In an earlier post, Doctor as respondent to application for domestic violence order (March 5, 2024) I discussed, hypothetically, the implications that might arise for a health professional the subject of an application for a domestic violence order.

The matter has now arisen in a real-life example of Paramedicine Board of Australia v WYS (Review and Regulation) [2024] VCAT 1012.    The paramedic is identified as WYS to protect the identify of his family.

On 5 January 2020 WYS committed an act of violence toward his wife.  Police were called and he was charged with recklessly causing injury (Crimes Act 1958 (Vic) s 18; maximum penalty 10 years imprisonment) and unlawful assault (Summary Offences Act 1966 (Vic) s 23; maximum penalty 3 months imprisonment).   The matter of recklessly causing injury was withdrawn.  The unlawful assault charge was dealt with by way of diversion out of the criminal justice system.  WYS had to complete a diversion plan, which he did and the charge was dismissed.

WYS was referred to the Victorian Civil and Administrative Tribunal on two complaints:

(1) That the assault on his wife constituted professional misconduct as defined by the Health Practitioner Regulation National Law (Victoria) s 5 that is it was

(a) … conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

(2) His failure to report that he had been charged with recklessly causing injury, as required by s 130, was unprofessional conduct, that is ‘conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.

Section 130 of the Health Practitioner Regulation National Law requires a registered health practitioner to notify the Board if he is charged with ‘an offence punishable by 12 months imprisonment or more’.

With respect to domestic violence the Tribunal said the opinion of the Tribunal in Medical Board of Australia v PYP [2021] VCAT 876 applied equally to paramedics.   In that case the Tribunal said:

For a medical practitioner, this kind of conduct is inconsistent, in our view, with the qualities required to be a fit and proper person to hold registration. We highlight the following.

Our community rightly expects that medical practitioners will not commit a crime of this nature. Conduct of this kind impacts on the standing of and the trust that the community holds in the medical profession.

Medical practitioners are and need to be seen by the community as people who are law abiding, trustworthy, safe to be in proximity to, and respectful, including of women.

An offence of this kind has particular resonance for medical practitioners who may be the first point of contact for a person who is themselves a victim of an act of family violence. This is because the public expects that they will be able to provide good medical care for those who are experiencing abuse and violence, as well as to identify and respond appropriately to the perpetrators of same.

At [25] the Tribunal said:

…  given that acts of domestic violence are so inconsistent with the qualities of care, respect and control expected of registered paramedics, that they will frequently lead to a period out of practice being imposed. This is for the purpose of general deterrence – to send a message to the profession and to the community as to the gravity of such conduct.

Notwithstanding that general rule the Tribunal determined that this was an exceptional case and suspension from practice was not required. The Tribunal said (at [26]-[43]):

… there are multiple mitigating factors which in our view, entail that, in accordance with the submission on behalf of WYS, it is not necessary to suspend his registration at all.

The most significant of these is WYS’ clear insight into the causes of his conduct, the implications of it and the protective steps he has taken to avoid it happening in the future.

This springs from his immediate contrition and remorse… From that moment he cooperated fully with the police. After his wife called the police, he waited for them to arrive. He then went to the police station and immediately made full admissions in a police interview. He elaborated on the circumstances, but made a number of statements to the effect that it was his fault, he should not have done it, he was in the wrong, and there is no excuse for what he did. He was then charged with recklessly causing injury and unlawful assault…

The assault caused WYS to take concrete steps to address the situation…

WYS continued to accept full responsibility for his actions and at no time used these stressors as an excuse for his behaviour…

WYS attended a weekly men’s behaviour change program for at least six months over 2020 – 2021, and continued to see his psychologist.

The police were initially not inclined to agree to a Diversion. A key factor which influenced them to change their mind was the statement of 27 April 2021 by WYS’ wife. She described the incident as an isolated one, and as having been a turning point in their relationship for the better. Statements of this type by victims of domestic violence can often be treated with scepticism. However in this instance, the police, and the magistrate accepted it as a genuine and truthful statement, made of her own free will.

The magistrate who ordered the Diversion on 29 June 2021 said, ‘…as bad as what’s happened, there’s no doubt it’s been a very positive thing for you as a father, partner, as a man.’…

Another very significant factor in our consideration is the extent of the delays in this matter coming on for a final hearing. The unfortunate circumstances in which these delays occurred are described above. WYS did not contribute to any of them. The matter has been hanging over his head for four years and 10 months.

This extended delay, without any further issues arising has, however, served to solidify our view that specific deterrence has no role to play here.

In our view, to impose a suspension in all the circumstances, would be punitive. From hearing and observing WYS give evidence, it is clear that the assault he committed on 5 January 2020 has had a major impact on his mindset. It is clear WYS has been on a profound and consequential journey of rehabilitation.

There is no need to deprive the community of the services of WYS as a paramedic, especially where, in the circumstances alluded to in the hearing, he is in a position to make a particularly valuable contribution.

With respect to the failure to report the fact that he had been charged, the Tribunal said ([21]-[22]):

We are satisfied that WYS was unaware of his obligation. While ignorance is no excuse, he did promptly report the fact that he had been charged to his employer, Ambulance Victoria (AV). It was his responsibility to report to the Board by 12 March 2020, but it is unfortunate that he was not advised by AV, or by his union, of his obligation to report to do so.

Further, WYS properly disclosed that the criminal charges had been laid against him, when he completed his application for renewal of his registration on 11 November 2020. So he was not deliberately hiding this from the Board.

Further he was only required to report that he had been charged with the more serious offence or recklessly causing injury and that charge was withdrawn.  WYS had complied with an undertaking not to practice whilst the Board considered whether to take immediate action to suspend his registration. They did not take that action, but it did mean that he did not practice for ‘several’ weeks ([23]).

The Paramedicine Board argued that an appropriate penalty would be to suspend WYS’ registration for six months ([26]). As noted above the Tribunal did not agree and instead that WYS would receive a reprimand, but no further action was required.

Conclusion

As the Tribunal said (at [1]):

Acts of domestic violence are inconsistent with the qualities expected to be displayed by a paramedic. Quite separately from any criminal sentence imposed, they will usually attract an order in professional disciplinary proceedings suspending or cancelling a practitioner’s registration.

The case gives examples of the sort of factors that may avoid those consequences which require immediate acceptance of responsibility, cooperation with authorities, taking positive steps to address underlying issues and, in this case, given the delays sufficient time to show that there is no repeat offending.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.