Podiatrists Board of Queensland v Hermann (No 2)

[2010] QCAT 352

CITATION: Podiatrists Board of Queensland v Hermann (No 2) [2010] QCAT 352

PARTIES:	Podiatrists Board of Queensland (Applicant)
v
Robert Nikolaus Hermann (Respondent)

APPLICATION NUMBER:            HPF004-08              

MATTER TYPE: Health Practitioner

HEARING DATE:   12 July 2010

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
Deputy President

DELIVERED ON:   19 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  THE TRIBUNAL DECLARES:

1.That upon the tribunal accepting the Respondent’s undertaking (Attachment A), and without admission of any unsatisfactory professional conduct by the Respondent, it is not necessary in the interests of justice to proceed to a hearing in this matter.

AND THE TRIBUNAL ORDERS:

2.Upon receipt of written confirmation by the Board that the Respondent satisfactorily completed the undertaking, the Referral Notice filed 28 July 2008 will be dismissed.

3.Each party bears their own costs.

CATCHWORDS : 

PROCEDURE – Hearing – whether, in light of undertakings given by the practitioner it was in the interests of justice to proceed to a hearing – whether the tribunal had power to order the referral not proceed to a hearing

Queensland Civil and Administrative Tribunal Act 2009 s 60

Health Practitioners (Professional Standards) Act 1999 ss 123, 215, 231, 240

APPEARANCES and REPRESENTATION (if any):

R Fryberg, instructed by McInnes Wilson for the Applicant

J Hunter S.C., instructed by Creevey Russell Lawyers for the Respondent

REASONS FOR DECISION

1. In July 2008, the Board commenced these proceedings asserting there are grounds for taking disciplinary action against Mr Hermann. The grounds alleged involve 8 patients of Mr Hermann. The conduct complained of related to his pre-operative preparation, including diagnosis, his intra-operative treatment and his post operative care of patients upon whom he performed or proposed a range of surgical procedures.[1]

   [1] Ankle and sub-talar joint fusion; talonavicular fusion; first MPJ fusion; complete Lisfranc fusion; removal of plantar keratoma and recurrent neuroma and hammer toe corrections and correct hallux limitus affecting the metatarsophalangeal joint; bilateral neurectomy at the third intermetatarsal space of the foot; Youngswick\Austin bunionectomy.

1. Before and after the proceedings commenced, the Board and Mr Hermann engaged in a number of discussions about the alleged conduct, the Board’s concerns about Mr Hermann’s capacity to perform the procedures, and the adequacy of his pre and post operative procedures. Most recently those discussions have included processes offered in the tribunal: a conclave of the experts that each party intended to call to give evidence at the hearing and a conference of the parties and their representatives presided over by the President of the tribunal.

1. The outcome of the discussions was a joint submission to the tribunal that agreed orders should be made. The Board is satisfied that, if Mr Hermann fulfils the undertaking agreed between them, it will not be necessary to proceed with the hearing of this matter. While Mr Hermann makes no admission of unprofessional conduct, he is willing to give and fulfil the undertaking.

1. I was persuaded the tribunal has the power to make the orders sought and that this is an appropriate case in which to make them.  I made the orders on 12 July 2010 and said I would deliver brief reasons to explain my decision to proceed in that way. These are my reasons.

1. The undertakings are comprehensive and address the concerns raised by the allegations made against Mr Hermann.  Mr Hermann will perform 15 nominated surgical procedures over a 3 year period under the guidance of and assessed by a podiatric surgeon mentor/assessor.

1. Prior to surgery, Mr Hermann will provide detailed information to his mentor/assessor about his diagnosis, the information provided to the patient and the arrangements he has made for the surgery and for their post operative care. He will comply with the reasonable directions of his mentor/assessor.

1. He will keep detailed records of actions carried out in respect of the surgeries. The Board will have access to his records to monitor his compliance with the undertaking. The mentor/assessor will report to the Board on Mr Hermann’s performance. Mr Hermann will bear the costs associated with the undertaking, including the costs of the mentor/assessor and the Board.

1. The undertaking will apply until Mr Hermann has completed 5 each of fore-foot, mid-foot and rear-foot surgical procedures. They must be completed to the satisfaction of the mentor/assessor. They must be undertaken within 3 years. While the undertaking applies, it will be recorded in the Board’s register.

1. The Board will notify the tribunal when Mr Hermann has satisfactorily performed his undertakings, and the proceedings will then be dismissed.

1. The Board’s primary objective is protective. Had the undertaking been agreed before the matter was referred to the tribunal, the Board would not have brought these proceedings. Compliance with the undertaking would have achieved its objective to protect the public.

1. Ensuring the public is protected is one of the objectives of disciplinary proceedings and action. In this case, the undertaking also promotes Mr Hermann maintaining professional standards. In turn this should contribute to maintaining public confidence in the profession.[2]

   [2] Health Practitioners (Professional Standards) Act 1999 s123

1. The matter was set down for hearing for 7 days. As well as the investment of time, a 7 day hearing would involve both parties in considerable expense incurred for legal and professional fees.  A lengthy hearing is also a significant impost on the tribunal’s resources.

1. Were this matter to proceed to a hearing, the tribunal would be required to make findings, as soon as practicable afterwards, about whether disciplinary grounds were established.[3]  Mr Hermann has volunteered the measures the Board would have asked the tribunal to impose as conditions upon Mr Hermann’s registration, if it made out its case at a hearing.

   [3] Health Practitioners (Professional Standards) Act 1999 s240

1. I am persuaded the undertaking exhaustively deals with the matters raised by the allegations against Mr Hermann. Whether or not he has engaged in unsatisfactory professional conduct in the past, successful completion of the undertaking will demonstrate his competence and his understanding of professional standards and obligations to his patients. The proceedings will remain on foot until that has been established.

1. The parties’ collaboration has been constructive, future focussed and appropriately directed to meeting the objectives of the disciplinary process. Their efforts are acknowledged by the tribunal and their joint achievement should be approved.

1. In these circumstances the interests of justice do not require there to be a hearing unless it would serve some other purpose. None has been argued and none occurs to me. This procedure may not be appropriate in every case in which the parties agree upon orders. In this case, however, I am satisfied the course jointly proposed is well conceived and fitting.

1. The tribunal has the power to make a declaration,[4] a procedure not available to the former Health Practitioners Tribunal.  I declare:

That upon the tribunal accepting the Respondent’s undertaking and without admission of any unsatisfactory professional conduct by the Respondent, it is not necessary in the interests of justice to proceed to a hearing in this matter.

[4] Queensland Civil and Administrative Tribunal Act 2009 s60

1. Once the Board has notified the tribunal the undertaking has been completed satisfactorily by Mr Hermann, the proceedings against him will be dismissed.  Each party will bear their own costs of these proceedings.