d), (f) and (j) are not relevant to this case.

65. In relation to subparagraphs (a), (b) and (c) of paragraph 54 when the facts of this case are compared to those set out in paragraphs 55 to 63 the conduct in this case is not at the severe end. The respondent’s posts were to the worldwide web rather than to individuals or to patients who were being treated. However there was a nexus between the remarks and the medical profession because the respondent identified himself as a medical practitioner and posted the photographs referred to above. The risk of harm to the public was therefore material and significant. The nature of the posts was forceful and they were strongly conveyed. They carried a higher risk of inciting inappropriate social behaviour that could jeopardise the public. A person reading the posts and in particular a woman or a person of a particular race who might present to Dr Lee could be fearful they would not be treated professionally and appropriately. At worst there is a risk Dr Lee might not be treating persons appropriately or respectfully or alternatively patients might leave a facility where Dr Lee is practising because they are fearful of how they might be treated. The conduct is serious and does amount to professional misconduct. Accordingly a strong sanction is necessary in order to send a message to both the respondent and doctors broadly that they need to be circumspect and they must abide by the professional behaviours required of them in the Code and the social media policy.

66. In relation to paragraph 54(e) it is clear in this case the respondent has breached the Code and the social media policy. He said in answers to questions from me he did not know the extent of his obligations under the Code and the social media policy but now does so. He is, of course, required to know what his obligations are when practising the profession of medicine.

67. I do not think it could be said that the respondent’s conduct was isolated. While the vast majority of the posts were confined to 9 and 10 December 2016 there were other posts on 3 January 2016, 3 December 2017, 9 January 2018 and 16 January 2018. There may have been others not uncovered during the investigation.

68. The respondent’s disciplinary history is dealt with in paragraphs 21 to 24. It appears the conduct the subject of this application and the conduct which was the subject of the previous caution can be characterised as conduct which overstepped professional boundaries which the respondent was unaware of. This is of course no excuse. He needs to be fully aware of his obligations with respect to patient boundaries and that he is not to cross them while practising his profession.

69. As to paragraph 54(i), I accept given my interactions with the respondent he now understands the error of his ways. He was apologetic for his behaviour and he understood that he should perhaps, given his own personal views, not partake in such forums in the future.

70. In relation to paragraph 54(k) his personal circumstances are set out in paragraphs 13 to 16 above.

71. In making determinations and orders in this matter I am assisted and guided by statements of Ross J. in Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16], where his Honour observed that:

“In proceedings in respect of civil penalties there is now a well-established line of authority in support of the proposition that where a regulatory body and a respondent have reached a negotiated settlement and the penalty proposed is, broadly speaking, within the ‘permissible range’ having regard to all the circumstances, the court (or in this case the Tribunal) should not depart from the agreed sanction. I propose to adopt the same approach to the matter before me. The question then becomes whether the sanction proposed is within the permissible range.”

72. This approach has been followed in other health practitioner disciplinary proceedings[20].

73. As I have previously said[21] whether the sanction proposed is within the permissible range must be answered by whether the protection of the public and maintenance of professional standards is achieved by imposition of the proposed penalties. Before determining this question it is important to look at the differences between a suspension and a cancellation. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 the Tribunal said the following at [42]-[45]:

“42 The major difference between a period of suspension and cancellation is that once the doctor’s registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration...

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor’s future ability to practice once the period of suspension is served. There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor. This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender...”

74. In determining what orders should be made the Tribunal should have regard to the seriousness of the conduct and the potential to bring the medical profession into disrepute. The orders should fulfil the objective of maintaining the professional reputation of medical practitioners and also act to deter the type of conduct that occurred which is quite unbecoming of the standards and reputation of the profession. Obviously the respondent’s concessions with regard to this application and his co-operation with the applicant are relevant to the making of consequential orders. While the orders imposed by the Tribunal should not serve to punish the respondent, they do need to operate to deter him and other health practitioners to ensure the seriousness of his type of conduct on social media is recognised and hence not undertaken. The orders also should promote the objective of encouraging compliance with current accepted social norms while practising as a medical practitioner or otherwise so that patients and the public are treated respectfully, ethically and professionally.

75. Weighing the obligations set out in paragraphs 73-74 with the facts of this case I agree with the parties that the totality of the respondent’s conduct amounts to professional misconduct and that he be reprimanded and suspended. On balance I think a suspension for a period of 6 weeks is appropriate in the circumstances of this case. The commencement of the operation of the orders is of concern to the respondent. He wants to be able to give his employer advanced notice so that staffing arrangements can be made to cover the period of his suspension. Given the respondent’s employer is fully cognisant of these proceedings and is supportive of him I do not think that is an unreasonable request. The orders will therefore be stayed for a period of 2 weeks to permit those arrangements to be made.

DISPOSITION

76. I have found the respondent’s conduct amounts to professional misconduct so I formally determine the conduct summarised in paragraphs 7 to 11 constitutes professional misconduct pursuant to the National Law. Insofar as penalty is concerned, I order that:

(a) the respondent be reprimanded;

(b) the respondent be suspended for a period of 6 weeks;

(c) the commencement of the period of suspension is stayed for a period of 2 weeks from 16 April 2019; and

(d) conditions be imposed on his registration requiring him to undertake education on ethical behaviour and communications, particularly in the use of social media. Particulars of those conditions are annexed to this decision and marked “A”.

R. B. WEBSTER

CHAIRPERSON

“A”

Schedule of Conditions

Undertake education

1. The practitioner must undertake and successfully complete a program of education, approved by AHPRA in consultation with the Chair of the Board and including a reflective practice report, in relation to ethical behaviour and communication particularly in the use of social media.

2. Within 21 days of the notice of the imposition of these conditions, the practitioner must, on the approved form (HPN24), nominate for approval by AHPRA in consultation with the Chair of the Board an education course, assessment or program (“the education program”) addressing ethical behaviour and communications particularly in the use of social media.

3. The practitioner must ensure:

(a) the nomination includes a copy of the curriculum of the education;

(b) the education consists of components comprising a minimum of 8 hours.

4. The practitioner must complete the education within 6 months of the notice of the approval of the education.

5. Within 21 days of the completion of the education, the practitioner must provide to AHPRA:

(a) evidence of successful completion of the education;

(b) a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition and how the practitioner has incorporated lessons learnt in the education into the practitioner’s practice.

6. Within 21 days’ notice of the imposition of these conditions the practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (“the senior person”) at each current place of practice. In providing this form, the practitioner acknowledges that:

(a) AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner’s registration or confirm that the senior person has received a copy of the conditions from the practitioner; and

(b) the practitioner will be required to provide the same form:

(i) within 7 days of the commencement of practice at each and every subsequent place of practice; and

(ii) within 7 days of each and every notice of any subsequent alteration of these conditions.

7. All costs associated with compliance with the conditions on their registration are at the practitioner’s own expense.

[1] Health Practitioner Regulation National Law (Tasmania) Act 2010, s4.

[2] See s196(1)(b) of the National Law.

[3] See s5 of the National Law.

[4] Adamson v Pharmacy Board of Tasmania (No 2) [2004] TASSC 82 at [10].

[5] Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [47]; Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29] and Legal Profession Complaints Committee v Leask [2010] WASAT 133 at [54].

[6] Medical Board of Australia v Myers [2014] WASAT 137(S) at [9]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253.

[7] Legal Profession Complaints Committee v A Legal Practitioner [2013] WASAT 37(S) at [26] and In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ.

[8] Nursing & Midwifery Board of Australia v Gregory John Hogan [2018] TASHPT 3.

[9] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 440C and NSW Bar Association v Hamman (1999) NSWCA 404 at [77].

[10] Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 at [103] and NSW Bar Association v Hamman (supra) at [77].

[11] Law Society of New South Wales v Foreman (supra) at 444F and NSW Bar Association v Hamman (supra) at [77] and [79].

[12] Craig v The Medical Board of South Australia (supra) at [64].

[13] Law Society of New South Wales v Foreman (supra) at 445B and 445G; Veterinary Practitioners Board of NSW v Johnson (supra) at [109].

[14] Law Society of New South Wales v Foreman (supra) at 442E and 442G; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80], Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54 at 62 and 63.

[15] Legal Profession Complaints Committee v O’Halloran [2013] WASC 430 at [93].

[16] Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA; Legal Profession Complaints Committee v Lashansky [2007] WASC 2011 at [31]- [52] and Law Society of New South Wales v Foreman (supra) at 444E.

[17] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [30(5)].

[18] Legal Profession Complaints Committee v A Legal Practitioner (supra) at [25].

[19] Law Society of New South Wales v Walsh (supra).

[20] See for example Medical Board of Australia v Saykao [2011] VCAT 1338 at [18]- [20] and Dental Board of Australia v Gazelakis [2011] VCAT 726 at [9] and [23].

[21] Pharmacy Board of Australia v Victoria Brice [2018] TASHPT 2.

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