Harirchian v Health Ombudsman (No 3)
[2020] QCAT 489
•18 December 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Harirchian v Health Ombudsman (No 3) [2020] QCAT 489
PARTIES: RAMIN HARIRCHIAN
(applicant)
v
THE HEALTH OMBUDSMAN (respondent)
APPLICATION NO/S:
OCR149-20
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
18 December 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC,
Assisted by:
Dr D Khursandi,
Dr D Bodner,
Ms A Blair.ORDERS: 1. The decision of the respondent of 1 May 2020 suspending the registration of the applicant is set aside.
2. The Tribunal imposes on the registration of the applicant the conditions set out in the schedule to the decision of the Tribunal.
3. If the applicant seeks of costs of the proceeding, he is to file and serve submissions in writing in support of an order for costs on or before 8 February 2021.
4. If such submissions are served on the respondent, the respondent is to file and serve its submissions in response on or before 22 February 2021.
5. If the issue of costs is contentious, it will be decided by the Tribunal on the papers after all submissions have been filed.
6. If no such submissions are filed, the parties are to bear their own costs of the proceeding.
CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – immediate registration action – review by Tribunal – conviction of criminal offences – suspension imposed in the public interest – whether action taken least onerous to address the public interest – conditions substituted.
REPRESENTATION:
Applicant:
J R Jones instructed by Avant Law
Respondent:
C Templeton instructed by the Office of the Health Ombudsman
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
In this matter I have published reasons for setting aside the decision of the respondent, and substituting a set of conditions, although I invited further submissions on the wording of the actual conditions, given that, at the hearing, the substitute conditions were provided as a set of agreed conditions if the original decision was set aside: [2020] QCAT 414.
The parties have now made submissions, with the applicant proposing a set of conditions, and the respondent proposing an amended version of the applicant’s conditions. Submissions were made by the parties, in more detail on the part of the respondent.
I have considered those submissions. The points raised by the parties can be dealt with as follows:
I agree with the respondent’s submission about the proposed amendment to condition 1. This is better handled by inserting a definition.
I agree that condition 10(d) should be removed.
I note the change proposed in the earlier reasons to condition 13 has been accepted.
The respondent has sought to limit the requirement for a chaperone to a situation where the patient would not be able to act as an effective chaperone himself. I accept this proposal, which assists the applicant, although I propose a definition of “lacks capacity” which would apply fairly broadly, rather than just saying “such as a child”. Accordingly I accept the respondent’s condition 16, with “such as a child” omitted.
With regard to condition 17, the respondent submitted that the condition should apply whenever a female was in fact present in the premises. The situations that I am concerned about are going to be those where the presence of the female is going to be obvious. I do not think there is reason to be concerned if the female is in another part of the house, and never appears; for example, a child in her room. Subject to that, I accept the respondent’s version, again with “such as a child” omitted.
The respondent proposed Condition 18, which I regard as reasonable enough, since there needs to be some system to supervise this. But three days is a bit tight, and I will substitute five days.
I accept the definition of chaperone, except that I see no reason to require someone over 21 rather than over 18. At both ages the level of practical maturity can vary a great deal, and the use of 21 strikes me as somewhat old-fashioned. A chaperone’s function is not going to be difficult given that the applicant will not be actually treating a female. The respondent’s argument is unconvincing, and the situation referenced in Colagrande was quite different, where the object was to get a mature practitioner, who would be able to assess expertly the examination and treatment.
I agree with the respondent’s proposed amendment to the definition of “contact with a patient”.
I have inserted a definition of “lacks capacity” as meaning “a person who is a child, or who, because of mental or physical frailty or disability, is not able effectively to act as a chaperone to any female present.” This specifies in appropriate detail just when a chaperone is required.
The definition of “female” raises the issue of a person who is a biological female but identifies and presents as a male. It may not be obvious that such person is a biological female, unless the applicant questions the patient, and I consider that the applicant should not be required to do that to all patients to exclude biological females. Besides, the patient may object to such questions. As well, treating as male a person who presents as male is more in keeping with contemporary notions of how such people should be treated, and how they would expect to be treated. In view of this, I omit the words “biological sex is that of a female, as well as all individuals whose” in the definition proposed by the parties. I should have raised the point earlier, but had overlooked that this definition was in the agreed conditions.
Accordingly the decision of the Tribunal is that:
1. The decision of the respondent of 1 May 2020 suspending the registration of the applicant is set aside.
2. The Tribunal imposes on the registration of the applicant the conditions set out in the schedule to the decision of the Tribunal.
3. If the applicant seeks of costs of the proceeding, he is to file and serve submissions in writing in support of an order for costs on or before 8 February 2021.
4. If such submissions are served on the respondent, the respondent is to file and serve its submissions in response on or before 22 February 2021.
5. If the issue of costs is contention, it will be decided by the Tribunal on the papers after all submissions have been filed.
6. If no such submissions are filed, the parties are to bear their own costs of the proceeding.
ANNEXURE A - CONDITIONS
Dr Ramin Harirchian - Registration Number: MED0001643707
Scope of practice
The practitioner must not have contact with female patients.
- The practitioner must only practise as a registered health practitioner at the approved practice locations published below:
The following are approved practice locations:
(a)Smart Clinics Chermside, Shop 212 Westfield Chermside, Queensland 4032; and
(b)Hello Home Doctor Service (After-Hours General Practitioner), Suite 14, Level 2 Tower A/1 Springfield Lakes Blvd, Springfield Lakes, Queensland 4300 (including various locations attended as part of this employment).
Prior to the practitioner returning to practise at the approved practice locations, the practitioner must notify the following parties of the conditions imposed on his registration:
(c)the Senior Medical Practitioner at the practice where the practitioner is approved to work; and
(d)the Chief Executive Officer at the practice where the practitioner is approved to work; and
(e)the General Manager of Operations at the practice where the practitioner is approved to work.
The practitioner must take all reasonable steps to ensure appointments are not scheduled for female patients.
The practitioner must maintain overall accountability for ensuring he does not see female patients.
Completion and submission of forms
Initial requirements
Within two (2) business days of the commencement of these conditions, the practitioner must provide acknowledgement to the Office of the Health Ombudsman, by completing and submitting the Practitioner acknowledgement form, that they understand the requirements of the gender restrictions as detailed in conditions 1 to 5.
Current employment
Prior to the practitioner returning to practice at the approved practice locations, the practitioner must complete and submit an Employer acknowledgement and consent form from all current employers providing consent as detailed on the form, and certifying that they have been provided with a copy of this Schedule of Conditions.
Prior to the practitioner returning to practise at the approved practice locations, the practitioner must provide to the office contact details of the persons nominated in condition 3 (a to c) and authorise those persons to provide information in response to requests from the office, by completing and submitting a Staff nomination and acknowledgement form for each nominee accepting the nomination and confirming they are aware of their roles as nominee.
If the persons holding the positions described in condition 3 (a to c) change at any time, the practitioner must notify the Office of the Health Ombudsman (the office) within five (5) business days and submit a new Staff nomination and acknowledgement form for each newly nominated person.
General
Within five (5) business days of the commencement of these conditions, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to release information form) to obtain the release of information relating to their professional practice and/or prescribing from:
a.the Department of Health, Queensland Government;
b.Services Australia;
c.Private Health Insurers.
New or other employment
Prior to commencing in any other employment or practice location the practitioner must complete and submit:
a.a Request for approval of employment and practice locations form to advise the Office of the Health Ombudsman of the details of the practice location where the practitioner proposes to provide a health service (practise) as a registered health practitioner, and to formally seek approval from the Health Ombudsman to practise at the proposed practice location;
b.an Employer acknowledgement and consent form from any prospective employer, providing consent as detailed on the form, and certifying that they have been provided with a copy of this Schedule of Conditions; and
c.a Staff nomination and acknowledgement form for each of the persons described in condition 3 (a to c)* at the proposed practice location to certify they have been provided with a copy of this Schedule of Conditions and ensure each of the nominated parties manage all patient bookings and have general oversight of booking staff to ensure female patients cannot make appointments with the practitioner.
*In the event the new employer does not have persons in the positions nominated in 3a to 3c of these conditions, then at least two (2) persons must be nominated who hold a position similar or higher to those positions referred to in 3a to 3c.
Other matters
Within five (5) business days of changing residential address, email address or contact telephone number, the practitioner must provide written notification to the Office of the Health Ombudsman of that change and provide new contact details.
The practitioner must immediately advise the Office of the Health Ombudsman if at any time he is charged with an indictable offence.
If, in the event of a medical emergency, the practitioner is unable to comply with a condition, any such incident must be notified to the Office of the Health Ombudsman within two (2) business days. For the purposes of these conditions, a medical emergency is an incident where it is not possible or reasonable to have a patient with a serious or life- threatening condition seen by another practitioner or transferred to the nearest hospital.
All costs associated with compliance with these conditions are at the practitioner’s own expense.
In circumstances where a female accompanies a patient (who lacks capacity) into the consulting room, where no other adult is in attendance, a chaperone must be present.
In circumstances where the practitioner is called to premises to treat a patient (who lacks capacity) and the practitioner knows a female is present at the premises, and no other adult is present at the premises, he must be accompanied by a chaperone.
The practitioner must provide to the Health Ombudsman the contact details of any person who has acted as a chaperone:
a.within 5 business days of the end of each calendar month, the contact details of each such person who has acted as a chaperone for that calendar months;
b.within 5 business days of any request made in writing by the Health Ombudsman, the contact details of each such person who has acted as a chaperone for the period requested by the Health Ombudsman.
DEFINITIONS
‘Chaperone’ means a person who:
(a) is aged 18 years or over;
(b) is not a family relation of the practitioner; and
(c) has provided to the practitioner, in advance of acting as a chaperone:
(i)consent in writing to be a chaperone;
(ii)in writing, his/her contact details, including full name, address, and telephone number; and
(iii)written consent to his/her contact details being provided to the Health Ombudsman.
‘Practise’ is defined as any role, whether remunerated or not, in which a practitioner uses their skills and knowledge in a health care industry, whether they are required to be a registered health practitioner or not. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of any health practitioner in a direct non-clinical relationship with a patient or client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the health care industry.
‘Practice location’ means any location where the practitioner provides a health service including any place where the practitioner:
(a)is self-employed
(b)shares premises with other registered or unregistered health practitioners
(c)is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement
(d)provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or
(e)provides professional services at the residential premises of a patient.
‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of an unregistered or registered health practitioner.
‘Communication device’ is defined as any hardware that transmits voice, video or text including those that transmit information via electronic booking applications.
‘Contact with female patients' includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device (including a telephone or video link used for the purposes of a telehealth service).
‘Female’ is defined as any individual whose gender identity or gender expression is that of a female.
‘Employer’ is defined as an entity that-
(a)employs the practitioner to provide health services; or
(b)engages the practitioner to provide health services under a contract for services; or
(c)operates a facility at which the practitioner provides health services; or
(d)the practitioner is providing services to or on behalf of, whether in an honorary capacity, as a volunteer or otherwise, and whether or not the practitioner receives payment from the entity for the services.
‘Employer’ therefore also includes co-owners, co-directors, contractors of service, and/or owners/operators of medical practices, hospitals and/or facilities where the practitioner provides a health service (even if there is no contractual relationship between the practitioner and the owner/operator).
‘Lacks capacity’ means a person who is a child, or who, because of mental or physical disability, is not able effectively to act as a chaperone to any female present.