| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : LANGTON and MEDICAL BOARD OF AUSTRALIA [2013] WASAT 170 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 14 OCTOBER 2013 FILE NO/S : VR 33 of 2013 BETWEEN : PAUL EDWARD LANGTON Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords: Vocational regulation - Medical practitioner - Application for review - Variation of conditions on registration - Withdrawal of application - Costs Legislation: Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 199(1), s 201
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)
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Result: Application dismissed
Summary of Tribunal's decision: Following the withdrawal by the applicant of his application for a review of a decision by the respondent, the respondent applied for an order that the applicant pay part of the respondent's costs. The Tribunal, after considering the background of the proceeding and the applicant's conduct, dismissed the application for costs.
Category: B
Representation: Counsel:
Applicant : Mr E Panetta
Respondent : Ms FA Stanton
Solicitors:
Applicant : Panetta McGrath Lawyers
Respondent : MDS Legal
Case(s) referred to in decision(s):
Carcione Nominees Pty Ltd and Scolaro [2010] WASAT 158
Diploma Construction Pty Ltd and Owners of Strata Plan 44936 [2010] WASAT 63
Medical Board of Western Australia and Kyi [2009] WASAT 22
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
Stephenson and the Legal Practice Board [2007] WASAT 259
Summerville and Department of Education and Training & Ors [2006] WASAT 368 (S)
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant (Practitioner) appealed to the Tribunal on 12 February 2013 under s 199 of the Health Practitioner Regulation National Law 2010 (WA) (National Law) against a decision of the respondent (Board). The Board's decision wasto refuse the Practitioner's application to have the conditions on his registration as a medical practitioner varied. 2 However, following mediation ordered by the Tribunal, the Practitioner applied to the Tribunal to withdraw his application and on 1 July 2013 the Tribunal made orders granting leave for the application to be withdrawn. The Board now seeks costs from the Practitioner in relation to the review application.
Material before the Tribunal 3 In support of its application for costs, the Board filed submissions and a related book of evidence with the Tribunal on 11 July 2013. The Practitioner's submissions as to costs were filed on 16 July 2013, and the Board's responsive submissions were filed on 24 July 2013.
Background 4 On 27 May 2011, the Practitioner made a voluntary notification to the Board that he had been recently diagnosed with depression, that he was suffering from stress and sleeping difficulties and that he had taken from Hollywood Private Hospital, where he works as a cardiologist, Propofol, Midazolam and Fentanyl for his own use. He says that he took the drugs from between February and May 2011 in order to help him relax and sleep at night. 5 On 29 September 2011, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to the Practitioner advising him of a decision by the Board to impose conditions on his registration. Those conditions included: • a prohibition from prescribing, possessing, taking or personally administering any Schedule 4 or Schedule 8 drugs; (Page 4)
• a requirement to undergo random urine drug screening 812 times per month, with samples to be provided before 12 noon; • a requirement to continue to attend the Practitioner's treating psychiatrist, in addition to attending a Board appointed psychiatrist once every four months; • the provision of a report every four months from the Board appointed psychiatrist; • a monthly consultation with a mentor approved by the Board; • a written report from the mentor once every three months; • a requirement to continue to attend with the Practitioner's general practitioner at a frequency to be agreed between the Practitioner and that general practitioner; • a report from the Practitioner's general practitioner once every three months. 6 Those conditions were to be reviewed after six months. 7 On 26 October 2011, the Practitioner filed an application with the Tribunal seeking a review of the Board's decision (first proceeding). 8 The first proceeding was settled and as a result the conditions imposed on the Practitioner's registration were varied. The varied conditions: 9 Paragraph 16 of the varied conditions provided that the varied conditions were to be reviewed after six months, namely after 29 March 2012. (Page 5)
10 On 30 January 2012, Dr Lawrence Blumberg, a psychiatrist appointed by AHPRA, reported to AHPRA that he had assessed the Practitioner in accordance with the imposed conditions and that he had discussed with the Practitioner the need to comply with those conditions. 11 On 7 May 2012, the Practitioner's solicitors wrote to AHPRA requesting a review of the varied conditions and asserting that the Practitioner had been 'fully compliant with all of the conditions'. The Practitioner sought: • a reduction in frequency of the imposed random urine drug screening; • removal of the need to be screened for Fentanyl, Midazolam and Propofol; and • a limit on gas chromatography/mass spectrometry testing. 12 The Practitioner's reasons for seeking these changes included that the testing regime was onerous, it limited his ability to practise and it was very expensive. The Practitioner also queried the Board's requirement for morning screening, the purpose of which AHPRA then clarified in a letter to the Practitioner dated 1 June 2012. 13 On 8 June 2012, AHPRA advised the Practitioner that the Board had reviewed the conditions and had refused the Practitioner's request in relation to reduction in frequency of drug screening and removal of Fentanyl, Midazolam and Pethidine from the list of drugs to be screened, but had granted certain other requests of the Practitioner. The letter advised that the further amended conditions would be reviewed again by the Board at its meeting on 27 November 2012. AHPRA informed the Practitioner that he could apply to the Tribunal for review of the decision. 14 The Practitioner says that the Board gave no explanation for the refusal of his requests. However, the Practitioner decided not to apply for a review of the Board's decision. 15 On 13 November 2012, the Practitioner's solicitors wrote to AHPRA, again seeking at the Board's next meeting a reduction in the frequency of random urine drug screening and the removal of the requirement to be screened for Fentanyl, Midazolam and Propofol. Alternatively, the Practitioner requested the removal of the condition requiring samples to be given before midday. (Page 6)
16 On 18 January 2013, AHPRA wrote to the Practitioner's solicitors advising that the Board at its meeting on 27 November 2012 had considered the Practitioner's request to amend the conditions. The Practitioner was advised that the Board decided to refuse to amend the conditions on the grounds that the Practitioner had not been fully compliant with the conditions. 17 The letter explained that one of the conditions required the Practitioner to attend the Board appointed psychiatrist, Dr Blumberg, once every four months, and that another of the conditions required the Practitioner to provide the Board with the psychiatrist's report. The letter noted that Dr Blumberg had reported to AHPRA on 30 January 2012 that he had seen the Practitioner on 17 January 2012. However, when contacted by AHPRA on 14 November 2012, Dr Blumberg advised AHPRA that he had not seen the Practitioner since 17 January 2012. 18 The letter also noted that another of the conditions required the Practitioner to communicate with his general practitioner and meet him at agreed intervals and to provide the Board with a report from his general practitioner every three months. The letter stated that Dr Michael Franklyn had provided a report to the Board on 20 March 2012. Dr Franklyn advised AHPRA, however, that despite a scheduled further consultation in May 2012, he did not have any consultation with the Practitioner or any communication from the Practitioner after March 2012 until 20 November 2012, when he consulted with the Practitioner on that day. 19 AHPRA sought an explanation from the Practitioner for his failure to comply with the relevant conditions, for consideration by the Board at its meeting on 8 February 2013. 20 On 7 February 2013 the Practitioner's solicitors wrote to AHPRA in response. The letter maintained that there had not been any deliberate or reckless breach of the varied conditions by the Practitioner, and that any breach had been the result of an innocent misunderstanding by the Practitioner. The letter also noted that AHPRA had not raised these issues of non-compliance before, notwithstanding the Board's review of the varied conditions in May 2012. 21 On 8 February 2013 the Practitioner again attended with Dr Blumberg. On 15 February 2013, Dr Blumberg provided AHPRA with a medical report, in which he relevantly stated: (Page 7)
Dr Langton's mental state has remained stable … he has coped well with the stress of the medico-legal process set up by the Board and the personal humiliation he subjected himself to during this stressful period. Dr Langton is currently working full time and … is fit to continue working in his role as a cardiologist. He has complied with the Board's recommendations … . … He has demonstrated good insight into the relationship between his past poor coping mechanisms which perpetuated his dependency problem and was motivated to continue to see his consultant psychiatrist on a regular basis, and comply with the recommendations of the Board … . … Dr Langton has been subjected to strict requirements and management under recommendations by the Board and is motivated to satisfy the Board with their requirements … . Dr Langton was motivated to adhere to the conditions. 22 On 12 February 2013, the Practitioner lodged with the Tribunal an application for review of the Board's decision of 27 November 2012 refusing his request to amend the varied conditions. The grounds for review were that the varied conditions as to urine drug screening were 'excessive and/or unduly burdensome and/or unnecessary and/or overly hindered or restricted [the Practitioner's] work activities'. 23 The application was referred for mediation at the Tribunal to be held on 2 May 2013. 24 In the meantime, on 17 May 2013, the Board lodged an application in the Tribunal, which became matter VR 94 of 2013 (substantive proceeding).The Board alleges that the applicant engaged in professional misconduct in respect of his advice and treatment of a patient from September 2010 until August 2011. The substantive proceeding remains on foot. 25 Following mediation, by consent of the parties, leave was granted for the Practitioner's application to be withdrawn and the application was withdrawn. The question of costs was, however, reserved by the parties.
The statutory provisions 26 Section 199(1) of the National Law relevantly provides: A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision … (Page 8)
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration; … 27 Section 201 of the National Law provides that in relation to an appeal under s 199 of the National Law: The responsible tribunal may make any order about costs it considers appropriate for the proceedings. 28 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows: Costs of parties and others (1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal. (2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35. (3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought. (4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to (5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party. (Page 9)
(6) The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
Board's submissions 29 The Board contends that its decision of 27 November 2013 to defer further review of the conditions was entirely reasonable having regard to the Practitioner's noncompliance with the conditions and his lack of any explanation for noncompliance despite being invited to provide an explanation for the Board's consideration. The Board says that no explanation for the noncompliance was given at any time prior to, or after, the application for review was filed. The Board contends that it was appropriate to defer further review of the conditions in relation to screening for the very substances which had been inappropriately taken from Hollywood Private Hospital, particularly in circumstances where the Practitioner had been noncompliant with conditions put in place to monitor his mental health. 30 The Board contends that the Practitioner acted unreasonably in the following respects: 1) The Practitioner commenced review proceedings when there was no reasonable basis upon which the Board's decision in respect of the conditions should be reviewed. 2) No reasonable basis for the review was expressed, either within the body of the application or within any of the documents that were annexed to it. 3) The Practitioner sought to support his application by annexing to the application letters from his solicitor dated 7 May 2012 and 13 November 2012 which stated that the Practitioner had been fully compliant with the conditions in circumstances in which the Practitioner had not been fully compliant with the conditions requiring regular consultation with the Board appointed psychiatrist and with his own general practitioner. The Practitioner's noncompliance was set out in detail in the Board's letter dated 18 January 2013 and was discussed between the Practitioner and Dr Blumberg on 8 February 2013, that is, shortly before the application for review was filed by the Practitioner on 12 February 2013. (Page 10)
4) The Practitioner sought to support the application for review by asserting that the requirement to screen for Fentanyl, Midazolam and Propofol should be removed or, alternatively, modified so that he did not have to provide a sample before 12 pm. The basis for this assertion was his understanding that he was only able to screen at Healthscope facilities at the Mount Hospital and that this was inconvenient. This is notwithstanding that, prior to the application for review being filed, AHPRA had informed the Practitioner that he could screen at Clinipath, and had provided the Practitioner with a link to Clinipath sites which link included sites conveniently located having regard to the Practitioner's place of residence and place of work. 5) To the extent that the Practitioner had questioned the need for screening before 12 pm in relation to a sample given to screen for Propofol, the Practitioner had been invited to contact AHPRA in order to discuss that matter, and had also been given information as to the reason for that requirement prior to filing his application.
Practitioner's submissions 31 The Practitioner submits that he has not acted unreasonably either in relation to bringing or maintaining his application at least until after mediation. 32 The Practitioner says that the review application had merit and reasonable prospects of succeeding because: a) the Practitioner had generally complied with the onerous conditions on his registration since 29 September 2011 and, in so far as there had been any noncompliance, this had been reasonably explained; b) the Board had obtained positive and supportive medical reports about the Practitioner, which reports were, or ought properly to have been, sufficient to enable the Board and/or the Tribunal to conclude that it was appropriate to reduce the frequency and extent of the Practitioner's random urine drug screening; and (Page 11)
c) the Practitioner was not asking for a complete cessation of random urine drug screening, but simply for a lesser frequency of testing (from up to 12 times per month, to instead up to 8 times per month), a modest request given that he had already been tested up to 12 times per month since 29 September 2011. 33 The Practitioner also says that, by the time the Board commenced the substantive proceeding, it was almost seven and a half months since the Board's decision refusing the Practitioner's request to have the varied conditions amended, and almost four and a half months since the Practitioner had lodged his application for review with the Tribunal. Given that it has been more than six months since the Board undertook a review of the varied conditions, the Practitioner says he is able to seek a further review of the varied conditions at any time. 34 The Practitioner further says that he attended, participated in and acted reasonably and genuinely in the mediation conducted on 2 May 2013. 35 Finally, the Practitioner says that he acted reasonably in seeking leave to withdraw his application, as it allowed him to concentrate on defending the substantive proceeding. The Practitioner contends that in the circumstances withdrawing the application avoided further cost, stress, delay and inconvenience.
Board's response 36 In response to the Practitioner's submissions, the Board says, first, that although the Practitioner's submissions refer to the Practitioner having 'generally complied' with the conditions, the application was supported by documents claiming that the Practitioner had been fully compliant. 37 Secondly, in relation to the Practitioner's assertion that his application was supported by positive medical reports, the Board says that only two psychiatric reports were before the Board at the time the proceeding was withdrawn, and that the Practitioner did not attend the nominated psychiatrist regularly as required by the conditions. 38 Thirdly, the Board says that the Practitioner's submissions offer no explanation as to why it was reasonable to seek the removal of the condition requiring screening for Fentanyl, Midazolam and Propofol. The Practitioner's submissions also offer no explanation as to why it was (Page 12)
reasonable to seek removal of the condition requiring the Practitioner to give a urine sample before midday. 39 Finally, with regard to the condition concerning drug screening, the Board says that the Practitioner offers no explanation as to why it was reasonable to support his application on the basis of inconvenience in circumstances where the Practitioner had been informed of convenient sites at which he could give a urine sample which would not in any way impede his medical practice.
Findings 40 My starting point in this matter is that each party bears its own costs; Stephenson and the Legal Practice Board [2007] WASAT 259 at [47 [49]. In the words of Barker J in Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA)[2005] WASAT 206 at [36]: In this regard, the State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful. 41 It would not be appropriate for the Tribunal to attempt to comprehensively delineate the circumstances under which the Tribunal will depart from this general position; Summerville and Department of Education and Training & Ors[2006] WASAT 368 (S) at [27]. However, the following general principles in relation to the award of costs were set out by Barker J in Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73]: If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. These principles are also generally applicable to vocational regulation proceedings. (Page 13)
42 I also note that that the early withdrawal of an application does not necessarily give rise to the inference that the applicant regarded the application as being without merit; Diploma Construction Pty Ltd and Owners of Strata Plan 44936[2010] WASAT 63 (Diploma Construction) at [13]. 43 Many of the Board's submissions relate to the Practitioner's failure to comply fully with the varied conditions, considered in the light of the statement in the Practitioner's application that he had been fully compliant. While I agree that the Practitioner's failure to comply with the conditions may have been relevant to the substantive determination of the application if the matter proceeded to hearing, I do not consider that it is determinative as to whether the application itself was untenable or unreasonable. While it is difficult to reconcile the Practitioner's admitted failure to fully comply with the conditions with his statement that he had been fully compliant, this does not lead me to the conclusion that this should preclude him from exercising his statutory right to seek a review of those conditions by this Tribunal. Further, from the material before me, I cannot say that if the application had proceeded to a hearing, it is likely to have been rejected. There are a number of factors which would have needed to be tested, including the apparently favourable medical report of Dr Blumberg. 44 Moreover, the Practitioner did not unnecessarily delay his withdrawal of his application following what he regarded as a material change in circumstances. The reasons that he gave for withdrawing his application are: 45 Parties should not be penalised for withdrawing promptly after a material change in circumstances; Diploma Construction at [15]; Carcione Nominees Pty Ltd and Scolaro[2010] WASAT 158 at [30].
Conclusion 46 I find that there is no basis for concluding that the Practitioner's application was untenable or that the Practitioner acted unreasonably in (Page 14)
commencing or sustaining his application to the point that he did. Accordingly, I will dismiss the Board's application for costs.
Orders 1. The Medical Board of Australia's application for costs is dismissed. |