OPTOMETRY BOARD OF AUSTRALIA SEEKS FOR HIGHER PENALTY IMPOSED AGAINST THE RESPONDENT AFTER ENGAGING IN PROFESSIONAL MISCONDUCT IN THE PRACTICE OF OPTOMETRY
OPTOMETRY BOARD OF AUSTRALIA v BHOOLA [2021] SASC 51 (11 May 2021)
This is an appeal by the Optometry Board of Australia with regard to the sanction imposed by the South Australian Civil and Administrative Tribunal after engaging in professional misconduct in the practice of optometry.
Facts:
The South Australian Civil and Administrative Tribunal (“the SACAT”) found that the respondent had engaged in professional misconduct in the practice of optometry (“the first decision”). Following a further hearing (“the sanction hearing”), the SACAT reprimanded the respondent, canceled his registration as an optometrist and disqualified him from applying for registration as an optometrist for a period of one year. The Optometry Board of Australia (“the Board”) appeals that penalty, and says that the respondent should be disqualified from applying for registration for a period of five years.
The SACAT found that the alterations to the prescriptions were made by the respondent, and that these alterations were made deliberately, without clinical justification, and contrary to the interests of the patients concerned. It found that these actions put the welfare of the patients at risk.
Ground 1 sets out findings that the Board says the SACAT should have made in respect to the conduct of the respondent, the risk posed by that conduct, and the consequences that should flow from such conduct.
By the second ground, the Board asserts that the SACAT placed too much weight on the loss of the respondent’s employment and on the character evidence adduced by the respondent.
By the third ground, the Board says that the SACAT should have taken into account the financial impact of the respondent’s conduct when considering the sanction that should be imposed.
By the fourth ground, the Board says that the sanction imposed was inadequate both in terms of protection of the public, and maintenance of standards within the profession, once all of the relevant matters have been taken into account.
Issue: Should the appeal be allowed so that a higher sanction be imposed against the respondent?
Held:
As to the first ground, the Board made no specific finding in respect of the likelihood of reoffending, and save for noting that the respondent’s failure to admit responsibility for the conduct caused it concern, did not address whether the protection of the public and maintenance of standards in the profession would be in any way put at risk by the respondent’s resuming the conduct which was the subject of this complaint. The likelihood or otherwise of further offending conduct by the respondent is not discussed.
As to the second ground, SACAT was in error in its treatment of the character evidence. Given that it did not specifically deal with the risk of the respondent’s reoffending, it can be inferred that it dealt with the character evidence in that context. As it did not appear to consider any of the other factors which may be relevant in regard to the prospect of the respondent’s repeating the impugned conduct, it erred by elevating the character evidence over any of the other factors, to the extent that they did not require examination.
As to the third ground, that a detailed quantification of the loss occasioned to the establishment where the respondent is employed should have been taken into account, even though it was not open to the SACAT to make an order for compensation in this regard. The financial consequences of the impugned conduct is clearly relevant in determining its seriousness and its consequences.
As to the last ground, in order to protect the public, maintain confidence in the profession and to send a message to the profession that such conduct cannot be tolerated, a significant period of disqualification was required. I am of the view that a period of twelve months was not sufficient to achieve these purposes.
Conclusion: All grounds are established. The appeal is allowed. The court orders to set aside the SACAT’s disqualification of the respondent from applying for registration as an optometrist for a period of twelve months. In its place, the court disqualifies the respondent from applying for registration as an optometrist for a period of five years.
