YXN v Medical Board of Australia

[2014] QCAT 706

CITATION: YXN v Medical Board of Australia [2014] QCAT 706

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

APPLICATION NUMBER: OCR102-14

MATTER TYPE: Occupational regulation matters

HEARING DATE: 23 May 2014

HEARD AT: Brisbane

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

DELIVERED ON: 23 May 2014 (ex tempore)

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The decision of the Medical Board of Australia made on 9 April 2014 is stayed until further order of the Tribunal.

2.    Costs are reserved.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the respondent imposed conditions on the applicant’s registration – where the applicant applied for a stay of the respondent’s decision – where there is prospect of success for the applicant in the review of the respondent’s decision – where the patients of the applicant are reliant on the services of a specialist  – where the applicant’s services have alleviated delays in the area – 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

Health Practitioner Regulation National Law (Queensland), s 160, s 161, s 162, s 178, s 193
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4)

Jaravaza v Medical Board of Australia [2013] QCAT 44

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr M Prichard of Griffins Lawyers

RESPONDENT: Mr AR Forbes of Lander & Rogers Lawyers

REASONS FOR DECISION

1. On the 15^th of April 2014, the Medical Board of Australia notified YXN, a medical practitioner, that it proposed to take action against him pursuant to s 178 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) in the form of the imposition of conditions upon his registration.

2. YXN is the holder of specialist registration under the National Law. The primary nature of the conditions imposed was the imposition of what might conveniently be described as chaperone conditions in respect of consultations with female patients. Condition 4 prohibits YXN from consulting, assessing, examining or treating any female patient without another person being present for the entire consultation, assessment, examination and treatment. That chaperone must be a person at least 18 years of age, and be either a person who has accompanied the patient to the consultation, an adult or guardian of the patient, or another individual with the consent of the patient, including a staff member of the practice.

3. Ancillary conditions relate to the keeping of registers and other matters going to compliance and audit. The decision of the Board, as notified in the letter of 15 April 2014, was taken on 9 April 2014. The decision of the Board is an appellable decision as defined by s 199 of the National Law. It is reviewable in the tribunal’s original review jurisdiction. On 13 May 2014, YXN filed an application for review of the Board’s decision of 9 April 2014. On the same date he applied for a stay of that decision.

4. In the review application, YXN has raised procedural fairness grounds concerning the making of the decision against him. Those grounds include: that the Board failed to adequately outline the basis upon which it claims to have formed a reasonable belief as to YXN’s professional conduct being unsatisfactory; that the investigation conducted by the investigator on behalf of the Board was not conducted in accordance with the National Law, in that it was conducted into matters that were not issues identified as the subject of the investigation, and was not conducted in a timely manner.

5. He also complains: that he was not afforded procedural fairness in that he was not provided with a copy of the materials relied upon by the Board in making its decision; that he was not given a sufficient or adequate opportunity to put submissions to the Board in relation to the materials or information relied upon by the Board in making its decision; that he was not given a sufficient or adequate opportunity to put submissions to the Board in relation to the issues identified as the subject of the investigation; that he was not given notice that the Board intended to impose conditions on his registration; and that he was not given any opportunity to put submissions to the Board on the conditions prior to those conditions being imposed.

6. On the material before me, there would seem little prospect of succeeding in respect of the last two of those matters.  It seems that the Board did, pursuant to s 179 of the Act, at least on the face of the material that I have seen, provide such an opportunity.  Ultimately, however, that is a matter to be resolved in the review proceedings proper.  However, the prospect of the success of the grounds is a matter relevant for my consideration in determining this application for a stay.

7. In his review application, YXN also raises that there was no evidentiary basis upon which the respondent could form a reasonable belief that his conduct was unsatisfactory.  That allegation sufficiently raises the matters of the substantive allegations which have been made against him.

8. YXN denies the allegations which have been brought by a former patient concerning events which occurred in approximately March of 2012. YXN was first informed of the allegations in correspondence dated 8 May 2012. On 18 July 2012 the Notifications and Assessment Committee of the Queensland Board of the Medical Board of Australia decided to investigate his conduct under s 160 of the National Law. Section 162 of the National Law provides that the National Board must ensure an investigator it directs to conduct an investigation, conducts the investigation as quickly as practicable having regard to the nature of the matter to be investigated.

9. Section 161(1) provides that a national board that decides to investigate a registered health practitioner must, ‘within as soon as practicable after making the decision, give the practitioner written notice about the investigation’. Section 161(2) requires the notice to advise the registered health practitioner of the nature of the matter to be investigated. It seems that the first notification to YXN that an investigation was to be carried out by the Board, as decided by it on 18 July 2012, was made on 3 December 2012.

10. In accordance with its obligation under s 161(3) the Board provided written notice to YXN of the progress of its investigation. On 20 May 2013 the Board issued a notice pursuant to s 163(5) of the National Law requiring YXN to provide certain information. That notice was given in the context of disclosing to YXN the substance of the statement that had been made by the patient concerning his conduct. YXN provided a response to that request by email on 15 June 2013.

11. The investigation took some time and an investigation report was prepared for a meeting of the Board on 27 February 2014. The investigator appointed recommended to the Board that it establish a Performance and Professional Standards Panel pursuant to s 182(1)(a)(ii) of the National Law. In the event, the Board determined not to take that course. It determined to impose conditions pursuant to s 178(1) of the National Law.

12. The course adopted by the Board was only available to it if certain jurisdictional facts were determined. Those were that the Board was of a reasonable belief that because of the notification, or for any other reason, the practitioner’s professional conduct was or may be unsatisfactory. It also was required to form the view that the matter was not required to be referred to a responsible tribunal under s 193: s 178(1)(b). Section 193 requires the Board to refer the matter to a responsible tribunal if, based on the notification or for any other reason, it reasonably believes that, relevantly, the practitioner has behaved in a way that constitutes professional misconduct.

13. ‘Professional misconduct’ is defined by s 5 to the National Law to include:

    unprofessional conduct by a practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience and more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

14. It is apparent, therefore, that the Board formed the view that the matters that are the substance of the complaint against YXN could not satisfy the requirement of s 193, that is, that it was not professional misconduct as defined.

15. The Board could also only act under s 178 of the National Law if it decided that it was not necessary or appropriate to refer the matter to a panel: s 178(1)(c).

16. The Board’s minutes of 27 February 2014 record that it decided that it was not required to refer the matter to a responsible tribunal under s 193. The minutes also record that it decided it was not necessary or appropriate to refer the matter to a panel. That is, it decided those jurisdictional facts which permitted it to act under s 178(1)(a). The Board’s reasons for that decision, however, do not demonstrate how it was that the Board reached that decision.

17. The Board, in resisting the application for a stay, does so for reasons which include, in its submission, that the prospects of success of the substantive review are limited. As already noted, the grounds for review include that there was a denial of natural justice or procedural fairness. Had the Board determined to proceed in accordance with the recommendation that had been provided by the investigator and established a panel under s 182 of the National Law, certain procedural aspects would have been required for the panel’s hearing. Those aspects would have included, pursuant to s 184 of the National Law, that notice of the hearing of the matter be given to the registrant, which notice must include the nature of the hearing and the matters to be considered at the hearing, and that the registered practitioner may be accompanied at the hearing by an Australian legal practitioner. That right to legal representation is created by s 186 of the National Law.

18. It is apparent from the Board’s reasons that in determining that YXN’s professional conduct was unsatisfactory it took into account what was said to be circumstantial evidence that supported the patient’s versions of events, corroborative evidence from the Hospital, and the fact there had been an earlier alleged boundary violation in respect of YXN’s previous employment with an interstate health service.  My examination of the material does not identify where, what is said to be the circumstantial evidence supporting the patient’s version of events, the corroborative evidence from the Hospital or an alleged earlier boundary violation, were raised with YXN for him to comment upon before the decision was made taking into account those considerations.  Mr Forbes, who appears for the Board, has been unable to identify where those matters were raised YXN.

19. For those reasons I have formed the view, to the extent that one looks to the substantive merits of the application for the purpose of deciding a stay, that it cannot be said that the allegations of a denial of procedural fairness are without some prospect of success.  Of course, insofar as allegations are made concerning the substantive conduct on the part of YXN and his denials of that, they are matters which will necessarily be resolved on a full hearing of the evidence at a later point.

20. I hasten to add that those observations which I have made are not meant to suggest that the Board following the process which it did in not convening a panel, was itself a denial of natural justice.  Rather they are made to identify that the Board’s reasons for not convening a panel are not disclosed in its decision and to demonstrate that there are certain matters which YXN appears not to have been heard upon; but upon which he would have been heard, or at least given the opportunity to be heard, if the other course had been followed.

21. In respect of the matters that form the subject of the notification, the Board did not take immediate action exercising its powers under Part 8, Division 7 of the National Law. One may infer from that that the Board did not at any stage form the reasonable belief that because of YXN’s conduct he posed a risk to persons or that was necessary to take immediate action to protect public health or safety. That, in my view, is a relevant consideration to whether or not the grant of a stay should be accorded to him, given that the Board has raised the protective nature of the imposition of conditions in the context of the stay application.

22. It is also relevant, in my view, that the Board taking the course which it did in determining that it was a matter not required to be referred to the tribunal under s 193 had determined that whatever was to be made of the conduct of the registrant, it was not conduct which was substantially below the standard expected of him given his level of training or experience.

23. For reasons which the tribunal has published in other matters, particularly in Jaravaza v Medical Board of Australia [2013] QCAT 44 at [28], the personal circumstances of or personal impacts upon, a registrant by the imposition of conditions or other disciplinary action taken or a refusal to renew registration and the impacts which those matters may have on his or her family, although relevant, are not of themselves usually sufficient to warrant the granting of a stay. YXN has deposed to such matters in an affidavit. He has also deposed to the fact that the conditions have led to him having to curtail commendable charitable activities which he undertakes, particularly in his native country. However, I consider that those matters are merely incidents of the conditions and, of themselves, of little weight when considering whether a stay ought be granted.

24. YXN first came to Australia in the late 1990s as a political refugee.  Ultimately, he obtained registration in Australia as a specialist.  He deposes to passing his specialist examination by early 2010 and having qualified as a specialist.  He refers to spending the next few years performing locum work at a number of locations across New South Wales and Queensland, during which period he would also make several return trips to his native country to perform the charity work to which I have referred.

25. He deposes to the fact that more recently, in January of 2014, he started a private practice at a regional private hospital.  He refers to the fact that before he started his private practice, there was a six-month waiting list for practitioners with his speciality in the area.  It seems that prior to his provision of services that regional area, many patients were required to attend a hospital approximately 120 kilometres away, which also had a six-month waiting list, or another hospital some 160 kilometres away.  He refers to the fact that a large number of his patients in the area are elderly and had difficulties with the delay and the travel.  During the four months that he has been in his current location, he has managed to reduce the waiting list down from six months to 48 hours and deposes to being able to provide those patients with prompt medical treatment at the private hospital.

26. There is no evidence before me of a declared area of need in YXN’s current region for specialist medical services as provided by YXN.  However, I am prepared to infer that there is a need for specialist services of the type the practitioner can provide in the region and that YXN’s presence as a practitioner in the region has alleviated delays associated with the provision of such services.  He deposes to now being unable to treat his patients promptly or efficiently and he has had to restrict his attendance at his practice to once a week, effectively, simply to manage his patients.  He has had his right to refer to the hospital revoked and is, therefore, unable now to pursue that avenue on behalf of his patients.

27. In Jaravaza, I referred to the fact that the impact upon patients is a relevant consideration in the exercise of the discretion conferred by s 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which permits the Tribunal to stay a decision under review only if the Tribunal considers that the order is desirable after having regard to the interests of any persons whose interests may be affected by the making of the order or the order not being made. I consider that the affects of patients falls within the interests of persons whose interest may be affected by the making or not making of a stay order.

28. Section 22(4) also requires the Tribunal to take into consideration, or have regard to, any submissions made to the Tribunal by the decision maker, in this case the Board, and the public interest. In my view, matters concerning the provision of health services in an area with demonstrable need for those services is a matter which falls into the Tribunal’s regard to the public interest.

29. In my view, YXN has demonstrated that there are cogent reasons for a stay of the decision. In all the circumstances, I consider it an appropriate exercise of the Tribunal’s discretion under s 22(4) to stay the decision under review and I so order.