Delivered on 18 and 21 April 2017

Facts

Dr Colagrande is a cosmetic surgeon. On 17 February 2017, the Health Ombudsman decided to take immediate action under section 58 of the Health Ombudsman Act 2013 (Qld) (HO Act). That action was taken without first giving Dr Colagrande an opportunity to make submissions orally or in writing, the Health Ombudsman being satisfied that the taking of action without complying with the show cause process was necessary to ensure the health and safety of the public[1].

The action taken by the Health Ombudsman was to impose a condition on Dr Colagrande’s registration that he must not have contact with female patients. "Contact” was defined to include “consultation, interview, examination, assessment, prescribing for, advising, treating or otherwise seeing patients”.

Pursuant to section 63 of the HO Act, Dr Colagrande sought a review of that decision under the Queensland Civil & Administrative Tribunal Act 2009 (Qld) (QCAT Act).

There was no dispute that in conducting the review the Tribunal was able to consider evidence of matters which had occurred after the decision under review had been made. Being a hearing de novo, it was also not disputed that the original decision-maker, namely the Health Ombudsman, bore the onus to show that the decision made was the correct and preferable one. The onus was on the Health Ombudsman to convince the Tribunal that the correct and preferable decision was a condition prohibiting Dr Colagrande from seeing female patients.

In the proceeding, the Tribunal was required to decide whether Dr Colagrande did in fact impose a serious risk to persons and that, in those circumstances, it was necessary to take immediate action to protect the public.

The Tribunal noted the comments made by Judge Horneman-Wren in Pearse v Medical Board of Australia[2] in which he referred to the decision of the South Australian Health Practitioner Tribunal v I and Medical Board of Australia where the Tribunal said:

“The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public.” [3]

The immediate action was taken following Dr Colagrande’s conviction by a jury of sexual assault of a patient. He was sentenced to 9 years imprisonment wholly suspended for an operational period of 18 months.

The issue for determination by the Tribunal was what action the Tribunal believed was necessary to protect public health and safety.

Dr Colagrande’s position was that public health and safety could be appropriately protected by the imposition of chaperone conditions and, in that regard, he proposed that the chaperones be agency nurses either registered or enrolled.

The Health Ombudsman’s position was that protection of the public health and safety required a condition that Dr Colagrande have no contact with female patients.

Decision

The Tribunal noted that it was accepted that any immediate action taken be the least onerous to address the relevant risk. In Pearse v Medical Board of Australia, Judge Horneman-Wren approved the observations made in MLNO v Medical Board of Australia that:

“Whilst the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated”.[4]

It was not disputed that the condition as proposed by the Health Ombudsman resulted in Dr Colagrande effectively being unable to work. While accepting that evidence, the Tribunal noted that it must always consider what action is necessary to protect public health and safety.

In support of its position, the Health Ombudsman gave evidence of what it considered to be the practitioner’s history of dishonest conduct. The first instance of that conduct related to events which occurred in 2003 when Dr Colagrande gave misleading information regarding his medical qualifications. That conduct had been dealt with and his registration was suspended for a period of 12 months.

The Health Ombudsman also asserted that as a consequence of his conviction for sexual assault, that must mean that Dr Colagrande was dishonest in the information that he gave to the police and AHPRA, namely that the allegations were not true and were a fabrication.

The Tribunal was also referred by the Health Ombudsman to the report entitled “Independent Review of the Use of Chaperones to Protect Patients in Australia which was released by the Medical Board of Australia and AHPRA on 11 April 2017. The purpose of the review detailed in the report was to consider whether, and if so in what circumstances, it is appropriate to impose a chaperone condition on the registration of a health practitioner to protect patients while allegations of sexual misconduct are being investigated.

The Tribunal noted that the contents of the Report and its acceptance by the Medical Board and AHPRA were relevant matters, but considered that Tribunal could not, just as the Health Ombudsman could not, approach its task by simply adopting the recommendations contained in the Report without regard to the merits of the case[5]. In each case, it is matter for the Tribunal to determine that whatever action is taken is necessary to protect public health or safety.

It was submitted on behalf of Dr Colagrande that the Tribunal could not ignore the deterrent aspects already in place. Dr Colagrande would be on notice that if he were to breach the proposed chaperone arrangements, his lucrative practice as a cosmetic surgeon would cease. Dr Colagrande was also on a suspended sentence and repetition of the conduct could lead to loss of liberty.

In relation to the assault, the Tribunal noted that it related to one single instance in May 2015 which it referred to as being a spontaneous assault of a patient in a consultation room. It was not suggested that Dr Colagrande was a sexual predator or had shown any prior or subsequent tendency towards that type of conduct. The Tribunal was satisfied that with a properly framed set of chaperone conditions, the public health and safety would be protected.

Orders

Insofar as the conditions ultimately imposed were concerned, they required that:

  1. Dr Colagrande not see female patients without a chaperone present (referred to as a practice monitor). The practice monitor must be registered with the Nursing & Midwifery Board, or such other registration board as approved by the Office of the Health Ombudsman and employed by an agency approved by the Health Ombudsman.
  2. Dr Colagrande is required to advise female patients of the need for a practice monitor and the fact that the practice monitor is to be in attendance as a consequence of conditions imposed by the Tribunal.
  3. Dr Colagrande was required to, prior to commencement of the conditions, cause a notice to be placed on the home page of his website notifying patients of the practice monitor conditions and that those conditions had been imposed on Dr Colagrande’s registration by the Tribunal.

Note

As mentioned above, on 11 April 2017 the Medical Board of Australia and AHPRA released the report entitled ‘Independent Review of the Use of Chaperones to Protect Patients in Australia’. This was a review into the use of chaperones to consider whether, and in what circumstances, it is appropriate to impose a chaperone condition on the registration of health practitioners to protect patients while allegations of sexual misconduct are investigated.

The Report recommended that chaperone conditions be discontinued as an interim restriction in response to allegations of sexual misconduct with a view to making greater use of gender based restrictions, prohibitions on patient conduct and suspensions. The Board and AHPRA agreed with those recommendations. The Board and AHPRA have, however, also agreed to the use of chaperones as a condition in exceptional cases.

The Board and AHPRA have committed to establishing a new specialist committee to deal with notifications involving allegations of sexual boundary breaches that will be supported by a new specialist team within AHPRA to increase the timeliness of investigations.

Notably the Tribunal in this case considered that the use of a chaperone was appropriate action to protect public health and safety.