Medical Board of Australia v Sarfraz (Occupational Discipline)
[2015] ACAT 20
•16 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v SARFRAZ
(Occupational Discipline) [2015] ACAT 20
OR 13 of 2014
Catchwords: OCCUPATIONAL DISCIPLINE – Health Practitioner – Medical Practitioner – consent decision – impairment – depressive illness – suspension of registration - self-prescription of medications – findings of guilty in relation to two criminal offences - no conviction – actions out of character and a result of illness - significant and sustained recovery from illness – suspension lifted and return to practice permitted subject to conditions
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 39 and 55
Tribunal: Ms L. Crebbin – General President
Date of Orders: 20 November and 3 December 2014, 16 February 2015
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/13
RE:THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND:DR AYESHA SARFRAZ
Respondent
DECISION PURSUANT TO SECTION 55 OF THE
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008 (ACT)
Tribunal: Ms. L. Crebbin – General President
Date of Order: 20 November 2014
Whereas –
a.the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them; and
b.the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
c.the Tribunal is satisfied that a decision consistent with some of the terms would be within the powers of the Tribunal;
by consent, the Tribunal makes orders in the terms of orders 1 to 5 of the proposed orders signed by the parties’ representatives and annexed hereto as Attachment A.
2. The application is listed for hearing of evidence and submissions in relation to proposed order 6 on Wednesday 3 December 2014 at 10:30am.
3. The parties are to file and serve a list and copies of decisions of other tribunals or courts under the National Law relating to the non-publication of evidence or information about a health practitioner, or the identity of a health practitioner, by 1 December 2014.
Ms L. Crebbin – General President
‘Attachment A’
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/13
RE:THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND:DR AYESHA SARFRAZ
Respondent
PROPOSED ORDERS
That the respondent has engaged in professional misconduct.
That the respondent be suspended from registration as a registered health practitioner until 8 November 2014, noting that the respondent has been suspended from practice since 8 November 2011,
That the respondent’s suspension by lifted as of 9 November 2014 subject to the following conditions:
a)That the respondent work only as a supervised resident medical officer for a minimum period of 6 months and that she initially return to practice on a part-time basis and that she attend peer review, journal club and case conference presentations or any other professional development modules (CPD) recommended by her supervisor. (The period of part-time work and weekly hours to be worked to be approved by Dr [ ] and notified to the applicant prior to the commencement of employment).
b)The respondent to be supervised by a consultant medical practitioner approved by the applicant who will be authorised by the respondent to provide to the applicant term reports every 10 weeks commenting on the respondent’s performance, CPD attendance and conduct as a medical practitioner, as well as any health issues which may affect the respondent’s performance and conduct as a medical practitioner.
c)The respondent’s approved supervisor to be fully informed by the applicant of the respondent’s history of impairment and self-prescription.
d)The respondent is prohibited from prescribing medication outside the hospital at which she is employed.
Health Conditions
3.1to 3.3 Publication Prohibited
- The review body with respect to orders 2 and 3 above will be the applicant.
- The above conditions to be reviewed by the applicant 6 months after re-entering medical practice and as determined by the applicant thereafter.
Sgd
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/13
RE:THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND:DR AYESHA SARFRAZ
Respondent
ORDERS
Tribunal:Ms. L. K. Crebbin – General President
Date of Order: 3 December 2014
The Tribunal orders that:
1.The parties are to provide an amended agreed statement of facts to the tribunal by 15 December 2014.
Ms. L. K. Crebbin- General President
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/13
RE:THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND:DR AYESHA SARFRAZ
Respondent
CORRECTION ORDER
Tribunal:Ms. L. Crebbin – General President
Date of Order: 16 February 2015
The Tribunal orders that:
2.The order dated 3 December 2014 is corrected under section 63 of the ACT Civil and Administrative Tribunal Act 2008 by adding the following omitted order:
‘2. The publication of the matters contained in orders 3.1 to 3.3 of the orders made by the Tribunal on 20 November 2014 is prohibited.’
......................................................
Ms. L. Crebbin- General President
REASONS AND AGREED FACTS
The orders set out in the document headed ‘Attachment A’ above were made on 20 November 2014 under section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) after considering signed terms of agreement and supporting material lodged by the parties.
Section 55 of the ACAT Act authorises the tribunal to, by order, make a decision in accordance with written terms of agreement that have been signed and lodged by parties to an application, if the tribunal is satisfied that such an order or decision is first, within the powers of the tribunal and secondly, is appropriate to make.
In this matter, I was satisfied that orders proposed in terms of agreement that were signed by the parties’ representatives, were within the powers of the Tribunal. I was satisfied that proposed orders numbered 1 to 5 were appropriate to make, but wished to further consider whether proposed order 6, which sought the suppression of some of the information contained in a statement of agreed facts (the statement) and of orders 3.1 to 3.3 of the proposed orders, was an appropriate order.
On 3 December 2014 submissions were made on behalf of the respondent, supported by the applicant, concerning proposed order 6. In summary, it was submitted that the interests of the private life of the respondent required that the proposed order be made, that making the order would promote and protect the system in place for managing impairment in the medical profession and that, in the context of that system, publication of the information would lead to inconsistency and tend to undermine the confidential nature of the impaired practitioner system such that the interests of justice would be prejudiced.
Section 39 of the ACAT Act gives the tribunal power to, among other things, make orders prohibiting or restricting the publication of evidence and of matters contained in documents lodged with it, when satisfied that the right to a public hearing of a matter is outweighed by competing interests. Section 39(5) identifies three circumstances in which the weighing up exercise required by subsection 39(1) will be satisfied in favour of keeping information private including, in s39(5)(b), because the interest of the private life of a party requires the privacy.
In this case, after considering the submissions of the parties, I was satisfied that an order should be made prohibiting the publication of the conditions set out in orders 3.1 to 3.3 because the interests of the private life of the respondent require the privacy. These conditions specify in detail the on-going medical treatment, medical review and assessment that the respondent is to undertake. They are important conditions. The public certainly has an interest in knowing that conditions of this type have been imposed to support the respondent’s successful return to practice and her recovery from her serious illness, but knowing the detail of the respondent’s medical treatment adds nothing to the public interest, while constituting a serious intrusion into the private life and personal health information of the respondent. On balance, publication of that information should be prohibited. An order was pronounced to that effect on 3 December 2014 but was accidentally omitted when the written order was issued. For that reason, a correction was made to the order of 3 December 2014, by order dated 16 February 2015.
Proposed order 6 also sought suppression of publication of parts of the statement. After considering the submissions made on behalf of the respondent, I was not satisfied that the right to a public hearing was outweighed in this instance by competing interests. Knowing the factual matrix within which disciplinary orders are made serves an important educative purpose both for health practitioners and the public. It promotes consistency of practice by, and confidence in, the regulatory system and is consistent with the principles of open justice.
While the statement contained ample evidence to satisfy the Tribunal that orders 1 to 5 were appropriate to make in accordance with the terms of agreement, it also included information that was irrelevant. Rather than publish a document including information irrelevant to the factual matrix and to the Tribunal’s consideration of the terms of agreement, I ordered that an amended statement, containing only relevant facts, be filed and indicated that the amended statement would be published in full with the consent orders. The statement that was signed by the representatives of both parties and subsequently filed is set out below.
STATEMENT OF AGREED FACTS
The parties agree on the following facts:
Respondent’s Professional Background
The respondent is a registered health practitioner as defined in s 5 of the Health Practitioner Regulation National Law (ACT) Act 2010 (the National Law).
The respondent obtained her medical qualifications in 1999.
Between 2003 and 2009 the respondent worked for the Department of Mental Health ACT as a psychiatric registrar. In 2007 the respondent passed the written part of the Royal Australian and New Zealand College of Psychiatrists examinations and in May 2008 she passed the clinical part of the examinations. From September 2008 the respondent worked as an advanced trainee in child and adolescent psychiatry at the Child and Adolescent Mental Health Service in the ACT. The respondent ceased work in late 2010 and has not worked as a medical practitioner since October 2010.
Respondent’s Health History
During 2008 the respondent was diagnosed with depression.
In February 2009 the respondent commenced self prescribing medications. A compulsory notification was made to the ACT Medical Board (the Board) by the respondent’s employer. On 12 May 2009 the respondent provided undertakings to the Board and was thereafter dealt with under the Board’s health program.
Between December 2009 and mid-2012 the respondent’s mental health deteriorated. Following a notification to the Board by the respondent’s treating psychiatrist, in November 2012 the respondent’s registration was suspended.
Events leading to the proceedings before the Tribunal
On 23 October 2011 the respondent self prescribed a medication and had the prescription filled at a pharmacy. On 18 November 2011 the respondent self prescribed another medication, however, the pharmacist refused to dispense the medication.
The respondent intended to use the medications to commit suicide.
The respondent’s actions in self prescribing the medications was reported to the police and eventually on 30 October 2013 the respondent was charged in the ACT Magistrates Court with 2 offences against s 346 and 2 offences against s 347 of the Criminal Code 2002 (ACT).
On 30 October 2013 the respondent was found guilty of each offence without proceeding to a conviction and released her upon her entering into a good behaviour order to be of good behaviour for a period of 18 months.
By engaging in the criminal offences set out above the respondent contravened the National Law, the condition to which her registration was subject on 23 October 2011 and the Code of Conduct of Doctors in Australia.
The respondent’s conduct is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience and this constitutes professional misconduct.
Actions by the respondent since committal of the offences
In May 2012 a urine drug screen undertaken by the respondent was positive for both Benzodiazepines as well and opiates. The respondent reported to her treating psychiatrist that she had used Nurofen Plus and Temazepan tablets which had been given to her by a friend.
From the second half of 2012 the respondent has been consulting with her treating psychiatrist on a regular basis and her emotional state started to stabilise.
The respondent’s treating psychiatrist reported in August 2014 that the respondent had been reviewed on a regular basis throughout 2013 and her emotional state continued to stabilise. The frequency of appointments was reduced to monthly during 2013. Her depressive symptoms had improved significantly though her treating psychiatrist reported that she remained a significant suicide risk in August 2013 in the context of her upcoming Court matter for the criminal charges.
In mid January 2014 the respondent voluntarily, and at her own expense, commenced regular urine analysis thrice weekly co-ordinated by her general practitioner, which have continued to date. The urine analysis has not detected opiates or Benzodiazepines or any other controlled substance.
The respondent had been prescribed Dothiepin at a dose of 150mg Nocte and Quetiapine 300mg daily by her treating psychiatrist. In May 2014 her treating psychiatrist recommended decreasing the dose of Quetiapine to 150mg daily.
Since 2009 the respondent has been working as a casual tutor.
Current medical evidence
Reports from the respondent’s treating psychiatrist and two independent psychiatrists have been obtained.
The respondent’s treating psychiatrist reported that over the period 2013-2014 the respondent had made a significant and sustained recovery from her depressive illness; that she had been largely compliant with treatment recommendations, and that she had developed insight into her condition. He considered that with appropriate support, monitoring and ongoing treatment the respondent should be able to successfully return to employment as a medical practitioner.
The independent psychiatrists concluded that the respondent’s actions giving rise to the Magistrates Court proceedings were out of character, and a result of her illness, and that as there is no evidence that the respondent is still impaired, she does not present a danger to the public if permitted to practice medicine. They agree that it would be appropriate for the respondent to return to practice subject to treatment, supervisory and monitoring requirements.
_____________________________
Ms L. Crebbin – General President
0
0
0