Occupational Therapy Board of Australia v AB
[2014] QCAT 82
| CITATION: | Occupational Therapy Board of Australia v AB [2014] QCAT 082 |
| PARTIES: | Occupational Therapy Board of Australia (Applicant) |
| v | |
| AB (Respondent) |
| APPLICATION NUMBER: | OCR346-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 23 January 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 18 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. A ground for disciplinary action is established, namely AB suffers from an impairment. 2. AB is prohibited from re-applying for registration until: a. AB has undergone a psychiatric assessment with a psychiatrist to be chosen by AB from a panel of 3 psychiatrists nominated by the Board (‘the psychiatrist’). The Board is required to nominate the panel within 21 days of receiving a written request from AB to provide a panel. AB must notify the Board in writing of the time of the assessment at least 14 days prior to the assessment. AB must provide a written authority to the psychiatrist to provide a written report to the Board about AB’s psychiatric status, including any treatment recommended. b. AB has undergone any treatment recommended by the psychiatrist with another psychiatrist who is to be nominated by AB in writing and approved in writing by the Board (‘the treating psychiatrist’). AB can only nominate the treating psychiatrist after the Board has received the report from the psychiatrist. The treatment is to be at a frequency and for a period determined by the treating psychiatrist (‘the treatment’). c. AB must provide a written authority to the treating psychiatrist to provide a report to the Board when AB is, in the opinion of the treating psychiatrist, fit to resume practising as an occupational therapist and make recommendations in relation to any ongoing psychiatric treatment necessary for AB to remain fit to practise as an occupational therapist, including any medication which should be prescribed (‘the treating psychiatrist’s recommendations’). d. The Board has received the report of the treating psychiatrist. e. AB has undergone an assessment with an audiologist to be nominated by AB in writing and approved in writing by the Board (‘the audiologist’) to determine the extent of hearing loss. AB must notify the Board in writing of the time of the assessment at least 14 days prior to the assessment. f. AB must provide to the audiologist a written authority to provide a report to the Board after the assessment commenting on the fitness of AB to resume practising as an occupational therapist and making any recommendations in relation to AB’s future practice an occupational therapist (for example, whether wearing a hearing aid or cochlear implant is necessary to facilitate communication with patients) (‘the audiologist’s recommendations’). g. The Board has received the report of the audiologist. 3. The Board may provide to the psychiatrist, the treating psychiatrist and the audiologist a copy of any documents the Board considers is reasonably necessary for the purposes of the assessments and treatment contemplated by these orders, including a copy of these orders and the reasons of the Tribunal, the affidavit of Dr Josephine Sundin sworn 25 February 2013, the affidavit of Mr Matthew Cowley sworn 20 March 2013 and any documents referred to in those affidavits. 4. The following conditions must be imposed upon any future registration of AB he must do all things reasonably necessary to comply with: a. the treating psychiatrist’s recommendations; and b. the audiologist’s recommendations. 5. The costs of compliance with paragraphs 2 and 4 must be borne by AB, including the cost of the assessments by the psychiatrist and audiologist, the treatment and the provision to the Board of reports by the psychiatrist, the treating psychiatrist and the audiologist. 6. AB may not apply for a review of these conditions for a period of 1 year from the date of any future registration save that the condition in paragraph 4(a) may not be reviewed for a period of 2 years from the date of any future registration; 7. The details of the conditions imposed by paragraphs 2 to 6 are not to be recorded on the Board’s register. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – applicant referred a disciplinary proceeding to the Tribunal –respondent allegedly suffered from an impairment – applicant has a duty to ensure that the Tribunal has current and reliable evidence – applicant sought further health assessment of the respondent – respondent indicated he was not willing to participate in a further health assessment – applicant made an application to the Tribunal to establish a health assessment committee – the Tribunal directed the respondent to undergo a health assessment –respondent did not attend the health assessment – whether the respondent is impaired at the time of the hearing Health Practitioner Regulation National Law (Queensland) s 107, s 108, s 250, s 251, s 289, s 300 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Occupational Therapy Board of Australia represented by Mr R W Barnes of Rodgers Barnes and Green Lawyers |
| RESPONDENT: | The Resondent appeared for himself by telephone |
REASONS FOR DECISION
On 26 October 2012 the Occupational Therapy Board of Australia (‘the Board’) referred a disciplinary proceeding to the Queensland Civil and Administrative Tribunal (‘QCAT’) in relation to Mr AB. AB had been a registered occupational therapist.
The referral alleged that AB suffered from an impairment. An impairment of a registrant is, by operation of s 124(2) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld),[1] taken to be a ground for disciplinary action.
[1]Formerly the Health Practitioners (Professional Standards) Act 1999 (Qld).
Applicable Law
Although the Health Practitioner Regulation National Law (‘National Law’) commenced on 1 July 2010,[2] Part 8 of that Act[3] did not apply to occupational therapy, it being a ‘relevant health profession’ as defined in s 251 of the National Law, before 30 June 2012.[4] The ‘participation day’ under the National Law for occupational therapy was 1 July 2012.[5]
[2]Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’).
[3]Which deals with Health, Performance and Conduct.
[4]National Law, s 300.
[5]See National Law, s 250.
The former Occupational Therapy Board of Queensland had received complaints concerning AB on 27 September 2011 and 28 September 2011.[6] Prior to the participation day the former Board had started dealing with those complaints. On 10 October 2011 it had resolved to investigate them.[7] On 12 January 2012 it had resolved to impose a condition on AB’s registration pursuant to s 59(2) of the then Health Practitioners (Professional Standards) Act 1999, and to issue a notice pursuant to s 107 of that Act requiring AB to undergo a health assessment.[8] As at 30 June 2012 the former Board had not completed dealing with the complaint.
[6]Paragraph 2(b) and (c) of the Affidavit of Christopher Dan Templeton filed 22 January 2014 and exhibits JJS-2 and JJS-3 to the Affidavit of Dr Sundin sworn 25 February 2013.
[7]Paragraph 2(d) of Mr Templeton’s Affidavit filed 22 January 2014.
[8]Paragraph 2(e) of Mr Templeton’s Affidavit filed 22 January 2014.
In those circumstances, by operation of s 289 of the National Law, from 1 July 2012 the complaints were taken to be notifications under the National Law and were to be dealt with by the Occupational Therapy Board of Australia under the (then) Health Practitioners (Professional Standards) Act 1999. These proceedings are also to be dealt with under the (now) Health Practitioners (Disciplinary Proceedings) Act 1999 (‘the Disciplinary Proceedings Act’) as though that Act had not been repealed: s 289(2)(b).
Therefore, the proceedings were appropriately referred to the Tribunal by the Board pursuant to s 126 of the Health Practitioners (Professional Standards) Act 1999.
At the time at which the Board referred the matter to the Tribunal AB was a registered occupational therapist. On 31 July 2012 the Australian Health Practitioner Regulation Agency received an application from AB to renew his registration under the National Law.[9] By email dated 5 September 2013 AB withdrew his application for renewal of his registration.[10] As a consequence, AB’s registration no longer remains in force.[11]
[9]Paragraph 2(h) of Mr Templeton’s Affidavit filed 22 January 2014.
[10]Paragraph 2(i) of Mr Templeton’s Affidavit filed 22 January 2014.
[11]Health Practitioner Regulation National Law, s 107 and s 108.
Notwithstanding that AB’s registration is no longer in force, Part 7 of the Disciplinary Proceedings Act continues to apply to him as though he was still registered.[12] The action which the Tribunal can take if it decides that AB is impaired is governed by s 243 rather than s 241.
[12]Health Practitioners (Disciplinary Proceedings) Act 1999, s 9.
The Complaints against AB
The complaint received by the former Board on 27 September 2011 was a complaint from Ms Trudi Epple, Director Occupational Therapy, Gold Coast Health Service District, dated 22 September 2011. It concerned AB’s work as a HP5 Advanced Occupational Therapist within the Service District’s Transition Care Program. AB had commenced in that position on 15 November 2010 but had only worked a total of 12 days, having been on sick leave for the remainder of the period.
Ms Epple’s complaint included the following:
During and after those 12 days it was reported to me that AB showed inappropriate work behaviours, was not clinically competent and two clients had refused to see him again as a treating therapist. It was reported that he seemed unable to learn the assessments and processes of the team, had erratic attendance and gave inconsistent information about his whereabouts. He requested an appointment with the Executive Director of the Division, but did not turn up when asked to come back in 10 minutes time. His client assessments differed markedly from the rest of the team and he never accepted the reporting lines of the team. Please see attached abridged summary from the Team Leader. Conversations and emails with AB since that date appear to show illogical, confused and paranoid content. AB did disclose a hearing impediment, but I do not feel that this explains any of the problems.
Following clearance from his treating psychiatrist and psychologist, he was recently supported by Queensland Health in August 2011 in a return to work trial with the Redcliffe/Caboolture Occupational Therapy Service. This was terminated early after a little less than three weeks due to concerns. I believe Jacqueline Nix, the Acting Director Occupational Therapy from that District will be contacting you separately regarding this.
Our workplace was trying to organise an independent assessment, but I have been unable today to find out how far this request has progressed.
My concern is that whilst AB is not currently attending any Queensland Health workplace, I feel there is a high risk, that he may seek employment outside of Queensland Health and another employer will not know that concerns exist about his safety to practice.
Ms Epple also provided a chronology of events from the time of AB’s interview and selection for the position through until August 2011.
The complaint received by the former Board on 28 September 2011 was set out in a document entitled ‘Host Placement – AB’ which was attached to an email of that date from Ms Jacqueline Nix, the Acting Director of Occupational Therapy Redcliffe/Caboolture in the Metro North Health Service District. It related to the return to work trial with the Redcliffe/Caboolture Occupational Therapy Service referred to by Ms Epple in her letter of 27 September 2011.
The Investigation of the Complaints
The former Board conducted an investigation through Ms Kim Hudson, Program Manager, and Ms Jane Smith, Professional Standards Officer, who reported to the Board by a briefing note dated 11 January 2012.[13]
[13]Exhibit JJS-4 to the Affidavit of Dr Sundin filed 27 February 2013.
The investigation officers obtained, amongst other things, a report from Dr Paul Cadzow dated 6 December 2011.[14] Dr Cadzow had been AB’s treating psychiatrist between April and July 2011. Dr Cadzow’s report contained the following:
This 39 year old occupational therapist was referred to me for specialist psychiatric treatment by his GP, Dr John Harris. He attended my rooms for four appointments between April and July 2011 (28 April, 18 May, 29 June, 14 June). AB had developed a depressive illness in the context of interpersonal difficulties, dissatisfaction with his employer (Queensland Health) and a perception of being unfairly treated.
AB stated that he worked as a Senior Occupational Therapist in the Transitional Care Program at Nambour General Hospital for some years. He felt unsupported by the management there, particularly around his hearing problems. Last year, AB applied for and was successful in obtaining a new Senior Occupational Therapist role on the Gold Coast. He saw this as a chance to progress in his career and as an opportunity for his whole family who he reported liked the Gold Coast. However, the move was not successful. AB stated that he had uncovered unethical practices in the Transitional Care Unit and that he was being unfairly targeted with complaints about his performance as a result of this. AB attempted to return to his previous position but was unable to do so. He felt aggrieved by the Sunshine Coast Health Service District not taking him back.
AB’s depressive illness appeared to resolve with the use of antidepressant medication and supportive counselling. He continued to express persecutory believes (sic) about Queensland Health but these were not held with delusional intensity. At his last appointment, he reported that he was recovered and that he intended to return to work. He denied any active symptoms and his mental state examination and DASS scale self report were consistent with this.
It was notable during his work with me that AB’s hearing impairment impacts upon his communication and comprehension. He reported that he had experienced a faith healing and did not need to use his hearing aides any more. (He stated that when he had repeat audiometry, he understood it demonstrated further deterioration in his hearing but an improvement in his ability to comprehend sounds.) At one of the sessions, which he had attended without his hearing aides, I had to write down my questions because he was misinterpreting and not comprehending what I was saying. He brought his hearing aides to the next session but still had some difficulty understanding me.
AB appeared to have narcissistic and obsessional personality traits and his obsessionality also influenced his communication. He needed to elaborate his own thought streams in some detail in an attempt to ensure he was understood.
I discussed AB with his infectious diseases specialist, Dr Jennifer Broom. She advised that it was very unlikely that AB had Central Nervous System Resistant HIV or active CNS disease. AB was diagnosed in early 2010. He had a lumbar puncture when he was first diagnosed. He did have a raised white cell count in his CSF but it was not extraordinarily high. He was put on a CNS system penetrative regime. The collateral history that Dr Broom and the other staff from Clinic 87 had (they also treated his wife) was that he had always been an odd and entitled personality style. This was confirmed by their observation of his behaviour in interacting with Clinic 87.
I have had no contact with AB since July 2011.
[14]Exhibit JJS-6 to the Affidavit of Dr Sundin filed 27 February 2013.
Dr Cadzow diagnosed AB as having a major depressive episode in remission, and a hearing deficit. Dr Cadzow also noted AB was HIV positive.
A report dated 16 December 2011 was also obtained from AB’s general practitioner, Dr John Harris.[15] Dr Harris reported:
I initially saw AB as a patient on 22 June 2010. It was immediately apparent to me that AB was suffering from depression. His K10 assessment score was 36. He had some major stressors in his life at that time. He had developed marked hearing loss in 2005 after treatment for TB. He had been found to be HIV positive in 2009. He had delayed having his children tested for HIV for several months. He had obvious grief issues regarding his HIV and hearing loss. I suggested he see a psychologist and start Lexapro, an antidepressant. I had a few phone calls from the psychologist informing me that AB had not turned up for appointments.
In December 2010 I saw AB again. At this stage some six months later, he had not taken his antidepressants or presented to me in the interim for follow up. He had symptoms of major depression with early morning awakening, reduced appetite, reduced sex drive and emotional fragility. It transpired that he had left his job at Nambour Hospital as he had ‘lost interest’ and moved to a new job at the Gold Coast Hospital. This new job was not working out either and he perceived that he was a victim of bullying by his new bosses in the new workplace. I commented that he had ongoing grief issues relating to his hearing loss.
At this stage I put him off work for two weeks, urged him to take the antidepressant and referred him to Dr Paul Cadzow, psychiatrist.
I saw AB again on 31 August 2010 he had taken his antidepressant and was starting to feel better. AB was quite adamant that he was the victim of bullying at the Gold Coast Hospital and that his current mental state was directly related to his treatment there. We discussed the possibility of exploring a WorkCover claim and completed the paperwork for him.
I saw him several times over the next few months. He appeared less depressed but felt unable to work in the environment at the Gold Coast Hospital. He was actively pursuing avenues to get his old job back.
I saw him in April 2011 and there was then a gap in follow up until 10/10/2011. At this stage he continues to feel that he was a victim of bullying at the Gold Coast Hospital and would need to work somewhere else.
I have not seen him since. I have not been able to contact him this week and cannot comment as to whether he continues to take antidepressants.
His HIV status would have a bearing on his mental health in that it is an ongoing stressor and a chronic condition. I believe from a cultural point of view being HIV positive has much worse stigma associated with it in Zimbabwe than in Australia.
My feeling is that AB’s depression has responded well to treatment. His inability to move forward was linked to being unable to find another job and his feeling of victimisation. I think that his marked hearing impairment will make him vulnerable to similar feelings in the future as it created obvious communication problems with co-workers and clients. I do not know if AB wears his hearing aide all the time or at work.
[15]Exhibit JJS-7 to the Affidavit of Dr Sundin filed 27 February 2013.
AB was directed under s 107 of the Health Practitioner (Professional Standards) Act 1999 to undergo a health assessment by Dr Josephine Sundin, psychiatrist. That health assessment took place over two interviews conducted by Dr Sundin on 22 February 2012 and 15 March 2012. Dr Sundin interviewed AB for in excess of four hours.
For the purpose of conducting her health assessment of AB, Dr Sundin had been provided with a volume of material which included the complaints of both Ms Epple and Ms Nix; the reports of Dr Cadzow and Dr Harris; the report of the investigating officer; and the correspondence from AB to the investigators and the Board.
In her evidence before the Tribunal Dr Sundin stated that whilst her opinions were informed by the collateral information which she had been provided, her opinion was based upon the clinical interviews which he had conducted with AB in February and March 2012.
Dr Sundin in a report dated 5 April 2012,[16] expressed the following opinion:
[16]Exhibit JJS-1 to the Affidavit of Dr Sundin filed 27 February 2013.
It is very hard to classify AB and the symptoms he reports and described by others using the standard DSM-IV-TR classification criteria.
He comes closest to meeting the criteria for delusional disorder – persecutory type, in that he expresses a persecutory delusional belief system of greater than one months duration, criterion A for schizophrenia has not been met, and other than with regard to its impact with regard to work, his functioning in other areas of his life is not markedly impaired. However, at this stage, I cannot entirely rule out the possibility that this disturbance is not due to the direct psychological effects of either of substance or a general medical condition. (This is a pre-requirement of the diagnosis.)
An alternative diagnosis that may be considered is personality change due to a general medical condition, persecutory type: with the cause possibly arising out of an adverse reaction to his antiviral medications or as a consequence of his HIV infection. The medical contribution to his situation is not yet clear.
I note that AB is HIV positive and is prescribed two antiviral agents for treatment of this condition. One of his drugs, Stocrin, has been reported to cause serious adverse psychiatric experiences ranging from delusions and inappropriate behaviour to acute depression, suicidal behaviour and psychosis like behaviour. The development of delusions and inappropriate behaviour has been reported at a rate of approximately 1-2/1000 Stocrin treated patients and is said to occur predominately in patients with a history of mental illness or substance abuse. While AB had a brief history of substance abuse in 2005, he denies any ongoing alcohol abuse. However, of significance is his history of a major depressive episode in 2010/11. It may well be that the paranoid ideation that he expresses is a consequence of an adverse reaction to an antiviral medication concomitant with or in the aftermath of a major depressive episode. An opinion on this should be sought from a specialist in the treatment of infectious diseases.
I further note that AB suffers from moderately severe bilateral sensorineural deafness. It has certainly been reported in the psychiatric literature that such individuals are more vulnerable to the development of paranoid states: understandably through the impaired communication and the potential for misinterpretations. The history provided by AB of onset of bilateral deafness approximately five years after his treatment with anti-tubercular drugs strikes me as a little unusual; as I would have anticipated that neurotoxicity/ototoxicity from a treating medication would have been evident more proximate to the treatment course. I would refer you to an ear, nose and throat surgeon for advice as to the possible aetiology of the sensorineural deafness and its potential genesis in the anti-tubercular drugs that have been prescribed.
I am at a loss to explain the fluctuant state of AB’s reported deafness. It is quite unusual that he describes having been completely normal with regard to hearing on the occasion of his intervening trips to Zimbabwe. On the face of it, such fluctuance of symptomatology would be more suggestive of a psychiatric genesis to the hearing impairment, but this is not matched by the audiometry testing. I would suggest that when at home in Zimbabwe in his culture of origin, AB lip reads more easily and is less anxious about the overall state of his hearing deficits.
What is clearly evident, however, with regard to his hearing both from my examination of AB and from the report provided by Dr Cadzow: is that this gentleman’s hearing appears to quite significantly adversely impact upon his ability to effectively communicate with others. When I interviewed AB he had his hearing aides in, but even so communication was difficult with multiple hesitations and repetitions before I could be confident that he had understood my questions or that I had understood his answers. In the noise and busyness of a general hospital or an outpatient service, I consider that AB would very likely have very significant difficulties with communication and I note that a similar comment was made by the Hear Care audiologist.
I note that AB was diagnosed with a major depressive episode in 2010/11; on the basis of my examination of him in 2012 this condition was no longer active or present.
Therefore in answer to your questions, I am of the following opinion:
1.In my opinion AB is impaired by virtue of both a physical and mental impairment that detrimentally affects his capacity to perform his profession. His delusional ideation (of whatever origin) impairs his capacity to work effectively within a team, to appreciate his own limitations and to then appropriately modify his own behaviour to meet the needs of his clients. His mental impairment is then further exacerbated by his hearing impairment, which makes ordinary day to day communication within a clinical setting, even with the assistance of bilateral hearing aides, extremely difficult. The nature of AB’s hearing impairment is such that he is vulnerable to missing or misinterpreting important information that would or should be used to effect appropriate management in a patients care.
2.In my opinion AB is currently not fit to practice his profession. I consider that he needs to be reviewed by his infectious disease specialists so that she can give consideration to any potential adverse effect being caused by Scocrin and, if appropriate, change his medication.
3.AB needs to return to the care of Dr Cadzow for regular monitoring of his mental state and implementation of appropriate medications to try and modify the extent of his persecutory ideation.
Should the Board deem it appropriate, I would think that review and an opinion by an ear, nose and throat surgeon may be of great benefit both to the Board and to AB in assessing the extent, causality and prognosis of his hearing impairment.
Proceedings in the Tribunal
The Board referred the matter to QCAT on 26 October 2012. A compulsory conference was held in the Tribunal on 29 January 2013. Following that compulsory conference, on 31 January 2013, the Tribunal issued directions to facilitate the hearing of the matter. Those directions included that AB file all witness statements, including statements of all health professionals, to be relied on by him by 9 April 2013. On 17 May 2013 that direction was vacated and AB was directed to file all witness statements upon which he intended to rely by 7 June 2013.
On 17 June 2013 the solicitors for the Board wrote to AB[17] stating that it was the Board’s duty to ensure that the Tribunal had current and reliable evidence upon which to base its decision and, noting that AB had not filed any medical evidence, asked him whether he would agree to undergo a further health assessment by Dr Sundin. The Board offered to pay the costs of the assessment and AB’s travel expenses.
[17]Exhibit CDT-1 to the Affidavit of Christopher Dan Templeton filed 26 July 2013.
AB responded by email on 17 June 2013,[18] in which he said that whilst he agreed to a further health assessment, he was then resident in New South Wales and was seeking an assessment by a locally based doctor.
[18]Exhibit CDT-2 to the Affidavit of Christopher Dan Templeton filed 26 July 2013.
On 18 June 2013[19] the solicitors for the Board suggested four Sydney based psychiatrists and requested AB to select one of them to conduct a further health assessment.
[19]Exhibit CDT-3 to the Affidavit of Christopher Dan Templeton filed 26 July 2013.
By emails dated 18 June 2013[20] and 27 June 2013[21] AB indicated that he was not willing to participate in a further health assessment.
[20]Exhibit CDT-4 to the Affidavit of Christopher Dan Templeton filed 26 July 2013.
[21]Exhibit CDT-6 to the Affidavit of Christopher Dan Templeton filed 26 July 2013.
On 26 July 2013, on application of the Board, the Tribunal directed the Board to establish a health assessment committee in accordance with s 218(2)(a) of the Disciplinary Proceedings Act. The Tribunal also directed AB to undergo a health assessment by that committee as soon as possible, and directed the committee prepare a report for the Tribunal under s 296 of the Disciplinary Proceedings Act. The evident purpose of s 218 is that it facilitates the consideration of whether a registrant is impaired when the Tribunal’s hearing proceedings in which impairment is an issue.
In accordance with the Tribunals directions the Board established a health assessment committee comprising Dr Bruce Westmore, a Sydney based psychiatrist, and Ms Deena Wilson, an occupational therapist.
AB was directed to attend a health assessment by that committee which was to occur on 26 September 2013. The direction was given on 28 August 2013 by letter from the Board’s solicitors.[22] By email of 2 September 2013,[23] AB responded to that direction as follows:
Please note that I restate my previous position and this is final. I do not need a physician or any advice from you in any form.
I refuse any further form of unwarranted intimidation.
[22]Exhibit CDT-2 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
[23]Exhibit CDT-3 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
On 3 September 2013[24] the Board’s solicitors again informed AB of the requirement under s 288(1) of the Disciplinary Proceedings Act for him to attend the health assessment. AB responded on the same day by email:[25]
I restate for the final time my previous position. Please be advised that any further communications from you in any form would constitute intimidation and bullying as it directly impacts on my rights.
[24]Exhibit CDT-4 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
[25]Exhibit CDT-5 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
On 19 September 2013[26] the solicitor’s for the Board wrote to AB informing him of the material which had been provided to the health assessment committee for the purposes of their conducting the health assessment. Confirmation was sought from AB that he would be attending as directed. He responded by email on the same day in these terms:[27]
Thank you for your repeated emails. I note your interpretation of the Act however my response and position has not changed as stated below.[28] Please may I take this moment to remind you to follow agreed communication channels by all parties involved with QCAT OCR346-12.
[26]Exhibit CDT-7 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
[27]Exhibit CDT-8 to the Affidavit of Christopher Dan Templeton filed 21 October 2013.
[28]A reference to AB’s email of 2 September 2013.
AB did not attend the assessment.
By letter dated 21 November 2013[29] the Board sought a further opinion from Dr Sundin. It provided Dr Sundin with further material including the correspondence concerning the arrangements for the health assessment by the committee and AB’s refusals.
[29]Exhibit JJS-12 to the Affidavit of Dr Sundin filed 6 December 2013.
In a report dated 25 November 2013,[30] Dr Sundin expressed the following opinion:
Therefore, in response to your questions I would comment that:
…
m.These assertions made by AB are consistent with the presentation he made to me in 2012, wherein he did not consider he had any form of mental problem which warranted attention or intervention. They are also consistent with the paranoid flavour of ideation evident in that examination with me. To be fair to AB any individual undergoing a QCAT review process is likely to feel that they are being judged.
n.Based on the material submitted by AB, I cannot determine whether he is continuing to suffer from mental impairment that detrimentally affects or is likely to detrimentally affect AB’s physical and mental capacity to perform his profession. There is simply insufficient information available upon which to form such a judgment. I simply note that it is consistent with the earlier observations I made of AB with regard to his impaired insight that after an appointment was made for him locally in Sydney at his request, that he failed to attend the assessment with Dr Westmore.
o.In my opinion there was sufficient evidence for the Occupational Board of Australia to have concerns at the time that they referred AB to me in 2012. Unfortunately, there is as yet insufficient information to allay these concerns.
[30]Exhibit JJS-13 to the Affidavit of Dr Sundin filed 6 December 2013.
Nature of the proceedings
Section 240(1) of the Disciplinary Proceedings Act requires the Tribunal to decide whether a ground for disciplinary action against AB is established. Under s 124(2), if a registrant is impaired, the registrant’s impairment is taken to be a ground for disciplinary action against the registrant.
The question, therefore, is whether AB is now impaired. It is not, as it was originally submitted on behalf of the Board, a question of whether AB was impaired at the time at which the Board referred the matter to the Tribunal. The Board, at least initially, submitted that the question of whether a registrant has, at the time of the Tribunal’s consideration of the issue, a present impairment is only relevant to the issue of what may be appropriate conditions for the Tribunal to impose upon the registrant’s current or future registration.
That the issue for the Tribunal hearing an impairment matter is whether the registrant is at the time of the hearing, not some earlier time, suffering from an impairment is evident from a number of provisions of the Act.
‘Impairment’ is defined in the Dictionary in the Schedule to the Act in the present tense. It means the registrant has a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the registrant’s physical or mental capacity to perform the registrant’s profession.
Section 240(3) provides for certain matters which the Tribunal is either required to, or may as a matter of discretion, take into consideration if it ‘is making a decision about whether the registrant is impaired’.
By s 285(1) the functions of a health assessment committee are to assess whether the registrant is impaired and, if so, to give the relevant body (here the Tribunal) information about the extent of the impairment.
Section 296 requires the Health Assessment Tribunal to prepare a report about its assessment of the registrant which must include the committee’s findings as to whether the registrant is impaired.
All of these provisions indicate, both textually and contextually, that the issue for determination for the Tribunal is whether the Tribunal has an impairment at the time at which the Tribunal comes to consider the issue; not whether the registrant had an impairment at some earlier time.
Of course, the fact that a registrant had an impairment at some earlier time may, in a particular case, be a matter to which the Tribunal may have regard as a consideration relevant to the issue of whether the registrant is presently impaired. Indeed, this is such a case.
Does AB have an Impairment?
Dr Sundin, after interviewing AB for more than four hours in February and March 2012 found him to be impaired by virtue of both a physical and a mental impairment which, then, detrimentally affected his capacity to perform his profession. Whilst Dr Sundin suggested several potential sources for AB’s delusional ideation, the Board submits that it does not need to establish what is the actual source of the impairment. The Board is correct. Whilst identification of the source of any impairment might ultimately inform the treatment recommendations which might be reflected in conditions imposed upon his registration, it is not necessary for the source or cause of the impairment to be established. It is only the fact of the impairment which needs to be established.
Whilst in her more recent report Dr Sundin states that she is unable to determine whether AB continues to suffer from an impairment, she does so on the basis that there was simply insufficient information then available to her to form a judgment on the issue. That, in my view, is a cautious and understandable position for Dr Sundin to have adopted. Whilst she had available to her certain statements made by AB in correspondence, she had not had the opportunity further to interview him. She did not have available to her any further medical reports or records.
In her evidence before the Tribunal she did reaffirm her diagnosis of AB at the time at which she saw him in the first quarter of 2012. AB put to Dr Sundin that as her diagnosis that he suffered from an impairment was inconsistent with the views of others, particularly Dr Cadzow and Dr Faiz Sachawars, that she had breached parts 4.1 and 4.2 of the Code of Practice for doctors in Australia. AB had identified whether there had been such a breach as one of the ‘key issues for QCAT to resolve’ in the submissions which he filed dated 10 December 2012.
Parts 4.1 and 4.2 of the Code of Practice are said by AB to stated, respectively:
4.1Good relationships with medical colleagues, nurses and other health professionals strengthen the doctor patient relationships and enhance patient care.
4.2Respect for medical colleagues and other health care professionals enhance good patient care.
In response, Dr Sundin explained that she respected her colleague’s opinions; which she took into account. The fact that she reached a different conclusion to them meant no disrespect to those colleagues.
There is no substance to AB’s suggestion that the expression of a contrary opinion by Dr Sundin in any way breached the Code of Practice.
There is no relevance in AB’s submission that Dr Sundin is unable to prove her conclusion as to his impairment beyond reasonable doubt.[31] The Tribunal does not have to be satisfied beyond reasonable doubt of the existence of an impairment.
[31]AB had identified this as another of the key issues for resolution by the Tribunal.
In her oral evidence, Dr Sundin described the condition which she had previously diagnosed AB as suffering from and which lead to his impairment as being ‘tenacious’. She also observed, in the context of whether AB may still be impaired, that the condition was difficult to treat, and rarely spontaneously remitted.
Dr Paul Cadzow was previously AB’s treating psychiatrist. In a letter dated 14 July 2011 to Dr Pegrim of the Gold Coast Health Service District Dr Cadzow reported that the major depressive disorder for which he had been treating AB since April 2011 had resolved. Notwithstanding his clinical recovery, Dr Cadzow reported that AB had an ongoing concern about the Gold Coast Health Service District, particularly that the Transitional Care Program within which he worked was a worksite in which he perceived he was bullied and victimised. It is apparent from Dr Cadzow’s later report of 6 December 2011 that he did not consider AB’s ongoing persecutory beliefs, at the time at which he last saw him in July 2011, to be delusional in intensity. That is not, however, inconsistent with Dr Sundin finding in March 2012 that AB was then suffering from a persecutory type delusional disorder.
Section 240(3)(c) of the Disciplinary Proceedings Act permits the Tribunal, in making a decision about whether a registrant is impaired, to have regard to the fact that the registrant failed, without reasonable excuse, to attend a health assessment which the registrant had been required to attend under s 288 of the Act. I do not consider the matters set out by AB in his emails to the Board’s solicitors in which he informed them that he would not be attending the health assessment constitute a reasonable excuse for not so attending.
In my view it is appropriate in this case for the Tribunal to have regard to that failure in considering whether AB presently has an impairment. That is particularly so in light of Dr Sundin’s evidence that AB’s assertions were consistent with the paranoid flavour of the ideation which had been present in her examination of him in February and March 2012.
It is regrettable that AB did not participate in the medical assessment by the health assessment committee. Had he done so he may have informed the committee of matters which he considered relevant to its assessment of whether he has an impairment. Section 287(1) permits the registrant to make written or oral submissions to the health assessment committee. Section 287(2) permits the registrant to give the committee a report about any other recent and relevant health assessment which the registrant has undergone. By s 296(1)(b) and (c) the committee must consider any submissions or reports provided by the registrant under s 287.
Section 296 would also have required the committee to give a copy of its report, or a summary, to AB. AB would then have had the right to make a written submission about the report to the Tribunal: s 297(1).
AB’s failure to participate in the medical assessment resulted in his not being able to avail himself of those opportunities to inform the decision making process.
I am satisfied that AB does have a mental condition or disorder which detrimentally affects, or is likely to detrimentally affect, his mental capacity to perform the profession of an occupational therapist. I am therefore satisfied that he has an impairment.
I do not consider that the medical certificate issued by Dr Sachawars on 15 July 2013 establishes otherwise. Dr Sachawars certificate is in the briefest of terms. It states:
To whom it may concern
This is to certify that I have examined AB today, and I confirm that he will be fit for work/school/usual activities from 15.07.13 inclusive.
There is no evidence as to the circumstances by which Dr Sachawars came to issue the certificate. There is nothing to establish what, if any, condition may have preceded the issuing of the certificate from which the certificate may have been suggesting AB had recovered.
The fact that it certified him fit for ‘school’ suggests that the certificate was in the most standard of proforma terms. There is nothing to establish what work or usual activities Dr Sachawars understood AB to perform.
The certificate is, in the context of these proceedings, of virtually no evidentiary value.
I am also satisfied that AB suffers from a physical impairment which detrimentally affects his capacity to perform his profession.
Mr Matthew Cowley was AB’s audiologist for a number of years. He provided a report dated 15 February 2012 to those investigating the complaints against AB.[32] In that report Mr Cowley said:
Clinically, AB presents with a moderate to profound, deteriorating sensorineural hearing loss on both ears.
Without doubt, AB’s day to day home and working life would be significantly impacted by his hearing loss. From a workplace perspective he could be expected to be significantly disadvantaged in most situations involving verbal communication, especially when not face to face where he could not rely on his lip reading skills. Workplace meetings, teleconferences and consulting with clients and colleagues on the telephone would be particularly difficult.
[32]Exhibit MC-3 to the Affidavit of Matthew Cowley filed 21 March 2013.
In audiology reports dated 11 December 2009, 19 November 2010 and 7 March 2011, Mr Cowley referred to the hearing aides used by AB as being of limited benefit to him given his poor speech discrimination, and suggested that he be assessed for a cochlear implant.
Mr Cowley was not required for cross-examination.
Disposition
The Board has proposed an order in the following terms:
1.A ground for disciplinary action is established, namely AB suffers from an impairment.
2.AB is prohibited from re-applying for registration until:
a.AB has undergone a psychiatric assessment with a psychiatrist to be chosen by AB from a panel of 3 psychiatrists nominated by the Board (‘the psychiatrist’). The Board is required to nominate the panel within 21 days of receiving a written request from AB to provide a panel. AB must notify the Board in writing of the time of the assessment at least 14 days prior to the assessment. AB must provide a written authority to the psychiatrist to provide a written report to the Board about AB’s psychiatric status, including any treatment recommended.
b.AB has undergone any treatment recommended by the psychiatrist with another psychiatrist who is to be nominated by AB in writing and approved in writing by the Board (‘the treating psychiatrist’). AB can only nominate the treating psychiatrist after the Board has received the report from the psychiatrist. The treatment is to be at a frequency and for a period determined by the treating psychiatrist (‘the treatment’).
c.AB must provide a written authority to the treating psychiatrist to provide a report to the Board when AB is, in the opinion of the treating psychiatrist, fit to resume practising as an occupational therapist and make recommendations in relation to any ongoing psychiatric treatment necessary for AB to remain fit to practise as an occupational therapist, including any medication which should be prescribed (‘the treating psychiatrist’s recommendations’).
d.The Board has received the report of the treating psychiatrist.
e.AB has undergone an assessment with an audiologist to be nominated by AB in writing and approved in writing by the Board (‘the audiologist’) to determine the extent of hearing loss. AB must notify the Board in writing of the time of the assessment at least 14 days prior to the assessment.
f.AB must provide to the audiologist a written authority to provide a report to the Board after the assessment commenting on the fitness of AB to resume practising as an occupational therapist and making any recommendations in relation to AB’s future practice an occupational therapist (for example, whether wearing a hearing aid or cochlear implant is necessary to facilitate communication with patients) (‘the audiologist’s recommendations’).
g.The Board has received the report of the audiologist.
3.The Board may provide to the psychiatrist, the treating psychiatrist and the audiologist a copy of any documents the Board considers is reasonably necessary for the purposes of the assessments and treatment contemplated by these orders, including a copy of these orders and the reasons of the Tribunal, the affidavit of Dr Josephine Sundin sworn 25 February 2013, the affidavit of Mr Matthew Cowley sworn 20 March 2013 and any documents referred to in those affidavits.
4.The following conditions must be imposed upon any future registration of AB:
a.AB must do all things reasonably necessary to comply with:
a. the treating psychiatrist’s recommendations; and
b. the audiologist’s recommendations.
b.AB can only provide occupational therapy services under level 2 supervision (as described in the Supervision Guidelines for Occupational Therapy dated 24 October 2012 published by the Board (‘Supervision Guidelines’). The supervisor must be approved in writing by AB’s employer and a copy of such approval must be given to the Board by AB before practising as an occupational therapist.
c.Within 3 days of AB receiving written approval of the supervisor from his employer, AB and the supervisor must enter into a supervision agreement (in the form of appendix 2 to the Supervision Guidelines). Within 2 business days of entering the supervision agreement, AB must provide one copy of the supervision agreement to his employer and one copy to the Board.
d.AB must, within 2 business days of gaining employment as an occupational therapist, notify the Board in writing of:
a. the name and address of his employer;
b. the address of his place of employment as an occupational therapist;
c. the position description at his place of employment;
d. the name and contact telephone numbers of his supervisor at the place of employment;
e.AB must notify the Board within 2 business days of a change in any of the details required by paragraph 4(d) of these orders;
f.AB must provide a copy of these orders and the Tribunal’s reasons to his employer within 7 days of commencing employment, as well as a written authority and direction to the employer to provide a written report to the Board about AB’s fitness to practice on the following occasions:
a. 3 months after the commencement of his employment;
b. if the employer holds a concern about AB’s fitness to practice; and
c. if requested by the Board.
5.The costs of compliance with paragraphs 2 and 4 must be borne by AB, including the cost of the assessments by the psychiatrist and audiologist, the treatment and the provision to the Board of reports by the psychiatrist, the treating psychiatrist and the audiologist.
6.AB may not apply for a review of these conditions for a period of 1 year from the date of any future registration save that:
a.the condition in paragraph 4(a) may not be reviewed for a period of 2 years from the date of any future registration;
b.the condition in paragraph 4(b) may be reviewed after 3 months from the date of any future registration but only in so far as the level of supervision is concerned.
7.The details of the conditions imposed by paragraphs 2 to 6 are not to be recorded on the Board’s register.
8.AB is to pay the Board’s costs of establishing the Health Assessment Committee fixed in the sum of $2,496.12 within 28 days.
Proposed orders 1, 2 and 3 are appropriate. They are directed toward the most important matter of establishing the basis upon which AB may reapply for registration as an occupational therapist. AB submitted that these proceedings are protective in nature, not punitive. He is correct. He asked that he be given a second chance. In my view, orders 2 and 3 are appropriately directed towards facilitating that second chance.
Proposed order 4(a) is also appropriate. However, the balance of proposed order 4 is not. Those orders pre-empt the further reports of the treating psychiatrist and audiologist. AB may, for example, have fully recovered from his mental impairment well before he seeks re-registration. There may be no need at all for him to be supervised. There may be no need for the Board to have any greater ongoing monitoring of his employment than that of any other registered occupational therapist. There may be no need for his future employers to be informed of these reasons and orders. To the extent that there may be some need for further conditions to be imposed on his future registration, those are matters which should be determined at the time of his future registration being granted.
Proposed orders 5 and 6(a) are appropriate. Proposed order 6(b) is not in light of my observations made as to proposed order 4.
Proposed order 7 is appropriate.
Costs
The Board seeks only the costs thrown away by AB having failed to attend the health assessment by the health assessment committee.
Whilst it is regrettable for the reasons set out above that AB did not participate in the medical assessment, the fact that he did not intend to do so was communicated by him to the Board well before the date for the assessment. I am not inclined to order AB to pay the Board’s costs of establishing the health committee in those circumstances.
0
0
0