Now more than ever, we are encouraged to ensure there are clear lines of boundary between personal and professional lives. But what happens when these lines become blurred and conduct in one’s personal life impacts professional integrity? And further, what obligations are there for disclosure to the Board for health practitioners?
The Victorian Civil Administrative Tribunal (VCAT) dealt with these issues in Paramedicine Board of Australia v VQK (Review and Regulation) [2022] VCAT 382.
Facts
A registered nurse, ‘VQK’ broke up with his long-term partner ‘Ms AB’ in November 2017 and engaged in conduct that constituted a form of family violence. VQK stalked and impersonated Ms AB on Facebook, sharing intimate pictures of her to family and friends. VQK was arrested in early 2018, and an investigation commenced. In November 2018, VQK applied to the Board for registration as a paramedic. His application did not disclose any criminal history or investigations. Charges against VQK were laid in June of 2019, and VQK was granted registration as a paramedic in July 2019. He failed to disclose the charges laid against him even though he had contact with the Board on at least two occasions after charges were laid. VQK notified the board of the charges in late August of 2019.
Allegations
In November 2019, VQK pleaded guilty to a charge of stalking his ex-partner, in contravention of the Crimes Act 1958 (Victoria). The Court accepted VQK’s plea and he was subject to an adjourned undertaking for 12 months without conviction.
In 2019, while VQK’s application for registration as a paramedic was under consideration by the Board, VQK knowingly failed to notify the board that he had been charged with offences that were relevant to the application.
VQK formally admitted to both allegations.
The Board’s position was that these allegations constituted unprofessional conduct and professional misconduct under Section 5 of the National Law.
Issues Considered by the Tribunal
General Observations about health practitioners and family violence
The Tribunal made some general observations about health practitioners and family violence, citing other recent Tribunal decisions.1 The Tribunal indicated it has been highlighted that acts of domestic and family violence committed by health practitioners can give rise to findings of professional misconduct or unprofessional conduct. The Tribunal further provided that this applies with no less force to the profession of paramedicine. It also indicated that the other decisions cited dealt with acts of physical violence, but due to the serious harm VQK did to Ms AB, the Tribunal saw no material difference between VQK’s non-physical conduct, and the practitioners’ physical conduct in other cases.
Whether the family violence and criminal conduct amounts to a breach of the National Law?
The Board submitted that VQK’s conduct in allegation 1 represents professional misconduct. The Code is evidence of appropriate professional conduct, and it specifically states that paramedics must act in accordance with the law. The public has a right to expect that health practitioners are empathetic towards victims of family violence. The Tribunal concluded that VQK’s conduct was substantially below the standard reasonably expected of a registered health practitioner with an equivalent level of training and experience. It provided that VQK’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession of paramedicine, classifying his actions as professional misconduct.
Whether the failure to disclose the issue to the Board amounts to a breach of the National Law?
The Board submitted that VQK’s conduct in allegation 2 represents unprofessional conduct. As VQK had been a registered nurse for many years, the Tribunal indicated that he ought to have known of the obligation for health practitioners to notify the relevant board of any criminal charges. VQK had ample opportunities to notify the board once the charges were laid, but failed to do so both prior and post his paramedic registration being approved. The Tribunal considered VQK’s conduct to have failed to regard his obligation of candour and good faith and to be of a lesser standard than that which might reasonably be expected of a health practitioner.
Whether it matters that the conduct occurred prior to his registration as a paramedic?
The Tribunal indicated that pursuant to other disciplinary matters2, even though VQK’s unlawful conduct and the lack of disclosure to the board occurred before he was registered as a paramedic, it nevertheless attracted disciplinary action.
Outcome
The Board submitted that VQK should be reprimanded and his registration be suspended for 12 months. VQK submitted he should be reprimanded only.
The Tribunal considered and rejected VQK’s submission that due to his mental health condition, the Verdins principles applied to reduce his moral culpability, but indicated the Tribunal would consider his mental health condition as a mitigating factor.
In determining the appropriate sanction, the Tribunal noted that the purpose of disciplinary proceedings is not to punish, but rather to protect the public. The Tribunal indicated there was a need for specific deterrence and rejected the notion that specific deterrence had been achieved through the imposition of a criminal sentence. It also provided that the determinations were intended to deter other paramedics from perpetrating any kind of family violence, in the interests of maintaining professional standards and public confidence in the profession. It also took into account the period of time that had passed since the offending, VQK’s remorse, his mental health condition, as well as sanctions imposed in similar cases.
The Tribunal order made on 6 April 2022 reprimanded VQK and suspended his registration as a health practitioner for 6 months, for professional misconduct for his criminal conduct, and unprofessional conduct for his failure to disclose the criminal matter to the Board.
Lessons for Practitioners Moving Forward
- All health practitioners need to be aware that it is fundamentally inconsistent with the role of health practitioners (and first responders particularly) to perpetrate family violence.
- Physical and non-physical acts of family violence can both lead to findings of professional misconduct.
- Historical conduct can still bear weight on health practitioners’ registration, and that in these cases, health practitioners need to be aware that honesty is the best policy and they are obliged to disclose this kind of conduct to the Board.
When in doubt – call it out!
This article was written by Rob Muir, Partner and Steph Amiridis, Law Graduate.
1Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157, Medical Board of Australia v PYP [2021] VCAT 876 and Medical Board of Australia v Koulouris [2020] VCAT 348.
2Dental Board of Australia v Ho [2019] VCAT 467
