QCAT makes a finding of professional misconduct against practitioner who lodged complaint against colleague

By Mitchell Stein and Robert Porter 

Health Ombudsman v Ling [2023] QCAT 92 

The Queensland Civil and Administrative Tribunal (QCAT) has cancelled a medical practitioner’s registration and disqualified him from reapplying for a period of three years after finding, among other things, that his reporting of another practitioner’s conduct amounted to professional misconduct.

Background

The Applicant, the Health Ombudsman (Health Ombudsman), alleged that the Respondent, Dr Ling (Respondent), was guilty of professional misconduct in that he:

  • failed to maintain a proper standard in the provision of clinical care; and
  • deliberately or recklessly provided false and misleading information in communications with the Health Ombudsman and with the Australian Health Practitioner Regulation Agency (AHPRA), and in a sworn affidavit filed in QCAT.

The second aspect of the allegations was the most contentious aspect of the case. The Health Ombudsman alleged that the Respondent provided false and misleading statements about another medical practitioner, Dr X, in the absence of good faith. The relevant conduct included:

  • a referral to the Health Ombudsman where the Respondent made a number of false and misleading allegations, including that a patient committed suicide after Dr X stopped her long-term medication of 30 years, and that Dr X put a 92-year-old lady on insulin while she was blind, deaf and lived alone when oral hypoglycaemic medication was working;
  • an email the Respondent sent to AHPRA in which the Respondent made a number of false and misleading allegations, including that the cessation of medication by Dr X caused a patient to attempt suicide; and
  • an affidavit the Respondent swore on 26 June 2016 in relation to proceedings by Dr X concerning conditions placed on his registration where the respondent made further false and misleading statements.

The Respondent initially admitted that some of the statements were false and misleading, however, denied that they were made recklessly or not in good faith. The Respondent later admitted to making statements based on his recollection without checking records, and in some cases claimed that the false statements were based on something Dr X had said to him.

Following cross-examination, he then also admitted that each of the statements relied on by the Health Ombudsman were in fact false, and that the statements had been made recklessly and not in good faith. It followed that the Respondent was not entitled to the protection of section 237 of the Health Practitioner Regulation National Law (Qld).[1]

Decision

In finding the Respondent’s conduct amounted to professional misconduct, the Tribunal stated that:

The applicant alleged that the conduct of the respondent, in making the false and misleading statements relied on, amounted to professional misconduct, being conduct substantially below the standard which might be reasonably expected of a registered health practitioner. This was contentious, but in view of the admissions originally made, and the further admissions in the Joint Submissions on Findingsit is clear that the respondent’s behaviour in this respect was a significant departure from the standard of conduct expected of a registered medical practitioner.’

The Tribunal also found such conduct was inconsistent with being a fit and proper person to hold registration in the profession.

Sanctions

In Health Ombudsman v Ling (No 2) [2023] QCAT 260, sanctions were considered, with the Tribunal ultimately cancelling the Respondent’s registration and disqualifying him from reapplying for a period of three years.

Takeaway

Health practitioners must ensure that a legitimate basis exists to lodge a complaint about a fellow practitioner and the complaint must be made in good faith; serious consequences exist for practitioners who seek to mislead the Regulator.


[1] Which provides protection to a person who makes a notification in good faith, even if it is false.

Contact

Mitchell Stein

Mitch is an experienced insurance and litigation lawyer who acts for insurers and private clients.

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