Background
An investigation by Specsavers led to the discovery that between 4 February 2015 and 19 January 2016, the last day on which the applicant and Ms McKernan worked together, 410 prescriptions were altered by a person using the applicant’s login details. The only people working in the store on the occasions that the prescriptions were altered were the applicant and Ms McKernan.
Procedural Background
The South Australian Civil and Administrative Tribunal (Tribunal) made an order disqualifying the applicant from applying for registration as an optometrist for 12 months.
A single judge of the South Australian Supreme Court allowed an appeal by the respondent, the Optometry Board of Australia (Board), and set aside the disqualification order. In its place, the Judge disqualified the applicant from applying for the registration as an optometrist for 5 years.
The applicant did not challenge the cancellation of his registration to practise. The appeal was concerned only with the length of the period of disqualification from registration. The applicant sought to restore the orders of the Tribunal.
Outcome
The South Australian Supreme Court dismissed the appeal.
Reasoning
Tribunal’s approach to assessment of harm
The purpose of disciplinary proceedings is to protect the public and not to punish practitioners, in the sense in which punishment is administered in the criminal jurisdiction. In assessing the harm to the public and profession, the Tribunal made a number of errors.
The Appeal Court held that, while the Tribunal made findings that the conduct was ‘serious’, ‘calculated’ and ‘dishonest’, and considered the direct effects of the altered prescriptions on patients, the Tribunal did not fully consider other important aspects of harm caused by the applicant’s conduct. For example, the risk of injury to patients whilst using the altered prescriptions or the harm caused by the patients’ loss of confidence in their optometrist and the profession generally.
The Tribunal also did not properly consider the applicant’s risk of recidivism or repetition of conduct. At the Tribunal hearing, the applicant denied his conduct on oath. The Tribunal disbelieved his evidence. The applicant continued to deny the allegations of misconduct in all Courts. The applicant provided no explanation for his conduct or insight into his behaviour. The applicant’s denials rendered it ‘difficult, if not impossible, to make a judgement as to the risk of reoffending.’
Loss of employment and evidence of good character
The applicant’s good character and subsequent employment could carry little weight in determining the risk of reoffending posed by the applicant, and in determining the appropriate sanction because of the serious, calculated, and sustained nature of his conduct over a period of 1 year and involving 400 acts of dishonesty. The applicant’s period of employment since the conduct was of limited relevance to sanction.
The applicant’s potential for recidivism should have been a crucial consideration for the Tribunal in identifying an appropriate sanction that addressed the particular risk posed by the applicant and which allowed for the maintenance of professional standards.
The Appeal Court reiterated that a practitioner’s personal circumstances, including any hardship occasioned to the practitioner as a consequence of disqualification, are a relevant consideration for a Tribunal or Court in imposing sanction. However, the primary consideration is the protection of the public.
Employer’s losses and character evidence
The time spent by employees of Specsavers in the investigation was significant. The evidence of the fact of financial loss incurred by Specsavers was relevant to the sanction to be imposed. An employer or franchisor stands to be adversely affected by an employee’s professional misconduct, both by the financial cost of an investigation of misconduct and the damage to the reputation of the employer or franchisor. An employer or franchisor is a necessary component of the public who may require protection from an unfit practitioner. The evidence relating to the loss quantification was not relevant in the absence of any power to award those costs.
Inadequate sanction
The applicant’s conduct was particularly serious. The conduct fell significantly below the standard expected in the profession. His conduct in falsifying patient records was deliberate, prolonged and involved separate acts of dishonesty on more than 400 occasions. His dishonesty was a significant matter relevant to the assessment of the need for protection of the public.
The applicant’s conduct caused significant harm or risk of harm to the public. An alteration of a patient’s records may have an adverse impact on a patient’s health at the time or in the future. The conduct also targeted a fellow optometrist who suffered from significant embarrassment and a loss of confidence. It also caused considerable expense to Specsavers, both in respect of the cost of the glasses which had to be remade and in terms of the cost of the investigation it undertook. The sanction needed to acknowledge the risk of harm to others. The conduct required a sanction which would deter the applicant, as well as other practitioners, from committing similar conduct. The sanction also needed to instil in the public confidence that the profession would not tolerate such behaviour.
The Appeal Court commented that it would not impose a different sanction than that imposed by the appeal Judge.
To read the decision Bhoola v Optometry Board of Australia [2022] SASCA 20 click here
