Keys v Medical Board of Australia
[2013] QCAT 233
•21 May 2013
| CITATION: | Keys v Medical Board of Australia [2013] QCAT 233 |
| PARTIES: | Matthew Keys (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR148-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 29 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Margaret Turner Dr Reeza Adib Mr Murray Green |
| DELIVERED ON: | 21 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Conditions 2 and 3 imposed on the registration of Dr Matthew Keys, by order of the Health Practitioner Tribunal on 10 March 2009, as renewed by orders 2 and 3 of the decision of QCAT dated 15 June 2012, be removed. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – where the registrant was the subject of earlier disciplinary proceedings – where the registrant had conditions placed on his future registration – where the registrant sort review of the conditions remaining on his registration – whether the conditions should be removed Health (Drugs and Poisons) Regulation 1996 Keys v Medical Board of Australia [2012] QCAT 448, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dr Matthew Keys represented by Mr S McLeod instructed by Ashurst Solicitors |
| RESPONDENT: | Medical Board of Australia represented by Ms H Bowskill instructed by DLA Piper Solicitors |
REASONS FOR DECISION
This is a matter with some considerable history. In 2002, the then Health Practitioners Tribunal (‘HPT’) found that Dr Keys had engaged in unsatisfactory professional conduct as a medical practitioner. The basis for that finding was, primarily, that Dr Keys had admitted to the prescription and/or injection and supply of pethidine to his then wife without there being sufficient medical reason for doing so. This had occurred over a long period of time. It had been facilitated by his using fraudulent prescriptions and the names of innocent relatives and friends. He persisted in his conduct even after the Board became involved in investigating it.[1]
[1] Medical Board of Queensland v Keys [2002] QHPT 008 at [43].
The HPT cancelled Dr Keys’ registration and prohibited him from reapplying for registration for a period of five years from 8 May 2001. The HPT also set certain conditions that were required to be imposed on any further registration of Dr Keys. Those conditions included, as condition two, that he never apply to Queensland Health for reinstatement (either fully or partially) of his authority to prescribe any controlled drug.[2]
[2]Endorsements are governed by Chapter 1, Part 5 of the Health (Drugs and Poisons) Regulation 1996.
Condition three, as imposed by the HPT, was that Dr Keys was to submit the medical supervision of his own health care to an experienced general practitioner. The practitioner was to be selected by Dr Keys from a list of three provided by the Board. That general practitioner was to prescribe and monitor all medications, other than those prescribed by treating specialists. Dr Keys was required to keep the Board informed of the name of his treating general practitioner and to authorise that person to notify the Board of all medications prescribed; of any failure to attend for treatment or review; or of any significant change in his health status such as non-compliance with medication or treatment.
The reasons of the HPT concluded, at [48], with the following:
I accept the submission of the Board that the registrant may not apply for a review of the Tribunal’s decision to impose the above conditions for a period of three years from the date of this decision.
In determining to impose those conditions, the HPT was mindful of the purpose of disciplinary proceedings and disciplinary action being to protect the public; to uphold standards of practice within the health profession; and to maintain public confidence in the health professions.[3]
[3] HPT Reasons at [44] and s 123 of the Professional Standards Act.
The HPT found that not only did Dr Keys’ conduct fall short of the standard of medical practice expected by the public and his professional peers, it was also conduct which demonstrated a lack of insight into the practice of his profession.[4]
[4] HPT Reasons at [45].
The HPT imposed those conditions pursuant to s 241(2)(j)(ii) of the Health Practitioners (Professional Standards) Act 1999 (‘Professional Standards Act’). The effect of the conditions being imposed under that section was that, notwithstanding the Tribunal’s reference to review after three years in paragraph [48] of its reasons, the decision to impose the conditions could not be reviewed as it was not a decision prescribed to be reviewable by QCAT under s 337 of the Professional Standards Act.
In a decision of the Tribunal of 15 June 2012, her Honour Judge Kingham, Deputy President, found that had the HPT been aware that the Tribunal could not review conditions imposed under s 241(2)(j)(ii) of the Professional Standards Act, but could review orders made under s 241(2)(l), it would have recast the orders accordingly.[5]
[5] Keys v Medical Board of Australia [2012] QCAT 448 at [36].
In coming to that conclusion, her Honour resolved the apparent tension between the use of the words ‘never apply’ within condition two and his Honour Judge O’Brien’s acceptance, at [48], of the Board’s submission that Dr Keys may not apply for a review of the Tribunal’s decision to impose the conditions for three years, on the basis that the statements could be reconciled. Her Honour concluded that they could be read to mean that Dr Keys could never apply for reinstatement of his endorsement unless that restriction was successfully reviewed after three years.[6]
[6] Ibid at [13].
Having reached those conclusions, her Honour renewed the decision under s 134(2) of the Queensland Civil and Administrative Tribunal Act 2009, recasting the conditions formerly imposed by the HPT under s 241(2)(j)(ii) as orders under s 241(2)(l) of the Professional Standards Act.[7]
[7]Conditions 2 and 3 as imposed by the HPT became, respectively, orders 3 and 4 as set out in the Schedule to her Honour’s decision. For convenience, they are referred to throughout this decision as conditions 2 and 3.
These proceedings deal with Dr Keys substantive application to review those orders.
An application for a review of a Tribunal review decision, such as this, requires a statement from the registrant that he believes the decision is no longer appropriate and his reasons for holding that belief.[8] Those matters are addressed in Exhibit 2; a letter from Dr Keys’ solicitors to the solicitors for the Board dated 8 October 2012.
[8] Professional Standards Act, s 339(b).
Exhibit 2 expresses Dr Keys’ belief that the orders sought to be set aside are no longer appropriate in light of his training to become an intensivist specialist, the effluxion of time and the material which he had filed in support of his application.
The only power which Dr Keys seeks to have exercised by the Tribunal is the setting aside of the decision to the extent that it imposes the challenged orders.[9] The Board agrees that this would be the appropriate course for the Tribunal to take if it formed the view that those orders were no longer appropriate. The Board does not seek any change to the decision,[10] or any replacement of the decision set aside with another decision.[11]
[9] Professional Standards Act, s 345(1)(b).
[10] Professional Standards Act, s 345(1)(c).
[11] Professional Standards Act, s 345(1)(d).
Dr Keys applied for, and obtained, re-registration in 2006. From January 2007 until January 2008 he worked in emergency medicine at the Tweed Heads Hospital. He commenced as a resident and progressed to a registrar position.
In January 2008 he moved from accident and emergency to intensive care in the Tweed Heads Hospital. He held the position of registrar in intensive care there until July 2008 when he became a registrar in internal medicine at that hospital.
From February 2009 to July 2009 he was a locum registrar in the emergency department of the Calvary Hospital in the ACT.
From July 2009 to January 2010 he was a registrar in intensive care at Prince Charles Hospital, Brisbane.
From January 2010 to February 2011 he was a senior registrar in intensive care at the Royal Brisbane and Womens Hospital. He then worked as a senior registrar in intensive care at the Mater Hospital in Brisbane from February 2011 to February 2012.
From February 2012 to 23 August 2012 he was a senior registrar in intensive care at the Prince Charles Hospital in Brisbane. He resigned from that position on 23 August 2012.
By all accounts, Dr Keys has been an exemplary doctor and employee since his return to medicine.
He has been heavily involved in professional activities outside of his employment including serving on the Queensland and Medical Education and Training ICU Education Committee; The Australian and New Zealand College of Intensive Care Medicine Trainee Committee; and The Australian and New Zealand Intensive Care Society Education Committee. He has been appointed an Associate Lecturer for the University of Queensland, School of Medicine.
Of perhaps greatest significance for the purposes of these proceedings is that he has undertaken, with apparent success, training towards qualification as a specialist in intensive care medicine. To that end he has successfully completed the fellowship exam of the Australian and New Zealand College of Intensive Care Medicine. He did so at his first attempt.[12] He obtained a training position in intensive care medicine on the Queensland ICU Trainees Program.
[12]Exhibit NB1 to the Affidavit of Associate Professor Nikki Blackwell, filed 31 July 2012; Document No 7 in the Applicant’s List of Material Read (Exhibit 1).
Since January 2011 he has found himself in the position that he has completed that program to the extent that he is able to without the ability to prescribe Schedule 8 medications. This is the matter which lies at the heart of his present application.
A number of affidavits from eminently qualified intensive care specialists have been filed in support of Dr Keys’ application. In general terms, all of those persons deposed to Dr Keys’ good behaviour; his considerable abilities as a practitioner of intensive care medicine; his commitment to the profession; and the fact that the current restriction on his ability to prescribe Schedule 8 drugs prohibits him completing specialist training.
Each speaks in strong support of the removal of this restriction. None were required to be cross-examined on their views.
A couple of examples serve to illustrate the potential loss, not only to Dr Keys but also the community, should he not be able to go onto complete his specialist training as a consequence of the conditions remaining in place.
On 5 January 2010, Dr John Fraser, now Professor of Intensive Care Medicine, Eminent Staff Specialist at Prince Charles Hospital and Director of Intensive Care Services at St Andrews Hospital, wrote:
Without the ability to prescribe Schedule 8 medications, Matthew cannot work as an independent practitioner. If this condition is not lifted, I would suggest there is no point in Matthew finishing his training. This is sad, as he is a smart young man. There has been a substantial input into this training – from Matthew and his specialists. This effort would therefore have been wasted.
If Matthew is not allowed to prescribe S8 drugs in controlled situations, but continues to work in hospitals, there is a real possibility that this could result in patient harm, if another doctor is not available to administer S8 drugs to a patient in extremis.[13]
[13]Exhibit JF1 to the Affidavit of John Fraser filed 28 August 2012; Document 6 in the Applicant’s List of Material Read (Exhibit 1).
On 26 July 2012 Associate Professor Nikki Blackwell, Eminent Staff Specialist, Intensive Care Services at the Prince Charles Hospital, wrote:
Without this qualification, Dr Keys will never be able to practice as an Intensive Care Specialist, despite his manifest aptitude for such a position, and potential to become a leader in the future development of Intensive Care in Australasia. Were Dr Keys never to be able to achieve Specialist status this would represent a huge loss not only to our profession, but also to his future potential patients.[14]
[14] Exhibit NB1 to the Affidavit of Nikki Blackwell, supra.
In respect of Dr Keys’ commitment to the training of others, Associate Professor Blackwell commented:
Dr Keys is fully implicated in many other professional activities in the Intensive Care community at both state and national level. He has been actively involved in the training of new fellows with his positions on the Queensland Medical Education and Training Committee (2010 – 2011); the Australian & New Zealand Intensive Care Society Education Committee (2010 – Current); and the College of Intensive Care Medicine Trainee Committee (2011). He is also a member of the faculty at the Mater Hospital Critical Care Ultrasound training course. This level of commitment to professional activities is usually only seen in our most highly achieving and functioning trainees who go on to assume key lead roles in the development of our speciality.
In a similar vain, Dr Marc Ziegenfuss, Director, Adult Intensive Care Services, at the Prince Charles Hospital, wrote on 13 July 2012:
Matthew has embraced multiple non-clinical portfolios as he has increased in seniority with respect to his medical career, of note, is that Matthew works both on a state and national level on educational committees and is an active teacher both at university and college level training new junior doctors to become specialists. He has shown an aptitude for this and done exceptionally well at this task.[15]
[15]Exhibit MZ1 to the Affidavit of Marc Ziegenfuss filed 28 August 2012; Document 9 in the Applicant’s List of Material Read (Exhibit 1).
In light of these observations, it would seem to border upon the perverse if one who has demonstrated such a commitment to the training of other specialists was himself unable to join their ranks.
Dr Keys personal circumstances have also improved markedly in the years which have elapsed since the cancellation of his registration.
His general practitioner since August 2009, Dr Steve Hambleton, reports that Dr Keys is currently medically and psychologically well, with good insight into his illness in the past and the gravity of his past errors.[16]
[16]Exhibit SH1 to the Affidavit of Steve Hambleton filed 15 March 2013; Document 4 in the Applicant’s List of Material Read (Exhibit 1).
In my view, there was evidence of that insight when Dr Keys gave evidence in the Tribunal. He spoke frankly of his shame, embarrassment and remorse as to his past conduct; whilst at the same time demonstrating a resolute determination to put that part of his life behind him.
Dr Greg Apel, Dr Keys’ treating psychiatrist, reported on 30 July 2012 that Dr Keys had a past history of a major depressive disorder from 1998 to approximately 2002. That depression was related to very poor judgement prescribing opiates to his wife in the setting of a highly dysfunctional relationship. However, Dr Keys was not at the time of Dr Apel’s report suffering from any psychiatric condition.
Dr Apel described the main feature of Dr Keys’ case as being ‘psychiatrically unremarkable’. He decompensated in circumstances which were understandable given his vulnerabilities. His treatment and recovery followed an ordinary course. In Dr Apel’s opinion, Dr Keys was no different from other impaired registrants who go on to recover and return to normal practice.[17]
[17]Exhibit GA1 to the Affidavit of Greg Apel filed 28 August 2012; Document 11 in the Applicant’s List of Material Read (Exhibit 1).
In February 2013, Dr Apel updated his opinion and said that Dr Keys suffered from no ongoing psychiatric illness and was medically fully fit. There was no suggestion of any substance abuse. In Dr Apel’s view, Dr Keys was fit to return to unrestricted practice with full prescribing rights.[18]
[18]Exhibit GA1 to the Affidavit of Greg Apel filed 15 March 2013; Document 15 in the Applicant’s List of Material Read (Exhibit 1).
Dr Apel’s view as to a lack of any suggestion of substance abuse is supported by two toxicology reports conducted by independent scientific laboratories.[19]
[19]Affidavit of Michaela Kenneally filed 15 March 2013 and Affidavit of Matthew Hosking filed 15 March 2013; Documents 16-17 in the Applicant’s List of Material Read (Exhibit 1).
In light of the reports of Dr Hambleton and Dr Apel as to Dr Keys’ current medical and psychological state, condition three on his registration requiring medical supervision of his health, is no longer necessary.
Just as the HPT was when it made the orders in 2002, I must be mindful of the purpose of disciplinary proceedings and disciplinary action as set out in s 123 of the Professional Standards Act. In my view, all of the evidence to which I have referred supports the conclusion that the orders sought to be removed are no longer necessary to meet the purposes of s 123.
It is also to be borne in mind that the purposes of such proceedings and action is protective rather than punitive.[20] In my view, to continue condition two in light of that evidence would have the effect that conditions, initially imposed for sound protective reasons, would become punitive in their continued application due to the circumstances to which they were initially addressed no longer prevailing.
[20] Ooi v Medical Board of Queensland [1997] 2 Qd R 176.
Indeed the views of Professor Fraser set out at [28] above demonstrate that the public would be better protected if the condition was now lifted because its presence gives rise to a potential for patient harm within the ICU setting.
All of this evidence being uncontested, it remains to consider the Board’s contention that there are matters which demonstrate a lack of honesty, or at least candour, on Dr Keys part. That lack of honesty or candour, it was submitted, is relevant to the Tribunal’s overall consideration of whether Dr Keys’ circumstances have changed sufficiently to warrant the removal of condition two. It was said that in imposing that condition initially the HPT did so because it ‘…did not “trust” Dr Keys to responsibly bear the privilege of prescribing controlled drugs which otherwise attends registration as a doctor’. It was said that the Tribunal must be satisfied that it can trust Dr Keys, having regard to the need to protect the public, to uphold the standards of practice within the profession and to maintain public confidence in the health profession.[21]
[21] Board Submissions filed 28 March 2013 at [29]-[30].
The evidentiary basis upon which the Board seeks to support these submissions is affidavits of Dr Ingrid Tall[22] and Ms Anna Dann.[23] Each affidavit relates to matters which became the subject of a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) in September 2012 by Dr Tall.
[22] Exhibit 4.
[23] Exhibit 3.
Essentially, there were two aspects to the complaint made by Dr Tall. First, she complained that Dr Keys had held himself out as a specialist when he was not so. Secondly, that Dr Keys had failed to disclose to Dr Tall, in the course of discussions about him providing services at her cosmetic medicine clinic, the conditions to which his registration was subject.
On 7 September 2012 Dr Tall signed a notification of complaint to AHPRA.[24] At question 21 of that complaint Dr Tall set out the detail of her complaint as follows:
Via Helen from Allergan (Botox) company Matthew Keys approached Dr Tall at a cosmetic conference and expressed an interest in a ‘change of life/career’ out of Accident + Emergency – into cosmetic medicine.
He said he wanted to get away from the stress of working in A + E.
He told us he was a specialist/intensivist/accident + emergency specialist/A + E physician.
He never disclosed or revealed any conditions on his registration despite engaging in conversations with Dr Tall which could have led to his involvement in more invasive procedures + twilight anaesthesia – as he told us he was a physician/specialist.
He was not at any stage honest or frank with me about his conditions imposed on his registration.
[24] Exhibit IT-4 to Exhibit 4.
It is clear from the evidence that it was Ms Dann who completed the form, other than signing it. She did so based upon discussions she had with Dr Tall.
As completed, the complaint form contained inaccuracies.
In answer to question 17 it was said that the dates between which the conduct took place were 21 August 2012 and 28 December 2012. The later date must have been incorrect. It was in excess of three months after the complaint was signed. In her affidavit, Ms Dann corrected this error. However, in giving evidence before the Tribunal, Dr Tall seemed unaware of this error. When alerted to it she seemed unconcerned by it, stating that the date on which the conduct occurred was ‘immaterial’; the conduct itself being the matter of importance.
It is also apparent that the answer to question 18 was erroneous. It required identification of where the events the subject of the complaint took place. ‘Practitioners office/consulting rooms’ was one of the proforma answers. This was the box checked by Ms Dann and adopted by Dr Tall. However, as is apparent from the answer to her question 21 set out above, some of Dr Keys’ alleged conduct of which the complaint was being made was said to have occurred at a conference in Cairns.
Dr Tall when questioned about these apparent errors was quite dismissive of them. At one point, she indicated that the completion of the details included in such a form was a matter for nursing or administrative staff, a doctor being too busy to be involved. With due respect to Dr Tall, such a view does disservice to the seriousness of a complaint being made by one medical practitioner about another to the professional regulatory authority.
Dr Tall initially responded to the suggestion that the answer to the question as to the location at which the conduct occurred was inaccurate by indicating that this may have been because the form did not provide for more than one location to be nominated. However, as it was pointed out to Dr Tall, the form in fact expressly provided for ‘all applicable’ locations to be stated.
When questioned closely about the issue of Dr Keys having been identified as a specialist at the conference in Cairns, Dr Tall’s evidence was that she formed that impression. It was clear from her evidence that Dr Tall had indeed formed such an impression; but that does not mean that Dr Keys held himself out as a specialist or used any of the terms set out in the complaint to describe himself as such.
One source of the impression which Dr Tall formed as to Dr Keys’ status as a specialist certainly came from the representative of a cosmetic medicine supply company, Ms Helen O’Farrell. It is clear that Ms O’Farrell identified Dr Keys to Dr Tall as a specialist during that Cairns conference.
Dr Tall was unable to demonstrate any clear recollection of what Dr Keys said of himself, if anything, that left her with the impression that he was a specialist. She thought that he may have said that he was an ‘intensivist’, but she could not be certain. What was clear was that Dr Keys had not said that he was variously a ‘specialist/intensivist/accident + emergency specialist/A + E physician’ as set out in answer to question 21 in her complaint to AHPRA. It is clear that those words used by Dr Tall reflect her understanding of the nature of the speciality that she was under the impression that Dr Keys held, rather than any particular words used by him to create that impression.
For his part, Dr Keys says he told Dr Tall that he was an intensive care doctor. When it was put to Dr Tall that this was said by Dr Keys, she agreed. Dr Tall also agreed, more generally, with the version of events given by Dr Keys. Dr Keys impressed me as having a considerably more reliable memory of these events than Dr Tall. That is understandable; he no doubt has chosen his words carefully in describing his work over many years.
Apart from those inaccuracies in the complaint, there are also inaccuracies in Dr Tall’s affidavit.
At paragraph 25 of her affidavit Dr Tall deposed to having told some of her clients that Dr Keys was an intensivist. It became clear under cross-examination that this was probably not accurate as she would have been more likely to have described him as a specialist in intensive care medicine.
At paragraph 26 of her affidavit Dr Tall deposes that on 28 August 2012 Dr Keys undertook training from Ms O’Farrell, a Botox representative from Allegan. She said that Dr Keys treated three volunteer patients with injection treatments on that day. She also deposed that ‘I was present during this’. It is clear from her evidence under cross-examination that this last statement was inaccurate insofar as it suggests that Dr Tall was present throughout the training and, particularly, when Dr Keys injected three patients. She was not present throughout, and now accepts that Dr Keys may have only injected one patient with the two other patients being injected by an injecting nurse.
For these reasons, I am inclined to accept Dr Keys’ recollection of all relevant matters over that of Dr Tall where they differ.
I cannot be satisfied at all that Dr Keys used the words attributed to him when speaking with Dr Tall at the Cairns conference. I am also not satisfied that Dr Keys used those words to describe himself at any later time when in discussions with Dr Tall. Dr Tall was unable to give evidence of any particular occasion upon which any of those words were used. From Dr Tall’s evidence under cross-examination it may be that the highest the allegation rises is that Dr Keys failed to correct Dr Tall when she referred to him as a specialist when introducing him to others.
Even if Dr Keys had used those words, it would not, in my view, have been a matter of such significance as to warrant the retention of the conditions which might otherwise have been removed.
Dr Keys frankly concedes that he should have disclosed the conditions on his registration to Dr Tall. However, he explains his failure to do so on the basis of the embarrassment, shame and remorse which he feels in relation to his misconduct many years ago.
He also candidly conceded that he moved into cosmetic medicine because he found himself unable to progress further in his training to become an intensive care specialist because of the restrictions on his registration. He, therefore, thought that he should have a contingency plan. He also explained that he had worked as a senior registrar in intensive care for three years doing long shifts, often night duty, and earning approximately half of the income he could earn in cosmetic medicine.
Whilst one may have expected that Dr Keys affidavit sworn on 20 August 2012 to have made reference to his intention to resign from his then current position in intensive care medicine, which intention he put into effect only three days later, I am not of the view that its absence from the affidavit creates doubt as to Dr Keys trustworthiness. Similarly, his failure to disclose the conditions on his registration does not cause me to have reservations as to whether those conditions should be removed.
The conditions themselves did not, as is sometimes the case, require disclosure to any person who may have been considering engaging Dr Keys’ services. Moreover, the conditions were always a matter of public record. They were recorded in the Board’s register. They were able to be discovered by Dr Tall, or anyone else, upon search of the register. That is the purpose of recording conditions on the register. In fact, they were discovered by Dr Tall when enquiries were made.
Indeed, it is apparent that when contact was first made with AHPRA by Ms Dann on Dr Tall’s behalf, it was not with the intention to make any complaint, but rather to obtain information about Dr Keys’ registration, it having come to Dr Tall’s attention through another source that it may be subject to conditions. It is clear from the evidence of both Ms Dann and Dr Tall that events unfolded, or ‘cascaded’ to use Dr Tall’s expression, from there, such that AHPRA enquired of Dr Tall whether she would be prepared to make a complaint about those matters.
I am of the view that none of the matters of which Dr Tall complained to AHPRA would alter the opinion which I have otherwise formed that the challenged conditions should be removed. In my view, the case for the removal of the conditions is overwhelming. They are no longer appropriate.
The Tribunal shall order their removal.