WSS v Medical Board of Australia (No 2)

[2021] QCAT 190

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WSS v Medical Board of Australia (No 2) [2021] QCAT 190

PARTIES:

WSS

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR048-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Dr D Khursandi,
Dr J Cavanagh,
Mr M Halliday

ORDERS:

1.       The conditions currently imposed on the registration of the applicant by the decision of the respondent of 11 December 2019 be set aside.

2.       The Tribunal imposes on the registration of the applicant the conditions attached to this decision and marked A. 

3. For the purposes of the Health Practitioner Regulation National Law (Queensland) s 127(3)(b) the Tribunal decides that Subdivision 2 of Division 11 of that Act applies to those conditions.

4.       The Tribunal fixes the review period for the purposes of that subdivision at two years from the date of the decision of the Tribunal. 

5.       If either party seeks an order for costs, that party is to file and serve on the other party submissions in writing outlining the order sought and why it should be made within twenty-one days from the date of this decision.

6.       If either party does file and serve such submissions, the party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.

7.       The party seeking an order for costs may file and serve submissions in reply within fourteen days from service of the submissions in response. 

8.       If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – HEALTH AND PERFORMANCE ASSESSMENTS – review of decision of respondent to impose conditions –power to impose conditions arises – applicant having history of problems working in various hospitals – what conditions appropriate. 

Health Practitioner Regulation National Law (Queensland) s 5, s 178, s 199.

APPEARANCES & REPRESENTATION:

Applicant:

M F McMillan solicitor, with Mark Savic Legal.

Respondent:

C Wilson instructed by Moray & Agnew, Solicitors.

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. In this matter the applicant applied to the Tribunal to review the conditions imposed on his registration by the respondent. Following a hearing last year which ran for five days, the Tribunal published findings and reasons this year, which largely upheld the respondent on the factual issues in contention at the hearing: [2021] QCAT 5. The Tribunal had indicated that it would publish its findings and reasons, then receive further submissions from the parties as to what conditions, if any, should be imposed on the registration of the applicant. This approach was adopted to assist in focusing the submissions about possible conditions, and because of the possibility that the Tribunal would impose different and, arguably, more restrictive conditions.

2. Subsequently the respondent put forward a set of proposed conditions.  At a hearing the respondent made submissions about those proposed conditions, and after the hearing the applicant made submissions in writing to the Tribunal, and provided additional evidence, in the form of a report from a psychologist.  To some extent that report addressed an issue that the Tribunal has already made a finding about.  The structure adopted by the Tribunal was not intended to give the parties the opportunity to put forward further evidence in relation to matters which have already been the subject of a finding by the Tribunal, and in any case the Tribunal had a good deal of other evidence before it on the basis of which its findings were made. 

3. The respondent proposed a set of fourteen conditions.  In written submissions on behalf of the applicant most of these were accepted, although three of them were not accepted, and the applicant also disputed the proposed review period of two years.  The first condition, which was one of the disputed ones, was that the Practitioner not practice in any position in a hospital setting.  The applicant is keen to return to work in a hospital setting, partly because he does not enjoy general practice, and partly because he remains keen to progress his career, by getting onto, and completing, the physicians training programme.  That is the basis of his opposition to the condition.

4. Further, he pointed out that if working in a hospital as a Resident Medical Officer he would be subject to constant supervision, whereas in general practice he was working alone except to the extent that he sought advice from another practitioner.  That may well be true, but the applicant has a long history of unsatisfactory performance in hospitals, as detailed in the earlier reasons, including reacting badly to supervision, failing to consult supervisors and failure to comply with directions given to him.  At times he appeared to take the attitude that, because of his long experience and learning, he knows better than others in more senior positions in the hospital.  He also has a history of behaving badly towards those in subordinate positions, such as more junior doctors and nurses. 

5. The basic problem with his working in a hospital is that hospital work is particularly organized as team work.  All relevant members of the team have to work well together, and there must be good communication between them.  These are areas where the applicant has particular weaknesses, apparently because of certain features of his personality, and for that reason experience has shown that, despite the supposed advantage of greater supervision in hospital work, the applicant has performed poorly in hospitals.    Although that work may be his preference, the Tribunal must focus on the consideration of the protection of the health and safety of the public.  In view of his history in hospital work, and the fact that he appears to have performed adequately in his current general practice position, the Tribunal considers that it is appropriate, in all the circumstances, to impose the first condition sought by the respondent, that the applicant not work in a hospital setting. 

6. The applicant consented in submissions to conditions 2 to 10; nevertheless it is necessary for the Tribunal to make up its own mind about them.  Condition 6 would require the applicant to be supervised on the basis that the supervisor would always be physically present at the practice when the applicant was working there, and be available to discuss the management of patients when necessary.  Although the applicant currently has two approved supervisors, this proposed condition, in requiring a supervisor to be physically present in this way, is a more limiting condition than has been previously imposed.  In circumstances where the applicant has now been working at this practice for about two years, without complaints from either the supervisors or patients (so far as is known), this requirement for the physical presence of a supervisor seems unnecessary.  Condition 3 requires the applicant not to be the only medical practitioner at the practice site, so that there would always be another doctor available in case of some emergency with which the applicant required assistance.  In all the circumstances, despite the applicant’s consent, the Tribunal considers that it would be sufficient if a supervisor were always available in person or by telephone or other means of electronic communication.  Proposed condition 6 will be modified accordingly.  Otherwise conditions 2 to 10 will be imposed. 

7. Conditions 11 and 12 relate to psychiatric and/or psychological treatment.  The applicant opposed these conditions and relied on the report of the psychologist which can be taken as expressing the opinion that the applicant is not in need of treatment.  Although aspects of that report are inconsistent with the findings of the Tribunal, in the circumstances the Tribunal accepts that there would be no point in requiring psychiatric treatment, particularly in circumstances where the treating psychiatrist could determine the applicable frequency.  

8. One matter that does concern the Tribunal is that, in circumstances where the effect of condition 1 is to frustrate the applicant’s desire for hospital work, it may be helpful for the applicant to have the benefit of some psychological support to assist him in adjusting to continuing general practice.  For that reason we considered imposing a condition that he receive psychological treatment for that purpose.  The concern is that otherwise he may react to that condition in a way which will interfere with his performance as a medical practitioner in general practice.  There is however no expert evidence before the Tribunal that would support that concern directly.  It does not find any support in the recent report of the psychologist.  Such psychological support may well not be as beneficial if the applicant is not himself seeking such support; there was some evidence before the Tribunal that the applicant has in the past resisted psychological treatment he did not consider that he needed.  Although the Tribunal would commend such a form of support to the applicant, in all the circumstances it will not make it a condition of his registration.  Proposed conditions 11 and 12 will therefore be deleted.  

9. Conditions 13 and 14 were also consented to by the applicant. The Tribunal considers that they are appropriate. The remaining issue is as to the review period. The respondent sought a period of two years; the applicant opposed that, on the basis that he has already been subject to stringent conditions over a long period of time. That is true, but late last year there was a thorough investigation, in the hearing of the application for review, of the applicant’s whole situation, and the conditions now proposed are intended to be a response to his circumstances and situation as they existed at that time. It is expected therefore that that situation is likely to remain. At the hearing last year there was little indication from the applicant that he was willing to make the sort of fundamental changes in his approach, on a continuing basis, which might render him suitable for hospital work. These are apparently the product of features of the applicant’s personality, and in view of his age the evidence suggests that he is unlikely to be able to modify them. Indeed, he appears to retain an attitude that he is somehow a victim of this process,[1] and so long as he retains that sense of grievance he is unlikely to change his ways. The Tribunal has to provide for a review period, and must decide whether the review is to be by the Tribunal, or by the Board. In all the circumstances, the Tribunal considers that the review should be by the Board, and accepts that a review period of two years is appropriate.

   [1]See for example the evidence of Dr McAulay p 3-15, p 3-32 and the evidence of Dr Brand p 4-21, concerning the applicant’s letter to the respondent, document 119, HB 2704. 

10. I should record again the considerable assistance that the Tribunal has received from the assessors in this matter.  The decision of the Tribunal on the review is therefore as follows: 

    1.  The conditions currently imposed on the registration of the applicant by the decision of the respondent of 11 December 2019 be set aside.

    2.  The Tribunal imposes on the registration of the applicant the conditions attached to this decision and marked A. 

    3. For the purposes of the Health Practitioner Regulation National Law (Queensland) s 127(3)(b) the Tribunal decides that Subdivision 2 of Division 11 of that Act applies to those conditions.

    4.  The Tribunal fixes the review period for the purposes of that subdivision at two years from the date of the decision of the Tribunal. 

    5.  If either party seeks an order for costs, that party is to file and serve on the other party submissions in writing outlining the order sought and why it should be made within twenty-one days from the date of this decision.

    6.  If either party does file and serve such submissions, the party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.

    7.  The party seeking an order for costs may file and serve submissions in reply within fourteen days from service of the submissions in response. 

    8.  If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed. 

ATTACHMENT A

SCHEDULE OF CONDITIONS

1.   The Practitioner must not practise in any position in a hospital setting.

For the purposes of this condition, ‘hospital setting’ is defined as a place where healthcare occurs, including acute care hospitals, urgent care centres, rehabilitation centres, birthing centres, nursing homes and other long-term care facilities, specialised outpatient services, and outpatient surgery centres and includes both public and private facilities where inpatient facilities usually also exist.

2.   The Practitioner may practise only in place(s) of practice approved by the Board.

For the purposes of this condition, the following practice locations have been approved:            Divine Medical and Cosmetic Skin Centre, Hervey Bay, Queensland

For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical practitioner industry.

3.   The Practitioner must not be the only medical practitioner on site.

4.   Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may:

a.Seek reports from the Director of Medical Services (the senior person) at each place of practice on at least a six monthly basis or as otherwise required.

b.Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.

c.Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.

5.   Within 28 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware AHPRA will seek reports from them.

Supervised practice

6.   The Practitioner must be supervised by another registered health practitioner (the supervisor) when practising as a medical practitioner.

For the purposes of this condition, ‘supervised' is defined as: The Practitioner must consult with the supervisor who is accessible in person or by telephone or other means of telecommunication, about the management of patients or the performance of the practitioner or both, when necessary and, at a minimum, weekly intervals. 

7.   Within 28 days of the notice of imposition of this condition, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board. The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that AHPRA will seek reports from them.

8.   In the event that no approved supervisor is willing or able to provide the supervision required the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.

9.   Within 28 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA, on the approved form (HP10) acknowledgement that AHPRA may:

a.   obtain information from relevant authorities (such as but not limited to Medicare)

b.   obtain information and/or a report from the senior person at each place of place of practice on a three monthly basis or as otherwise required;

c.   obtain a report from the approved supervisor on a three monthly basis or as otherwise required;

10.  Within 28 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that AHPRA may seek reports from them.

General

11.  Within 21 days notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that:

a.   AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and

b.   the Practitioner will be required to provide the same form:

i.within seven days of the commencement of practice at each and every subsequent place of practice, and

ii.within seven days of each and every notice of any subsequent alteration of these conditions.

12.  All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Review period for conditions 1-12: Two years from the date of imposition of the conditions by the Tribunal.