Ta v Medical Board of Australia

[2014] QCAT 273

CITATION: TA v Medical Board of Australia [2014] QCAT 273

PARTIES:	TA (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR072-14

MATTER TYPE: Occupational regulation matters 

HEARING DATE: 26 May 2014

HEARD AT: Brisbane 

DECISION OF: Judge Farr SC

DELIVERED ON: 26 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Applicant be given leave to withdraw the proceedings;

2.    The Respondent pay the Applicant’s costs of and incidental to the application as agreed between the parties, or if not agreed within 30 days, as assessed on the standard basis against the District Court scale by a costs assessor nominated by the Respondent.

CATCHWORDS:

COSTS – where the Applicant applied to the Tribunal for costs of and incidental to an application for review of the decision by the Respondent to exercise its power under s 156 of the Health Practitioner Regulation National Law (Queensland) - where an order for costs can be the sum agreed or a sum as fixed by the Tribunal – where the Applicant was successful in revoking a decision that she not be allowed to practice and instead be subject to conditions – where it was submitted that the Respondent failed to consider the contents of a medical report – where the Respondent did not provide a copy of that report to the Applicant prior to making the decision to exercise its power – where an updated health assessment was required to provide the committee with an independent opinion on the practitioner’s current health status and whether restrictions were necessary for ongoing patient safety – where the Respondent failed to demonstrate that there had been any consideration given to the recommendation of its own expert contained in that report – where, if it had, the matter was unlikely to have been before the Tribunal – whether, in the circumstances, it was appropriate that an award for costs be made against the Respondent.

Health Practitioner Regulation National Law (Queensland), s 201

APPEARANCES and REPRESENTATION (if any):

APPLICANT: H. McKay of Avant Law Pty Ltd  

RESPONDENT: S.J. Gallagher of Corrs Chambers Westgarth  

REASONS FOR DECISION

1. The Applicant applies to the Tribunal for an order that the Respondent pay the costs of and incidental to her application for review of the decision by the Respondent to exercise power under section 156 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) to prevent her from practicing. Costs are sought on a substantive basis on the District Court scale in a sum agreed or, failing agreement, in a sum as fixed by the Tribunal. Section 201 of the National Law provides that the Tribunal may make any order for costs that it considers appropriate for the proceedings. It is a broad discretion and not subject to statutory fetter and must be exercised judicially. In other words, it allows the Tribunal to make an order as to costs that are justified in the circumstances.

2. In this matter, the substantive aspect of the application has been settled and the Applicant has been wholly successful in obtaining from the Respondent the outcome sought, namely that the decision she not be allowed to practice be revoked and, instead, she be allowed to practice subject to conditions. And the Applicant submits, therefore, that it is an appropriate matter in which costs or an order for costs should follow the event. The Applicant further submits that the power provided to the Respondent under section 156 is exceptional and should be exercised with care and due attention. Of course, it must be noted that the primary consideration in the exercise of the power under that section is the protection of the public. Nevertheless, the impact of immediate action on a health practitioner can be significant. For instance, preventing a practitioner from working and, therefore, earning a living. The Applicant has further submitted that the Respondent failed to consider the contents of a report from a Dr Pryor which were received on the 24th of March 2014. It is also submitted that the Respondent did not provide a copy of that report to the Applicant, nor even notify her of its existence prior to making the decision to exercise its power under section 156 and these are all relevant and important considerations on the issue of costs.

3. It is relevant to note the chronology of events in understanding this matter. On the 14th of September 2010, the Medical Board of Australia accepted undertakings proffered by the Applicant. The undertakings were dated 18th of July 2010 and the effect of the undertakings was that she would not return to the practice of medicine until release from the undertakings by the Board.  The undertakings were related to a health impairment and they required her to attend for drug screening, hair testing, treatment by a psychiatrist and peer supervision and were to remain in place for three years. The undertakings expired on the 20^th of September 2013 and were removed from her registration. On the 12^th of November 2013, the Queensland Health Committee noted that they did not have any current evidence before them that the practitioner was fit to practice without restrictions given her previous health conditions that had led to the undertakings being offered as previously referred to. Subsequently, the Queensland Health Committee decided that an updated health assessment was required to provide the committee with an independent opinion on the practitioner’s current health status and whether restrictions were necessary for ongoing patient safety. 

4. Telephone advice was then received from the Board nominated practitioner, Dr Nigel Pryor, who was a Consultant Psychiatrist, such advice being received on the 13th of March 2014, and he advised over the telephone that:

   (a)   the practitioner had attended upon him for a health assessment on the 12th of March 2014 which required pathology testing following the consultation; 

   (b)   the practitioner had telephoned him on the 13th of March 2014 advising that a couple of weeks earlier she had prescribed morphine in the name of a patient and then had self-administered the ampoule of morphine.  That declaration was not made to Dr Pryor at the time of the health assessment;  

   (c)   she also told Dr Pryor at the assessment that her son had been stealing prescription pads from her; and

   (d)   the practitioner should cease work immediately (I understand that such advice was also given to the practitioner herself).  

5. On the 19th of March 2014, the Medical Board proposed to take immediate action by way of imposition of conditions on the practitioner’s registration that she not practice until approved to do so by the Board and she was given the opportunity to make any submissions in that regard. Her submissions were subsequently received on the 20th of March 2014 and the 26th of March 2014. Two days before that second submission, that is, the 24th of March 2014, the Board received a written report from Dr Pryor. At paragraph 15.9, he relevantly says:

   I consider that, on balance, she is not fit to practice until she has further treatment and restabilises regarding the Opiate Abuse Disorder. I would advise that an Undertaking not to practice be sought from TA in the meantime.  When she is stable, as per Dr Fredericks’ feedback, I would advise the following undertakings on her registration …

6. And he then went on to list the conditions that he recommended in the circumstances.  The Board subsequently imposed conditions on the 2nd of April 2014. In that decision, the Respondent asserted that the basis of the committee’s reasonable belief is that it has taken into account all known considerations and, in fact, then listed those considerations. That reasonable belief that I’ve just referred to, refers to paragraph C where it said:

   The committee decided to take immediate action as the committee reasonably believes that (1) because of the practitioner’s health and conduct, the practitioner poses a serious risk to persons and (2) it is necessary to take the proposed immediate action to protect public health and safety.

7. Now, whilst those matters which were taken into account, as detailed in the decision, were not said to be a comprehensive list, given that the verbal telephone opinion of Dr Pryor was relevant and listed, it is my opinion so too must have been his written report. However, no mention was made of that report.  That is significant because of the opinion expressed in the written report, as I have already referred to, which is somewhat at odds with the telephone advice that Dr Pryor had given approximately 11 days earlier. A compulsory conference was held on the 28th of April 2014 at which time the Applicant learned of Dr Pryor’s written report and, as I understand it, that prompted her legal representatives to obtain reports from her treating psychiatrist who was the Dr Fredericks that Dr Pryor had referred to, and from a physician. Those reports were dated the 19th of May and the 15th of May respectively. Those reports were then shown to Dr Pryor who then provided a further written report in which he said ‘I consider that following the advice of Dr Fredericks, it appears it would be appropriate for TA to return to practice.’

8. He later said, ‘I consider she requires conditions on her registration.’

9. It has been submitted on behalf of the Respondent that at the time the Board met on the 2nd of April 2014, the most recent medical information which informed the decision of the Board was that communicated by Dr Pryor by telephone on the 13th of March 2014. But that is quite simply not correct. The Board had had Dr Pryor’s report since the 24th of March 2014 and it should have been a document which was, at the very least, considered. In these circumstances, it appears to me that the Respondent has failed to demonstrate that there has been any consideration given to the recommendation of its own expert contained in that report and that, if it had, there is a very real likelihood that this matter would not be before the Tribunal. In those circumstances, in my view, it is appropriate that an award for costs be made against the Respondent.

10. Accordingly, I order as follows:

    1.    that the Applicant be given leave to withdraw the proceedings; and

    2.    that the Respondent pay the Applicant’s costs of and incidental to the application as agreed between the parties, or if not agreed within 30 days, as assessed on the standard basis against the District Court scale by a costs assessor nominated by the Respondent.