Medical Board of Australia v Lee (Review and Regulation) [2022] VCAT 667
Introduction
This case involved a doctor by the name of Christopher Kwan Chen Lee (Dr Lee), who was alleged to have engaged in professional misconduct in the course of his work. Dr Lee’s alleged professional misconduct was related to the posting of gruesome images and abhorrent messages on internet forums and social media sites whilst also sharing confidential patient information.
The Medical Board of Australia (the Board) brought this case to the Victorian Civil and Administrative Tribunal (VCAT) to determine whether Dr Lee should be suspended or even have his registration cancelled, resulting in his disqualification from the medical profession, and to determine the period for which the suspension or disqualification should be in place.
Facts
Both in early 2016 and between the months of May 2018 and April 2019, Dr Lee posted a variety of gruesome images, abhorrent messages and confidential patient information on both social media and internet forums. The content of these online posts included:
- Graphic and gory images of deceased persons, followed by messages containing positive sentiments about those images.
- Highly misogynistic comments that endorsed violence, objectification and humiliation against women, including Dr Lee’s own wife.
- Posting explicit photos of Dr Lee’s wife without receiving her consent to do so.
- Racist, xenophobic and discriminatory comments about certain groups of people, including Muslims, Indian men, Palestinians and Singaporean women.
- Comments that endorsed violence against people with mental illnesses, physical disabilities and drug abuse issues.
- Images of Dr Lee’s patients, clinical records and his treatment of patients that may have enabled these patients to be identified.
- The provision of medical advice in a flippant manner that could potentially demean, diminish or alarm those to whom the advice was being provided.
The Board was alerted to the conduct of Dr Lee and on 9 June 2019 the Board took immediate action under section 156 of the Health Practitioner Regulation National Law (Victoria) (the National Law), suspending Dr Lee’s registration as a medical practitioner. Dr Lee had not practised in the period between the suspension and the date of the hearing.
Issues
Did Dr Lee’s conduct amount to professional misconduct under National Law?
The Board alleged that Dr Lee’s conduct amounted to professional misconduct under section 5 of the National Law, with specific reference to paragraph (c) stating that such conduct was ‘inconsistent with being a fit and proper person to hold registration in the profession’.
Dr Lee admitted to making the posts on the social media platforms and accepted that his actions were ‘utterly unacceptable’, and such conduct amounted to professional misconduct. VCAT agreed with both parties in respect of this allegation and determined that Dr Lee’s conduct amounted to professional misconduct as per paragraphs (a), (b) and (c) of the definition of that term in the National Law.
Should Dr Lee have his registration as a medical practitioner cancelled or suspended, and if so, for how long?
The key issue that the parties could not agree on was whether it was appropriate to suspend or cancel Dr Lee’s registration as a medical practitioner. The Board contended that Dr Lee’s registration should be cancelled under section 196(2)(e) of the National Law and that he be disqualified from re-applying for registration for a total period of six years (until 9 June 2025).
Dr Lee argued that he should only be suspended for a further period of 6-12 months (until late 2022 or mid 2023), with certain conditions imposed on his registration if he were to return to practise as a medical practitioner following his suspension.
The basis for Dr Lee’s position was that a suspension rather than a cancellation was more appropriate for a variety of reasons, including:
- The conduct being linked to his (then undiagnosed) mental health condition known as Autism Spectrum Disorder (ASD) which was severe enough to require substantial support, which he was not receiving at the time.
- Receiving a substantial amount of psychiatric and psychological treatment for his ASD and other relevant issues such as his low self-esteem.
- Developing a higher level of insight and remorse for his actions.
- Dr Lee’s treating practitioners believing that he could return to practise with special conditions such as restricting his access to patient information outside of work, restrictions on posting material on online platforms and continuing to receive psychological support and constant supervision.
The basis for the Board’s position was that although Dr Lee’s ASD may have played a contributing factor in his professional misconduct, the ‘unusual interest’ portrayed by Dr Lee in the information he posted and made commentary on cannot be explained directly by his ASD so it should not reduce his moral culpability in relation to the conduct he displayed.
Additionally, the Board believed his ASD to be of a ‘relatively mild manifestation’ and as such should not render him an inappropriate person to impose a punishment that promotes deterrence of further behaviour of this manner.
Decision
In making its decision, VCAT had to consider the position put forward by both parties in determining if it was more suitable to suspend or cancel Dr Lee’s registration as a medical practitioner and the length of time in which the suspension or cancellation should remain. The Tribunal also had to consider the seriousness and repeated nature of the conduct, the connection of the conduct with Dr Lee’s practice, the fact that the conduct was grossly inconsistent with the standards of a medical practitioner and the manner in which the conduct undermined the good standing of the medical profession in relation to the expectations of the community as a whole.
VCAT initially submitted that they were aware that Dr Lee, through his proactive engagement with his psychiatrist and psychologist, had advanced substantially in his rehabilitation by developing a reasonable level of insight and remorse for his actions whilst building strategies to cope with his ASD. Further to this, VCAT submitted that they believed Dr Lee would be likely to comply with any conditions that would restrict his online conduct and avoid the risks associated with being exposed to online environments that may cause him to repeat previous behaviour.
Although this was the case, VCAT was still aware that general deterrence was a significant factor in this case. The Tribunal was aware that although Dr Lee had ASD, he was still regarded as a highly intelligent individual who had the ability to function at a high level and as such should be exposed to punishment for the sake of general deterrence.
Whilst having regard to all these considerations, VCAT deemed it appropriate to cancel Dr Lee’s registration as he still needed to complete his journey of rehabilitation in order to demonstrate that he could again be a fit and proper person to resume practising in the medical profession. This determination by VCAT was in line with the Board’s submission that a cancellation was more appropriate than a suspension.
The final decision imposed by VCAT was a total disqualification period of 54 months which included the period in which Dr Lee had already been suspended. In determining this amount, VCAT reasoned that this length of disqualification appropriately addressed the need for general deterrence of this type of behaviour whilst assuring the public that appropriate disciplinary action will be taken in these types of cases to safeguard the reputation of the medical profession.
Dr Lee will be eligible to apply for registration again as a medical practitioner following the completion of the disqualification period on 9 December 2023.
Compliance Impact
This case affirms the importance of keeping a patient’s private medical information confidential.
Further to this, it highlights the necessity of practitioners in the medical profession to be conscientious about the type of content and commentary they post or engage in on a public forum. It is important that medical practitioners restrict themselves from publicising any commentary or graphic imagery that may be deemed gruesome or abhorrent in the eyes of the community.
Finally, it is necessary that those in the medical profession continue to comply with the professional values and qualities required and expected of a registered medical practitioner at work, away from work and on any social media platforms.
