Background
The respondent medical practitioner’s identity was suppressed by the Tribunal, so there are limited details available regarding their background, however the Tribunal’s decision confirms that the respondent was a general practitioner practising in the ACT at the time of the conduct.
On 19 July 2022, the respondent sent an email to the practice of consultant ophthalmologist Associate Professor Kristopher Rallah-Baker, who is Australia’s first Indigenous ophthalmologist. The Respondent had no personal or professional connection to Associate Professor Rallah-Baker. We have chosen not to publish the respondent’s comments, however the respondent made highly inappropriate comments about Associate Professor Rallah-Baker and questioned his cultural background. The respondent referenced harmful and racist ideas about Aboriginality and suggested it is common for people to falsely claim to be Indigenous to access benefits under Government programs.
Associate Professor Rallah-Baker reported the email to the Australian Health Practitioner Regulation Agency (Ahpra), and the Medical Board of Australia (the Board) decided to investigate the matter.
When contacted by Ahpra about the matter, the respondent made further inappropriate comments about Associate Professor Rallah-Baker, reiterated his belief that many individuals falsely claim to be Indigenous and criticised Ahpra and the Board.
The respondent ultimately surrendered his registration as a medical practitioner on 13 September 2022 and gave an undertaking that he would not seek re-registration, effectively ending his career.
Policy background
Ahpra and the National Boards have taken a strong stance against racism in healthcare, particularly racism against Indigenous Australians, with many recent initiatives to improve the cultural safety of their processes and decisions.
Ahpra triage notifications that involve Aboriginal and Torres Strait Islander patients or issues as ‘high-risk’ – meaning that they are effectively prioritised over complaints that are deemed ‘less risky’. Ahpra has also established Aboriginal and Torres Strait Islander National Special Issues Committees with delegated authority from the National Boards to consider and make decisions regarding notifications involving Aboriginal and Torres Strait Islander people.
The Health Practitioner Regulation National Law has also been recently amended in some States, not including Western Australia, to insert a provision stating that it is a guiding principle of the national registration and accreditation scheme to “ensure the development of a culturally safe and respectful health workforce that is responsive to Aboriginal and Torres Strait Islander Peoples and their health and contributes to the elimination of racism in the provision of health services”. This guiding principle can be considered by Tribunals and National Boards when determining matters that raise concerns about cultural safety for Indigenous Australians.
Tribunal decision
The Board and respondent agreed that the respondent’s conduct amounted to professional misconduct and that the appropriate penalty was a reprimand and a 12 month period of disqualification. The Tribunal agreed with the parties’ proposed orders and made orders in the same terms.
The respondent attempted to argue that clause 5.4 of the Board’s ‘Good medical practice: A code of conduct for doctors in Australia’ (the Code of conduct) was aimed at preventing discrimination in the workplace and given he did not work with Associate Professor Rallah-Baker or send the email from his workplace, he could not have breached this clause. The Tribunal rejected this argument and interpreted clause 5.4 of the Code of conduct more broadly, finding that it prohibited medical practitioners from discriminating against other people generally, not just in a workplace context.[1]
The Tribunal found that the respondent had discriminated against Associate Professor Rallah-Baker in his email to him and the communication was culturally unsafe, insulting and offensive. It also found that the communications to Ahpra during their investigation were culturally unsafe.
The Tribunal noted that the respondent had apologised to Associate Professor Rallah-Baker and the Ahpra staff he made inappropriate comments to, but stated this was through his lawyers and a medical report indicated the respondent’s insight was partial.
Comments
The swiftness of the Board’s response to the notification demonstrates the Board’s zero tolerance policy towards racism and commitment to cultural safety for Indigenous Australians.
Ahpra received a notification about the respondent’s comments in late July 2022 and by September 2022 the respondent decided to surrender his registration, presumably due to the investigation and following legal advice about the likely outcome of the matter. While it then took some time for the matter to be determined in the Tribunal, any risk to public safety due to the respondent’s attitudes towards Indigenous people was quickly addressed.
Associate Professor Rallah-Baker’s actions are also commendable, particularly his decision to allow himself to be named in the judgment. He stated that it was important for him that the outcome of the matter wasn’t faceless – particularly in circumstances where the respondent’s identity was suppressed – and so that his colleagues could see they wouldn’t be brought down if they raised concerns about racism.
It is common for the identities of patients or people who were the subject of inappropriate behaviour from a health practitioner to be suppressed in these kinds of proceedings, to preserve that person’s privacy and minimise the impact of the proceedings on them. While this is entirely reasonable and understandable, it can sometimes belie the human background of the matter. By requesting he be named in the matter, Associate Professor Rallah-Baker has reminded Australia that these attitudes and racist behaviours have a significant impact on our community and affected people will be supported, not punished, for raising concerns about racism.
