Occupational Therapists Board of Queensland v MK
[2013] QCAT 178
| CITATION: | Occupational Therapists Board of Queensland v MK [2013] QCAT 178 |
| PARTIES: | Occupational Therapists Board of Queensland (Applicant) |
| v | |
| MK (Respondent) |
| APPLICATION NUMBER: | OCR243-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 15 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 240 of the Health Practitioners (Professional Standards) Act 1999 ("Act"), a ground for disciplinary action is established, namely MK suffers an impairment. 2. Pursuant to section 241(2)(b) of the Act, conditions be imposed upon MK’s registration in accordance with Annexure "A". 3. Pursuant to section 241(2)(c) of the Act, the Tribunal approves the undertaking offered by MK that she will not pursue a discrimination complaint against Queensland Health Employees concerning matters brought to the Occupational Therapists Board of Queensland’s attention in about 2011. 4. Pursuant to section 241(3) of the Act, MK is not permitted to apply for a review of the conditions for a period of three years from the date the conditions commence. However, MK and the Occupational Therapists Board of Queensland may agree in writing to vary the conditions detailed in paragraph 2 to assist in its practical application and in such case the written variation shall be filed in the Tribunal within seven days. 5. Pursuant to section 242(1) of the Act the details of the conditions on MK’s registration imposed under order 2, and the undertaking approved by order 3, are not to be recorded on the Board’s register. 6. Each party is to bear their own costs of and incidental to this proceeding. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – where the Registrant admitted they were impaired – where the parties submitted a joint proposed sanction – where the Registrant gave an undertaking – whether the proposed sanction was appropriate – whether the conditions on registration should be recorded on the Board’s register – whether the undertaking should be recorded on the Board’s register PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – where matters alleged in the referral were not pursued by the Board – whether a non-publication order should be made in regards to the documents relating to grounds for referral not pursued Health Practitioners (Professional Standards) Act 1999 s 124(2), s 222, s 241(2), s 241(2)(d), s 242(1)(a), s 242(1)(b), s 242(3) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Andrew Forbes of DLA Piper Australia |
| RESPONDENT: | Mr A McKean Counsel instructed by Susan Moriarty & Associates |
REASONS FOR DECISION
MK has been a registered occupational therapist since 1983. In September 2008 she took extended leave due to a psychological illness caused by workplace stressors. In or about October or November of that year she was diagnosed as suffering from major depression. MK voluntarily informed the Board of her illness.[1]
[1]The precise date upon which this occurred is unclear on the material before the Tribunal. The Board’s submissions and the affidavit of Kim Hudson both refer to the Board becoming aware in 2009 of MK’s absence from her workplace due to her mental illness. MK’s submissions refer to her informing the Board of her illness ‘at this time’ which appears to be a reference to September 2008. (See paragraph 3 of the Respondent’s Outline of Submissions filed 11 February 2013). In any event, most importantly, it is clear from the oral submissions made on behalf of the Board at the hearing that it is common ground that it was MK who self reported her illness to the Board.
After about one year’s absence, MK returned to work on a graduated return to work program. She remained under the care of her psychiatrist. In 2011 she was again experiencing difficulties and was again taking time off work because off her illness.
In October 2011 the Occupational Therapists Board of Queensland imposed a condition on MK’s registration under s 59 of the Health Practitioners (Professional Standards) Act 1999 (the “Act”). The condition prohibited MK from having clinical contact with any person with a mental impairment, except in the presence of an approved supervisor. The condition was imposed until MK satisfactorily completed a health assessment and, if appropriate, undertakings or conditions were agreed with the Board and sanctioned by the Tribunal, or conditions were imposed by the Tribunal.
The Board referred a disciplinary proceeding to the Tribunal. Three grounds for disciplinary action were included in the referral. The first was that MK is impaired.[2]
[2]“Impairment” is a ground for disciplinary action: s 124(2), Health Practitioners (Professional Standards) Act 1999.
Relevantly, ‘impairment’ is defined to mean a mental condition or disorder that detrimentally affects, or is likely to detrimentally affect, a registrant’s mental capacity to perform his or her profession.[3]
[3]As defined in the Dictionary in the Schedule to the Health Practitioners (Professional Standards) Act 1999.
The parties agree that MK has an impairment.[4] This agreement between the parties reflects the opinion of Dr Josephine Sundin,[5] that MK is suffering from a relapsing major depressive episode. This condition results in her having cognitive dysfunction which has the capacity to detrimentally affect her capacity to safely undertake her job.[6]
[4] Statement of Agreed Facts, [12].
[5]On 9 December 2011 the Tribunal ordered that MK undergo a health assessment by Dr Sundin.
[6]Report of Dr Josephine Sundin, 8 January 2012. Document 10 of Agreed Bundle, 20-1.
I am satisfied that MK has an impairment which invokes the Tribunal’s jurisdiction under s 241(2) of the Act.
Given the parties agreement as to MK impairment, and that MK has undertaken to the Tribunal[7] that she will not bring a complaint alleging discrimination in the Anti-Discrimination Commission Queensland in regard to the referral of this matter to the Board,[8] The Board does not pursue the other two disciplinary grounds in the referral.[9]
[7] See s 241(2)(d), Health Practitioners (Professional Standards) Act 1999.
[8] Undertaking; Exhibit 9 tendered in the hearing on 11 February 2013.
[9] Board’s Submissions filed 19 July 2012, [9] and [10].
The parties have agreed upon a draft order which they jointly propose as being a sanction which fulfils the objects of the Act and which is consistent with the recommendations of Dr Sundin regarding future restrictions on MK’s registration. These orders include conditions to be imposed upon MK’s registration.[10]
[10] See Annexure A.
The proposed orders are appropriate. The orders carefully provide for a graduated reengagement by MK in professional practice with progressively increasing responsibility and correspondingly decreasing levels of supervision. They provide for a managed progression through the various stages, informed by appropriate assessments by Dr Sundin, and reports to the Board both by Dr Sundin and by MK’s supervisor.
The orders also prescribe a limit to the number of hours which MK may work in, at least, the first year during which the conditions will apply. Those limits may be lifted or relaxed, after that initial period, if supported by psychiatric opinion. This too is consistent with Dr Sundin’s assessment and recommendation.
Importantly, the orders provide for the treatment of MK depressive conditions.
One matter has not been addressed in the proposed order. When conditions are to be imposed upon a registrant’s registration under s 241(2) of the Act, as they are here, s 242(1)(a) requires the Tribunal also to decide whether details of the conditions must be recorded in the Board’s register for the period which the conditions are in force.
Similarly, when an undertaking is approved or accepted under s 241(2) the Tribunal must also decide whether the undertaking should be recorded in the Board’s register.[11]
[11] Sections 242(1)(b) Health Practitioners (Professional Standards) Act 1999.
However, in impairment matters such as this, s 242(3) requires that the Tribunal decide the details of condition or undertaking not be recorded in the register unless it reasonably believes it is in the interests of users of the registrant’s services or the public to know the details.
The Tribunal is not of the view that it is in the interest of users of MK services or the public to know the details of the undertaking or conditions on her registration. Accordingly, the Tribunal has decided that details of the conditions and undertaking must not be recorded in the Board’s register.
Costs
There is agreement between the parties that each party should bear their own costs of the proceedings. The Tribunal will order accordingly.
Non-Publication Order
MK seeks that documents 6, 7 and 8 in the Agreed Bundle of Documents and the Affidavit of Kim Hudson[12] be subject to a non-publication order.
[12] Filed by leave on 9 December 2012.
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 permits such orders to be made; but only if the Tribunal considers the order is necessary either to avoid certain outcomes, or for any reason in the interests of justice. One of the outcomes the avoidance of which may necessitate the making of a non-publication order is the publication of information whose publication would be contrary to the public interest.[13]
[13] Section 66(2)(d), Queensland Civil and Administrative Tribunal Act 2009.
It is unnecessary to record here what information is included in the documents in respect of which the non-publication order is sought. It sufficies to observe that each of the documents is directed to issues relevant to the two grounds for disciplinary action which were not pursued by the Board. The submissions on behalf of MK observe, properly in my view, that had the only ground for disciplinary action in the referral been the impairment ground (which was the only ground ultimately pursued) then the proceedings would not have been open to the public unless the Tribunal believed that to be in the public interest, or MK herself had asked for a public hearing.[14]
[14] Section 222, Health Practitioners (Professional Standards) Act 1999.
In my view, in the circumstances of this case, publication of that information would be contrary to the public interest. The Tribunal will make an order prohibiting the publication of those documents.
Orders
Pursuant to section 240 of the Health Practitioners (Professional Standards) Act 1999 ("Act"), a ground for disciplinary action is established, namely MK suffers an impairment.
Pursuant to section 241(2)(b) of the Act, conditions be imposed upon MK’s registration in accordance with Annexure "A".
Pursuant to section 241(2)(c) of the Act, the Tribunal approves the undertaking offered by MK that she will not pursue a discrimination complaint against Queensland Health Employees concerning matters brought to the Occupational Therapists Board of Queensland’s attention in about 2011.
Pursuant to section 241(3) of the Act, MK is not permitted to apply for a review of the conditions for a period of three years from the date the conditions commence. However, MK and the Occupational Therapists Board of Queensland may agree in writing to vary the conditions detailed in paragraph 2 to assist in its practical application and in such case the written variation shall be filed in the Tribunal within seven days.
Pursuant to section 242(1) of the Act the details of the conditions on MK’s registration imposed under order 2, and the undertaking approved by order 3, are not to be recorded on the Board’s register.
Each party is to bear their own costs of and incidental to this proceeding.
Annexure "A"
MK will not engage in clinical practice of any description (whether in receipt of pay or voluntarily). MK may only engage in non-clinical practice in a supervised position under a Board approved Principal Supervisor in accordance with level 2 supervision of the Board's Guidelines for Supervised Practice.
After a period of six months from the date of the Tribunal's order, MK may seek to return to supervised clinical practice once:
2.1.She has undertaken, at her own expense, a health assessment (including any investigations) with Dr Josephine Sundin (or other psychiatrist nominated by the Board if Dr Sundin is not able to conduct the assessment), and
2.2.Dr Sundin (or the approved alternative psychiatrist) has provided a report to the Board recommending the commencement of clinical practice (including any further conditions), and
2.3.The Board has provided to MK its written approval to undertake supervised clinical practice in accordance with condition 3.
Once condition 2 has been fully complied with, MK may engage in clinical practice in a directly supervised position under a Board approved Principal Supervisor in accordance with level 1 supervision of the Board's Guidelines for Supervised Practice. MK may continue to engage in non-clinical practice in a supervised position under a Board approved principal supervisor in accordance with level 2 supervision of the Board's Guidelines for Supervised Practice.
After a further period of six months from the date the Board provides its written approval as described in condition 2 (and completed six months of supervised practice in accordance with conditions 2, 3 and 8), MK may seek to engage in supervised clinical practice in accordance with level 2 supervision and engage in supervised non-clinical practice with level 3 supervision of the Board's Guidelines for Supervised Practice. However, before doing so:
4.1.She must undertake, at her own expense, a health assessment (including any investigations) with Dr Josephine Sundin (or other psychiatrist nominated by the Board if Dr Sundin is not able to conduct the assessment), and
4.2.Dr Sundin (or the approved alternative psychiatrist) must have provided a report to the Board recommending the decrease in the level of supervised practice (including any further conditions), and
4.3.The Board must have provided to MK its written approval to undertake supervised clinical or non-clinical practice in accordance with this condition.
After a further period of twelve months from the date the Board provides its written approval as described in condition 4, MK may seek to engage in supervised clinical practice in accordance with level 3 supervision of the Board's Guidelines for Supervised Practice and undertake unsupervised non-clinical practice. However, before doing so:
5.1.She must undertake, at her own expense, a health assessment (including any investigations) with Dr Josephine Sundin (or other psychiatrist nominated by the Board if Dr Sundin is not able to conduct the assessment), and
5.2.Dr Sundin (or the approved alternative psychiatrist) must have provided a report to the Board recommending the decrease in the level of supervised practice (including any further conditions), and
5.3.The Board must have provided to MK its written approval to undertake clinical or non-clinical practice in accordance with this condition.
After a further period of 12 months from the date the Board provides its written approval as described in condition 5, MK may seek to undertake unsupervised clinical practice. However, before doing so:
6.1.She must undertake, at her own expense, a health assessment (including any investigations) with Dr Josephine Sundin (or other psychiatrist nominated by the Board if Dr Sundin is not able to conduct the assessment), and
6.2.Dr Sundin (or the approved alternative psychiatrist) must have provided a report to the Board recommending ceasing supervised practice (including any further conditions), and
6.3.The Board must have provided to MK its written approval to undertake clinical or non-clinical practice in accordance with this condition.
If at any time Dr Sundin (or the approved alternative psychiatrist) or MK’s treating psychiatrist believe MK’s level of supervision should increase, then upon written confirmation from the Board, MK will only engage in the increased level of supervised practice as directed by the Board. Should MK wish to again reduce her level of supervision, she may only do so after a period of six months from the date the Board provided its written confirmation and otherwise in accordance with the scheme described in conditions 2, 4, 5 and 6.
MK must not work more than 32 hours a week (in a four day week) for the first 12 months from the date of these orders. Thereafter, this restriction will be lifted or relaxed if Dr Sundin (or another approved psychiatrist) determines that MK’s health progress has been satisfactory. Any restriction will only be lifted or relaxed upon the Board's confirmation in writing.
MK will attend for treatment by a psychiatrist of MK’s own choice (at least on a monthly basis). Such treatment must include treatment for major depression. Otherwise the treatment will be at a frequency to be determined by the treating psychiatrist. The treatment is to be at MK’s own expense. MK will continue to take any medication as prescribed by her treating psychiatrist. MK will authorise the treating psychiatrist to inform the Board if there is a significant change her health status, she fails to attend for review or comply with treatment , or if he/she is of the opinion that MK no longer requires treatment.
10.MK will consent to the release of Dr Sundin's (or the approved alternative psychiatrist's) reports to MK’s treating psychiatrist.
11.For the purpose of conditions 1 to 5 and 7, MK will recruit a professional colleague (to be first approved by the Board in writing) to act as her workplace supervisor (who will agree to comply with the requirements set out below). The supervisor must have a minimum of five years post graduate experience practising as an occupational therapist.
12.MK must be supervised in accordance with conditions 1 to 5 and 7 as they apply as the relevant time. The supervisor is to provide a broad overview of MK’s practice, put in place appropriate mechanisms approved by the Board for reviewing MK and provide specific advice as requested by her. MK must inform the Board within 5 working days if the supervisor ceases to work at her workplace.
13.MK will authorise the supervisor to provide to the Board reports on her progress and health for the period of time she is under supervision. The reports must take into account aspects of practice including:
13.1.Providing good care, including shared decision making,
13.2.Working with patients and clients,
13.3.Working with other practitioners,
13.4.Working within the health care system,
13.5.Minimising risk,
13.6.Maintaining professional performance,
13.7.Professional behaviour and ethical conduct, and
13.8.MK’s ability to fulfil clinical competencies appropriate to scope of practice expectations.
14.Reports will be provided to the Board on a monthly basis for the first six months of supervised practice described in condition 1, and at any time MK is undertaking supervised clinical practice in accordance with level 1 supervision of the Board's Guidelines for Supervised Practice. At all other times, reports will be provided to the Board on a three monthly basis.
15.When providing a report to the Board, the supervisor is to also provide a copy of the report to MK. If MK wishes to make any comments or submissions on the report, she must provide them to the Board within three working days of having receiving the report.
16.MK may also, at any time, independently make a written submission to the Board concerning her practice.
17.MK will authorise the supervisor to report to the Board any concerns he or she may have about her health or performance.
18.MK will notify the Board, her supervisor and treating psychiatrist immediately she becomes is aware that there is a material change in her health or any adverse practice issues.
19.MK will authorise the Board providing to Dr Sundin (or the approved alternative psychiatrist) and her treating psychiatrist a copy of any report provided by her supervisor (or supervisors).
20.MK is to provide a copy of these conditions and the Tribunal's Order to her employer and supervisor with whom she practises (including any future employer and supervisor).
21.MK will authorise her supervisor, treating psychiatrist and treating GP to release information to the Board regarding her progress and health status as requested by the Board.
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