David John Prosser v Medical Board of the Act (Occupational Discipline)

[2010] ACAT 42

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DAVID JOHN PROSSER V MEDICAL BOARD OF THE ACT (Occupational Discipline) [2010] ACAT 42

Catchwords:             HEALTH PROFESSIONALS – review of  decision to refuse registration - registration of medical practitioner subject to conditions – onus of proof - standard of practice – record keeping – endangering  public safety.

List of legislation:Health Professionals Act 2004 (HPA)  ss 23, 37
  Health Professionals Regulation 2004 (HPR) ss 114, 115, 116

List of cases:             Briginshaw v Briginshaw (1938) 60 CLR 336

Tribunal:                  Ms Linda Crebbin, General President

Date of Orders:         17 June 2010  

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          HP 10/1

BETWEEN:

DAVID JOHN PROSSER

Applicant

AND:

MEDICAL BOARD OF THE ACT

Respondent

TRIBUNAL:            Ms Linda Crebbin, General President

DATE:  17 June 2010

ORDER

1. The application is dismissed.

2. The decision under review is affirmed.

………………………………..

Ms Linda Crebbin

General President

EX TEMPORE REASONS FOR DECISION

Background

1. Dr David Prosser lodged an application asking the Tribunal to review a decision that was made by the Medical Board of the ACT (the Board) on
   21 December 2009.

2. The Board had decided to refuse Dr Prosser’s application for registration as a medical practitioner.  Dr Prosser (the applicant) asked the Tribunal to set aside that decision and in its place, substitute a decision to register him as a medical practitioner subject to conditions.

3. The applicant represented himself in the proceedings. The Board was represented by Mr McCarthy, instructed by the ACT Government Solicitor’s Office.

4. I have decided to affirm the decision of the Board and to refuse the application for registration as a medical practitioner, with or without conditions.

5. I acknowledge that this decision will be very distressing for the applicant.  He has given many years of important service to the community as a medical practitioner.  That isn’t something to be ignored or put to one side lightly.

6. To explain the reasons for my decision it is important to explain the context of the decision.

Factual Context

7. On 25 November 2008 the former Health Professions Tribunal made a decision to cancel the registration of the applicant.  The reasons for decision of the Tribunal were published on 2 December 2008. 

8. In reaching its decision, the former Tribunal identified that five aspects of the applicant’s practice of medicine gave cause for concern.  The five aspects can be conveniently described as relating to two areas. The first area related to the applicant’s prescribing practises for drugs of dependence and benzodiazepines.  The former Tribunal found that the applicant’s prescribing practises in respect of these drugs was such as to endanger public safety.  Secondly, the Tribunal found that the applicant’s note-keeping fell short of the required standard of practice to such an extent that it endangered public safety.

9. Approximately 12 months later, the applicant made a fresh application to the Board for what was in effect, a re-registration following the cancellation of his practice.

10. Reference also needs to be made to an earlier proceeding involving the applicant.  In 2007, the Board established a Professional Standards Panel to inquire into an incident in which the applicant had had some involvement.   The inquiry was established to consider whether the applicant had, in relation to that incident, contravened a required standard of practice.  The incident was not connected to any of the matters considered by the former Tribunal in the 2008 proceedings. In October 2007, after a hearing in which he was represented by a legal representative, the Professional Standards Panel found that the applicant should be reprimanded, but that no other action need be taken.

11. In the course of its inquiry, the Professional Standards Panel undertook a study of clinical records the applicant had made during consultations over two days during July 2007.  The Professional Standards Panel found that the records it examined were kept appropriately and that they showed an improvement in clinical note-taking sufficient for the panel, on that occasion, to be satisfied that the applicant was competent to continue in practice as a medical practitioner.

12. I have included reference to the Professional Standards Panel inquiry in this explanation of the factual context of this decision, because the applicant thought that the Panel’s finding was relevant.  He referred to and relied on it on many occasions during this hearing. In my view, it is the fact of his reliance on the earlier finding rather than the finding itself that is relevant to the factual context to this decision.

Legal context

13. The legal context for this decision is contained in the Health Professionals
    Act 2004 (HPA) and in the Health Professionals Regulation 2004 (HPR).
    Section 37 of the HPA is the starting point. In summary, s37 HPA provides that a board must register an individual as a health professional in the profession - in this case, the applicant as a medical practitioner - if it is satisfied of a number of criteria.  The only criterion relevant in this case is set out in s37(1)(a), namely, “that the person satisfies the suitability to practice requirements of the profession.”

14. Suitability to practice requirements is referred to again in s23 of the HPA. That section leads to the HPR and, in particular, to s114 and s115 of the Regulation.

15. Section 114(1)(c) provides, in summary, that an individual should be regarded as suitable to practice in a health profession if the individual is generally competent.

16. The concept of general competence is expanded in s115 of the HPR. That section indicates that a health professional board, in deciding whether a person is generally competent in relation to a health profession, must consider a number of criteria including a criterion relating to communication skills. Communication skills must be such as to allow the person to practise a profession effectively.  While a note under s115 refers specifically to knowledge of written and spoken language, communication skills also encompass skills in relation to writing and note-taking in my view.

17. The criteria for general competence also include in s115(1)(e) of the HPR, a question of whether a person’s practice experience is recent enough or sufficient enough to allow the person to practise a profession safely.

18. Section 115(3) of the HPR says, in broader terms, that when considering general competence, a board may consider any other relevant matter.  One of the examples of relevant matters given in the regulation is a previous or a prior cancellation of registration to practise. That is a particularly relevant consideration in this matter.

19. If a board is satisfied that an applicant practitioner meets the requirements, it must register them.  That is mandatory. If the Board is not satisfied that the criteria are met, it retains a discretion to register the practitioner on conditions.   Somewhat strangely, that discretion is set out in s116 of the HPR rather than in the primary legislation.

20. Section 116 of the HPR provides the Board with a discretion to register a person if the criteria specified in and that flow from s37 of the HPA, are not met, where the Board is satisfied that conditional registration is in the public interest and that the conditional registration will not endanger public safety. 

Role of the Tribunal

21. In making his application to this Tribunal for review of the Board’s decision, the applicant has commenced a process that requires the Tribunal to be substituted for the Board in the decision-making process.  In reviewing the decision of the Board, the Tribunal does not look at what the Board decided in order to determine whether the Board was correct, or whether it fully considered all the relevant criteria.  Rather, the role of the Tribunal is to stand in the shoes of the Board and to make the decision that is the correct or preferable decision in the circumstances.

Standard of proof

22. In undertaking that exercise, it is important to consider the onus of proof.  In many proceedings in which a tribunal reviews a decision made by another body or another person, it isn’t appropriate to approach the decision-making on the basis of any burden of proof.  That is not the case in a regulatory context. 

23. The wording of s37 of the HPA, and the whole of the scheme of registration, makes it clear that whether the Tribunal can be satisfied of a particular thing, is a matter for the applicant to establish. The applicant for registration must satisfy the Board in the first instance, and subsequently the Tribunal, that the criteria are met.

24. The standard of proof would normally be described as the balance of probabilities.  It is what is described as a civil standard of proof.  But, in matters involving applications for registration as a health professional, certainly in circumstances in which the applicant for registration has had his registration previously cancelled, the Tribunal, should in my view approach the question of whether it is satisfied that the criteria are met, by applying the test described in Briginshaw v Briginshaw(1938) 60 CLR 336.

25. Given the seriousness of the consequences of registration of a medical practitioner, the Tribunal must be seriously persuaded that the criteria are met.  This is not a mere balancing of arguments for and against registration.  This Tribunal must be genuinely persuaded that there is a real case for registration.  The focus of the Tribunal’s consideration in a case for re-registration following cancellation should be to ensure not only that all criteria are met, but also that any problems that led to the original cancellation have been addressed to such an extent that public safety would not be endangered by re-registration.

26. The applicant represented himself throughout these proceedings. The first directions made were for the filing of documents by the parties.  When the applicant filed the material that he sought to rely on in the proceedings, I was concerned to ensure that he understood the criteria the Tribunal needed to look at, what the legislative framework was, and what issues his documents or material needed to address.

27. He indicated to me, at a second directions hearing, that he was not familiar with the legislative requirements for registration to practise.  The Tribunal, given its statutory requirement to assist parties, provided him with a copy of the relevant parts of the HPA and the HPR so there was no doubt that he had access to the legislative requirements to ensure that the material he submitted was relevant.  He was given a further opportunity to file any documents he wished to rely on.

28. The documents considered by the Tribunal were:

(1)  The application for review

(2)  Records about professional development courses undertaken by the applicant;

(3)  Character References;

(4) T documents 2 to 14 (namely,

a.   Dr Prosser’s application to the ACAT to review or appeal decision about occupational licensing;

b.   Dr Prosser’s application to the ACT Medical Board;

c.    the documents relating to the Board’s consideration and refusal of the application;

d.   Orders of the Health Professions Tribunal; and

e.   a copy of the decision of the ACT Medical Board’s Professional Standards Panel in relation to Dr Prosser’s contravention of the standards of practice);

(5) The applicant’s letter of 3 March 2010 to Mr Bradford;

(6) The applicant’s letter of 13 April 2010 to the ACAT;

(7) The applicant’s witness statement of 4 November 2008; and

(8) Witness statements of Dr Tedeschi (dated 15 August 2008), Ms Strang (dated 8 August 2008), Dr Soo (dated 5 August 2008), Dr Eldridge (dated 13 June 2008) and Ms Parker (Dated 5 August 2008).

Issues of concern

29. The applicant did not address the legislative criteria at the hearing.  He indicated that he believed he should be registered to practise on conditions (without conceding that he did not meet the requirements that would mandate unconditional registration) for two reasons.  First, he has taken considerable pains to ensure that his knowledge of practice is current and up-to-date by attending a range of courses and seminars relating to professional development generally.  The courses include a course about opiates and the prescription of opiates. 

30. His second reason was directed towards the issue of record keeping.  I found it difficult at first to follow the reasons set out by the applicant in his application, and to understand the relevance of the information he provided to the Tribunal in relation to record keeping.  In essence, the applicant said, that in 2007 the Professional Standards Panel confirmed that his record keeping had improved and on that basis, this Tribunal should be satisfied that there was no difficulty with his record keeping.

31. What was puzzling about the submission was that the findings of the Professional Standard Panel in relation to record keeping pre-dated the consideration of the same issue by the former Tribunal.

32. While the former Tribunal was concerned with record keeping over a period of time that pre-dated the Professional Standards Panel consideration and went through to a later date, it is clear from the reasons of decision of the Tribunal; and it should have been clear to the applicant, that that Tribunal found that his record keeping after July 2007 and into 2008, was of a standard that was not sufficient to meet the suitability to practise requirements.  In that context, the findings of the Professional Standards Panel relating to record keeping in
    July 2007 are, in my view, irrelevant to our current consideration.

33. When I asked the applicant why he placed so much emphasis on the Professional Standard Panel’s comments, he indicated that during the course of the Tribunal hearing in November 2008, one of the members of the Tribunal asked whether he had been reprimanded in previous proceedings.  The applicant, quite properly, referred to the earlier proceedings.  He was, as
    I understand it, disappointed that the Tribunal did not note and accept the comments of the Professional Standard Panel concerning his record keeping once the comments were pointed out.

34. I asked the applicant, on several occasions, how he thought this Tribunal could be satisfied that any deficiency in his record keeping identified by the former Tribunal would be addressed so that it no longer endangered public safety, if he were registered either on an unconditional or conditional basis.  The applicant’s responses indicated that even though he had admitted the particulars of the matters raised against him in 2008, he did not accept that there was a problem with his record keeping after July 2007.  To that extent, he did not accept the findings of the former Tribunal in relation to his record keeping.

35. He said that this Tribunal could be satisfied that there would be no problem with his record keeping in the future because the Professional Standards Panel had endorsed it back in July 2007.  This completely ignored the findings of the Tribunal in 2008.  He also said that the software used by the practice in which he hoped to work, was comprehensive software that would ensure that records he kept when seeing a patient, were comprehensive.

36. The difficulty with that position is that the applicant confirmed that the medical software to which he referred was the same as the software used when he was employed by the practice previously.  The applicant indicated that it was the software in place during the time in which he created the records that the former Tribunal found to be inadequate and to fall short of the required standard of practice.

37. At the end of the applicant’s case, he was unable to satisfy me that the deficiency of his record keeping could be addressed if he were re-registered. He did not acknowledge or accept there was such a deficiency, notwithstanding the former Tribunal’s findings to the contrary.  He could not point to anything, to any change in attitude, to any understanding, to any education; that indicated he would go about the business of keeping records and patient notes in a different way than he had previously.

38. On the question of whether the Tribunal could be satisfied that the applicant could practise as a medical practitioner in a way that would not endanger public safety because his record keeping would now be of an appropriate professional standard, he offered nothing.

39. Further, I am concerned that the applicant did not appear to be able to accept or understand that this should be a matter for the Tribunal to be worried about.  In its reasons for decision, the former Tribunal commented that the applicant did not appear to appreciate the gravity of the Tribunal’s findings in relation to his record keeping.  It seems to me that that lack of insight or understanding, or, it may be, lack of acceptance of problems with record keeping, continues to this day.

40. The other basis for re-registration raised by the applicant related to the professional education that he has undertaken.  That he has been meticulous to ensure that his professional knowledge is kept up to date, demonstrates his commitment to, and interest in, his profession.

41. The records of the courses he has undertaken show, however, only minimal focus on the areas of professional knowledge identified by the former Tribunal as being of concern; namely areas of practice relating to the use and prescription of drugs of dependence and benzodiazepines. 

42. I acknowledge that the applicant attended a seminar about opiates and opiate dependency that is somewhat relevant and that there is a reference in his records of attendance to another course relating to drugs of dependence.  But attendance at a course, as Mr McCarthy submitted, does not demonstrate any change in knowledge, attitude, acceptance or learning drawn from those courses. 

43. The applicant is an intelligent man and it is unlikely that he has attended courses without learning anything, but given the seriousness of this application, it is incumbent on the applicant to go beyond merely indicating that he has attended courses.  He should actively demonstrate an understanding of the earlier problems with his prescription of drugs of dependence and benzodiazepines, the consequences of those problems, and how he intends to change his practice in the future so they do not occur again.  Unfortunately, the applicant did not do that. 

44. He indicated that, in his view, the Tribunal should be satisfied that this wouldn’t be a concern in the future because conditions could be put in place to ensure that he prescribed appropriately.  The conditions he proposed relied on approval by an external entity. Medical practitioners are already required by law to obtain external approval to prescribe drugs of dependence in some circumstances.

45. While it is undoubtedly true that imposing an external control on what and how the applicant could prescribe, would provide some protection from the risks identified by the former Tribunal, ultimately, control of prescribing would remain with the applicant.  This Tribunal would need to be satisfied, that in exercising that control, the applicant understood and addressed, the problems with his previous prescribing practises.

46. Rather than acknowledging that there were occasions in the past when he prescribed inappropriately and failed to obtain the authority required by law to prescribe drugs of dependence, the applicant spoke about the ease of obtaining approval, the speed at which it could be obtained, circumstances in which there was some confusion about whether there was approval to prescribe for a particular patient, or whether a different doctor had approval.  He did not say anything that constituted an acknowledgment that prescription of drugs of dependence without the required approval was a concern that he would be able to address in the future.  I was not satisfied that his insight into the need to seek approval to prescribe drugs of dependence was so great, that he would do it on every occasion if a condition to that effect was placed on his registration.  Nothing he said could lead this Tribunal to be satisfied that the imposition of conditions would, by itself, ensure compliance or, alternatively, that the applicant’s depth of understanding of the need for approval or of the problem with previous prescribing practices, was such that he would always seek approval appropriately.

47. That will, I know, sound like a harsh judgment to the applicant, but registering a person to practise as a medical practitioner is a serious business.  Registering a person whose registration has been cancelled where that person does not demonstrate that they have acknowledged and addressed the concerns that led to the cancellation, is a very serious matter.

48. The applicant’s evidence and submissions, unfortunately, fell short of what is required to satisfy this Tribunal that conditions could be imposed on his registration such that any risk to public safety would be nullified and that it would be in the public interest to register him.

49. I asked the applicant for his thoughts about the possibility of registration on the more onerous condition that he never prescribe drugs of dependence or benzodiazepines.  This was my suggestion rather than his. He indicated that he would accept such a condition.  But his manner of doing so fell short of persuading me that this was something that would be appropriate or possible.  When I put a hypothetical to him concerning the attendance on his practice of a person in significant pain, I expected him to respond by saying words to the effect, “Oh, the conditions say I cannot prescribe any drugs of dependence or benzodiazepines for that person, so I would simply tell them, ‘I am sorry, I am not able to help you’.”   His response, however, was that he hoped that he would treat that person in an appropriate and humane way.

50. On one view of it, that is an entirely appropriate response. But it leaves open the possibility that the applicant would prescribe in circumstances when he was not able to do so.  Dr Prosser did not directly answer the challenges put to him in a way that satisfied me that he knew what he would need to do to ensure that the difficulties didn’t arise again.

51. Conditions that limit or prohibit prescription of benzodiazepines and drugs of dependence would also not of course address the difficulties identified with the applicant’s record keeping.

52. I haven’t dealt with the submissions made by Mr McCarthy.  In summary, he said that the applicant had not demonstrated an insight into the difficulties that caused cancellation of his registration.  Mr McCarthy specifically referred to Dr Prosser’s reliance on and reference to the comments of the Professional Standards Panel in 2007 as evidence of that.

53. Secondly, he said that references provided by the applicant from peers and his former patients, and records showing that he had been to training, were not sufficient to persuade any decision-maker that registration should now be granted.

54. Mr McCarthy drew attention to the fact that the training Dr Prosser had undertaken was about a lot of things, but only minimally about issues relating to drugs of dependence, and that the references provided by peers and patients, while confirming the high regard in which Dr Prosser was held, did not directly address the issues that this Tribunal would need to be satisfied of, if it were to make a decision to permit re-registration.

55. I should note that amongst the material provided to the Tribunal by the applicant was a letter from his former employer, Dr El Nasser, saying that he would employ the applicant if he had conditional registration.  The letter tells the Tribunal nothing about the basis of Dr El Nasser’s decision that it would be appropriate to employ the applicant if there were conditions on his registration.  This Tribunal would need to be satisfied that any prospective employer understood clearly why conditions were necessary and what they were directed to.  The prospective employer should not only acknowledge conditions but also indicate that everything possible would be done to ensure that the employment framework and infrastructures placed around a medical practitioner, would allow conditions to be satisfied.

56. By that I mean this:  when an employer is employing a person whose registration is subject to conditions, it is incumbent on the employer, in my view, to ensure that the employee is able to meet those conditions.
    Dr El Nasser should be able to say, “If a patient was attending this practice and there was a proper requirement for that patient to have prescriptions for drugs of dependence or benzodiazepines, we would make sure that there was someone available to supervise the applicant’s obtaining of approval, to assist in any secretariat support that was needed to track approvals given, to remind and ensure that approvals were sought when they were required.”  A mere indication that employment would be available is not sufficient, in my view, to satisfy the Tribunal that such employment would ensure the minimisation of any risk to the public.

Conclusion

57. Dr Prosser, the indications are that you provided good and valuable service to the ACT community for many years.  That is reflected in the high regard expressed by your peers and former patients in the references they’ve provided to the Tribunal.  But those things by themselves are not sufficient to enable this Tribunal to feel confident that matters that were identified as matters of concern in 2008 would be completely addressed by you in the future if you were to recommence practise.

58. The decision under review is affirmed.

………………………………..

Ms Linda Crebbin

General President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                DAVID JOHN  PROSSER
RESPONDENT:            MEDICAL OF THE ACT

COUNSEL APPEARING:       APPLICANT:          Mr G McCarthy

RESPONDENT:      

SOLICITORS:  APPLICANT:          Self represented

RESPONDENT:      ACT Government

Solicitor

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        Ms Linda Crebbin, General President

DATE/S OF HEARING:          16 and 17 June 2010   PLACE: CANBERRA

DATE/S OF DECISION:          17 June 2010              PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: