Warning: This article contains offensive language and details about racist and discriminatory behaviour to Aboriginal and Torres Strait Islander Peoples which may be upsetting for some readers. Reader discretion is advised.
In a recent case in the ACT, a practitioner’s highly offensive email to another doctor and disrespectful conduct to AHPRA investigators justified a prohibition from practice.
In issue
- The matter required the Australian Capital Territory Civil and Administrative Tribunal (the Tribunal) to consider the appropriate categorisation of, and punishment for, offensive and discriminatory behaviour by a medical practitioner.
The context
In October 2020, the Medical Board (the Board) published guidelines for doctors which mandated the facilitation of a respectful culture in healthcare. In 2022, the National Health Law Acts were amended to insert a provision to the effect that practitioners are to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples, ensure it is responsive to their health, and contribute to the elimination of racism in the provision of health services. This decision represents the first judgment to make reference to these legislative amendments.
The decision occurs in the context of recent regulatory reform intended to reduce the systematic and cultural gaps in healthcare for Aboriginal and Torres Strait Islander Peoples.
The background
A general practitioner whose identity was suppressed (CDA) sent an email to Sunshine Coast Ophthalmologists, directed towards Associate Professor Kristopher Rallah-Baker on 19 July 2022. A/Prof Rallah-Baker was Australia’s first Indigenous eye surgeon and developed a number of initiatives aimed at improving health outcomes for Indigenous patients and doctors.1 The email “…referred to aspects of A/Prof Rallah-Baker’s medical practice and expressed dissatisfaction towards a pharmaceutical policy designed to benefit Indigenous people.”2 The relevant policy was the Closing the Gap Pharmaceutical Benefit Scheme co-payment program (the Program), which reduces costs of various medications for people who are Aboriginal or Torres Strait Islander.
The email included the following content:
- That A/Prof Rallah-Baker was not a “full blood” Aboriginal and like “a watered-down bottle of Grange,” “not the real thing.”
- “Rich dudes like you…could get your Panadol Osteo for absolutely NO CHARGE… kinda explains the 25% hike in ‘[A]boriginals’ in the last census.”
- “A sick joke that we tax payers [sic] have to fund. Shame on you.”
In the course of an Australian Health Practitioner Regulation Agency (AHPRA) officer’s investigations of the email with CDA, CDA said the following:
- A/Prof Rallah-Baker is a “d*ck head”, “has to run to mummy,” “is going to cry racism” and is a “fake [A]boriginal.”
- “Half bloods like him… play on the heart string of the stolen generation and other lies.”
- The Board is “a pack of f*ckwits.”
- “AHPRA is a Gestapo.”
CDA also described another incident to the Board whereby he refused to place a 4-year-old patient of his on the Program because he did not think the child looked Aboriginal.
The matter was escalated to the Tribunal because CDA applied to suppress his identity, an order that can only be made by the Tribunal.
The orders
The Tribunal ordered that CDA:
- Engaged in professional misconduct.
- Be reprimanded.
- Be prohibited from providing any ‘health service’ for a period of 12 months.
The issues
Prior to the matter coming before the Tribunal, the parties agreed that the conduct constituted professional misconduct. CDA also previously agreed to surrender his registration and provided an undertaking not to seek re-registration.
Whether the conduct was racial discrimination
CDA conceded his conduct was culturally unsafe but denied that the conduct constituted racial discrimination. He claimed the Good Medical Practice: A Code of Conduct for Doctors in Australia dated October 2020 (the Code), clause 5.4 (prohibition on discrimination, bullying and sexual harassment) only applied in the context of the workplace and A/Prof Rallah-Baker was not his work colleague. CDA submitted this was because the definition of racism was defined, in a footnote, by reference to a guideline for workplace discrimination.
The Tribunal remarked it was “abundantly clear that clause 5.4 of the Code encompassed all aspects of medical practice.”3 Even though the comments were not made at CDA’s workplace, those comments “had arisen in his professional capacity, and thus relate to his medical practice.”4
The appropriate sanction
The parties agreed on the appropriate sanction, which the Tribunal considered appropriate. The Tribunal made further observations about the relevant factors underpinning the sanction. These included:
- CDA’s offensive comments to various groups of people were unbecoming of a medical practitioner and had the potential to bring the medical profession into disrepute.
- A psychiatrist opined CDA had a personality with cognitive rigidity and had difficulty understanding others’ emotional responses to his actions.
- Even though CDA wrote apologies, the Tribunal acted upon psychiatric evidence in holding that they were not satisfied that CDA had gained good insight into his conduct or expressed remorse or contrition for his actions.
- There was a real risk that he would reoffend in similar circumstances in the future.
- As CDA had withdrawn his registration, the Tribunal had no jurisdiction to impose conditions on same.
- CDA was entitled to withdraw his undertaking not to re-apply for re-registration at any time, and thus an enforced prohibition was required to protect the public.
Costs
The Board sought costs against CDA in this proceeding, noting that costs usually follow the event in proceedings under the National Law legislation. The respondent conceded this point but sought for each party to bear its own costs in relation to an interim application that CDA’s identity be suppressed.
The Tribunal found it should not exercise its discretion to vary the standard cost orders because the application was a necessary aspect of the proceedings which could not be disposed of by consent, the Board did not oppose the application, and the Board engaged in no disentitling conduct in the proceeding as a whole.
Implications for you
The decision is an important reminder to practitioners that, as per the Board’s code of conduct, “respect is a cornerstone of good medical practice and of patient safety.”5 This extends beyond the doctor-patient relationship to all those who a practitioner may deal with in the course of their profession.
Medical Board of Australia v CDA [2023] ACAT 64
1 Fred Hollows Foundation, Our First Indigenous Australian Ophthalmology Fellow (15 March 2018), retrieved at https://www.hollows.org/au/lat...
2 Medical Board of Australia v CDA
[2023] QCAT 64 [7].
3 Ibid.
4 Ibid.
5 Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (October 2020) [5.4].
