Keys v Medical Board of Australia
[2012] QCAT 448
•15 June 2012
| CITATION: | Keys v Medical Board of Australia [2012] QCAT 448 |
| PARTIES: | Dr Matthew Keys (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR148-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 22 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 15 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications to correct the decision of the former Health Practitioner Tribunal made in D540 of 2002 on 29 November 2002 are refused. 2. The application by the Board to dismiss Dr Keys’ application to review that decision is refused. 3. The decision of the Health Practitioners Tribunal is renewed by varying the order in the form set out in the schedule to this decision. 4. The application to review the renewed decision is listed for a directions hearing in Brisbane on 22 June 2012. 5. The question of costs of the preliminary hearing are reserved until the application is determined. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – FORMER TRIBUNAL – REVIEW – where the Health Practitioner Tribunal ordered the Board to impose a condition on the registrant’s registration that he never apply for reinstatement of endorsement to prescribe controlled drugs – where the Health Practitioner Tribunal’s decision was able to be reviewed after 3 years – whether the Tribunal is able to review the condition OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – FORMER TRIBUNAL – RENEWAL OF DECISION – where the Health Practitioner Tribunal imposed conditions on the registrant’s registration – where the registrant claims that the intended effect of the conditions is unclear – whether the Tribunal is able to renew the decision of the Health Practitioner Tribunal OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – FORMER TRIBUNAL – where the registrant claimed that the Health Practitioner Tribunal orders are inconsistent –whether the Health Practitioner Tribunal’s order contained an error – whether the Tribunal is able to correct the order Queensland Civil and Administrative Tribunal Act 2009, ss 134(2), 134(2)(b), 134(3), 252(1)(b), 252(2), 252(5) Medical Board of Australia v Henderson [2011] QCAT 90 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | S A McLeod instructed by Ashurst Australia for the Applicant |
| RESPONDENT: | A Forbes of DLA Piper for the Respondent |
REASONS FOR DECISION
In 2002, the Board suspended Dr Keys’ registration and brought disciplinary proceedings against him because he had abused his endorsement to prescribe controlled drugs. He dishonestly used the names of relatives and friends in prescribing pethidine which he diverted, on his account, for use by his wife for her chronic pain condition. The Board also alleged Dr Keys diverted at least some of the pethidine for his personal use. The Tribunal did not find that allegation was established, although it made orders consistent with a strong suspicion that Dr Keys had a personal substance abuse problem.
The Tribunal cancelled Dr Keys’ registration, prohibited him from applying to be registered for 5 years from the date the Board had suspended his registration, and ordered the Board to impose three conditions on his future registration. The first condition required him to surrender his endorsement to prescribe controlled drugs; the second provided that Dr Keys must never apply for its reinstatement; and the third condition required him to submit to medical supervision of his personal health care. The HPT also provided that Dr Keys could not apply to review the conditions for three years from the date of the decision.
Dr Keys was re-registered in March 2009, and the Board imposed those conditions. In July this year, Dr Keys applied to review them. In particular, Dr Keys sought to be relieved of the condition that he never apply for an endorsement to prescribe controlled drugs. Dr Keys needs such an endorsement to qualify as an intensive care specialist.[1] The Board informed Dr Keys it did not have the power to review that condition.
[1]Although the application requested review of the conditions, this preliminary application in relation to the form of the former Health Practitioners Tribunal decision was confined to the condition regarding the endorsement. No further consideration is given in these reasons to the form or effect of the condition which requires supervision of Dr Keys’ medical treatment.
Dr Keys then applied to the Tribunal. The matter came on for a preliminary hearing. In the course of the hearing, the Tribunal heard a number of applications made by both parties about how the decision of the former HPT might be dealt with by the Tribunal. To the extent that it is necessary, the Tribunal has waived any procedural requirements and the form and timing of those applications.
At the preliminary hearing, the Board argued Dr Keys’ application to review the conditions should be dismissed because the Tribunal has no power to review a condition directed by the HPT to be imposed on registration after cancellation. Dr Keys applied to correct the HPT’s decision to give effect to what he said was the HPT’s intention that the conditions could be reviewed after 3 years.
During the hearing, I raised the possibility that the HPT’s decision might be renewed, rather than corrected. This is a procedure available if there is a difficulty in interpreting or enforcing a decision. Dr Keys argued the order could be renewed. The Board submitted the order could not be renewed because this procedure was not available when the HPT made its decision.
The questions the Tribunal must determine are:
(a)What type of restrictions did the HPT intend to impose: ones that could never be renewed or ones that could only be reviewed 3 years after the decision?
(b)Does the Tribunal have jurisdiction to review conditions imposed by the Board at the direction of the HPT?
(c)Should the Tribunal correct the decision of the HPT and, if so, how?
(d)Can and, if so, should the Tribunal renew the decision of the HPT?
What type of restrictions did the HPT intend to impose: non-reviewable or reviewable after 3 years?
The HPT directed the Board to impose three conditions on Dr Keys’ future registration and provided that they could not be reviewed within 3 years of the decision. The form of the HPT’s orders raises competing inferences.
The first condition had no ongoing effect once Dr Keys complied with the requirement to surrender his endorsement. That leaves only two conditions open to meaningful review: the second condition providing Dr Keys must never seek endorsement to prescribe controlled drugs and the third condition requiring him to submit to medical supervision of his health care.
[10]The HPT used the word conditions, plural, in the order setting the non-review period. The form of orders was proposed by the Board. The Board submitted the word conditions should be read to refer to the third condition only.
[11]However, the interpretation that all conditions were to be reviewable after three years is reinforced by the reasons given for the decision. At [48], his Honour Judge O’Brien, who presided, said:
I accept the submission for 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.
[12]There is nothing in those words to suggest an intention to discriminate between the conditions.
[13]The Board relied on the use of the word never in the condition prohibiting Dr Keys from seeking endorsement to prescribe controlled drugs, suggesting that this expressed the intention to impose a non-reviewable condition. Although the word never presents as definitive, in the context of the HPT later specifying a non-review period, the two apparently conflicting statements can be read to mean Dr Keys could never apply for reinstatement unless that restriction was successfully reviewed after three years.
[14]Although it is not without doubt, I prefer this interpretation over the one contended for by the Board. The HPT adverted to the purposes of disciplinary proceedings in fixing penalty: to protect the public; uphold standards of practice within the profession and to maintain public confidence in it. None of those purposes necessarily requires non-reviewable restrictions that would apply for the rest of a young practitioner’s career.
[15]There is no statement in the reasons of the HPT to indicate an intention to impose non-reviewable restrictions. To the contrary, the HPT expressly stated that it had accepted the Board’s submission that the conditions could not be reviewed for three years. I am satisfied that, had it been suggested to the HPT when it made its orders that they were susceptible to conflicting interpretations, the HPT would have confirmed that it did not intend to impose restrictions that could never be reviewed.
Can the Tribunal review a condition the HPT directed the Board to impose on Dr Keys’ future registration?
[16]It is common ground that a decision to require the Board to impose a condition on a practitioner’s future registration cannot be reviewed under s 337 of the Health Practitioners (Professional Standards) Act 1999. In its reasons, the HPT stated that the decision to impose the conditions was made pursuant to s 241(2)(j)(ii) of that Act. Section 337 specifies what Tribunal decisions may be reviewed. A decision to impose a condition pursuant to s 241(2)(j)(ii) does not fall within any of the categories specified in s 337.[2]
[2]Mitchelson v Medical Board of Australia [2010] QCAT 571 at [18]; Medical Board of Australia v Henderson [2011] QCAT 90 at [33].
[17]Counsel for Dr Keys has not asserted any other basis on which the Tribunal would have jurisdiction to review a condition imposed pursuant to s 241(2)(j)(ii).
[18]As the decision stands, then, the restrictions imposed in exercise of the power conferred by s 241(2)(j)(ii) to require the Board to impose conditions on Dr Keys’ future registration cannot be reviewed.
Should the Tribunal correct the decision of the HPT?
[19]The parties agreed the HPT’s decision is deemed to be a final decision of QCAT and that the Tribunal can deal with it as if it were a final decision of QCAT.[3] Deal with specifically includes to amend or correct the decision.[4]
[3] Queensland Civil and Administrative Tribunal Act 2009, s 252(1)(b).
[4] Queensland Civil and Administrative Tribunal Act 2009, s 252(5).
[20]The Board argued the use of the word never was deliberate, not an accidental slip or error. While it opposed Dr Keys’ request to correct the form of orders, it made its own application to correct the decision by removing from the final paragraph of the reasons for decision, the sentence imposing a non-review period.
[21]The decision itself does not clearly discriminate between orders made and reasons given for the orders. The reasons include a number of statements about the orders to be made but the head note of the decision does not fully record the orders.
[22]The sentence that the Board asked the Tribunal to remove appears as part of his Honour’s reasons. It expresses his Honour’s acceptance of the Board’s submission he should impose a non-review period. Even if the reasons, rather than the orders themselves, are capable of being corrected, his Honour’s statement appears to be deliberate, not accidental. Even if the Tribunal could do so, it is not appropriate to remove an express statement of his Honour’s intention about the orders that he intended to make.
[23]The Tribunal also declines Dr Keys’ request to correct the form of the third condition to substitute the word not for the word never. It would be futile to do so. To merely make that substitution will not confer jurisdiction on the Tribunal to review that condition or the others imposed at the HPT’s direction. Reworded, it would still be a condition imposed by the Board at the direction of the HPT acting under s 242(2)(j)(ii), a type of decision that cannot be reviewed by the Tribunal.
Can and, if so, should the Tribunal renew the decision of the HPT?
[24]A party may apply to renew a final decision if there are problems interpreting, implementing or enforcing it. If the Tribunal renews a decision, it may make any other appropriate decision that could have been made by the Tribunal at the time the original decision was made.[5] The renewed decision is substituted for the original decision.[6]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 134(2)(b).
[6] Queensland Civil and Administrative Tribunal Act 2009, s 134(3).
[25]Given the potential conflicting interpretations of the orders made by the HPT, this would appear to be a more appropriate mechanism for dealing with the decision.
[26]Because the decision is one of the former HPT, not one made by QCAT, the Tribunal must not deal with it in a way that is inconsistent with the former Act under which the decision was made.[7] The definition of deal with includes the power to amend, correct or revoke a decision.[8]
[7] Queensland Civil and Administrative Tribunal Act 2009, s 252(2).
[8] Queensland Civil and Administrative Tribunal Act 2009, s 252(5).
[27]The Board argued because the former HPT did not have the power to renew a decision, this Tribunal cannot do so because that would be to deal with the decision in a way that is inconsistent with the former Act under which the decision was made.
[28]In support of that proposition, the Board relied on a decision at first instance of a panel of members sitting in QCAT’s fisheries jurisdiction.[9] With respect to the member who presided on that matter, then a fisheries specialist member of the Tribunal, his observations misconceive how the relevant provisions of the QCAT Act (s 134(2)(b) and s 252(2)) interact.
[9]Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326.
[29]The provision that enables the Tribunal to renew its decision (s 134) is a procedural one, in the sense that it governs the procedure by which the Tribunal may remake or vary orders that have already been made.
[30]The limitations expressed in s 134(2)(b) and s 252(2) address the substantive powers of the Tribunal, in the sense that the Tribunal’s orders declare or affect a person’s rights, duties, powers or liabilities.
[31]Those limitations are not in conflict, rather they are expressed in similar terms. The effect of both is that, in exercising the procedural power to deal with the decision, in this case by renewing it, the Tribunal can only make the substantive orders that the Tribunal, in this case the former Tribunal, could have been made at the time the decision was made.
[32]Applying that to this case, in renewing the HPT’s decision in the disciplinary proceedings brought against Dr Keys, the Tribunal can only make the substantive orders that the former HPT could have made under the Health Practitioners (Professional Standards) Act 1999 as it stood at the time the decision was originally made.
[33]There is no impediment, therefore, to the Tribunal renewing the decision, but the Tribunal is limited in the orders it may make.
[34]The Board framed the orders imposing the restrictions as conditions of Dr Keys’ future registration. The HPT could have framed the restrictions as orders under s 241(2)(l) requiring Dr Keys to do something it considered appropriate or to refrain from doing something it considered inappropriate specified thing. In the case of the restriction on applying for endorsement, that is arguably better framed as an order rather than a condition, as it operated more in the nature of an injunction than as a condition of registration.
[35]Orders made under s 241(2)(l) are reviewable.[10] Had the HPT made orders under that section, it would have been required to state a period, of not more than 3 years, within which Dr Keys could not apply to review them.[11]
[10] Health Practitioners (Professional Standards) Act 1999 s 337
[11] Health Practitioners (Professional Standards) Act 1999 s 241(3)
[36]The Tribunal has concluded the HPT intended to provide a non-review period of 3 years, not to impose restrictions that could never be reviewed. I am satisfied that had his Honour been aware the Tribunal could not review conditions imposed under s 241(1)(j)(ii) but could review orders made under s 241(2)(l), he would have recast the orders accordingly.
[37]If the Tribunal now renews the decision in that way, it will give effect to his Honour’s apparent intention. The decision of the Health Practitioners Tribunal made in D540 of 2002 on 29 November 2002 is renewed in the form set out in the schedule to this decision.
[38]There is an application before the Tribunal to review the decision of the HPT. The Tribunal takes that as an application to review the renewed decision. It will be listed for a directions hearing so the scope of the application can be clarified and directions made to bring it to an early hearing.
[39]The Board reserved its position on the costs of this application. The question of costs is reserved until the application is determined.
Schedule
Dr Keys’ registration is cancelled and he is not permitted to reapply for registration for a period of five years from 8 May 2001.
Dr Keys must immediately surrender his authority to prescribe controlled drugs.
Dr Keys must never apply to Queensland Health for reinstatement (either fully or partially) of his authority to prescribe any controlled drug.
Dr Keys must submit the medical supervision of his own health care to an experienced general practitioner of his choice from a list of at least three general practitioners provided to him by the Board. That general practitioner must prescribe and monitor all medication other than that prescribed by Dr Keys’ treating specialists. Dr Keys must keep the Board informed of the name of his current treating general practitioner and authorise that practitioner to notify the Board:
i.Of all medications prescribed for Dr Keys;
ii.If Dr Keys fails to attend for treatment or review; or
iii.If there is a significant change in Dr Keys’ health status, such as non compliance with medication or treatment.
The details of the orders must be recorded in the Board’s register for the period for which they are in force.
Dr Keys may not apply to review the orders specified in paragraph 3 or 4 for a period of three years from 29 November 2002.
3
0
2