MEDICAL PRACTITIONER "V1" & MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) - [2011] ACAT 42

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL PRACTITIONER "V1" & MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2011] ACAT 42

OD 12 of 2010
Catchwords: Suspension from practice – Tribunal granting a stay order – evidence heard but no decision made – considerations in granting a further stay order pending decision

List of
Legislation: ACT Civil & Administration Tribunal Act 2008 (ACT)

Ss 7, 53, 53(1), 53(1)(b), 53(2), (3), 53(3)(a), 53(3)(b), 53(4),
Health Practitioner Regulation National Law (ACT)
Ss 156

Tribunal: Mr C. G Chenoweth, Presiding Member
Ms J. Greagg, Member

Dr T. Faunce, Member

Date of Orders: 10 June 2011
Date of Reasons for Decision: 10 June 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OD 12 of 2010

BETWEEN:

THE MEDICAL
PRACTITIONER ‘V1’
Applicant

AND:

THE MEDICAL BOARD
OF AUSTRALIA
Respondent

TRIBUNAL: Mr C. G Chenoweth, Presiding Member
Ms J. Greagg, Member

Dr T. Faunce, Member

DATE: 10 June 2011

ORDER

The Tribunal Orders that:

A. The order of the Tribunal of 18 March 2011 is set aside.

B. The decision of the Medical Board dated 6 December 2010 to take immediate action to suspend the registration of the Doctor is stayed from 10 June 2011 until 4:00 pm on 2 September 2011 subject to the following conditions:
1.The Doctor is to consult Dr Les Drew once every 3 weeks commencing on 8 February 2011 to seek advice and supervision for the purpose of ensuring that:

i)the Doctor understands the importance of maintaining appropriate boundaries in relationships with patients;
ii)appropriate strategies are developed and implemented should any boundary issues arise with particular patients.

2.Dr Drew continues to agree to provide a report to the ACT Manager of the Medical Board at an address to be provided, as soon as practicable after each consultation that:

i)reports on the fact and duration of the consultation;
ii)confirms that the matters set out in condition (1) were satisfactorily addressed in the consultation.

3.The Doctor only consults with patients at his rooms or at a health facility.
4.The Doctor does not take on any further new patients.

C. The Doctor is required to attend a medical practitioner nominated by the Board on the date and times specified by the practitioner for the purposes of examination and report to the Board, and through it to the Tribunal, on the issue of whether the Doctor is currently fit to practice. If required by the practitioner the Doctor may undergo a programme of drug testing for prescription and non-prescription drugs and their levels.

………………………………..

Mr C.G Chenoweth
Presiding Member

REASONS FOR DECISION

Mr C.G Chenoweth and Ms J. Greagg

These are the reasons why we have decided that the Tribunal should further stay the decision of the respondent ("the Board") to suspend the registration of the applicant ("the Doctor") as a medical practitioner. The further application to stay the suspension order is dated 31 May 2011, and the matter was heard on 1 June 2011.
There are related proceedings to this matter, OD 13 of 2010. In those proceedings, the Board originally sought that because there had been alleged professional misconduct, conditions should be imposed on the registration and practice of the Doctor. The evidence in that case has now been taken, but the Tribunal has not yet received submissions from the parties both in writing and orally. The Tribunal has not made any findings of fact in relation to the allegations in that matter.
On 6 December 2010, the Board suspended the registration of the Doctor under section of section 156 of the Health Practitioner Regulation National Law (ACT) (“the National Law”). Application was made by the Doctor to the Tribunal for a stay order against that decision under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”.) A stay order was made by the General President on 17 December 2010. That stay order was made on certain conditions.
On the 20 February 2011, Presidential Member Spender of the Tribunal amended the stay order. On 23 March 2011, Presidential Member Spender granted a further stay order on conditions. Counsel for the Board in the hearing on 1 June 2011 indicated that the Board opposed any further stay order.
Under section 53 (3) (a) of the ACAT Act an order granted under that section has effect for a period of 12 weeks after the date of the order is made. In the absence of a further stay order, the suspension of registration by the Board under the National Law takes immediate effect, and the Doctor may not practice.
Subsection 53 (4) (c) allows the Tribunal to extend an order for a period of 14 days, and in the absence of such an application, an order made under section 53 (2) automatically terminates after a period of 12 weeks from the date of the order.
As noted earlier, in matter OD 13 of 2010 the Tribunal has not made any determination of facts, nor have final submissions been received. Following that, the Tribunal must consider the whole of the evidence and submissions, and make a decision. It is clear that this cannot be done prior to 17 June 2011 when the existing stay order expires. The question therefore on this application is whether the stay order should be extended, or a further stay order made.
Counsel for the Doctor submitted that a further stay order should be made, commencing from the date of expiry of the current order (4.00 pm on 17 June 2011) and continuing for a further period of 12 weeks after that date. The Tribunal is not satisfied that section 53 (3) (a) allows for such an extension. The subsection requires that the order remain in force for the period no longer than “the end of 12 weeks after the day an order is made.” If an order was made now, commencing on a date in the future and then expiring 12 weeks thereafter, it would extend the period of the stay order beyond a date"12 weeks after the day that the order is made."
If a stay order is to be made, then it should be made for a period of 12 weeks from the date of the order, not a future date. The existing order should be discontinued under section 53 (3) (b) of the ACAT Act.
The operation of section 53 of the ACAT Act relating to the granting of stay orders, and the criteria that should be applied in making such orders, has been set out in detail in the decision of General President Crebbin of the Tribunal in a matter of John Morgan and Construction Occupations Registrar (Occupational Discipline) 2011 ACAT 18 (“Morgan’s case”).We adopt the reasoning of the General President in that matter as to the interpretation of the section, and the criteria that must be considered if a stay order is to be granted.
Counsel for the Board submitted that as several stay orders had been granted in the past in this matter, the granting of a further order and the length of time that the proceedings had taken and were likely to take before a final decision could be made in OD 13 of 2010, were matters that should be taken into account against the granting of a stay order. We do not accept this proposition. There are many reasons why proceedings may take the time that they do, including discussions between the parties as to various matters.
The initial test for granting a stay order in section 53 (1) is that if the order was not made, the party applying for the order would be disadvantaged or suffer harm. If that can be shown then section 53 (2) directs the Tribunal to consider what matters are appropriate to protect the position of the party applying for the order.
The initial question for the Tribunal under section 53 (1) (b) is whether, on the balance of probabilities, the Doctor would be disadvantaged or suffer harm if the order was not to be made. In his affidavit of 31 May 2011, the Doctor has set out his financial position. That position is precarious, having regard to his income and liabilities. Unless the Doctor is able to continue to practice, then he will have no proceeds on which to live or pay his staff and expenses. Staff wages are in arrears. The Doctor’s practice company owes significant amounts to the Australian Taxation Office, and he is reliant on regular payments from clients and government institutions supporting them to provide a living. If a stay order was not granted, this income would disappear. He has no other source of income. Clearly, he would be disadvantaged or suffer harm. A further disadvantage would be that his existing patients would have to be referred elsewhere, as a result of which he would lose revenue in the future from them consulting him. The prospect of him re-building his referral practice after a period when he was prevented from practicing is uncertain at best. We are therefore satisfied on the balance of probabilities that if stay order was not granted, the Doctor would be disadvantaged or suffer harm.
The criteria set out in paragraph 10 of the decision in Morgan's case is therefore satisfied on the balance of probabilities.
We must therefore consider whether on balance of convenience, an order should on granted. It should be noted that the Doctor has been continuing to practice since December 2010 under conditions imposed by the earlier stay orders, and including regular mentoring by a colleague, acceptable to the Board, who is reporting to the Board. No further complaints had been made against the Doctor, which is perhaps not surprising bearing in mind the nature of the proceedings in OD 13 of 2010, and the scrutiny to which he is subject. We are therefore not satisfied that public safety or the public interest requires an immediate cessation of practice.
We note that under section 7 of the ACAT Act, the Tribunal is required to observe natural justice and procedural fairness. As noted above, while the evidence in the case has been heard, no findings of fact have yet been made and submissions by both parties have yet to be received, considered and responded to by the other.
While counsel for the Board has indicated that the initial position as to the disposal of the case that it adopted is likely to change, that has not been developed in submissions to which the Doctor’s counsel is able to respond. In its original application to the Tribunal, the Board sought that there be restrictions on the practice of the Doctor if he was to continue practising in the future. The Board has now indicated that as a result of the evidence given in matter OD 13 of 2010, the Board is reconsidering that position and may press for cancellation or suspension of registration.
While some of the evidence given before the Tribunal causes us concern about the capacity of the Doctor, it would not be consistent with procedural fairness to make a decision now not to continue the stay orders. This would terminate the Doctor’s right to practice, even for a period, where there is no immediate pressing public safety issue shown to the Tribunal, and the final resolution of the matter is in the future.
The balance of convenience falls on the side of granting the stay order.
The conditions on which a stay order should be granted are matters for the Tribunal when making the order. As indicated above, we consider that certain aspects of the evidence concerning the Doctor warrant a particular condition being imposed in the stay order. The particular nature of the Doctor's specialty and practice must mean that the issue of public safety is a major concern to the Tribunal. The provisions of the National Law reinforce this emphasis.
We note that our colleague has given a separate decision, but is agreeable to the stay order being granted on the conditions proposed.
The decision of the Tribunal is that the existing stay order granted on 25 March 2011 will be discontinued with effect from the date of this order. A further stay order under section 53 (2) of the ACAT Act will be granted from the date of this order until 4.00 pm on the day 12 weeks after today's date, namely 2 September 2011, or until further order of the Tribunal. The Tribunal is satisfied that this will give sufficient time for matter OD 13 of 2010 to be completed and a decision made.
The order made today is to be on the same terms as that of the order of 25 March 2011 in relation to this matter, with the additional condition that the Doctor must attend a medical practitioner nominated by the Board on the dates and the time specified by the practitioner for the purposes of examination and report to the Board, and through it to the Tribunal, on the issue of whether the Doctor is currently fit to practice. If required by the practitioner, the Doctor may undergo such a program of drug testing for prescription and non- prescription drugs. and their levels.

Dr.T. Faunce.

The circumstances by which this matter comes before the Tribunal have been accurately set out in the reasons for decision of Members Chenoweth and Greagg above. I find myself, however, reaching a different conclusion as to whether a further stay order should be granted under section 53 (2) of the ACAT Act. In my opinion the reasons of General President Crebbin of the Tribunal in a matter of John Morgan and Construction Occupations Registrar (Occupational Discipline) 2011 ACAT 18 (“Morgan’s case”) about the matters generally to be taken into account in making such as order under s53 of the ACAT Act, must in cases such as this, be read in the context of the specific and overriding obligation to protect public safety inherent in the Health Practitioner Regulation National Law ACT (2010) (“National Law”). A finding that the applicant under s53 of the ACAT Act would be disadvantaged or suffer harm does not entitle the Tribunal to downgrade the primary legislative obligation to protect public safety under the National Law. Section 156 of the National Law sets out the Board’s power to take immediate action in these terms
“156 Power to take immediate action
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety”

There is a real risk that by focusing too closely on the wording of s53 of the ACAT Act in matters such as this the Tribunal will lose sight of the primacy of public safety that is required to be uppermost in the considerations of the Board.

Under this new National Law the Board’s important role in protecting public safety by removing a doctor from practise must not come to be viewed in any practical sense as supplanted by the Tribunal. It is important that no precedent is set for applications to the Tribunal for stays on orders of suspension made by the Board as a matter of course; or sense of entitlement established for rolling stays.

The Board is experienced in regulating matters of this type. We were informed by counsel for the Board that it was well aware of the financial consequences of its making an order for suspension of registration, but that it believed on the evidence before it that the Doctor posed a sufficiently serious risk to public safety. On the evidence I have heard I agree with that view. There are major unresolved issues about this Doctor’s lack of insight and impulse control, unexplained causes of irrationality that mentoring and a boundary violation course will not address. On the balance of probabilities I have not heard any evidence that persuades me to differ from the Board’s view that this Doctor poses in his continued practise a significant risk to the public. In my view the Tribunal should not lightly interfere with the decision of the Board to immediately suspend if necessary to protect public safety. The evidence I have heard increases rather than subdues my concerns about the safety of members of the public contacting this doctor in a professional context.

I would accede to the Board’s submission that the doctor be suspended from practise pending the final decision in the substantive proceedings. I note however that my fellow Tribunal members did not come to this view and in those circumstances it is important I note my concurrence with the new order for independent medical assessment of the Doctor including if deemed necessary tests for prescription and non-prescription drugs and their levels.

………………………………..

Mr C.G Chenoweth
Presiding Member
For the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: OD 12 of 2010

APPLICANT: Medical Practitioner V1
RESPONDENT: Medical Board of Australia

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: PLACE: CANBERRA

DATE/S OF DECISION: PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: