Medical Board of Australia v Martin (No 3)
[2014] QCAT 304
•22 May 2014 (ex tempore)
| CITATION: | Medical Board of Australia v Martin (No 3) [2014] QCAT 304 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Gary Raymond Martin (Respondent) |
| APPLICATION NUMBER: | OCR039-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 22 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Elizabeth McVie, Dr Paul Pincus, Ms Alison Christou |
| DELIVERED ON: | 22 May 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Gary Martin be reprimanded in respect of the conduct. 2. The conditions imposed by order 3 of the Decision of the Tribunal on 26 July 2013 are amended to read: ‘3. Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland) the following conditions are imposed on Dr Gary Martin’s registration: a) Dr Gary Martin is not permitted to perform any surgical procedure except the following procedures: i. Insertion of intrauterine contraceptive devices; ii. Insertion of Implanon involving insertion of subcutaneous implant; iii. Removal of stitches or foreign bodies if required. b) For the duration of these conditions the Medical Board of Australia shall be authorised by Dr Gary Martin, at his expense, to access and copy his patient and/or medical records.’ 3. The parties file and give to each other any written submissions on costs within 7 days of the date of this order. 4. The issue of costs will be determined on the papers without further oral hearing. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – where the respondent admitted to performing a surgery resulting in a keloid scar and asymmetrical incisions on a patient’s eyelids – where the respondent admitted to making clinical notes claiming the procedure was supervised when it was not supervised – where performing unsupervised surgery of this nature was in breach of conditions imposed on the respondent’s registration – whether the respondent engaged in conduct that amounted to professional misconduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the parties had indicated to the Tribunal, prior to the hearing, that a joint sanction would be sought which included a suspended suspension – whether the Tribunal can make such an order PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the respondent had already served an actual period of suspension by way of an immediate action decision of the applicant – where the applicant proposed further conditions to be placed on the respondent’s registration – whether a suspension is appropriate – whether proposed conditions are appropriate Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 247 Medical Board of Australia Martin [2013] QCAT 376 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P McCowan of McInnes Wilson |
| RESPONDENT: | Mr G Martin (self-represented) |
REASONS FOR DECISION
This is the second disciplinary proceeding referred to the Tribunal concerning Dr Gary Raymond Martin.
Dr Martin is a medical practitioner who was first registered to practice medicine in the state of Queensland on 12 January 1970. The matter was referred to the Tribunal pursuant to s 193 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). It alleges that Dr Martin had engaged in conduct which constitutes professional misconduct, as defined by the National Law in that he has engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of equivalent level of training or experience.
The matters that form the subject of the referral have some considerable history. The conduct alleged against Dr Martin, which he admits, is that on or about 31 January 2012, he performed a Blepharoplasty on a patient and, on 3 March 2012, a revision procedure upon the left eye of that patient. The surgery performed on the patient’s left upper eyelid resulted in a keloid scar at the upper eyelid corner, and the incision on the left upper eyelid, which is approximately 10 millimetres in length, was in asymmetry with the corresponding right upper eyelid incision at approximately 7.5 millimetres in length.
It is also alleged, and admitted, that Dr Martin claimed in clinical notes, in an entry dated Tuesday, January 31, 2012, that the procedure performed on that date was supervised by Dr Tomasevic when, in fact, it was not so supervised by Dr Tomasevic or any other person qualified to be a supervisor within the meaning of level 1 supervision. That requirement for supervision stems from conditions which were imposed upon Dr Martin’s registration on 25 October 2011, of which he was informed from at least 2 November 2011. Those conditions prohibited him from treating any patients with regard to skin lesions requiring surgical or procedural treatment and required him to undertake all other surgical procedures under level 1 supervision by a Board approved supervisor, nominated by him.
In a decision of the Tribunal, published on 8 July 2013, in Medical Board of Australia v Martin[1], the Tribunal dealt with an earlier referral of disciplinary matters to it. Those matters included, as ground 6, that Dr Martin performed unsupervised work in contravention of those conditions imposed upon his registration in October 2011. In those earlier proceedings Dr Martin had admitted, in respect of ground 6, that he had breached the condition concerning supervision on six separate occasions between 11 November 2011 and 9 December 2011. It will be noted that the matter that forms the subject of these disciplinary grounds fell outside of that range of dates.
[1][2013] QCAT 376.
The earlier disciplinary proceedings also dealt with what might be described as procedures which resulted in some adverse outcome for the patient. In respect of the matters which had led to the earlier disciplinary proceedings Dr Martin had, on 16 August 2012, been informed that on 14 August 2012 the Medical Board of Australia had resolved to take immediate action against him in the form of the suspension of his registration. The decision of the Board to take immediate action against a registrant, pursuant to s 156 of the National Law, is reviewable by the Tribunal in its original jurisdiction. No application was brought by Dr Martin to review that immediate action decision.
The effect of that was that he remained suspended pursuant to that immediate action decision from mid-August 2012 until the decision of the Tribunal in the earlier disciplinary matter was published, on 8 July 2013. The significance of that fact, for present purposes, is that the sanction imposed by the Tribunal in those earlier proceedings included the suspension of Dr Martin’s registration for a period of 12 months. However, the suspension imposed upon his registration was itself suspended after six months for an operational period of three years.
In the earlier disciplinary proceedings, there had been a dispute between the parties as to whether the referral of those matters came to the Tribunal pursuant to the transitional provisions of the National Law, which relevantly provided pursuant to s 289, that the proceedings were to be dealt with in accordance with the Health Practitioners (Professional Standards) Act 1999 (Qld), now called the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’). It had been suggested that some of the six disciplinary grounds were appropriately referred under the Disciplinary Proceedings Act, but that others were referred under the National Law. In the event, the Tribunal determined that all of the matters the subject of the referral were to be dealt with under the Disciplinary Proceedings Act.
Part 6, Division 6, Subdivision 6 of the Disciplinary Proceedings Act, particularly s 247 thereof, provided for the suspension of decisions made in disciplinary proceedings. Section 247(1) authorised the suspension of certain decisions, including a suspension of a registrant’s registration imposed under s 241(2)(g) of the Disciplinary Proceedings Act. It was pursuant to those provisions that Dr Martin’s 12 month suspension was suspended after six months for an operational period of three years in the earlier disciplinary proceedings.
Notwithstanding the fact that the suspension of his registration was suspended after six months in those earlier proceedings, as a matter of practicality, Dr Martin remained suspended until the publication of the Tribunal’s orders, which was some 11 months after the suspension had been imposed by way of disciplinary action against him. As a practical matter, therefore, Dr Martin served a period of actual suspension of five months longer than that which was imposed by the Tribunal in its decision in the earlier disciplinary proceedings.
That, in my view, is a relevant consideration in these proceedings. It is relevant because, as already identified, the conduct which forms the basis for these proceedings occurred on 31 January 2012. Certainly, it only came to the Board’s attention at a later point in time. However, had the Board’s investigations revealed the conduct at the earlier time, then one might reasonably assume that it would have, or at least could have, formed part of the conduct referred to the Tribunal in the earlier proceedings. Two disciplinary proceedings had been referred to the Tribunal in those previous matters. One had been referred to the Tribunal on 6 December 2011, the second on 21 May 2012, some almost four months subsequent to the conduct which forms the basis for these proceedings. Had Dr Martin’s conduct of 31 January 2012 been dealt with in the earlier proceedings, then these proceedings would, of course, have been unnecessary. It is also, perhaps, unlikely that the sanction imposed upon Dr Martin in those earlier proceedings would have been any different if this matter had been included as part of those proceedings.
The matters which form the basis for these proceedings also formed the basis for the Board taking subsequent immediate action against Dr Martin. That occurred on 9 January 2014 when the Board resolved to take immediate action pursuant to s 156 of the National Law in respect of the matters which now form the basis for these disciplinary proceedings. Dr Martin sought a stay of the decision to impose immediate action in January 2014 but, for reasons published earlier,[2] the Tribunal lacks power to stay a decision taken by a national board to impose immediate action under the National Law by operation of s 398ZC of the Disciplinary Proceedings Act. The stay was, necessarily, refused.
[2]Martin v Australian Health Practitioner Regulation Agency [2014] QCAT 52.
The referral of these disciplinary proceedings was made to the Tribunal on 3 March 2014. The matter was listed before me on 19 March 2014. On that day, Dr Martin filed a form 36 response in the proceedings in which he admitted the conduct alleged in annexure A to the referral and sought orders in terms which had been agreed between the parties prior to that occasion.
When the matter came before the Tribunal on 19 March 2014, the parties indeed indicated that they would jointly seek orders by way of sanction as had been agreed and as were reflected in Dr Martin’s form 36 response. Those sanctions included the suspension of his registration for a period of three months commencing on 9 January 2014, and that that suspension would itself be suspended after two months with a balance period of one month to be imposed upon any further breach of conditions, in respect of which there was to be an operational period of three years.
One may well understand why the parties would propose such sanctions. They were entirely consistent with the form of orders which could be, and which often had been, made by the Tribunal in exercise of its powers under the Disciplinary Proceedings Act. Indeed, as I have already observed, they were entirely consistent with the form of orders imposed by the Tribunal in the earlier disciplinary proceedings concerning Dr Martin. However, as the Tribunal raised with the parties on 19 March 2014, the referral of these disciplinary proceedings was under s 193 of the National Law.[3]
[3]The Board was granted leave to amend the referral to reflect that position, the original referral having referred incorrectly to the proceedings being brought pursuant to s 124 of the Disciplinary Proceedings Act.
When the matter was mentioned on 19 March 2014, I raised with the parties that I had reservations, indeed serious reservations, about the Tribunal’s jurisdiction to make orders such as those which were being proposed. For reasons subsequently published in the Pharmacy Board of Australia v Tavakol[4], the Tribunal has set out in detail why it is that it does not have the power to suspend decisions under the National Law, as it formerly had under the Disciplinary Proceedings Act.
[4][2014] QCAT 112 on 1 May 2013 at [40] to [50].
Having invited the parties to make submissions in this matter upon those issues, the solicitors for the Board have provided detailed and comprehensive submissions which lead to the same conclusion, albeit for slightly different reasons than those which the Tribunal expressed in Tavakol. However, those submissions were provided by the Board, helpfully, prior to the publication of the reasons in Tavakol, and Mr McCowan, who appeared for the Board today, has effectively adopted the reasoning as disclosed in Tavakol as the Board’s position.
Mr McCowan also, frankly, on behalf of the Board, acknowledges that in the circumstances where the Board now proposes that an actual period of suspension be imposed upon Dr Martin’s registration by way of a further period of suspension, that that may work some unfairness or injustice to him given that the parties had previously proceeded on the basis of agreeing in good faith to there being an actual period of suspension of two months. The significance of the agreed period of actual suspension can be seen from the dates.
Dr Martin had been suspended under immediate action on 9 January 2014, and it was proposed in mid-March that the operation of that suspension be lifted; that is, that the period of time of actual suspension which he had served as a consequence of the immediate action decision would have effectively had served as the period of actual suspension to be imposed in the disciplinary proceedings. For those reasons, the parties sought – and I granted by consent in March of this year – the setting aside of the immediate action decision as taken against Dr Martin. That dealt with his application for review of that immediate action decision.
As Mr McCowan has very fairly and frankly raised in his submissions before me today, the Board, in submitting that a period of actual suspension by way of a further period of suspension of three months be imposed, does so on the basis that the conduct alleged, that is, the performance of a surgical procedure to a standard below that reasonably expected of the registrant with adverse outcome and in contravention of conditions, is a serious matter; and indeed it is. In my view, the period of three months suspension, albeit with a portion of that proposed to be suspended, would be at the very minimum of an appropriate range of sanction to be imposed in a case such as that which I have described.
Any conduct by a practitioner in contravention of conditions imposed on that practitioner’s registration must be viewed very seriously indeed. If a practitioner practices contrary to conditions imposed, then sanctions which otherwise prohibit his or her practice by way of suspension or cancellation of registration must necessarily be considered.
The outcome in this particular case, given the peculiarity of the factual circumstances to which I have referred, should not be taken by any person in the future as being indicative of an outcome which would be considered within the ordinary range of outcomes in such a case. But, as I say, it suffers from its own peculiarities, both in terms of the number of proceedings which have been brought and the circumstances where agreement has been made or reached previously, albeit on a mistaken basis.
In my view, the period of three months suspension proposed and agreed was appropriate. Indeed, as I have indicated, it may have been more, but it was not an inappropriate period for which to suspend Dr Martin’s registration. Had these matters been dealt with in March, it may have been that the Tribunal would have imposed the further period of one month of actual suspension beyond that date; but the circumstances now are that it is now one month subsequent to when that period would have expired, even if the full three months of the proposed suspension had been served.
In my view, to impose a further period of actual suspension on Dr Martin now, in the peculiar circumstances of this case, would work as an unfairness against him. That is particularly so given, as I have already observed, that the conduct relates to what might be seen as part of a course of conduct at the conclusion of 2011 and the start of 2012 for which he has also been subject to earlier disciplinary proceedings and in which he has served an actual period of suspension by operation of the immediate action decision taken in August of 2012 of five months more than that imposed in the disciplinary proceedings. For those reasons I propose not to impose any further period of suspension on Dr Martin’s registration.
The Board has proposed, by way of further sanction, further conditions. Those conditions, in large part, mirror those which were imposed by the Tribunal in July 2013 as part of the sanction in the earlier disciplinary proceedings. Those conditions imposed a period of supervised surgical practice upon Dr Martin’s registration for a period of 12 months. With certain very limited exceptions, Dr Martin could only perform surgical procedures under such level 1 supervision. That period will shortly expire. Upon its expiration, Dr Martin will be limited in his practice by being unable to perform any surgical procedures, except as authorised by the Board. Such authorisation can only be given after Dr Martin has undertaken such further assessment as is approved in writing by the Board.
Dr Martin has frankly indicated to the Tribunal today that he has not sought approval for any further surgical procedures from the Board. At the time at which I was asking him and Mr McCowan on behalf of the Board of those matters I had failed to appreciate that the 12 month supervised period was, in fact, still in operation and shall be until late July of this year. However, in light of Dr Martin’s frank concessions that not only has he not sought any approval, he does not intend to do so in the future, it seems to me that the efficacy of the orders which would further the protective purpose of proceedings such as these would be to vary the order previously made by the Tribunal on 26 July 2013 so as to remove the conditions permitting supervised surgical procedures and simply requiring that Dr Martin is unable to perform any surgical procedure, with the exception of those currently identified, without the written approval of the Board. It is a matter of practicality. Dr Martin indicates that he will never seek such approval. If he were to do so, however, it would remain a matter for the Board, as it is at the present time, or will soon become, by operation of the present orders. To extend the period of supervised surgical practice would, in my view, be to extend the ability for Dr Martin to perform surgical procedures, which would be to diminish the protective nature of the order. I will direct that the Board file an order reflecting those amendments.
It is appropriate that in these proceedings I separately reprimand the conduct of Dr Martin because it does form additional conduct to that in respect of which the earlier reprimand is recorded. Apart from the reprimand and the variation to the conditions currently imposed, I decline to impose any further sanction on Dr Martin.
The Board has sought its costs. Ordinarily in a matter such as this where the Board brings disciplinary proceedings which are successful, for reasons previously indicated by the Tribunal, the Board ought have its costs. That is because the Board’s activities are, in large part, funded by registrants of good standing. They should not carry the burden of the costs of disciplinary proceedings brought in respect of registrants who have transgressed. This matter is somewhat complicated, however, given the facts that I have already outlined; that is, that the disciplinary proceedings necessitated by the discovery of further conduct might have been brought in the earlier proceedings. In those circumstances I propose to permit the Board and Dr Martin to file any submissions which they wish to make on the issue of costs within seven days and the Tribunal will determine that matter in due course.
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