Khan v Medical Board of Australia

[2012] QCAT 30

CITATION: Khan v Medical Board of Australia [2012] QCAT 30

PARTIES:	Dr Pervez Mahfuzur Rahman Khan (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER:   OCR220-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 18 January 2012

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Acting President
Assisted by:
Dr Harpreat Moudgil
Ms Emma Robertson
Dr John Waller

DELIVERED ON: 23 January 2012

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    Dr Khan’s application to review the decision of the Board dated 27 August 2010, is dismissed.

2.    If any party seeks an order for costs, they must file in the Tribunal and give to the other party their written submissions by 4.00pm on 7 February 2012.

3.    The other party may file in the Tribunal and give to the party who seeks a costs order submissions in response by 4.00pm on 21 February 2012.

4.    Any application for costs will be determined on the written submissions of the parties without an oral hearing not before 21 February 2012.

CATCHWORDS: 

PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – where Tribunal found it had the power to renew the practitioner’s registration but that it should not do so for practise in his current position – where the Tribunal afforded the doctor an opportunity to secure a hospital based position, consistent with the recommendation of a professional panel and the joint report of the parties’ experts – where the doctor did not secure such a position – where the doctor proposed his registration should be renewed to allow a further assessment of his clinical competence through a different process – whether the Tribunal should reopen the hearing – whether the Tribunal should renew the doctor’s registration

Queensland Civil and Administrative Tribunal Act 2009 s 137

Repatriation Commission v Nugent [2003] FCA 1184 applied

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr O’Gorman SC instructed by Flower and Hart
RESPONDENT:	Mr R Fryberg instructed by McInnes Wilson

REASONS FOR DECISION

1. On 9 December 2011, after making certain findings in relation to Dr Khan’s application, the Tribunal adjourned Dr Khan’s application to provide an opportunity for him to secure an appropriate position at a hospital in an area of need.  The Tribunal indicated that, if he could secure such a position, it could renew his registration for practise in that position, with a strict and final timetable to demonstrate his competence for unlimited registration.

2. The Tribunal also gave directions that allowed Dr Khan to file written submissions about those investigations before the Tribunal determined the application.

3. Shortly before the Tribunal reconvened, Dr Khan filed affidavits that, in summary, informed the Tribunal that he had been unable to secure a hospital position and proposed that his registration should continue pending him completing an alternative pathway to registration, involving practice based assessment and examination.

4. Dr Khan requested that he be allowed to continue in his current position with increased supervision, pending completion of that program of assessment and examination.  Alternatively he sought an order that would have continued his registration but only to the extent necessary for him to complete his practice-based assessment.

5. Over the objection of counsel for the Board, the Tribunal received the affidavits.  Dr Khan did not formally request the Tribunal reopen the hearing, but this was the effect of asking the Tribunal to consider fresh evidence about an alternative pathway to securing registration.

6. The Tribunal determined not to reopen the hearing.  Counsel for Dr Khan did not submit there were any grounds[1] to reopen the hearing.  There was no suggestion the evidence about this process to registration was not available when the matter was heard.  Dr Khan embarked on an assessment process without any assurance that it would have any bearing on his application.

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 137.

7. In allowing Dr Khan time to investigate a hospital position, the Tribunal indicated its willingness to consider renewing Dr Khan’s registration for a different position based in a hospital.  The Tribunal rejects the submission made by Dr Khan’s counsel that it would be consistent with its reasoning to renew Dr Khan’s registration in his current position, even for a limited purpose.

8. The alternative process that Dr Khan has since commenced involves a form of assessment through video-taped consultations with patients of the clinic at which he is currently employed.  Although counsel for Dr Khan suggested that this would not involve continued employment in his current position, the Tribunal is at a loss to see how Dr Khan could treat patients of the practice, even under supervision, unless he had some, albeit limited, form of employment.  Counsel did not present a form of order that might achieve renewal for that limited purpose.

9. Without reopening the hearing, questions such as those can not be answered.  Finality in litigation is no less important in administrative review than in civil litigation.The system of administrative review is intended to provide a measure of finality and certainty in making and reviewing administrative decisions.[2]

   [2]Repatriation Commission v Nugent [2003] FCA 1184, [25].

[10]  The Tribunal has already made and announced two critical findings that must determine how the matter now proceeds:

a)That the Tribunal has the power to renew Dr Khan’s registration; and

b)That it should not renew Dr Khan’s registration for his current position.

[11]  Were the Tribunal to reopen the hearing at this late stage, fairness would dictate that the Tribunal give the Board a proper opportunity to test the further evidence, such as it was.

[12]  Counsel for the Board submitted that it would request a further joint report from the parties’ experts about the proposed alternative.  Given the role that the experts’ joint report played in findings already made by the Tribunal, that is both reasonable and proper.

[13]  Although Dr Khan has not yet secured a hospital position, he may be able to do so in the future.  The uncontested expert evidence is that this is the most suitable position for Dr Khan, given the results of his most recent clinical assessment.  Further, the parties agree that Dr Khan can sit the Australian Medical Council exam and enter the GP training program if his current registration is not renewed.

[14]  It is unfortunate Dr Khan was not able to secure a hospital position.  Since July 2011, he has known the experts, including the one engaged by him, concurred with the ACCRM Panel’s assessment that he should return to hospital practice.  There is no evidence that he heeded that recommendation until the Tribunal made its decision to allow him time to explore that option many months later.

[15]  Dr Khan states he has expended some time (approximately 26 hours of video-taped consultations) and money (approximately $7,000 in college fees and video equipment) on practice based assessment.  He did so without any assurance the Tribunal would renew his registration to enable him to complete the program and in the face of a Tribunal decision that indicated only the possibility of renewal for a hospital position.  The Tribunal notes this expenditure of time and money, but this cannot determine the outcome, given the findings already made.

[16]  Dr Khan’s application to review the decision of the Board is dismissed.  Directions about the question of costs will be issued.

1. Finally, it is appropriate to note that one of the assessors did not attend the hearing on 18 January 2012.  The hearing proceeded in his absence.  Since the hearing, the assessor has listened to the audio-recording of proceedings and, as the presiding Judge, I have discussed the matter with him.  At the hearing, I advised the parties this was my intended course.  Neither party objected to it.