Sharma v Medical Board of Australia

[2014] QCAT 305

CITATION: Sharma v Medical Board of Australia [2014] QCAT 305

PARTIES:	Devi Lata Sharma (Applicant/Appellant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR113-14

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 25 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Until further order of the Tribunal, the decision of the Performance and Professional Standards Panel of the Medical Board of Australia made on 13 May 2014 to impose conditions upon the registration of Dr Devi Lata Sharma is stayed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where a Performance and Professional Standards Panel placed conditions on the applicant’s registration – where the applicant applied for a stay of the panel’s decision – where the applicant states the conditions will adversely impact her professional and private life – where the respondent submits that the applicant has not demonstrated a cogent reason for granting of the stay, but does not oppose the stay – whether a stay is desirable after having regard of the interests of anyone affected by the decision, the submission of the respondent and the public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4)

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

1. On 13 May 2014 a Performance and Professional Standards Panel established by the Medical Board of Australia pursuant to s 182 of the Health Practitioner Regulation National Law (Queensland) (‘the National Law’) decided to place conditions upon the registration of Dr Sharma pursuant to s 191 of the National Law. On 28 May 2014 Dr Sharma filed an application for a review of that decision in the Tribunal. On 10 June 2014 Dr Sharma filed an application for a stay of the decision pending the determination of the review of the panel’s decision.

2. Section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Tribunal may only make an order staying the operation of a reviewable decision if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of the order or the order not being made, any submission made by the decision maker and the public interest.

3. The conditions imposed by the panel’s decision were as follows:

   9.1.2The practitioner will provide evidence to the Chair of the Queensland Board of the Medical Board of Australia (the Chair) of satisfactory completion of the following professional development courses conducted by the Cognitive Institute in Brisbane:

   9.1.2.1Mastering Healthcare and Communication; and

   9.1.2.2Mastering difficult colleague interactions.

   9.1.3The practitioner is to provide evidence of satisfactory completion within 12 months from the date of these conditions.

   9.1.4Within one month of the commencement of these conditions, the practitioner will nominate a suitable registered Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) to act as a mentor.  The mentor is to be approved in writing in advance by the Chair.  The practitioner is required to keep a log book of each case seen and treated in both public and private practice, with individual patients de-identified, but recognisable, by a unique numerical identifier.

   9.1.5The mentor is to conduct monthly audits of the practitioner’s obstetric and gynaecological practice consisting of face to face meetings with the practitioner to view her log book of current cases, review her clinical notes, and critically examine management and outcomes of care.

   9.1.6After six (6) months from the commencement of these conditions the Board approved mentor will provide a report to the Chair certifying whether or not the practitioner’s record keeping and practice complies with the Board’s Good Medical Practice Code of Conduct for Doctors in Australia (the Code).

   9.1.7If the report is not acceptable to the Chair, the mentor will continue to conduct monthly audits for a further six month period or until the Chair considers the report to be acceptable and in compliance with the code.

   9.1.8These conditions are not to be reviewed for a period of six months.

   9.1.9The mentor is authorised to provide information at such time or times as the Board shall determine for the purposes of monitoring compliance with these conditions.

   9.1.10The Board shall access Medicare and health funds billed for services by the practitioner for the purpose of monitoring compliance with these conditions.

   9.1.11Medicare and health funds billed for services by the practitioner are authorised to provide information to the Board or a representative for the purpose of monitoring compliance with these conditions.

   9.1.12The practitioner shall be responsible for all costs arising out of compliance with these conditions.

4. In an affidavit in support of her stay application, Dr Sharma deposes that the conditions will adversely impact on her professional and private life.  She says that in the competitive labour market the imposition of conditions is adversely impacting on her future prospects of having patients referred to her in her private practice, or of being offered local work or future opportunities as a specialist in other states or hospitals.  She does not, however, provide any specific examples of this having occurred.

5. She further states that the conditions will adversely impact upon her current and future credentialing and scope of practice at the hospitals at which she has been practicing, or at which she may apply to practice in the near future.  Again, however, no particular examples are provided.

6. She states that to allow her to meet with “other stakeholders” to make them aware of the conditions imposed upon her and to secure their continued approval for the provision of her services at their facilities, she has already had to defer patients due for post-operative follow up visits, clinic bookings for new patients, and operation dates for some patients.  She says that these meetings with stakeholders have also led to her having to refer some of her patients to other colleagues and to decline offers of local work.  Again, no particular examples are provided.  However, if she has been successful in her dealings with those stakeholders so as to secure their continued approval for the provision of her services at their facilities, then that would seem to ameliorate any potential adverse impact on her current or future credentialing and scope of practice at the hospitals at which she has been practising.

7. She states that the adverse impacts to which she has referred have led her to be unable to generate any income at the present time from her work as a private obstetrician and gynaecologist, thus placing her in a very precarious position for the payment of everyday bills, expenses and tuition fees associated with post graduate professional courses.  It is difficult to see how the conditions imposed would have such a severe impact upon her capacity to generate income.  They do not prevent her practice.  Nor do they impose any clinical restrictions upon the provision of her professional services. 

8. She deposes to the conditions also significantly adversely impacting upon her personal life causing her sleep deprivation and emotional and psychological stress.  This, it is said, has also adversely affected her relationship with her husband and disrupted their domestic and social life.  No doubt the imposition of conditions would be stressful to Dr Sharma.  That may also cause domestic stressors which were not present prior to the imposition of the conditions.  If, ultimately, she is successful in her review application, then it will have been unfortunate that such stressors have had to be endured in the interim.  However, staying the decision is unlikely to alleviate all of that stress.  No doubt the substantive proceedings themselves in which Dr Sharma seeks to establish that the imposition of the conditions was not the correct and preferable decision, will also be stressful. 

9. An adverse impact upon, or a disruption to, the social life of Dr Sharma and her husband is not a matter which, in my view, would weigh in favour of the granting of a stay.  Neither, is the fact that the conditions are a source of embarrassment to both her and her husband amongst their peers and work colleagues; a matter to which she also deposes.

10. In its submissions the Board contends that the conditions do not significantly affect the interests of Dr Sharma, and that they would not in any way affect the interests of patients.  The Board contends that the mere fact that a practitioner’s practice has been affected, or even that he or she is unable to practice until the appeal is heard is not, by itself, a cogent reason for granting a stay. Nor is the fact that the decision will have an adverse financial impact upon the Registrant and his or her family.

11. The Board submits that Dr Sharma has not demonstrated a cogent reason for the granting of the stay.

12. Notwithstanding that, the Board does not oppose the stay being granted.

Consideration

1. In my view, the grant of a stay in this matter is desirable.

2. The purpose of the imposition of conditions in a disciplinary proceeding such as that which was before the panel is to protect the public and uphold the standards of the profession.  Without a stay, the conditions require Dr Sharma to undertake and complete certain courses within a 12 month period.  In order to ensure compliance with the conditions in the event that they are not removed, given that the substantive review will not be heard and determined by the Tribunal for some considerable time, Dr Sharma would probably have to undertake the courses required.  In the event that she is ultimately successful, she will have gone to the effort and expense of doing that which is ultimately considered to be unnecessary.

3. If, on the hand, Dr Sharma is unsuccessful on the substantive review, then having delayed the requirement to undertake those courses until after the Tribunal’s decision will not have had any significant adverse impact upon the public interest.  The events in respect of which the disciplinary action was taken which led to the imposition of the conditions by the panel concern the performance of an emergency caesarean section on 19 November 2009.  Dr Sharma has practiced unrestricted, and without the benefit of the further courses required by the conditions, since that time.  If, ultimately, the undertaking of those courses by her is delayed for a period, she will still derive the benefit from them and, indirectly, so too will the public.  However, the public will not have been exposed to any particular risk in the meantime.  The courses concern communication and interaction with colleagues.

4. In my view, although not raised by Dr Sharma in her submissions, the interests of another person, other than Dr Sharma and her patients, will be affected by the making, or not making, of the stay order.  That person is the mentor who is required to be nominated by Dr Sharma and approved by the chair of the Board.

5. The conditions require that mentor to conduct monthly audits of Dr Sharma’s practice consisting of face to face meetings with Dr Sharma to view her log book.  That log book must be kept by Dr Sharma in respect of each case seen and treated by her in both public and private practice.  The face to face meetings require a review of her clinical notes and a critical examination of the management of the patients and the outcomes of care.

6. The conditions also require the mentor, after six months from the commencement of the conditions, to provide a report to the Chair of the Board certifying whether or not Dr Sharma’s record keeping and practice complies with the Board’s code.  If the report is not acceptable to the Chair, the mentor will be required to conduct monthly audits for a further period of six months until such time as the Chair considers the report to be acceptable and in compliance with the code. 

7. Those conditions work so as to place a considerable burden on a fellow member of the profession who volunteers to be Dr Sharma’s mentor throughout that process.  The substantive hearing of the application for review is unlikely to occur, or certainly be concluded, in the period of six months from the date of the imposition of the conditions.  Therefore, in the event that the review application is successful, the mentor will have borne that considerable burden in circumstances which ultimately are found to have been unnecessary.

8. Again, on the other hand, if Dr Sharma’s substantive review of the panel’s decision is unsuccessful, the fact that the mentor’s involvement has been delayed is most unlikely to have any adverse impact upon the safety of patients or the public.

9. For those reasons, I granted the stay of the decision on 24 June 2014.