Tracey v Medical Board of Australia
[2014] QCAT 684
•24 October 2014
| CITATION: | Tracey v Medical Board of Australia [2014] QCAT 684 |
| PARTIES: | Rodney Michael Tracey (Applicant/Appellant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR057-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 24 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a stay of the decision of the Medical Board of Australia is refused. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the applicant applied for a stay of the respondent’s decision – where there is no evidence of the conditions having an adverse impact on the applicant – whether the decision under review should be stayed Health Practitioner Regulation National Law (Queensland), s 178(2) Dey v Medical Board of Australia [2011] QCAT 227 |
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 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
The order of the Tribunal is that the application for a stay of the decision under review is refused. These are my reasons.
Dr Rodney Tracey is a medical practitioner. On 20 February 2014 the Queensland Medical Interim Notifications Committee of the Medical Board of Australia decided to impose conditions upon his registration as a medical practitioner. The conditions were imposed pursuant to s 178(2) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The action was taken because the committee reasonably believed that Dr Tracey’s practice of medicine was below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. The action was taken as a consequence of notifications to the Health Quality and Complaints Commission concerning the performance of circumcisions by Dr Tracey.
The Board’s decision and the conditions imposed were notified to Dr Tracey by letter dated 26 February 2014. The conditions were:
(1)The practitioner must not perform any circumcisions until approved to do so by the Board.
(2)Within 30 days of the imposition of these conditions the practitioner must nominate to the Board (or its delegate) for approval, in writing, an education programs [sic] (“the courses”) addressing:
(a)infection control procedures; and
(b)medical record keeping.
(3)Within 3 months of the approval of the course, the practitioner must satisfactorily complete the nominated and approved education course and provide written evidence to the Board (or its delegate) of such satisfactory completion.
(4)An AHPRA representative for the Board and the practitioner’s education provider will exchange information at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions.
On 24 March 2014 Dr Tracey applied to QCAT for a review of the Board’s decision. On 28 August 2014 Dr Tracey applied for a stay of the decision. The grounds for staying the decision set out in the stay application are:
(1)limited evidence to support decisions.
(2)decisions manifestly inappropriate to available evidence.
(3)time of complaint to decisions excessive – not supported by nature of complaints.
(4)decision vague and imprecise, lending to uncertainty.
(5)decision not consistent with documents supplied by board to assist Tribunal.
(6)evidence withheld by board from Tribunal and applicant.
The only evidence filed by Dr Tracey in support of his stay application is an affidavit of Dr Christopher Tracey, a consultant neurologist. Although it is not clear from the affidavit, it would appear that Dr Christopher Tracey is Dr Tracey’s son. He deposes to circumstances of illness and injury which affect his mother for whom care and support falls on the applicant, Dr Tracey. He deposes that as a consequence Dr Tracey has suspended all theatre operating times and consultations and consults for specific referrals.
The Tribunal can only exercise its power to order a stay under s 22(3) of the QCAT Act if it considers it is desirable to do so having regard to the matters set out in s 22(4), which are:
(a) the interests of individuals who may be affected by the making of the order or the order not being made;
(b) any submission by the decision maker; and
(c) the public interest.
There is no evidence at all of any adverse impact upon Dr Tracey occasioned by the operation of the conditions. An affidavit of Mr Templeton, a solicitor acting on behalf of the Board, deposes to the fact that the Board has not approved any courses for the purpose of the conditions imposed. In its submissions the Board refers to that evidence of Mr Templeton in support of a submission that Dr Tracey has not yet nominated a course of education. That is not what Mr Templeton deposes to. However, in the absence of any evidence that Dr Tracey has nominated a course of education, that inference is open.
There is no evidence from Dr Tracey as to what extent, if at all, the prohibition on performing circumcisions affects his practice. There is no evidence of any effect which the granting, or not granting, of the stay would have on any other person.
In submissions filed on Dr Tracey’s behalf in support of his stay application it is contended that there is limited evidence to support the decision. An analysis of many documents included within the bundle filed by the Board is undertaken to further this submission, from which it is said that factual findings in the reasons of the Board are invalid. It is then submitted that because of misinterpretation of the evidence and a lack of adverse evidence the decision is disproportionate. Dr Tracey points to the large number of fittings of Plastibell circumcision devices from the time of the original complaint in 2012 to the decision in 2014 in which it is said that there have been no complications or adverse outcomes.
The Board, on the other hand, submits that there are a number of factual matters not in dispute or which could not legitimately be disputed which support the decision. These include: that Dr Tracey does not wear gloves while performing Plastibell circumcision procedures; that his dog was present at his practice during the course of consultations; and that he did not maintain a written record of consent in respect of two such procedures the subject of the notifications. There is also expert evidence which is unsupportive of Dr Tracey’s practices and which suggests his conduct was below acceptable standards. The Board submits that Dr Tracey’s prospects of success in his review application are poor, even if considered only on the basis of the uncontentious or not seriously disputed facts.
The resolution of these factual issues is not possible in considering the stay application. However, I am of the opinion that Dr Tracey’s prospects of success are not so strong as to favour the granting of the stay. Dr Tracey further submits that the decision is vague and imprecise, leading to uncertainty. This submission is developed by identifying that it does not differentiate between circumcision by a Plastibell device and surgical circumcision, there having been no complaint about the latter. It is said that the alleged unspecified nature of the ban is in excess of the Board’s powers.
I do not consider that the decision is vague, imprecise, uncertain or unspecified. The submission itself plainly demonstrates that it is not. It demonstrates that the extent of the prohibition is clear and certain. Furthermore, the issues concerning the presence of Dr Tracey’s dog in the consultation and his not obtaining written consent would also be relevant to his performing surgical circumcisions. There is also no evidence from Dr Tracey concerning his performance of surgical circumcisions and how the decision of the Board impacts upon that aspect of his practice. Whether a prohibition on all circumcisions is appropriate as a condition is a different issue to whether it is within the power of the Board to impose it. Dr Tracey is unlikely to establish that the imposition of the condition was in excess of the power conferred by s 178(2) of the National Law.
Dr Tracey submits that there has been a failure by the Board to fully disclose evidence. The evidence concerns a visit by investigators to his consultation rooms and nine pages of medical records of the Gold Coast Hospital concerning one of the patients upon whom he performed a circumcision. To the extent that the Board had any further evidence it has now been disclosed. The Board has gone into evidence about that and also deposed to the absence of any further evidence concerning the site visit and the hospital records. There is nothing in those matters which would favour a stay being granted.
The application for a stay was made five months after the substantive application for review and six months after the Board’s decision was notified to Dr Tracey. Dr Tracey has made no attempt to explain the delay. The absence of any explanation for the delay is a matter to be taken into account when considering any effect which the decision has had on him and the effect which granting the stay may have on him. See Dey v Medical Board of Australia [2011] QCAT 227 at [10]. Because of the passage of time it would seem that Dr Tracey may already be in breach of condition 2. A stay of the decision now would not result in him not being in breach of that condition.
Dr Tracey bears the onus of establishing that the decision under review should be stayed. He has failed to discharge that onus. The application for a stay of the decision under review is refused.
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