Medical Board of Australia v Tabriz

[2012] QCAT 239

CITATION: Medical Board of Australia v Tabriz [2012] QCAT 239

PARTIES:	Masoud Davatgaran Tabriz (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER:   OCR069-12

MATTER TYPE: Occupational regulation matters

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 9 May 2012

DELIVERED AT: Brisbane

ORDERS MADE:     1.    The stay application to stay the decision of the Board under review is refused.

CATCHWORDS: 

PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – CONDITIONS ON REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where the Board imposed conditions on the registration of the practitioner – where the conditions result in financial hardship – whether the conditions should be stayed pending review

Health Practitioner Regulation National Law Act 2009, s 9

Health Practitioner Regulation National Law (Qld), ss 156, 157, 199(1)(h)

Queensland Civil and Administrative Tribunal Act2009, ss 17(2), 32, 122

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. In November 2011, Dr Tabriz’s employer notified the Medical Board of Australia of an allegation that Dr Tabriz engaged in inappropriate sexual behaviour towards a patient.  In February this year, after asking Dr Tabriz to show cause why it should not do so, the Board decided to take immediate action[1] to impose conditions on his registration.  They require him to have a chaperone present for all consultations with female patients.

   [1]        Health Practitioner Regulation National Law (Qld), ss 156, 157.

2. Dr Tabriz has applied to QCAT to review that decision.  In the interim, he sought a stay of the decision.  On 20 March 2012, I refused that application.  Dr Tabriz sought written reasons for the decision.[2]  These are the reasons.

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 122.

The Board’s decision

1. Dr Tabriz admitted to engaging in a relationship of a sexual nature with a female patient.  When he learned of Dr Tabriz’s relationship with the patient, and before the Board took action, his employer placed restrictions on his practice which prevented him from conducting any intimate examinations (breast or genital) of a female patient without a chaperone.

2. The Board took the view that Dr Tabriz’s conduct posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety.  In doing so, it considered the history of Dr Tabriz’s consultations with and treatment of the patient and the patient’s condition.

3. In short, the patient was vulnerable, suffering from stress related severe psychological distress.  Knowing, because he was her doctor, that the patient was a teacher, Dr Tabriz made arrangements with the patient which involved her tutoring him in English at his home for no fee.  On Dr Tabriz’s case, these arrangements were at the patient’s suggestion after he asked her to recommend a tutor to him.

4. Some time later Dr Tabriz commenced a sexual relationship with the patient that lasted some months, until she learned he had married another woman.  The Board considered he posed a risk to other female patients because Dr Tabriz established a non-therapeutic relationship with a vulnerable patient while treating her for anxiety and depression, amongst other conditions.

5. Despite a request by Dr Tabriz’s employer to maintain the restrictions he had imposed on Dr Tabriz’s practice, the Board determined to impose the chaperone conditions for all consultations with female patients.  His employment was terminated, Dr Tabriz says, because of those conditions.

The Tribunal’s power to order a stay

1. The Tribunal may make an order staying a reviewable decision[3] only if it considers the order is desirable having regard to:

a)The interests of any person who may be affected by the order being made or not being made;

b)Any submission made by the decision maker;

c)The public interest.

[3]The Board’s decision is a reviewable decision Health Practitioner Regulation National Law (Qld), s 199(1)(h); Health Practitioner Regulation National Law Act 2009, s 9; Queensland Civil and Administrative Tribunal Act 2009, s 17(2).

1. The Tribunal’s decision to refuse to stay the Board’s decision adversely affects Dr Tabriz’s interests.  His employment has been terminated.  His ability to sit Australian medical examinations is in doubt, which affects his ability to comply with his visa requirements.  These are serious and substantial consequences.

[10]  However, the Tribunal must consider the interests of the public, in particular of potential female patients.

[11]  The Board could have imposed conditions that continued the restrictions required by the employer.  That would not have had such severe consequences for Dr Tabriz.  However, the restrictions related to intimate consultations only.

[12]  Here the inappropriate relationship arose out of Dr Tabriz’s making arrangements for his personal benefit with a patient during a professional consultation.  This may be an indication of predatory conduct.  If so, the future risk is not limited to occasions when there might be an intimate consultation.  On the evidence before the Board at the time it made the decision, it had a basis for forming a reasonable belief that the conditions were necessary to protect the public.

[13]  A stay is a discretionary order.  The onus is on the applicant for the stay.  Dr Tabriz has not persuaded me that the stay is desirable, taking into account the matters I must consider.

[14]  It is desirable, however, that the proceedings are dealt with in a timely way.  Dr Tabriz largely admits the facts, although it is not clear whether the patient agrees with Dr Tabriz’s account of how their tutoring and then sexual relationship commenced.  If oral evidence is required, it is likely to be confined to only a few witnesses.

[15]  The parties have participated in a conference presided over by a member of the Tribunal.  The matter is listed for a directions hearing on 25 May 2012.  If the parties have not resolved the matter by then, I will set it down for a hearing as soon as practicable.  The parties’ representatives should be prepared to discuss hearing dates in June or July this year.