Disciplinary Decisions: Medical Board of Australia v Kanyowa [2016] QCAT 450 Disciplinary Decisions: Medical Board of Australia v Kanyowa [2016] QCAT 450

Disciplinary Decisions: Medical Board of Australia v Kanyowa [2016] QCAT 450

24 February 2017 | Health Sector

Delivered 7 December 2016.

Finding of unprofessional conduct which was admitted. Consideration of the appropriateness of a joint sanction proposed by both the Board and the registrant.

Facts

On 22 February 2016, the Medical Board of Australia (the Board) referred disciplinary proceedings against Dr Kanyowa to the Queensland Civil and Administrative Tribunal (the Tribunal) pursuant to section 193(b) of the Health Practitioner Regulation National Law Act (Qld) (National Law). Dr Kanyowa had admitted that his conduct constituted unprofessional conduct and the matter proceeded before the Tribunal by way of a statement of agreed facts and joint submissions on sanction and costs.

The Board’s findings related to medical certificate provided by Dr Kanyowa for a patient. The patient had consulted Dr Kanyowa on 2 March 2015 referable to a letter he received from the Queensland Police Service (QPS) that his firearms licence had been suspended. That letter relevantly stated that to enable a determination to be made on the patient’s ability to continue to be a holder of a licence, the patient needed to provide a medical report from a doctor or psychologist which outlined his suitability to continue to possess and/or use firearms under the provisions of the Weapons Act 1990 (Qld). The information notice attached to the QPS suspension notice stated:

“Concerns have been raised in relation to the state of your mental health as the result of information received that you may be suffering from dementia. The reasons for suspecting this is due to:

  1. advising police that your wife had left you when in fact it is my understanding that your “wife” was actually a picture of a young lady in a European magazine;
  2. further you believed someone was in your house and had woken you up. Again, on police investigating, found no person had entered your dwelling;
  3. you had advised police that Romanian men are always attending your property and taking things – what things – you do not know;
  4. police observe that your house is full of what I understand to be junk and likewise your vehicle.”

Prior to 2 March 2015, the patient had consulted Dr Kanyowa on 2 occasions the previous year. During the consultant on 2 March 2015 Dr Kanyowa reviewed the patient file and conducted some testing. Dr Kanyowa failed, however, to have regard to the QPS letter and information notice (outlined above).

Following his consultation with the patient and the provision of the medical certificate Dr Kanyowa was contacted by the QPS who informed him that the patient had delusions that Romanians were spying on him. Concern was raised by the QPS about the medical certificate that had been supplied. Upon being advised of this by the QPS Dr Kanyowa immediately completed a notification to the Weapons Licencing Brach advising that because of the patient’s mental or physical condition he was unsuitable to possess a firearm. 

Dr Kanyowa admitted that he failed to have proper regard to the QPS letter on 2 March 2015. He admitted that his conduct amounted to unprofessional conduct in that his assessment of the patient fell below the appropriate standard.

Decision

The parties jointly proposed the following orders by way of sanction:-

Dr Kanyowa be reprimanded by the Tribunal;
Conditions be imposed on Dr Kanyowa’s registration; and
Dr Kanyowa pay the Board’s costs on the standard basis.

The determination of sanction in disciplinary proceedings is a matter for the discretion of the Tribunal notwithstanding any agreement reached between the parties. Nevertheless, where parties have reached a joint position on sanction, the Tribunal will not generally depart from that position unless the proposed sanction falls outside the permissible range of sanction for the conduct[1]. It was noted by the Tribunal that there are important public policy reasons why a jointly proposed sanction within a permissible range should not be departed from.[2]

The Tribunal noted that it is well established that the determination of disciplinary proceedings should in no sense be punitive. The two primary objectives in disciplinary proceedings are the protection of the public and the maintenance of the profession in the eyes of the public.

Given the nature and extent of the delusions that the patient is reported to have experienced, his continuing to hold a firearm’s license created a very real risk of harm to both himself and the public. The Tribunal noted that the serious consequences of inappropriately issuing a medical certificate stating that a person is fit to hold a firearm’s license calls for general deterrence. A sanction must be imposed which impresses upon medical practitioners the significance of their obligations when assessing whether someone is fit to hold such a license.[3]

The Tribunal noted, however, that notwithstanding the seriousness of De Kanyowa’s conduct, there were a number of mitigating factors including the immediate notification to the Weapons Licensing Branch after being contacted by the QPS, the practitioner being entirely forthcoming and cooperative in relation to the investigation, the fact that this was the first medical certificate that the practitioner had provided under the Weapons Act 1990 (Qld) and the steps that he had taken to ensure that he is now familiar with the requirements for firearms assessments.

The proposed conditions required Dr Kanyowa to undertake and successfully complete a program of education in relation to the assessment requirements for providing a medical report in relation to a person’s suitability to hold, possess and/or use a firearm’s license under the Weapons Act 1990 (Qld). The Tribunal had concerns about the existence of an appropriate program of education to suit those requirements. Given those concerns, the Tribunal directed the parties to file submissions on sanction indicating a program or programs available for the practitioner to undertake, which would satisfy the proposed conditions.

In relation to education, Dr Kanyowa proposed a three hour face to face session with a medical educator on the assessment requirements under the Weapons Act 1990 (Qld).

The Board’s representatives advised the Tribunal that the usual course is that any proposed educational course is considered by the Board immediately after the Tribunal publishes its decision. The Board’s representatives were of the view that, on the assumption the Tribunal is persuaded that a condition requiring education is appropriate, it would be for the practitioner to formally put forward a proposed course for the Board’s consideration.

The Tribunal noted that given the education the practitioner had undertaken himself, further education may not be required. The Tribunal indicated that if it was prepared to make an order requiring further education on the condition that the further education must be capable of being fulfilled, meaning that a suitable course must be available.

Orders

The Tribunal ordered that:

  • Dr Kanyowa had behaved in a way that constitutes unprofessional conduct;
  • Dr Kanyowa is reprimanded;
  • Conditions be imposed upon Dr Kanyowa’s registration for a period of 6 months. Those conditions included that he undertake the learning plan proposed by him; and
  • Dr Kanyowa pay the Board’s costs to be agreed or, failing agreement, as assessed. In relation to costs, the Tribunal noted that Dr Kanyowa had greed to pay costs, so in those circumstances it was appropriate that such an order be made.

 


[1] Medical Board of Australia v de Silva (2016) QCAT 63

[2] Medical Board of Australia v Martin (2013) QCAT 376 [93].

[3] See [43]

Author

Gillian Sheppard

Gillian Sheppard

Special Counsel