CITATION:	The Medical Board of Australia v Gomez (No 2) [2015] QCAT 539	

PARTIES:	The Medical Board of Australia (Applicant/Appellant)	
	v	
	Rene Gomez
(Respondent)
	
APPLICATION NUMBER:	OCR105-14	

MATTER TYPE:	Occupational Regulation matter	

HEARING DATE:	15 September 2015	

HEARD AT:	Brisbane	

DECISION OF:	Justice Carmody

Assisted by: 
Ms Andrea Hall-Brown
Professor Emeritus Errol John Maguire AM RFD, FRACS
Dr Heather Parker OAM	

DELIVERED ON:	15 September 2015	

DELIVERED AT:	Brisbane 	

ORDERS MADE:

	THE TRIBUNAL ORDERS THAT:
1.	Dr Gomez’s registration is suspended for a period of six months from 15 September 2015.  
2.	The following condition is placed on Dr Gomez’s registration for such time as he is registered as a health practitioner:  
a.	Dr Gomez will not consult, assess, examine, or treat any female patient.  
3.	Dr Gomez is to pay the costs of the Board of these proceedings, to be agreed between the parties, or as assessed on the standard basis according to the District Court scale. 
	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a general practitioner – where the respondent admits the conduct – where the respondent admits a sanction should be imposed – where the respondent consents to pay costs 

Health Practitioner Regulation National Law (Queensland) 2009, s 196	
APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT	Mr R Perry QC instructed by Moray & Agnew

RESPONDENT	Ms K Mellifont QC instructed by Ashurst Australia

REASONS FOR DECISION
[1]	The Medical Board of Australia applies for a finding that the respondent practitioner has engaged in professional misconduct, and for sanctions pursuant to the Health Practitioner Regulation National Law (Queensland) 2009 (the “National Law”).  
[2]	The practitioner admits the conduct relating to his examination of two female patients amounts to professional misconduct, and that a sanction should be imposed. 
[3]	Senior counsel for the Board and the practitioner jointly submit an appropriate sanction is that the respondent’s registration be suspended for six months from 16 September 2015, and that a condition be imposed on his registration, that during the period of registration he shall not consult, access, examine, or treat a female patient.  
[4]	The practitioner consents to an order that he pay the costs of the Board of these proceedings, in an amount to be agreed or assessed on a standard basis according to the District Court scale.  
[5]	The conduct in respect of events in 2007 involving two patients, KRB and FG, predate the commencement of the National Law, but were complained of subsequently, and as a result are properly within its scope.  
[6]	The respondent has previous disciplinary history.  He is 67 years of age and was medically qualified in El Salvador in 1974, and the University of Queensland in 1992. He was registered in Queensland in 1994 as a general practitioner.  
[7]	In 2005, a disciplinary committee decided he had engaged in unsatisfactory professional conduct, based on a lack of judgment or professional care.  He was reprimanded and required to give an undertaking that from then on, for a period that lasted until 2007, that, among other things, his female patients be chaperoned, if required to disrobe, as well as record keeping and other conditions.  
[8]	The practitioner was relieved from further compliance with the 2005 undertakings in June of 2007.  However, in 2010, a complaint made about him by patient MK in 2008 was resolved by the practitioner being required to enter into a second undertaking.  It included a condition of mentoring by an experienced colleague, and chaperoning for full examination of female patients over the age of 14.  
[9]	There were additional record access and notification undertakings required.  The second undertaking remained in place for 12 months.  
[10]	Charge 3 is based on an alleged breach of that undertaking.  The practitioner admits having committed the breaches of the undertaking as specified in part 3(a) and (b) of the referral, except for the allegation in relation to patient SD, which is not pursued by the Board.  
[11]	The breaches include a failure to submit registers at the end of each month in 2010 and 2011, while practising at The Skin Cancer Centre, and failure to have a chaperone present, over a period of about six months between April 2011 and October 2011 on 14 occasions, when 13 patients were examined without chaperone.  
[12]	The breach was detected through an order. In April 2012 the Board resolved to take immediate action and impose conditions on the respondent’s registration. Those conditions remain in force and do not appear to have been breached.  
[13]	The other two charges, 1 and 2, relate to patients FG and KRB respectively.  FG made a complaint in August 2011 about medical examinations conducted by the respondent at The Skin Centre in the period of November 2005 to April 2007.  The practitioner makes the admissions in respect of FG, recorded at paragraph 3 on page 10 of the joint submissions.  
[14]	KRB’s complaint, which constitutes charge 2 of the referral, occurred in 2007.  The admissions by the practitioner in respect of KRB are recorded at paragraph 2, at pages 12 to 13 of the joint submission.  
[15]	The practitioner practiced on a full-time basis at The Skin Cancer Centre in Parkwood from 2008 until 5 November 2012.  He has not worked since 27 March 2015, after he voluntarily stopped work to protect his staff from unwanted media attention over the current allegations.  He does, however, want to return to practice as soon as possible.  He is 67 years of age and intends to practice for a maximum of another five years before retirement.  
[16]	An affidavit of the practitioner was tendered.  In it he deposes to not having seen a female patient since April of 2012.  That he generally treats about 30 patients a day.  Although it’s not clear whether this was before or after April 2012.  Refers to the complainants FG and KRB in paragraph 32, through to and including paragraph 44, in a way that shows that he accepts the inappropriateness of his behaviour.  
[17]	He also deposes to having read the expert reports of Dr Hackett and Dr Rosendahl, which:
...highlighted for me that the standard method in which I did carry out my skin checks was not the best method in order to ensure the dignity and comfort of the patient, and I will take particular notice of their views in the future.
[18]	He says he now recognises the degree of vulnerability a female patient may have in the context of full skin checks, and gives practical expression to that insight by not having taken a female patient for more than three years.  
[19]	It is agreed between the parties that the Tribunal should regard the practitioner’s “plea” as a timely one, in the sense that although there has been a long period of discussions between the board and the practitioner, it resulted in an agreed statement of facts and joint submission on sanction, and saved four days of contested hearings.  
[20]	The disciplinary jurisdiction of the Tribunal is protective and educative. The practitioner’s conduct is serious.  It shows a lack of discipline and inability to abide by undertakings over a lengthy period of time in respect of not one, five, or six, but 13 separate patients on 14 different occasions.  
[21]	The joint submission notes, however, that the unchaperoned consultations represented a small proportion of the total number of consultations the practitioner has conducted, without diminishing their seriousness.  
[22]	Paragraph 14 of the joint submission notes it has been approximately eight years since the FG and KBR consultations; four years since the last breach of a chaperone condition; more than four years since the last breach relating to record keeping and keeping registers; three years since the practitioner has practiced with no female patient condition being in place; and almost six months since he has practiced at all.  
[23]	The Tribunal treats the voluntary non-practice period as an effective suspension.  The Tribunal also takes into account the fact that the cost of these proceedings are to be borne by the practitioner, which are not likely to be insubstantial, when agreed or assessed. It also recognises that he has not practiced for a considerable period of time, which will make it more difficult for him to meet that undertaking as to costs, and he has had to sell his house due to the financial burden.  
[24]	It is also of significant importance in the view of the Tribunal that Dr Gomez expressed a willingness to submit to a condition that he not treat a female patient between now and the time that he retires. This serves the primary purpose of the disciplinary regime to protect patient health and safety.  
[25]	The condition not to take female patients in the future will have a significant reduction, presumably, of his ability to practice and earn an income, but it does ensure, in a very practical way, that the risks of the past will be reduced or eliminated in the future.  
[26]	Taking that and the effective suspension of more than six months into account, the Tribunal is satisfied the agreed sanction of six months’ suspension from today, with the condition on registration not to treat female patients represents an adequate sanction, and protects potential patients against any inappropriate intrusion.  
Orders
[27]	Pursuant to s 196 of the National Law, the Tribunal orders:
1.	Dr Gomez’s registration is suspended for a period of six months from 15 September 2015.  
2.	The following condition is placed on Dr Gomez’s registration for such time as he is registered as a health practitioner:  
a.	Dr Gomez will not consult, assess, examine, or treat any female patient.  
3.	Dr Gomez is to pay the costs of the Board of these proceedings, to be agreed between the parties, or as assessed on the standard basis according to the District Court scale.