Medical Board of Queensland v Bayliss

[1999] QCA 59

Queensland Court of Appeal

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Interrogate

Catchwords

1. Professions and Trades
2. › Medical practitioners
3. › Misconduct in a professional respect
4. › Charge under s 35(1)(l) Medical Act 1939 (Qld)
5. › Whether 'endangering the health of the patient' is an element of charge under first limb
6. › Meaning of 'endangered' — exposure to risk rather than actual harm
7. › Whether findings of negligent omissions sufficient to establish endangerment without finding of causation
1. Professions and Trades
2. › Medical practitioners
3. › Disciplinary proceedings
4. › Penalty
5. › Suspension from register
6. › Whether public interest in continued operation of clinic a relevant consideration
7. › Whether distinction between negligence by omission and negligence by commission relevant to penalty
8. › Whether penalty unreasonably or plainly unjust
9. › Medical Act 1939 (Qld), ss 35(1)(l), 43(1)
1. Professions and Trades
2. › Medical practitioners
3. › Misconduct in a professional respect
4. › Standard of negligence required
5. › Whether negligence so gross as to constitute professional misconduct
6. › Distinction between mere negligence and misconduct in a professional respect
1. Practice and Procedure
2. › Case stated
3. › Requirements of case stated
4. › Whether questions of law must be included
5. › Desirability of including questions
6. › Whether reasons of tribunal may be referred to
7. › Medical Act 1939 (Qld), s 43(1)

Quick Take

To establish that a medical practitioner's conduct 'endangered the health of the patient' under s 35(1)(l) of the Medical Act 1939 (Qld), it is sufficient to demonstrate that the practitioner's omissions created a risk of harm; it is not necessary to prove that the risk became an actuality or that the practitioner's conduct caused the patient's injury. The standard for 'misconduct in a professional respect' requires something more than mere negligence — the negligence must be so serious as to portray indifference and an abuse of the privileges of registration. The public interest, including the impact of closure of a medical facility, is a relevant consideration on penalty. The construction of s 35(1)(l) — whether 'endangering health' is an element of the first limb — was the subject of differing views between the majority (McMurdo P and Thomas JA, accepting Philp J's construction) and McPherson JA (who would have held it applies only to the third limb).