Vega Vega v Medical Board of Australia
[2014] QCAT 328
| CITATION: | Vega Vega v Medical Board of Australia [2014] QCAT 328 |
| PARTIES: | Antonio Vega Vega (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR111-14; OCR127-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 23 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr David Evans, Dr Kong Goh Ms Alison Christou |
| DELIVERED ON: | 27 June 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Medical Board of Australia on 9 May 2014 suspending Dr Vega Vega’s registration is set aside. 2. The decision of the Medical Board of Australia on 20 June 2014 imposing conditions on the registration of Dr Vega Vega is set aside. 3. The Tribunal makes no order as to costs. |
| CATCHWORDS: | PROFESSIONS AND TRADES – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – IMMEDIATE ACTION – where Dr Vega Vega was the subject of three decisions of the Medical Board of Australia (‘Board’) – where the Board made a decision to suspended Dr Vega Vega’s registration – where the Board removed the suspension and accepted the undertaking of Dr Vega Vega – where the Board refused Dr Vega Vega’s request to revoke that undertaking – where the Board later accepted the request to revoke the undertaking – where the Board imposed conditions on Dr Vega Vega’s practice – whether the Board’s decision to remove the suspension is a reviewable decision within the jurisdiction of the Tribunal – whether the Board’s decision to reject the request to revoke the registrant’s undertaking is a reviewable decision within the jurisdiction of the Tribunal PROFESSIONS AND TRADES – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – IMMEDIATE ACTION – where Dr Vega Vega removed the incorrect kidney during surgery – where the procedure had numerous difficult characteristics – where the Board imposed conditions that Dr Vega Vega not undertake similar difficult surgeries at the Rockhampton Base Hospital – whether Dr Vega Vega poses a risk to persons PROFESSIONS AND TRADES – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where Dr Vega Vega applied for a review of three decisions of the Board – where the decisions of the Board were set aside – where decision based on written evidence and oral evidence given during the proceedings – whether the Board should pay Dr Vega Vega’s costs Acts Interpretation Act 1954 (Qld), s 4, s 24AA JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr SJ Keim SC instructed by Ashurst Lawyers |
| RESPONDENT: | Mr C Wilson instructed by Lander & Rogers Lawyers |
REASONS FOR DECISION
The proceedings before the Tribunal concern three decisions made by the Medical Board of Australia about the registration of Dr Antonio Vega Vega. Dr Vega Vega holds registration as a specialist urologist under the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
Background
On 9 May 2014, the Queensland Immediate Action Committee of the Medical Board of Australia decided to take immediate action in relation to Dr Vega Vega pursuant to s 156 of the National Law. The immediate action taken was the suspension of Dr Vega Vega’s registration.
On 20 May, Dr Vega Vega applied to the Tribunal for a review of that decision. In his application for the review of the suspension decision, Dr Vega Vega stated, as a basis for why the decision was wrong or not properly made, that he had offered undertakings not to practice. He contended that, had the Board agreed to those undertakings, sufficient protection of the public would have been achieved. Having received the review application AHPRA, by letter dated 28 May 2014, took issue, on behalf of the Board, with Dr Vega Vega’s contention that he had offered undertakings. It noted that shortly after 12.30 pm on the day of the decision, 9 May 2014, Dr Vega Vega’s solicitors had informed AHPRA that Dr Vega Vega would not give instructions to offer an undertaking at all because the period of time was too long.
Therefore, the Board did not have any offer of an undertaking before it when the Immediate Action Committee considered the matter. It was said that if Dr Vega Vega was reconsidering his position as to the offering of an undertaking, the Board would reconsider it. He was invited to indicate if he would offer an undertaking by 12 pm on 30 May 2014. On 30 May 2014, Dr Vega Vega’s solicitors wrote to AHPRA indicating that they considered that the issue of undertakings ought be deferred until after the Tribunal had considered the review application.
On 30 May 2014, solicitors for the Board wrote to Dr Vega Vega’s solicitors advising them that the Board would be, ‘reconsidering this matter’ on 2 June 2014 at 1 pm. In light of the reference to the offer of undertakings in the review application and the earlier exchange of correspondence, they sought confirmation of whether Dr Vega Vega’s previous offer of an undertaking remained withdrawn and whether he otherwise offered an undertaking. His solicitors responded that day advising that Dr Vega Vega undertook not to practice as a medical practitioner until 4 pm on 23 June 2014, unless the Board determined in the mean time that no immediate action against him was required. By then, the hearing of Dr Vega Vega’s review application in the Tribunal had been set for 23 June.
In light of that undertaking, the Board, when it met on 2 June 2014:
resolved to repeal and replace its decision made on 9 May 2014 and accept the undertaking now offered by Dr Vega Vega on 2 June 2014 pursuant to ss 155 and 156 of the National Law. However, it will reconsider what immediate action, if any, needs to be taken after 4pm on 23 June 2014 subject to any direction or decision of the Tribunal.
Notwithstanding the reference in the Board’s decision of 2 June 2014 to any decision of the Tribunal, which clearly seemed to contemplate the Tribunal making a decision in respect of Dr Vega Vega’s review application, the Board’s solicitors, on 4 June 2014, wrote to Dr Vega Vega’s solicitors asserting that there was no longer an appellable decision for consideration by the Tribunal. They expressed the view that, ordinarily, the application would be withdrawn as the Tribunal did not have jurisdiction to entertain it. The solicitors for Dr Vega Vega took a different view; they considered that, in order to have taken immediate action by the acceptance of the undertaking, the Board must have satisfied itself of the same jurisdictional facts under s 156(1)(a) as required to be satisfied to take the earlier action of suspension.
They were, and remain, of the view that the review proceedings which had been commenced remained on foot while a real dispute remained between the parties. They referred to the Board’s decision to repeal and replace its decision temporarily as not revoking the proceedings. The characterisation of the repeal and replacement of the decision as temporary seems to have been drawn from the reference to the Board’s future reconsideration of the matter being, ‘subject to any direction or decision of the Tribunal.’ However, I do not consider that the Board’s decision can be characterised in that way. It was not expressed to be temporary.
Rather, it had the tenor of a permanent replacement of the earlier decision. The matter is of some significance so far as the Tribunal’s jurisdiction is concerned. Section 199 of the National Law defines what an appellable decision is. It includes, pursuant to s 199(1)(e) and (h), respectively, a decision by a national board to impose conditions on a person’s registration, or to suspend the person’s registration. Each of those actions can be taken by a national board as a form of immediate action as defined by s 155.
Another form of immediate action, as defined by s 155, is the acceptance of an undertaking. Section 199 of the National Law does not, however, extend the definition of an appellable decision to that form of immediate action. This is confirmed by s 158(2)(d) which requires the notice to be given to the practitioner of the decision to take immediate action to include, in the case of suspension or the imposition of conditions, the right of the practitioner to appeal the decision. As a matter of policy, one can readily understand why that would be so. It would seem counterintuitive to confer the right to appeal a decision to accept an undertaking upon the person who offered the undertaking in the first place.
Perhaps with those matters in mind, the solicitors for Dr Vega Vega identified that s 199(1)(g) separately made appellable a decision of a national board to refuse to change or revoke an undertaking given by a practitioner. They indicated that they would advise Dr Vega Vega to request the Board to revoke his undertaking several days prior to the scheduled hearing. A refusal of that request would provide a formal appellable decision in the event that course was followed. A request was made of the Board for the revocation of Dr Vega Vega’s undertaking. The Board met to consider that request on 11 June 2014. It decided to refuse to revoke the undertaking.
As had been foreshadowed, Dr Vega Vega separately applied to the Tribunal for a review of that refusal on 12 June 2014. In communicating the Board’s decision to refuse the revocation of the undertaking, its solicitors informed that the decision had been taken in circumstances in which Dr Vega Vega had provided no submissions as to why the undertaking should be revoked nor had he offered any alternative undertaking to protect the public.
As to the latter, in my view, it was quite clear, by then, that Dr Vega Vega contended that there was no need for public protection. It was said that, in those circumstances, the Board was left with no alternative but to leave the undertaking in place for the time being. It was indicated, however, that the Board intended to reconsider the matter at the earliest opportunity and, in any event, before the scheduled hearing. That reconsideration occurred on 18 June 2014. It included a consideration of the material which Dr Vega Vega had filed in the Tribunal on 10 June 2014. The Board resolved to propose taking immediate action in the form of the imposition of conditions.
In accordance with the show cause process required under s 157, AHPRA, on behalf of the Board, wrote to Dr Vega Vega on 19 June 2014 advising him of the proposed immediate action and inviting him to make a submission in respect of it. Dr Vega Vega availed himself of that opportunity and, through his solicitors, made a submission dated 20 June 2014. The Board met again on 20 June 2014 and, after considering Dr Vega Vega’s submission, decided to take immediate action under s 156. The immediate action taken on this occasion was expressed to be, ‘to end the undertaking accepted from you on 2 June 2014 and impose the conditions’.
The conditions were set out in a schedule to the decision.
At the commencement of the hearing on 23 June 2014, Dr Vega Vega was granted leave to file a further application for the review of the Board’s decision of 20 June 2014.
Jurisdiction to hear each review application
I have recorded this extensive history of the proceedings because the parties take differing views as to what decision or decisions are before the Tribunal for determination. For its part, the Board is of the view that the only decision which is presently before the Tribunal is that of 20 June 2014, the previous two decisions having been spent.
This reflects the Board’s view as expressed in its correspondence of 4 June 2014 that its decision of 2 June 2014 to repeal its decision of 9 May 2014 suspending Dr Vega Vega’s registration and replacing it with a decision accepting his undertaking meant that the Tribunal no longer had jurisdiction to entertain that earlier decision. Dr Vega Vega, on the other hand, contends that each of the decisions which have been the subject of separate applications for review are presently before the Tribunal. He seeks for each of them to be determined.
Mr Keim SC, who appeared for Dr Vega Vega, contends that the issue is of some consequence because if the original decision imposing the suspension is set aside and no contrary order is made, by operation of s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal’s decision has effect from when the reviewable decision took effect.
The practical effect of that would be, it is said, that Dr Vega Vega would be taken never to have been suspended. This would be of value not only to his reputation but would also permit him to answer, accurately, in the negative if asked if he has ever been suspended. One can readily imagine that it is a question that a prospective employer or an insurer may ask.
The resolution of these jurisdictional questions requires careful analysis of both the decisions made, or purported to be made, and the provisions of the legislation under which they were made and under which they come to be reviewed.
Clearly, the third decision of 20 June 2014 to impose the conditions is reviewable. It was a separate exercise of the power to take immediate action under s 156. It was expressed to be so even though, in initially refusing the request to revoke the undertakings, the Board had said that it would, ‘reconsider the matter’. It was preceded by a separate show cause process as required by s 157 of the National Law.
Because the third decision was a separate and distinct decision, one or both of the second and first decisions must remain extant and reviewable. Even though the Board, in the third decision, decided, ‘to end the undertaking’, it did not purport to do so by repealing the refusal of the revocation which constituted the second decision.
The application for the review of the second decision, having been brought in the Tribunal, the Tribunal remains, as a matter of jurisdiction, seized of that matter. The utility of reviewing the decision, in light of the revocation granted in the third decision, is a different matter to the jurisdiction to do so. That utility, or lack of it, goes only to the discretionary considerations as to whether the jurisdiction should be exercised, not as to whether the jurisdiction exists to be exercised. The second decision is reviewable.
The remaining question is whether the acceptance of the undertaking had the effect of removing the Tribunal’s jurisdiction in respect of the application to review the first suspension decision.
In my view, it did not have that effect. Paragraph 8 of the reasons for the Board’s decision of 2 June 2014 described the decision as one by which it, ‘resolved to repeal and replace its decision of 9 May 2014’. The reasons do not disclose the legal basis upon which the Board considered it had the power to repeal and replace its earlier decision to take immediate action. No legal basis for that power has been identified in these proceedings. The National Law does not, in its terms, confer power upon a national board to repeal its earlier decisions.[1] One legislative source of such power may, however, be s 24AA of the Acts Interpretation Act 1954 (Qld) (‘Acts Interpretation Act’).
[1]This issue is further addressed in the addendum to these reasons.
Section 24AA provides, relevantly, that if an Act authorises the making of a decision, the power includes power to amend or repeal the decision. However, s 4 of the Acts Interpretation Act provides that its application may be displaced by a contrary intention appearing in any Act. Whether s 24AA of the Acts Interpretation Act permitted the repeal of the suspension decision turns on whether a contrary intention appears in the National Law: Pangilinan v Queensland Parole Board [2014] QSC 133 (18 June 2014) per Jackson J at [44] to [45] (‘Pangilinan’) and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 per Gummow J.
As already noted s 199(1) of the National Law makes certain decisions of a national board made under the National Law appellable, including decisions to suspend a practitioner’s registration: s 199(1)(h). If a national board decides to take immediate action against a registered practitioner under s 156 of the National Law, s 158(1)(a) requires the Board to give written notice of that decision to the practitioner. If the immediate action is taken in the form of suspension of the practitioner’s registration, as also already observed, the notice must state that the practitioner may appeal the decision.
Section 159 provides for the period of immediate action. It provides that the immediate action takes effect on the day the notice is given to the practitioner or a later date stated in the notice: s 159(1). Section 159(2) provides:
The decision continues to have effect until the earlier of the following occurs—
(a)the decision is set aside on appeal;
(b)for the suspension of, or imposition of conditions on, the registered health practitioner’s or student’s registration, the suspension is revoked, or the conditions are removed, by the National Board; or
(c)for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.
Therefore, a decision to take immediate action may cease to have effect on the occurrence of any of the three circumstances prescribed. However, a decision ceasing to have effect is different from a decision ceasing to exist. The difference is evident from the language of s 159(2) itself. There is a distinction in the language in s 159(2)(a) on the one hand, and s 159(2)(b) and (c) on the other hand. Under s 159(2)(a) the decision ceases to have effect because the decision itself has been set aside by the Tribunal. Notwithstanding that, s 199(1) of the National Law provides that persons may appeal from certain appellable decisions. For reasons developed in Pearse v Medical Board of Australia [2013] QCAT 392 by operation of s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) by which Act the National Law became part of the law of Queensland, the reference to an appeal is a reference to a review of the decision as provided under the QCAT Act. The powers of the Tribunal on the review are prescribed by s 24(1) of the QCAT Act. It provides:
In a proceeding for a review of a reviewable decision, the tribunal may—
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
Subsection 24(2) provides:
The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—
(a)is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and
(b)subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
Therefore, if the Tribunal does not set aside the decision under s 24(1)(b) or (c), then s 159(1)(a) will not apply. The decision will continue to have effect. If, for example, the decision was amended by the Tribunal under s 24(1)(a) of the QCAT Act, it would continue to have effect as amended.
Unlike s 159(1)(a) where the decision ceases to have effect because the decision itself has been set aside, under either s 159(1)(b) or (c) the decision ceases to have effect because the circumstances put in place as a consequence of the decision have been altered. That is, the suspension has been revoked, the conditions removed, or agreement reached to end the undertaking.
Section 159(2)(b) and (c) expressly provide for the means by which the Board can bring the effect of the decision, but not the decision itself, to an end. The setting aside of the decision itself is reserved to the Tribunal on the appeal. Even if the effect of the decision ceases because of some further act of the Board the decision remains. If a practitioner has sought a review of that decision it remains within the Tribunal’s jurisdiction to review it.
In my view, s 158 and s 159 of the National Law display an intention contrary to permitting the repeal of a decision to take immediate action under s 156.
The decision of 2 June 2014 operated as a decision pursuant to s 159(2)(b) to revoke the suspension and pursuant to s 156(1) to take further immediate action in the form of accepting the undertaking. Construing the Act so as to exclude the power to repeal a decision to take immediate action under s 24AA of the Acts Interpretation Act in no way inhibits the National Board’s ability to revisit the issue of immediate action taken in relation to a practitioner. As this case demonstrates, there is ample power to bring to an end the effect of the decision and, if considered necessary, to take other action. However, the original and subsequent decisions will remain reviewable to the extent that the National Law provides.
As was observed by Jackson J in Pangilinan at [55], the position will be different if the decision being repealed was affected by jurisdictional error. In such a case the original decision will, at law, be no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. However, for reasons I explained in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502, even an invalid decision is reviewable in the Tribunal.
Each of the applications to review the respective decisions of 9 May, 11 June and 20 June 2014 are within jurisdiction and before the Tribunal.
The review applications
I shall now turn to consider the merits of those applications.
The review under s 20(2) of the QCAT Act proceeds as a fresh hearing on the merits. The Tribunal must reach its decision on the evidence before it on the review; not that before the Board at the time of making each of the decisions: Pearse v Medical Board of Australia [2013] QCAT 392 at [36]. Therefore, whilst the decision of the Board to suspend Dr Vega Vega’s registration was reached after a consideration of five cases which had been the subject of four notifications, the reviews can be determined on a consideration of one case only; that of the patient AB from whom Dr Vega Vega removed the incorrect kidney during surgery performed on 22 January 2014.
The decision of 20 June 2014 to impose conditions was based upon that case. The hearing was conducted on that basis. In submissions, the Board contends for the conditions imposed on the basis of the case of AB. This case demonstrates that a national board acting conscientiously in the interests of protecting the public might form the reasonable belief as required under s 156(1) that a practitioner, because of his or her conduct, performance or health, poses a serious risk to persons and that it is necessary to take immediate action to protect public health and safety, on the basis of material initially before it, but that it might also adapt the basis for or extent of its view of the risk posed, or the immediate action necessary, upon further information and evidence being provided to it.
Now, with commendable succinctness, the Board summarises the basis upon which it contends for the maintenance of the conditions imposed on 20 June 2014 at paragraph 33 of its written submissions as follows:
The Board considers that, having regard to the circumstances surrounding the removal of the wrong kidney during [AB]’s procedure on 22 January 2014, that that procedure should not have been undertaken at the Rockhampton Base Hospital in the absence of another specialist urologist who could be called on for assistance. The Board submits that the opinions expressed at pages 4 and 5 of Dr Sillar’s report, the report of Professor Costello and the observations of Dr Wood at 1.6 of his report, all support the conclusion that the procedure should have been undertaken at a tertiary hospital.
On 22 January 2014 AB was to undergo a left nephrectomy; the removal of her left kidney. Dr Vega Vega performed the surgery. Dr Vega Vega commenced the procedure, as planned, as laparoscopic surgery. In the course of the surgery significant bleeding from the renal vein occurred which caused Dr Vega Vega to convert from laparoscopic to an open procedure. The surgery took seven hours. Ordinarily a nephrectomy may take between two and four hours. In the event the right, not left, kidney was removed.
On any view of it, the operation which was going to be performed on AB was going to be difficult. AB has multiple major physical abnormalities, including: spina bifida; paraplegia from T5-6; severe scoliosis; spinal fusion; neurogenic bladder and bowel long-term self-catheterisation; chronic constipation; hydrocephalus; and recurrent urinary tract infection. She had in place a ventriculoperitoneal shunt. She had previously undergone a coxectomy in 2003. At the time she had a chronically infected left kidney with very poor function. She had previously had a left perinephric abscess.
In planning the surgery, given AB’s physical condition and medical history, Dr Vega Vega expected difficulties. He expected that the anatomy would be complicated and that there would be adhesions. These expected difficulties influenced his decision to use a laparoscope to perform the surgery. He considered that an open method, which would involve cutting through the abdomen, was more likely to result in more adhesions being encountered. He also considered that there was a greater risk of damaging the shunt if an open abdominal approach was taken.
As well as practising at the Rockhampton Base Hospital Dr Vega Vega is also a visiting medical officer at the Princess Alexandra Hospital (‘PAH’). On occasions he will refer more complex or difficult cases to the PAH where he may perform the surgery either on his own or with another urologist. On other occasions urologists other than Dr Vega Vega will perform the surgery. In some instances the purpose for referring the case to Brisbane is to facilitate Dr Vega Vega having access to equipment not available in Rockhampton.
As part of his involvement with the PAH, Dr Vega Vega participates in monthly multidisciplinary meetings at the hospital at which cases are presented and discussed. Urologists and other specialists take part.
AB’s case was discussed at one such meeting in October 2013. Dr Simon Wood, a consultant urological and transplant surgeon and Director of Urology at PAH, participated in that meeting. Dr Wood gave evidence in the proceedings. I found him to be a frank and impressive witness. He knows Dr Vega Vega. He has performed surgery with Dr Vega Vega and has also been referred patients by him upon whom he has performed surgery without Dr Vega Vega. He speaks highly of Dr Vega Vega. He does not consider he poses a serious risk to persons.
Dr Wood recalled the occasion on which the case of AB was discussed. The imaging of the patient was not available to those at the meeting, but I did not gain the impression that Dr Wood considered that the discussion of the patient and the proposed surgery was compromised as a result of that absence of imaging. It is apparent from Dr Wood’s evidence that the focus of the discussion was upon the decision to remove the kidney of AB, not the location at which that would occur. That said, Dr Wood made it clear that the discussion had proceeded on an understanding of all concerned that AB was a Rockhampton patient upon whom the surgery proposed would be performed by Dr Vega Vega in Rockhampton. No one expressed any concerns in regard to those matters. It was clear to me from Dr Wood’s evidence that, generally, the judgment of a colleague as to the location at which, the person by whom, and the method by which a procedure will be performed will be respected in such a meeting. Those are not matters which would usually be discussed, unless specifically raised by the doctor treating the patient.
I formed a slightly different impression from Dr Vega Vega’s evidence on the subject. From Dr Vega Vega I got the impression that, in his experience, if a participant in the case meeting had concerns about the proposed venue for the operation, he would expect that those concerns would be expressed. Notwithstanding the difference in the views of Dr Wood and Dr Vega Vega as to this aspect of discussions of cases, I did not form the view that Dr Vega Vega’s decision to perform the surgery in Rockhampton was based upon, or even confirmed by, a contrary view not having been expressed at the meeting.
Dr Vega Vega’s evidence concerning his expectations about the discussion of location do not cause me to have reservations about his judgment in deciding where the operation on AB, or other patients, should be performed.
As to attempting to conduct the surgery laparoscopically, Dr Wood said that he too would have attempted the surgery in that way and converted to an open operation if he found things were difficult. This was the course which was followed by Dr Vega Vega.
By contrast, Professor Anthony Costello, a professor of urology and department head at the Royal Melbourne Hospital, was adamant that surgery of that complexity should be performed by open operation, not laparoscopically. He seemed to reject the proposition that it was a matter upon which experts might differ. However, quite evidently, both Dr Wood and Dr Vega Vega had a differing view. It was also a view that no other participant in the multiple disciplinary meeting expressed concern with. I prefer Dr Wood’s evidence. It was, in my view, more measured and considered.
As to the operation itself, whereby the incorrect kidney came to be removed, Dr Vega Vega says that he did not expect and did not anticipate at all that AB’s right kidney would be so displaced as to be across the midline, where he expected the left kidney to be. He considered that the depth of the instruments through the port which he had created was consistent with the expected positioning of the left kidney. He emphasised that the entire surgery was performed in the patient’s left side. At no time did he doubt that he had located the correct kidney. The right kidney was also infected, so it was not, apparently, the incorrect organ.
He says that the diagnostic images gave him no warning. They showed the kidneys in more or less the correct positions. However, he observes that the images were taken with the patient lying on her back. In retrospect, he infers, that when positioned on her side for the operation, a combination of her abnormal anatomy and various adhesions have dragged her right kidney across the midline, to where her left kidney was expected to be. He frankly concedes that he had no inkling that this was likely to occur.
Dr Wood said that, having reviewed all of the imaging that was available before the surgery, he observed that the kidneys aligned very close to each other in the midline of the abdomen, with the patient lying on her back. He considered that placing the patient on her side, as routinely is the case for laparoscopic surgery, the orientation or positioning of the organs may have changed. He considered that if there was significant inflammation around the kidneys, in the retroperitoneum, that may have resulted in them being pulled to one side of the midline. He expressed the opinion that disorientation during a procedure where there is aberrant anatomy is a common enough occurrence.
It is important in this regard to keep in mind that the evidence does not establish that there was some aspect of, or event during, the operation which, when it arose, would have resulted in the procedure being performed any differently had it been conducted in a major tertiary hospital in a capital city, even with other surgeons present. It is important to do so, because the risk now identified by the Board is confined to Dr Vega Vega performing complex renal surgery without specialist consultant support.
All the witnesses, including Dr Vega Vega, recognise the benefits and desirability of having other colleagues available, to be called upon to consult or assist if complications are encountered in the course of surgery. Dr Vega Vega identifies the bleeding which was encountered as being the one occurrence that may have led to him calling for assistance from a colleague, had one been available. However, that does not relate to the particular adverse outcome in this case: the removal of the incorrect kidney.
The remaining risk now identified by the Board is based on the opinions of Professor Costello and Dr David Sillar, who is also a urological surgeon. In his report of 20 June 2014, Professor Costello referred to the surgery being performed on AB as being the most complex of all urological surgery. He opined that the performance of that surgery with only junior registrar support led to the adverse outcome.
In cross-examination Professor Costello seemed to concede that this causal connection he made in his report should not be stated in such unqualified terms. Professor Costello did not concede, however, that there were other factors which may be present in a patient, such as obesity or anatomical abnormality such as a single kidney, which may add to the complexity of the surgery. Dr Wood had identified such matters as adding to complexity. Again, I prefer Dr Wood’s evidence.
Professor Costello expressed the firm view, both in his report and his oral evidence, that complex cases such as this should be performed in a major teaching hospital, in a capital city and with, it would seem, more than one specialist urologist present.
Dr Sillar, who was not available to give oral evidence, said in a report that it may be that AB’s is a case better managed in a tertiary hospital, due to the less common, and potentially difficult nature of the planned surgery. Against the background of those observations, in expressing the opinion that Dr Vega Vega did not pose a serious risk to persons, Dr Sillar provided the caveat that more potentially difficult and complex cases be referred to a tertiary unit.
In my view, there is, effectively, a unanimity of opinion amongst the experts as to the caveat expressed by Dr Sillar. The issue, however, is how and by whom the decision is made that the level of complexity is such as to warrant or require referral. The resolution of the issues in this case really turns upon whether Dr Vega Vega possesses the requisite professional judgment to make those decisions unaided, or unburdened, by conditions on his registration, requiring him to consult over them.
For his part, Dr Wood observed of these matters that for the majority of conditions, including kidney removal or complex kidney surgery, there is really no evidence that these operations should all be performed in a metropolitan tertiary referral centre. He observed that they have been performed successfully for many years in regional centres, including Cairns, Townsville and Rockhampton. He candidly identified that, although unfortunate, it is a continuing occurrence that complications are encountered in patients who should have straight forward surgery, and that he knows from personal experience that the removal of the wrong organ, or injury to an organ, due to disorientation due to abnormal anatomy, has certainly happened in highly regarded tertiary referral centres in Brisbane in recent times, with surgeons who were very well supported, with or without consultant assistance.
He said – again, with a commendable frankness – that if he or one of his colleagues had performed the surgery on AB, whilst he would hope that the outcome would be different, he did not think it could be said that it would have been; even if undertaken by the most experienced kidney surgeon in Brisbane.
In my view, Dr Vega Vega does not pose a serious risk to persons. The surgery which he and others perform does pose a risk to persons, often a serious risk. Not performing the surgery would, in all circumstances, eliminate that risk. But elimination of the risk associated with surgery does not eliminate the risk to the patient. Often the risk of not operating will be as or more serious than those associated with performing the surgery. These are matters for judgment.
On the evidence before me, I am of the opinion that Dr Vega Vega is capable of exercising that judgment, unburdened by conditions on his registration.
The decision taken by Dr Vega Vega to perform this nephrectomy in Rockhampton was, in my opinion, reasonable. The evidence does not establish that deciding to perform the surgery in Brisbane would have led to the procedure having been performed any differently. The evidence does not establish that the adverse outcome is likely to have been avoided.
Having concluded that Dr Vega Vega does not pose a serious risk to persons, it is strictly unnecessary to consider whether immediate action, in the form of the conditions imposed, meets the purpose of protecting public safety. To require Dr Vega Vega critically to review and discuss with a supervisor any renal surgery on patients described as having serious or multiple co-morbidities, or in the expectation of complex surgical difficulties, as the conditions presently imposed require, calls, in my view, for the exercise by him of the very judgment which he is said to be lacking: the circumstances against which the condition is intended to protect.
Furthermore, because ‘complex surgical difficulties’ is undefined, it leaves open the very real possibility that he could be disciplined for having breached a condition of his registration, on the basis that the Board took a view different to his own as to whether the circumstances requiring consultation existed in any particular case.
The only means of removing the subjective views as to complexity would be to require Dr Vega Vega to consult over all renal surgery. However, such a condition would be very onerous and, on the evidence, entirely unnecessary. Of course, in the case of AB, Dr Vega Vega did consult with colleagues. In my view, the evidence establishes that the requirements for review and discussion of complex renal surgery, in a patient with multiple co-morbidities, and in the expectation of complex surgical difficulties, as imposed by the conditions, would in fact have been satisfied in the case of AB. It is equally evident that compliance with such a condition would not have avoided the outcome in this case.
I allow each of the applications for review. I set aside the decision of the Medical Board of Australia, of 9 May 2014, suspending Dr Vega Vega’s registration. I set aside the decision of the Medical Board of Australia, of 20 June 2014, imposing conditions on the registration of Dr Vega Vega.
Costs
In my view this is not an appropriate matter in which to order costs in favour of the applicant. It is clear from the material and my reasons that the decision taken initially by the Board on 9 May 2014 was a decision reasonably open to the Board in terms of s 156 on the material before it at that time. So much is reflected, perhaps, in the submissions made on behalf of Dr Vega Vega in seeking costs that I would only award costs for the period from approximately 10 June 2014, being the date upon which Dr Vega Vega’s material was filed.
The reasons which I have delivered this morning reflect that the evidence upon which I have reached my conclusion as to the fact that Dr Vega Vega does not, in my belief, pose a serious risk to persons, was formed on all of the evidence, including the evidence given by, particularly, Dr Wood in the course of the hearing. But for Dr Wood’s evidence in the course of the hearing I am unable to say that I would have reached the same conclusion.
In those circumstances and given the fact, as Mr Wilson quite rightly raises with me, s 21 of the QCAT Act imposes an obligation on the decision-maker in respect of participation in proceedings such as this, in my view, the appropriate order is that there be no order as to costs.
Addendum
Immediately after delivering these reasons orally, I raised in an email to the legal representatives of both parties that s 7 of the Health Practitioner National Law Act 2009 (Qld), by which the National Law is incorporated as part of the law of Queensland, expressly excluded the application of the Acts Interpretation Act 1954 (Qld). In response, Mr Wilson of Counsel for the Board raised that s 23 of Schedule 7 to the Health Practitioner National Law Act 2009 (Qld) provides that if the National Law authorises the making of a decision, the power includes the power to amend or repeal the decision. I am grateful for counsel raising that provision for my attention.
However, s 23 operates subject to s 1 of Schedule 7. Section 1 provides that the application of Schedule 7 may be wholly or partially displaced by a contrary intention appearing in the National Law. In that way, s 23 of Schedule 7 operates to the same effect as s 24AA of the Acts Interpretation Act. Section 1 of Schedule 7 operates to the same effect as s 4 of the Acts Interpretation Act. The reasoning set out at [25] to [38] applies equally and should be read as though references to ss 24AA and 4 of the Acts Interpretation Act were references to ss 23 and 1 of Schedule 7 to the Health Practitioner National Law Act 2009 (Qld) respectively.
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