Fidge v Medical Board of Australia
[2023] VSC 217
•27 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 00482
| JULIAN FIDGE | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2023 |
DATE OF JUDGMENT: | 27 April 2023 |
CASE MAY BE CITED AS: | Fidge v Medical Board of Australia |
MEDIUM NEUTRAL CITATION: | [2023] VSC 217 |
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APPEAL – Application for leave to appeal and appeal of VCAT decision – Where the Medical Board of Australia imposed restrictions on doctor’s practice – Appeal of decision by Tribunal not to stay restrictions pending a merits review hearing – Where the Tribunal decided on a basis no longer pursued following change in Board’s position – Whether an error of law – Whether the Court required to remit stay application to Tribunal or able to exercise the discretion itself – Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 50(3) and 148(7).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Litigant in person | Not applicable |
| For the Defendant | Ms K McInnes | Australian Government Solicitor |
TABLE OF CONTENTS
A. Overview....................................................................................................................................... 1
B. Background.................................................................................................................................... 1
C.. The Board’s decision, the issue of whether a permit was required, and the positions taken before the Tribunal...................................................................................................................... 5
D. The Tribunal’s treatment of the permit issue...................................................................... 10
E. The Board’s current position.................................................................................................... 10
F. The power to grant a stay and whether there was an error of law.................................... 11
G. What should happen now?...................................................................................................... 14
G.1Should I refer the matter back to the Tribunal?.............................................................. 14
G.2Should there be a stay?....................................................................................................... 16
H. Disposition.................................................................................................................................. 19
HIS HONOUR:
A. Overview
Dr Fidge, the applicant, is a general practitioner who practises in Wangaratta in regional Victoria. As well as having the usual undergraduate medical qualifications, he recently completed a Masters of Medicine (Pain Management) at the University of Sydney. Among his patients are people complaining of chronic pain, people on opioid diversion programs, and people pursuing voluntary assisted dying. The Medical Board of Australia (‘the Board’) has imposed restrictions on his practice that, at present, prevent him from prescribing certain medications to his patients. Its power to do so is conferred by Part 8 of the Health Practitioner Regulation National Law (‘the National Law’).[1] Dr Fidge applied to the Victorian Civil and Administrative Appeals Tribunal (‘the Tribunal’) to have the Board’s decision reviewed.[2] He also applied to the Tribunal for an order that the conditions imposed be stayed pending the hearing of the application for review.[3] The Tribunal refused that application. He has now applied for leave to appeal to this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) against the Tribunal’s refusal to grant a stay. The issues that arise are whether the Tribunal erred in law in refusing his application for a stay and, if so, what now should be done.
B. Background
[1]The National Law is contained in schedule 1 to the Health Practitioner Regulation National Law Act 2009 of Queensland. It is adopted as the relevant law in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009.
[2]Section 199 of the National Law gives a right of appeal to a ‘responsible tribunal’. Section 6 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) provides that the Victorian Civil and Administrative Tribunal is the ‘responsible tribunal’ in Victoria for the purpose of the National Law.
[3]The Tribunal’s power to make an order staying the operation of a decision that is the subject of a proceeding for review is given by s 50(3) of the VCAT Act.
On 28 May 2021, Dr Fidge called the emergency department at the Wangaratta Hospital to indicate that one of his patients had called him following a ‘particularly distressing period’ and had asked that he prescribe further diazepam and that he had declined to do so. He indicated that his patient might attend at the emergency department. Dr Fidge had been prescribing medication for her including oxycodone, diazepam and Mersyndol Forte (a painkiller that includes codeine). The emergency department doctor indicated that the hospital also would not prescribe any further diazepam. It seems that the patient did not, ultimately, attend at the emergency department on that day.[4] Dr Fidge and the emergency department doctor discussed more generally how best she should be treated. The emergency department doctor claims that Dr Fidge told her that:
[4]As best I have been able to ascertain, there is no emergency department attendance summary relating to an attendance on 28 May 2021. There are emergency department attendance summaries for 21 and 23 May 2021.
(a) The patient was a regular opioid and benzodiazepine user whom he had been treating for mental illness related to sexual assault as a child;
(b) The patient had called Dr Fidge saying that she was out of her Valium (diazepam) and wanted some more. Dr Fidge wanted to stop prescribing for her, and told her to go to the hospital for some diazepam out of a concern that she might have withdrawal seizures;
(c) Dr Fidge thought that putting the patient on a staged supply of significantly less than a fortnight’s worth at a time was not possible or convenient for the pharmacy. (In submissions to me, Dr Fidge stated that prescribing the medication sufficient only for approximately two weeks, rather than a month, was a form of staged supply. He also said, although there was no evidence to this effect, that he later put the patient on a program where she had to collect the medication each day or two days.)
The doctor said she told Dr Fidge that she thought that the patient was clearly dependent on ‘drugs of addiction’ and that Dr Fidge was enabling her behaviour. The doctor reviewed the prescription history of the patient and, on 3 June 2021, the executive director at the Wangaratta Hospital notified the Australian Health Practitioner Registration Agency (‘AHPRA’) of the Hospital’s concern of Dr Fidge’s treatment of this patient. AHPRA decided to investigate, and on 9 July 2021 notified Dr Fidge of its intention to do so. The investigation was to consider:
(a) Whether the nature and level of his prescribing of Schedule 4 and/or Schedule 8 medications[5] to that patient was appropriate in the circumstances; and
(b) Whether his prescription of medications to that patient was in accordance with relevant legislative approval and authorities.
[5]These are references to drugs contained in schedules to the Poisons Standard June 2021, an instrument signed by the delegate of the Secretary to the Department of Health pursuant to para 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth), the prescription of which is controlled by the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Codeine is a Schedule 4 drug in some forms and otherwise a Schedule 8 drug. Diazepam is a Schedule 4 drug. Oxycodone is a Schedule 8 drug.
Some 18 months later, on 12 December 2022, following its investigation, the Board notified Dr Fidge of its decision:
(a) To caution him ‘in relation to his inappropriate prescribing practices for opioid medication with respect to a patient, specifically that he continued to prescribe after his Schedule 8 treatment permit had expired’; and
(b) To impose a number of conditions on his registration. The conditions prevent Dr Fidge from prescribing Schedule 4 drugs of dependence or Schedule 8 medications until he has completed some further education and has submitted to an audit of his practice.
The further education is to be a program, including a ‘reflective practice report’, in relation to pharmacological management of chronic pain, the obligations, regulations and medico-legal and ethical responsibilities relating to the prescribing of Schedule 4 drugs of dependence and Schedule 8 medications, and the recognition of drug dependency and drug-seeking patients. The education program has to be designed and approved and to consist of a minimum of 12 hours over a three month period. The decision took effect immediately. The present state of affairs is that Dr Fidge has not undertaken the educative program, it has yet to be designed, and Dr Fidge remains unable to prescribe Schedule 4 drugs of dependence or Schedule 8 medications to his patients.
As noted above:
(a) Dr Fidge has applied to the Tribunal for a review of the decision to impose the conditions on his registration. That will be a review on the merits and the Tribunal will be constituted by at least three members, two of which will be medical professionals.[6] It will likely be heard in the second half of this year. The Tribunal will not be limited to the material that was uncovered in the investigation and will be entitled to receive any evidence that bears upon the decision that was taken by the Board;[7]
[6]Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1 cl 11AJ.
[7]Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656, 672 [96], 676 [119] (Weinberg and Harper JJA, Hargrave AJA).
(b) Dr Fidge also applied to the Tribunal to stay the operation of the Board’s decision until the hearing and determination of the review by the Tribunal. The Tribunal dismissed his application for a stay. Dr Fidge, as well as contending that the Board’s findings were wrong, said that he had many complex patients who depended on his care including with the prescription of medication, that it was dangerous or counterproductive for these persons suddenly to cease medication, and that there was little capacity in Wangaratta for other doctors to absorb his many patients even if they had the skills and desire to do so. His patients included some with chronic illnesses and some on opioid diversion programs. He also pointed out that he was the only practitioner in the area who practised (under licence) as a ‘coordinating medical practitioner’ for patients who were exploring voluntary assisted dying;
(c) Dr Fidge has now applied to me under s 148 of the VCAT Act for leave to appeal against the dismissal of his application for a stay of the Board’s decision. Any appeal is limited to an appeal on a question of law. The matter proceeded on the basis that any appeal, if leave were granted, would be heard and determined with the application for leave; and
(d) The issues that arise for consideration are whether the Tribunal erred in law when it refused the stay application, and if so whether I should myself determine the application for a stay or refer that back to the Tribunal.
C.The Board’s decision, the issue of whether a permit was required, and the positions taken before the Tribunal
The Board cautioned Dr Fidge in the following terms:
The Medical Board of Australia cautions Dr Julian Fidge in relation to his inappropriate prescribing practices for opioid medication with respect to a patient, specifically that he continued to prescribe after his Schedule 8 treatment permit had expired.
There had, in communications between the Board and Dr Fidge, been a dispute as to whether or not a permit was required for the medication that Dr Fidge had prescribed to the patient. In the reasons that it provided with its decision, the Board said:
[2]... information ... shows ... that you had permits to prescribe … oxycodone … and that you continued to prescribe oxycodone to [the patient] between 1 September 2020 and 30 May 2021 when no permit was in place.
...
[7]The evidence establishes that your performance has departed from accepted professional standards by failing to appropriately prescribe Schedule 4 and Schedule 8 medication to [the patient].
...
[11]You have submitted that you cannot be cautioned for prescribing without a permit when a permit was not required. We have had regard to further information provided by Medicines and Poisons Regulation about the Public Health Emergency Orders in place at the time, which shows that a permit was not required from 26 March 2020 to 27 March 2021. We note you did not have a permit to prescribe oxycodone between 28 March 2021 and 30 May 2021, and prescribed Oxycontin 20mg and 40mg controlled-release tablets for [the patient] on 5 occasions during this period. It therefore remains appropriate to caution you in relation to your inappropriate prescribing practices for opioid medication, and we encourage you to further reflect on his prescribing to [the patient] so to improve your practice into the future.
The reference to the period between 26 March 2020 and 27 March 2021 was a reference to special arrangements made as a result of the COVID-19 pandemic, and may be ignored for present purposes. The dispute became whether, after 27 March 2021, Dr Fidge needed a permit to provide the prescriptions that he did for the patient.
The terms in which the caution is expressed reveals the concern of the Board that Dr Fidge had prescribed medication at a time after his permit to do so had expired. Although the Board did not limit its arguments, as I will discuss below, that concern was also central in the argument put to the Tribunal when it resisted the stay application.
Part II of the Drugs, Poisons and Controlled Substances Act 1981 requires a medical practitioner to have a permit for prescriptions of ‘Schedule 8 poisons’ if they are for a drug-dependent person or to last for a continuous period of greater than eight weeks.[8] It was common ground that oxycodone was a Schedule 8 poison and that, putting to one side whether or not Dr Fidge’s patient was a drug-dependent person, she had been using oxycodone for more than eight weeks. Sections 34D and 35A permit the Secretary to the Department of Health (‘the Department’) to provide exceptions by notice published in the Government Gazette for persons who are not drug-dependent but who are to be prescribed a Schedule 8 drug for more than 8 weeks. On 26 March 2020 a notice was published in the Gazette, expressed to take effect on 2 April 2020, in the following terms:
[8]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 34.
Section 34D of the Act authorises a registered medical practitioner… to… prescribe a Schedule 8 poison to or for a person who is not a drug-dependent person during a continuous period greater than 8 weeks without a Schedule 8 permit, if the … prescription of that Schedule 8 poison is to treat that person in the circumstances and in accordance with the respective applicable conditions as specified in the table below:
Circumstances
Applicable Conditions
...
...
5. Medical conditions where an opioid analgesic is to be administered, supplied or prescribed.
In relation to circumstance 5 —
(a) the Schedule 8 poison(s) administered, supplied or prescribed is one or more of the following:
(i) hydromorphone oral
(ii) morphine oral;
(iii) oxycodone oral or suppository;
(iv) tapentadol oral;
(v) buprenorphine patch;
(vi) fentanyl patch; and
(b) the total daily dose of opioid(s) does not exceed 100 milligrams in morphine equivalence.
It was common ground that:
(a) Dr Fidge had prescribed, without a permit:
·Zolpidem tartrate (also known as Stilnox), a sleeping tablet, to be taken at night if required;
·Mersyndol Forte (consisting of paracetamol, codeine phosphate hemihydrate and doxylamine succinate), with up to six tablets a day. Each tablet of this medication included 30mg of codeine phosphate;
·Oxycodone, with 20mg to be taken in the morning and 40mg to be taken at night; and
·Diazepam, with 5mg to be taken five times a day.
(b) The daily dose of 60mg of oxycodone prescribed is equivalent to 90mg of morphine, and the daily dose of codeine in the prescribed Mersyndol Forte is equivalent to 22.5mg of morphine, or, at least, if added to the oxycodone, results in a daily dose that exceeds 100mg of morphine equivalence.
Prior to the Board making its decision, there had not been an exchange between the Board and Dr Fidge that descended to the detail as to why it was said that a permit was or was not required: the Board asserted that one was required, and Dr Fidge disputed that this was the case. Indeed, the parties’ arguments were not properly ventilated until the hearing of Dr Fidge’s application in the Tribunal for a stay of the Board’s decision pending the outcome of his application for review by the Tribunal. At the stay application, the Board contended that it was clear that Dr Fidge had prescribed medication without a permit in circumstances where a permit was required. The Board contended that it should be, and Dr Fidge contended that it should not be. The Board stated that it did not then contend that the patient was a ‘drug dependent person’ (while reserving its rights to make such a contention at a future time); the Board relied, before the Tribunal, only on the morphine equivalence dose as the reason for which Dr Fidge required a permit to prescribe what he did. It emerged that there was a difference of opinion on whether the morphine dose equivalence of the codeine in the Mersyndol Forte should be added to the oxycodone when determining whether the daily dose of opioids exceeded 100mg of morphine equivalence.
The central role of the Board’s contention that Dr Fidge had prescribed without a permit due to the morphine equivalence of his prescriptions is apparent from the following passages from the Board’s oral argument (these are selected from the opening and the final address, and some obvious errors in the transcript have been corrected):
The key phrase there is that the Board or here the Tribunal at the final hearing will reasonably believe that the way that Dr Fidge practises as a health practitioner ... or Dr Fidge’s professional conduct is or may be unsatisfactory. That is a low threshold. It is not the balance of probabilities. There just needs to be proven objective circumstances sufficient to justify the belief and the question here at the final hearing would of course be whether Dr Fidge was prescribing schedule 8 medications without a permit, when a permit was required.
...
So the focus here is on the fifth exception at the bottom of that page, for medical conditions where an opioid analgesic is to be prescribed, and we don’t take any issue today as to whether that condition is met and we also don’t take any issue today about whether [the patient] was a drug-dependent person to whom this exception applied.
I do wish to put on the record, to preserve the Board’s position, though, that that is an issue that may be taken up in a final hearing but it’s not necessary to deal with that today.
...
... It is the second condition that is the issue here— that the total daily dose of opioids — I’ll just pause there to note it’s not the total daily dose of the schedule 8 poisons prescribed, but it’s the total daily dose of opioids does not exceed 100 milligrams of morphine equivalence.
So that is the exception that if it’s met, Dr Fidge would have been able to prescribe to [the patient] without a permit. But the circumstances and conditions that needed to be met were relevantly that the total daily dose of opioids did not exceed 100 milligrams in morphine equivalence.
...
The milligrams written there indicate that the codeine phosphate of that drug was 30 milligrams. That becomes important because that codeine phosphate has a morphine equivalence that needs to be added to the Oxycodone to determine whether the total amount of opioids per day is over 100 milligrams.
...
... But what has not been included in Dr Fidge’s calculation is the Mersyndol Forte containing codeine, but that also was on opioid and the conversion factors set out in the table that Dr Fidge has provided, the equivalent of six tablets per day is a further amount of codeine-morphine equivalence such the total morphine equivalence comes out to 113.4 milligrams per day.
...
... So that is the primary basis upon which, we say, there is no serious question to be tried here about whether permits were needed. It’s a matter of maths, adding up the active ingredients in the prescriptions that [the patient] was given ...
...
The complete lack of insight shown by Dr Fidge into whether the permit was required for [the patient] underscores the position that there is a need for further education ...
...
But there is a gap in the reality between what might theoretically have been studied and the actual understanding of permits that has been displayed through the way that [the patient] was treated, and indeed before the tribunal today, instead (indistinct) maintaining that no permit is required despite the Board’s position that the total amount of opioids comes to over 100 milligrams per day.
In the course of the argument before the Tribunal, Dr Fidge showed the Tribunal a webpage that was operated by the Department that doctors used to obtain permits. That webpage relevantly included the following:
Schedule 8 permits are no longer required if the patient is not drug-dependent and one of the scenarios below are applicable ...:
Opioid analgesics
·For the treatment of medical conditions where an opioid analgesic is required, provided the total daily dose of the following opioid(s) does not exceed 100mg in morphine equivalent dose (MED):
oHYDROMORPHONE oral, max. dose 20mg daily
oMORPHINE oral or suppository, max. dose 100mg daily
oOXYCODONE oral or suppository, max. dose 65 mg daily
oTAPENTADOL oral, max. dose 300mg daily.
oBUPRENORPHINE patch, max. dose 40 mcg/hr weekly
oFENTANYL patch, max. dose 25mcg/hr every three days
To calculated your patient’s total morphine equivalent dosage (MED), please download Opioid Tapering Calculator.[9]
[9]Emphasis in original.
Dr Fidge contended that when the Gazette is read correctly, a permit is only required if the amount of oxycodone in the listed drugs exceeds 100mg in morphine equivalence, and that, were there any doubt, the Department’s webpage, set out above, put the matter beyond sensible dispute. Dr Fidge expressed to me the view that there was a medical rationale for excluding ‘weak opioids’ like codeine from the calculation of morphine equivalent dose.
D. The Tribunal’s treatment of the permit issue
The Tribunal did not resolve the issue of construction between the parties, but contented itself with a finding that there was a real issue to be tried on that point. Although the Tribunal did note that the so-called permit issue was not the only issue of concern, it exercised its discretion on the stay application in circumstances where:
(a) the Board was contending that the caution and the associated conditions were appropriate because, inter alia, Dr Fidge had prescribed a level of medication that required a permit because of its morphine equivalent dose and Dr Fidge did not accept (and had no insight into) this simple fact;
(b) the Board would, it would appear, also be making those contentions when the application for merits review came on for hearing; and
(c) the Board was not then contending that the patient was drug-dependent and that a permit was required for that reason.
E. The Board’s current position
Between the hearing before the Tribunal and the hearing before me, the Board has changed its position. This is an observation, not a criticism. Indeed, the Board is to be commended for its frankness. Before me, the Board stated that it would not be contending that Dr Fidge needed a permit for the prescriptions he made on the grounds that the morphine-equivalent dosage exceeded the amount set out in the gazetted exemption. Rather, it would be contending that Dr Fidge needed a permit because the patient was drug-dependent.
Although the reason for the change in position does not matter, I assume that it came about because the webpage suggested that the codeine in the Mersyndol Forte should not be taken into account in determining the morphine equivalent dose and so, according to the information on the webpage, Dr Fidge did not require a permit for his prescription unless his patient was a drug-dependent person. The contention that Dr Fidge had ignored the permit system and had no insight into its requirements became unsustainable.
F. The power to grant a stay and whether there was an error of law
Section 50(3) of the VCAT Act gives the Tribunal the power to stay the operation of a decision that is the subject of a proceeding for review. The Act itself does not set out the criteria to be applied. It is generally accepted that the ‘dominant principle’ is whether or not the failure to grant a stay would render the application for review nugatory.[10] It is also relevant to consider whether there is a serious question to be tried in the review, whether any party will suffer prejudice if a stay is or is not granted, and the public interest. It calls for the exercise of a broad discretion having regard to the need to act in the interests of justice in the circumstances. Further, the decision of the Board must of course be given weight.
[10]Bell & Eager v Liquor Licensing Victoria & Swapnil [2000] VCAT 214, [12].
Dr Fidge does not contend that the Tribunal member erred in the sense that he misdescribed his task or that he misdirected himself. He contends instead that the failure to grant the stay was a decision that was not reasonably open. He contends that the Board’s findings were clearly wrong, that the imposition of the conditions was clearly unreasonable, and, having regard to those matters and the interests of justice and in particular the interests of those who depend on him for treatment, the only reasonable option open to the Tribunal member was to grant his application for a stay. It was part of his submission that the Board’s finding that he had prescribed the relevant medications without a permit when a permit was required was obviously flawed and would not be sustained at the final hearing.
The issue that concerns me is that:
(a) The Board’s decision to caution Dr Fidge and to impose the conditions on his licence that it did resulted, at least to a significant extent, from its conclusion that Dr Fidge had prescribed the morphine-equivalent dosage of drugs without a permit when a permit was required, and its related conclusion that Dr Fidge misunderstood and needed to be re-educated about the proper use of the permit system;
(b) Although the Board formed the view that Dr Fidge’s prescribing was ‘incongruent’ with his patient’s medical conditions and that he prescribed ‘excessive’ diazepam, the Board has not concluded that the patient was a ‘drug dependent person’, albeit that it does intend to seek to establish that fact in the review hearing;[11] and
[11]Dr Fidge has indicated that he may submit that it is not open for it do to. It is not necessary for me to determine this point.
(c) As noted above, the Tribunal, when it was deciding whether or not to grant a stay, was doing so in circumstances where the Board:
(i) was contending that Dr Fidge’s caution and the associated conditions were appropriate because, inter alia, he had prescribed a level of medication that required a permit and that Dr Fidge did not accept this simple fact, and that is what would be contended when the application for merits review came on for hearing; and
(ii) was not then contending that the patient was drug-dependent and that a permit was required for that reason.
The true position, it now seems, based on the material and submissions put to me (and these provisional views are not intended to bind the Tribunal in the merits review), is that:
(a) probably, if the Department’s website were the guide, the level of prescription medication did not of itself require Dr Fidge to have a permit;
(b) probably, Dr Fidge has a good understanding of the permit system or at least when the Department’s website requires him to have a permit; and
(c) the real issue that will arise in the merits review is whether Dr Fidge’s prescription or treatment of the patient warranted censure or justified the imposition of conditions on the grounds that she was drug-dependent or that he otherwise failed to provide her with proper care. Although the Board formed the view that Dr Fidge’s prescribing was ‘incongruent’ with his patient’s medical conditions and that he prescribed ‘excessive’ diazepam, the Board has not concluded that the patient was a ‘drug dependent person’.
The situation, then, if a stay is not granted, is that conditions that have been imposed to a significant extent as a result of one process of reasoning will remain in place until their appropriateness is assessed on the basis of another (albeit to some extent overlapping) process of reasoning.
A lawful exercise of the discretion on the application for a stay would have required the Tribunal member to have regard to the facts that:
(a) Although the conditions had been imposed at least in part on the basis that Dr Fidge had prescribed at a level that of itself required a permit, that was no longer contended to be the case, and indeed it was accepted (or likely) that the amounts prescribed probably did not of themselves require a permit. The issue as to whether a permit was required instead would likely turn on whether the patient was drug-dependent. There is material that suggests that the patient is or has in the past been drug-dependent, but Dr Fidge contends that she was not drug-dependent as that phrase is properly to be understood.[12] The Board had not made a formal finding on whether the patient was drug-dependent, but whether she was is probably a matter the Tribunal will have to decide in due course when the application for review is determined; and
(b) Although the conditions had been imposed at least in part on the basis that Dr Fidge seemed not to understand how the permit system operated, that was likely not the case and indeed there was a good reason to approach the matter on the basis that Dr Fidge had or might have had an honest belief based on reasonable grounds that the level of medication prescribed did not trigger the need for a permit.
[12]As I understood it, there is a distinction between someone who depends on drugs to alleviate their pain or mental state or to promote their health generally, and those that are ‘drug-dependent’ in the sense that they have some form of substance abuse disorder.
The Tribunal did not exercise its discretion having regard to those matters. In these circumstances, I conclude that the Tribunal member’s discretion miscarried.
I am conscious that the Tribunal member cannot be criticised for not approaching the matter on this basis because the point has only emerged since the Tribunal member made his decision. Often, a party will not be permitted to contend for an error on appeal when that party has failed to make that argument below. That, however, is not a principle that should apply in this case because the point has arisen as a result of a change of position on the part of the Board following the earlier decision of the Tribunal member. I repeat that I am not critical of the Board for changing its position. Dr Fidge took a somewhat obstructive attitude to the Board’s investigation and the first time that the parties really explored each other’s position was when the matter was being argued before the Tribunal member. If anything, the Board is to be commended for the frank way it acknowledged in the application before me that it had changed its argument in this respect. Nonetheless, the dismissal of the application for a stay should be set aside.
G. What should happen now?
G.1 Should I refer the matter back to the Tribunal?
Section 148(1) of the VCAT Act gives a right of appeal on a question of law from an order of the Tribunal. Section 148(7) provides that this Court may make:
(a) an order affirming, varying or setting aside the order of the Tribunal (s 148(7)(a));
(b) an order ‘that the Tribunal could have made in the proceeding’ (s 148(7)(b));
(c) an order remitting the matter to be reheard by the Tribunal (s 148(7)(c)); and
(d) ‘any other order the court thinks appropriate’ (s 148(7)(d)).
The Board submitted, relying on the High Court decision of Osland v Secretary, Department of Justice (No 2),[13] that if I found an error of law I was obliged to remit the application for a stay to the Tribunal for it to re-decide that application unless I were satisfied that there was only one decision reasonably open. I do not agree that Osland v Secretary, Department of Justice (No 2) stands for that proposition. In that case, the Tribunal had determined under freedom of information legislation that the public interest required the release of documents that were otherwise privileged. The Court of Appeal set that order aside. The High Court set aside the Court of Appeal’s order, and remitted the matter to the Court of Appeal for it to decide whether, having regard to the content of the documents, the Tribunal’s conclusion was open to it (which was a question of law). The Court of Appeal concluded that the public interest did not require the release of the documents. On a second appeal to the High Court, the High Court found that the Court of Appeal had erred by determining for itself that the public interest did not require the production of the documents, rather than determining whether it was open to the Tribunal to have concluded that the public interest did require the production of the documents. The Court of Appeal erred, the High Court said, by proceeding straight to the question of what order it thought should be made without first deciding whether there was an error of law with the order that was made. That is the context in which the High Court stated that the power given to the Court in s 148(7)(b) to make an order that the Tribunal could have made should be not seen as enlarging the scope of an appeal beyond that provided for in s 148(1) of the VCAT Act where the appeal is limited to an appeal on a question of law. Once an error of law was found, French CJ, Gummow and Bell JJ only said that a question involving considerations of public interest should be remitted rather than decided ‘in the ordinary case’,[14] and otherwise referred without criticism to another passage where it was stated that the Court of Appeal was not obliged then to remit the matter to the Tribunal.[15] Equally, a statement by Hayne and Kiefel JJ that ‘the Court of Appeal could not assume the function of the Tribunal and determine for itself whether the public interest required disclosure’[16] must be seen in context. Elsewhere, their Honours said:
The power to make [an order that the Tribunal could have made] or the other orders listed in s 148(7), arises only following review of the Tribunal’s decision for legal error. Section 148(7) does not operate to expand the jurisdiction given by s 148(1)(a). Although expressed in wide language, the powers given by s 148(7) are only to be exercised as a remedial consequence of dealing with an error of law.[17]
[13](2010) 241 CLR 320.
[14]Ibid 332-333 [20].
[15]Ibid 336-337 [28]. See also the final sentence at 338-339 [33].
[16]Ibid 351 [73].
[17]Ibid 353 [78].
Given that I have concluded that there was an error of law below, it is open to me to decide what order should be made, rather than to remit the matter to the Tribunal. The Tribunal that heard the stay application was constituted by a Senior Member, and not a by a panel that included medically trained members (as will be the case when the merits application is heard). Accordingly, the public interest that applies in appeals from merits reviews that the decision be made by medically-trained persons does not apply to the question of whether a stay should be granted. Also, the decision is an interlocutory decision that needs to be made promptly and remitting the application to the Tribunal would cause further delays. For these reasons, I consider that the interests of justice are such that I should now make the order that I consider should be made on the stay application, rather than remit that application to the Tribunal.
G.2 Should there be a stay?
As stated above, the power to grant a stay is given by s 50(3) of the VCAT Act. The Act itself does not set out the criteria by which the discretion is to be exercised. However, it is relevant if the failure to grant a stay would render the appeal nugatory. That said, the discretion is to be exercised, in all the circumstances, having regard to the interests of the public as well as to the interests of the practitioner.[18]
[18]See generally Shvetsova v Medical Board of Australia [2018] VCAT 867 and the cases referred to in that decision.
Dr Fidge initially indicated that he sought a stay until either the expiration of six months or the hearing of the application for review, whichever happened first, on the basis that he would use the time to find other people to take over the care of his patients. He then offered to undertake to the Court, if a stay were granted:
(a) Not to prescribe Schedule 4 drugs of dependence or Schedule 8 drugs without first consulting with the Board or another practitioner or appropriate specialist about the appropriateness of that prescription;
(b) Not to prescribe any medication for any person engaged in the voluntary assisted dying program other than in accordance with permits obtained for that purpose; and
(c) Not to prescribe opioid replacement treatment other than in accordance with permits obtained for that purpose.
Dr Fidge is a busy general practitioner in regional Victoria with a recent post-graduate qualification from a reputable university in the treatment of chronic pain. The conditions imposed are absolute and do not attempt to ‘carve out’, as examples, prescriptions that are provided pursuant to a permit or that are prescribed as part of an opioid replacement or an approved voluntary assisted dying program. The conditions as presently imposed would also prevent Dr Fidge from prescribing Schedule 4 or Schedule 8 drugs in circumstances where their prescription would be entirely uncontroversial such as to a person who has suffered an acute orthopaedic injury.
The Board has considered only Dr Fidge’s treatment of this one patient. She is, it seems, someone with significant emotional problems and who complains of chronic pain and her treatment would not be straightforward. Although there is an issue that the Tribunal will have to determine as to the way she has been treated by Dr Fidge, there is no material that suggests that she has suffered any immediate ill effects from the medication prescribed such as an overdose. I note that more than 18 months passed between the notification to AHPRA and the Board’s findings and imposition of conditions shortly before Christmas last year, which suggests that there is no compelling urgency to this particular case, or is at least consistent with that conclusion. This is not to say, however, that there is not a real issue as to whether Dr Fidge’s treatment of the patient has been inappropriate.
Importantly, as the discussion in Part F above demonstrates, the conditions have been imposed in part as a result of an approach by the Board that it no longer intends to pursue. The Tribunal, if it is to affirm the Board’s decision, may have to conclude that Dr Fidge’s patient is a drug-dependent person, and the Board has not yet made a formal finding to that effect.
Dr Fidge submitted that because the conditions required him to engage in an education program that lasts for three months, but the Tribunal review hearing would not be heard until at least the second half of this year, he was put in a difficult position and the stay should be granted to prevent his appeal from being rendered nugatory. There is, of course, some truth to this. If he were now to engage now with the education required, then the review hearing would be rendered nugatory. But although the condition requires Dr Fidge to ‘nominate’ a program to undertake within 14 days, he has not done so. In the meantime, he is precluded from prescribing Schedule 4 or 8 drugs. Dr Fidge told me that, given his age, experience and education, he considers the education program condition ‘deliberately humiliating’ and that he would sooner never prescribe the relevant drugs again than submit to the education program. If Dr Fidge is successful and the Tribunal determines that the conditions are not warranted, he will then never have to engage in the education program. In this way, his appeal would not be rendered entirely nugatory, although he will have been subjected in the meantime to restrictions later found to be unwarranted.
On balance, I am of the view that it is appropriate to grant the application for a stay. On the material presently available, in my judgement the risk to the public of granting the stay is outweighed by the other considerations referred to.
I have not overlooked the fact that Dr Fidge did not assist the Board in its investigation. For example, he refused to provide a copy of the clinical notes of his patient on the grounds that they may ‘incriminate’ him. At the same time, however, he advised the Board that he had the files ready and would provide them if the Board exercised its power to obtain a warrant for their production. Possibly, Dr Fidge misunderstood the nature of a claim to privilege against self-incrimination and the implications of his failure to provide his clinical notes and of his claiming of the privilege. In reality, it seems that he refused to provide his files not because he had formed a view that they would incriminate him but because he did not want to make the Board’s job easy and he was concerned that the Board would look through his files with an eye to finding some reason unfairly to criticise him. He also seems to have had the view that the Board could not draw inferences from his failure to provide his notes on this basis. It is not necessary for me to decide whether his refusal to produce his notes (without a warrant being obtained) was valid or whether an inference may be drawn against him for refusing to do so. Ultimately, the fact that Dr Fidge took an obstructive view towards the investigation and thus may be seen as partly contributing to the late emergence of the issue of the permits is insufficient reason not to stay the Board’s decision.
Nothing in these reasons is intended to preclude the Tribunal, if persuaded to do so in circumstances that come to eventuate, from lifting the stay.
H. Disposition
I will, on receipt of the undertakings from Dr Fidge discussed:
(a) grant leave to appeal;
(b) allow the appeal;
(c) set aside paragraph 1 of the Order made by the Tribunal in proceeding Z951/2022 on 13 January 2023; and in lieu thereof
(d) order that the operation of the Board’s decision made 7 December 2022, in so far as it imposed conditions on Dr Fidge’s general and specialist registration, be stayed pending the hearing of the review or further order by the Tribunal.
I will hear the parties on the form of order and on the question of costs.
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