Radovic v Medical Board of Australia
[2014] QCAT 631
•21 November 2014
| CITATION: | Radovic v Medical Board of Australia [2014] QCAT 631 |
| PARTIES: | Zoran Radovic (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR050-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Farr SC Assisted by: Dr Harpreat Moudgil Dr Wayne Sanderson Dr Errol Maguire |
| DELIVERED ON: | 21 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Performance and Professional Standards Panel of the Medical Board of Australia dated 13 February 2014 to impose conditions on the applicant’s future registration is set aside. 2. The applicant is reprimanded. 3. There is no order as to costs. |
| CATCHWORDS: | REVIEW – AGREED SANCTION – where applicant conduct amounted to unsatisfactory professional performance and registration conditions imposed – where applicant’s registration expired – where Panel did not have the power to impose any conditions on future registration – where agreed sanction of reprimand considered appropriate |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The applicant has made an application to the Tribunal to review a decision of the Performance and Professional Standards Panel of the Medical Board of Australia (the Panel).
Background
Until February 2012 the applicant held conditional registration to practise as a psychiatrist in an area of need at the Sunshine Coast Private Hospital. The applicant did not renew his registration upon its expiry.
On 18 November 2013 the Medical Board of Australia notified the applicant of a hearing to be convened before the Panel regarding his treatment of a patient. The Panel handed down its decision in relation to that matter on 13 February 2014.
On 12 March 2014 the applicant filed an application to review the decision of the Panel. The application was to review the “finding of ‘unsatisfactory professional performance’” and sought to have it set aside and replaced by a caution or reprimand. The applicant also sought to review the conditions imposed seeking less onerous conditions in the event he is re-registered.
On 28 May 2014 the applicant withdrew his application in relation to the findings of the Panel, but maintained his review of the conditions imposed.
Jurisdiction
The decision of the Panel was a reviewable decision under s 199(i) and (k) of the Health Practitioner Regulation National Law (Queensland) (National Law).[1] The review then proceeded pursuant to s 20 of the QCAT Act.
[1]Section 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) notes that an appealable decision in the national law is a reference to a review of the decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). See Pearse v Medical Board of Australia [2013] QCAT 392 (“Pearse”).
Therefore, the review is heard by way of hearing de novo with the purpose of producing the correct and preferable decision on the law and facts as at the date of hearing.[2]
[2]See QCAT Act s 20(2); Pearse at [30] – [37]; and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [40] – [41], [99] – [101].
The conduct
In reviewing the Panel’s decision the Tribunal must consider the conduct of the applicant that, he now admits, amounted to unsatisfactory professional performance. The allegations before the Panel were:
1. Dr Radovic treated PB for three years from 21 May 2008 to 21 February 2011, and failed to diagnose PB with a psychotic-spectrum disorder when he presented, acutely mentally unwell, on 15 and 21 February 2011, despite the condition of his mental health being:
1.1readily assessed by his general practitioner on 14 and 15 February 2011;
1.2provisionally diagnosed by another psychiatrist Dr Clive Fraser on 21 February 2011 as “underlying paranoid illness”; and
1.3diagnosed by another psychiatrist Dr Bob Anderson on 28 February 2011 as a “schizophrenic illness”.
2. Dr Radovic did not commence PB on anti-psychotic medication, on 15 or 21 February 2011 although he had previously commenced PB on Zyprexa with good effect on at least two previous occasions (29 May 2008 and 12 June 2008) when he had been suffering from similar signs and symptoms.
3. Although Dr Radovic submitted to the Board that he had formed the belief that PB had developed a psychotic illness on 15 and 21 February 2011, there is no record or documentation in Dr Radovic’s medical or clinical notes to support his submissions that he:
3.1considered PB might be suffering from a psychotic illness; or
3.2asked PB about symptoms of a psychosis.
4. Dr Radovic’s clinical notes did not meet the requirements set out [in] s 8.4 of the Board’s Good Medical Practice: Code of Conduct for Doctors in Australia (GMPCCDA) approved under s 29 of the National Law, and admissible as evidence of what constitutes appropriate professional conduct or practice for medical practitioners under s 41 of the National Law. Dr Radovic’s clinical notes did not record relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management.
The Panel found that all of the allegations had been made out and found that in relation to Allegation 2 that when PB relapsed with similar symptoms in 2009 he was treated with Zyprexa by his general practitioner.
The applicant has accepted the findings of the Panel in relation to all four allegations.
The parties submit, in their joint submission, that a number of factors should be noted in relation to the allegations. The first is that Allegation 1 does not purport to criticise the applicant’s treatment of PB before February 2011. The second is that Allegation 2, whilst amounting to an allegation in and of itself, arose as a direct and unavoidable consequence of the applicant’s behaviour outlined in Allegation 1. Finally, the parties note that the applicant’s failure to make proper notes of clinical assessments is in itself a concerning matter and justifies the submission that the applicant be reprimanded.
The Panel’s decision
The parties have jointly submitted that the correct and preferable decision is that the order made by the Panel be set aside and the former registrant be reprimanded.
The basis for the joint submission is that the Panel did not have the power to impose any conditions on the applicant’s future registration for the reasons outlined in Nursing and Midwifery Board of Australia v Fankhauser.[3]
[3][2013] QCAT 395 (“Fankhauser”).
In Fankhauser, the Tribunal held that after finding that a former registrant had behaved in a way that constituted professional misconduct, it could not impose conditions on any future registration. Relevantly the Deputy President, Horneman-Wren SC DCJ, noted that the:
Power to impose conditions applies to a registrant’s existing or continuing registration, not some further registration attained in the future. Whilst conditions could be imposed upon a suspended registration because the registration itself continues, once the registration is cancelled, the ability to impose conditions upon that registration is lost.
That opinion is supported by s 196(3) which provides that if the Tribunal decides to impose a condition on a practitioner’s registration, it must also decide a review period for the condition.[4]
[4]Ibid at [39] – [40].
Upon finding that a practitioner has behaved in a way that constitutes unsatisfactory professional performance a Panel may impose conditions on the practitioner’s registration or caution or reprimand the practitioner.[5] This mirrors s 196 of the National Law which provided the Tribunal’s powers in Fankhauser. In such circumstances, s 196(3) requires the Panel if it decides to impose a condition on a practitioner’s registration to also decide a review period for the condition. I note this requirement is also mirrored in s 191(4) of the National Law.
[5]National Law s 191(3).
In my view the joint submission is correct and the Panel did not have the power to impose any conditions on the applicant’s future registration. For that reason the application must succeed.
Sanction
The parties submit that the Tribunal only has power to caution or reprimand the applicant[6] and it is contended that a reprimand in the circumstances would be an appropriate sanction.
[6]Pursuant to s 191(3)(c) of the National Law.
In Medical Board of Australia v Martin[7] Deputy President Horneman-Wren SC DCJ noted that the Tribunal ought not depart from an agreed sanction provided it is within a permissible range in all the circumstances of the case.[8]
[7][2013] QCAT 376.
[8]Ibid at [91] – [93].
Adopting that very sensible approach I am of the view that the agreed sanction in this matter falls within the permissible range in all the circumstances of this case. I have also been assisted by the opinions of the assessors in that regard.
Costs
The parties seek no order as to costs.
Orders
1. The decision of the Performance and Professional Standards Panel of the Medical Board of Australia dated 13 February 2014 to impose conditions on the applicant’s future registration is set aside.
2. The applicant is reprimanded.
3. There is no order as to costs.
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