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- Unreported Judgment
The Medical Board of Australia v Shah  QCAT 158
THE MEDICAL BOARD OF AUSTRALIA (Applicant/Appellant)
Occupational regulation matters
3 and 4 February 2016
Ms Alison Kate Christou
Professor Emeritus Errol John Maguire AM, RFD, FRACS
Dr Debra Wardle
22 March 2016
THE TRIBUNAL ORDERS THAT:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a general practitioner – where the respondent breached the Code of Conduct for Doctors in Australia and Queensland Health’s information policy without reasonable justification – where the respondent accessed medical information without the patient’s authority – where the respondent knowingly made and failed to correct a series of related false statements in submissions to the Australian Health Practitioner Regulatory Authority intending to tending to mislead – whether professional misconduct
Health Practitioner Regulation National Law (Queensland) 2009, s 196(1)(b) and (d), s 196(3)
Chiropractic Board of Australia v Brubaker  QCAT 30
Medical Board of Queensland v Martin
Medical Board of Australia v Grant
Medical Board of Australia v Holding
Medical Board of Australia v Putha
Medical Board of Australia v Ochnik
Medical Board of Western Australia v BHAM
Psychology Board of Australia v Wakelin
APPEARANCES and REPRESENTATION (if any):
APPLICANT/APPELLANT Mr C Wilson instructed by Lander & Roger
RESPONDENT Ms D Callaghan instructed by Avant Law
REASONS FOR DECISION
- The issue in these regulatory proceedings is whether the respondent, Dr Tahir Shah, is liable to sanction for professional misconduct because of:
- (a)inappropriately sending an email to Dr Burge, the oncologist treating his now deceased former wife, SLC, without her authority and trying to find out information about or involve himself in her treatment regime on 25 September 2012;
- (b)accessing SLC’s online medical records without written approval on 26 and 27 September 2012 in breach of the Code of Conduct for doctors in Australia and Queensland Health’s information policy of 2005 without reasonable justification; and
- (c)knowingly making and failing to correct a series of related false statements in submissions to the Australian Health Practitioners Regulatory Authority (AHPRA) on 23 November 2012, 14 June 2013 and 1 October 2014 intended and tending to mislead.
- Dr Shah concedes that he sent the email (Document 1) to Dr Burge and admits it was inappropriate to do so.
- Nor does he deny accessing SLC’s computerised medical records when there was no doctor/patient relationship between them and without her written consent on 26 and 27 September 2012 in breach of the National code of conduct for doctors and Queensland Health policy.
- Despite his admissions Dr Shah denies professional misconduct and unprofessional conduct on the grounds that:
- (a)the email to Dr Burge was sent in desperation and confusion about SLC’S physical and mental wellbeing and did not say anything intending to influence, involve himself in her treatment in any way let alone one which potentially compromised her care. Dr Shah asserts that SLC had previously asked him to speak to Dr Burge about her condition and progress but that he had been unsuccessful in doing so over the phone and resorted to the email so he could tell Dr Burge that, despite her attitude towards him, he only wanted to the best for her.
- (b)he viewed SLC’s medical records in line with her request and/or consent, and was never in a doctor/patient relationship with her but was acting in the role of a concerned husband with a deep sense of responsibility for his wife’s overall wellbeing because of their close relationship and his cultural background.
- Doctor Shah also refutes the allegation of making the false or misleading statements to AHPRA, as set out in paragraphs 16-26 of the referral notice, apart from some minor errors which were corrected at paragraph 15 of his response.
Points of contention
- If proved, attempting to mislead by giving false information to APHRA is clearly suspendible conduct. Misrepresenting the truth in an attempt to conceal and avoid responsibility for misconduct is rightly regarded as an aggravating circumstance of the initial lapse.
- It is, no doubt, a common - even understandable - human trait to try to cover up professional failures when reputation and career are at stake, but it is never acceptable.
- The question for the Tribunal is whether that is what Dr Shah did in this case.
- It is common ground between the parties that the true state of the marital relationship prior to 25 September 2012 holds the key to resolving that issue.
- It will shed light on Dr Shah’s real reason for checking SLC’s medical records and emailing Dr Burge and, in turn, help in determining whether he tried to deceive the Board (and this Tribunal) into believing that he acted with SLC’s knowledge and implicit authority.
- The case was presented and argued by both parties on the basis that the preponderance of the available evidence was more consistent with their position than any other alternative explanation.
- The Board has the onus of proof. The standard is a demanding one because of the nature of the allegations and the serious adverse consequences for Dr Shah if they are made out.
The Board’s case
- The Board argues that the state of the marital relationship after 12 August 2012 makes Dr Shah’s narrative unacceptably improbable and his self-serving responses clearly dishonest.
- It submits that Dr Shah’s claims of consent and authority must be measured against SLC’s express denial of consent in both her sworn and draft affidavits, the fact that the parties never resided together again after 12 August, her domestic violence complaints to the police on 12 August and again on 25 September 2012, the disparity between the terms of Exhibit 1 and Dr Shah’s version of it, the limited email exchanges between 15 and 25 September 2012, SLC’s consistent refusal to answer his calls, and her reaction at RBWH on 25 September 2012 with Dr Shah’s presence, and her contemporaneous statements to the social worker on the same day.
- The only Board witnesses to testify orally were Dr Burge, Dr Thaker, Ms Heggerty and Ms Page.
- SLC’s sworn affidavit tells of an increasingly volatile and deteriorating marital relationship leading to a death threat and her decision to separate. In June 2012 SLC complained about Dr Shah’s violation of her privacy by looking at her medical records without her permission. He replied to the effect of “Why not? You are mine, everything of yours is mine … I am your husband … I can check anything I want”. He added that the Privacy Act was in his opinion “Westernised … rubbish”. After making a complaint to the Nambour Police SLC packed her belongings, left a note for Dr Shah (Exhibit 1) and went to stay with a friend (SPT) in St Lucia from 14 August 2012 until departing Brisbane in March 2014 to get away from Dr Shah’s harassment.
- At  of her sworn affidavit SLC states:
“Since leaving the Nambour apartment I did not try and contact Shah and I did not want to speak to him. I never authorised Shah to access my medical record, there should have been no way that he was aware of when and where my appointments were.”
- She says Dr Shah did not try to contact her until after he received a letter from the Department of Immigration dated 13 September 2012 advising that his visa had been suspended because of their separation.
- On 22 September 2012 the couple spoke on the street outside the flat where SLC was staying. During the conversation she told him that as far as she was concerned the relationship was over.
- SLC was referred to Dr Burge for oncology treatment from the Nambour General Hospital. SLC confided in Dr Burge on a few occasions about problems in her marriage and her separation from Dr Shah. She also mentioned that he had been abusive in the marriage.
- On SLC’s version Dr Shah unexpectedly turned up at the Royal Brisbane and Women’s Hospital (RBWH) during a chemotherapy session with a bunch of flowers on 25 September 2012. This distressed her to the point where the nursing staff arranged for a social worker, Carol Heggerty, to see SLC.
- Ms Heggerty spoke to SLC for some time. She got the clear impression that SLC was frightened of Dr Shah. Ms Heggerty was also present when SLC was interviewed by police and initiated domestic violence proceedings later in the afternoon. She saw nothing in SLC’s demeanour at any time suggesting that she was faking it or acting irrational.
- Dr Darshit Thaker, the consulting oncologist on duty at the RBWH clinic on 25 September 2012, deposed to being told by SLC (or by her friend in SLC’s presence without contradiction) that she had requested a transfer to RBWH from Nambour Hospital where she was originally receiving chemotherapy treatment, because Dr Shah was a doctor there and had previously involved himself in her care contrary to her wishes.
- Dr Thaker was the one who asked Dr Shah to leave the clinic because his presence appeared to be making SLC uncomfortable and requested for Carol Heggerty, to talk SLC about her evident concerns.
- In a letter to Dr Lenham at the Nambour Family Medicine Clinic dictated the same day he referred to SLC’s “ongoing issues with domestic violence”.
- Michelle Lau recalled receiving a text message from SLC in “either 2012 or 2013” but understood that this was the day SLC separated from Dr Shah and was going to the police station to report him using a knife against her.
- After the separation, Dr Shah came to Ms Lau “and asked (her) where (SLC) was as he was trying to find her and could not locate her”.
- She also deposes to SLC being frightened when Dr Shah turned up at RBWH on 25 September 2012. She remembered him saying, “I know the doctor you are seeing, that’s how I know you’d be here”.
- On this basis, the Board reasons that SLC was highly unlikely to have asked Dr Shah to speak to Dr Burge on her behalf on 25 September 2012 or give even implied consent to him to view her medical files on either 26 or 27 September.
Dr Shah’s response
- Dr Shah gave oral evidence and was extensively cross-examined by the Board’s counsel.
- He contends that the Board’s case is founded on incomplete, demonstrably unreliable hearsay in SLC’s sworn and draft affidavits which to the extent of any conflict should be disregarded because it is substandard.
- On his account SLC left the unit in Nambour on 12 August 2012 to stay with a friend in St Lucia while she was receiving treatment at the RBWH. He said she left a note (Exhibit 1) saying words to the effect that she was going to Brisbane as her health was her first priority. It did not mention marital separation or any request for no contact.
- In fact, Exhibit 1 says:
“Dear Shah hope you are well. I am leaving now. I packed up my stuff. Don’t know what to say. Please take good care of yourself. With love SLC.”
- He says around this time SLC was very distressed and angry about the failure of her treatment and her fresh diagnosis of further liver metastases. He was concerned about her health and psychological wellbeing as well as the bad influence that her Chinese Christian friends were having on her.
- Dr Shah said the parties had ongoing communication between 12 August 2012 and 26 September 2012 as detailed in documents 23, 25-30, and 40.
- He claims also that he was not formally requested for separation or no contact prior to 2 October 2012 and puts the separation date at 22 October 2012. However, he understood that the marriage was over around 29 September 2012 when he received the application for a domestic violence protection order.
- Dr Shah contends that the discrepancy between SLC’s evidence about having no contact with him from 12 August 2012 until 20 August 2012 which is contradicted by the emails, texts and phone calls at TS12 of his affidavit sworn 11 January 2016 and in combination with his inability to test SLC in the witness box should lead the Tribunal to conclude that they had a mutually supportive and caring relationship and reject all her evidence as either deliberately false or unreliable due to a severely impaired memory.
- However, most intimate human relationships end in mixed or confused emotions and the texts and emails are equivocal. What is telling is that the only definite contact between the couple on 20 September 2012 was an email from Dr Shah referring to the Immigration Department letter he showed SLC “last Saturday” (15 September 2012) asking SLC to tell him what she wants him to do and suggesting that “we need to decide plan how to deal with situation sooner rather than later” (Doc 29).
- The last recorded telephone contact in Dr Shah’s chronology is 18 September 2012 for around 17 minutes. There was no email or telephone contact with Dr Shah initiated by SLC after that even according to his own chronology.
- At  of his affidavit sworn 18 December 2015 Dr Shah says that SLC told him on or about 20 September that she had an appointment at the RBWH on 25 September 2012. Between 15 September and 29 September the telephone contact was unilateral with Dr Shah calling SLC.
- At  Dr Shah says that SLC told him on the telephone on 26 September 2012 that she had not contacted him after her chemotherapy session on the day before because she was so sick that she was admitted to the RBWH and said that if he didn’t believe her he could check her records which he curiously did (so he says) apparently because he didn’t trust her word.
- However, the computer screen showed only admissions to the Nambour Hospital up to 14 August 2012 and there was no record of an admission to the RBWH.
- Dr Shah addressed his contact with Dr Burge in his response dated 1 October 2014. He claims his only means of knowledge that Dr Burge was treating SLC was her telling him so on or about 20 September 2012. He said she requested him to call Dr Burge regarding her new diagnosis of liver metastases and associated treatment. He tried to contact Dr Burge by telephone but was informed that he would need SLC’s consent. SLC promised to tell Dr Burge that she had given her permission for him to speak to Dr Shah about her health. He sent the email to Dr Burge on 25 September 2012 because SLC told him that she had given her verbal consent to Dr Burge. His primary concern was that SLC was receiving appropriate course of treatment.
- Notably, however, the email does not refer back to the alleged conversation with him between the two on 20 September 2012 and makes no reference to consent or approval. Dr Burge denied the call and would have recalled it given the email. Also, at  of his notification response dated 23 April 2015 (Doc 5) Dr Shah said “I had not heard from my wife for a couple of days. At this stage I was becoming concerned for her. She was not answering my telephone calls or contacting me. On 26 September 2012 she informed me that her condition had deteriorated and she was now being treated at the Royal Brisbane and Women’s Hospital”.
- Curiously, he initially omitted to mention either the email or the events at the RBWH clinic on 25 September 2012 but his explanation for this is that he did not think it was necessary to provide a further copy of the email because AHPRA and the Board already had one.
- As a witness of truth, Dr Shah did not impress. Overall he was unconvincing. While his version was consistent and straightforward enough it is at odds with other evidence. The Tribunal accepts it did not withstand scrutiny or analysis.
- Also the contradictions in his written responses on 22 November 2012 and 2 October 2014 raises serious doubts about his honesty, credibility and trustworthiness as well as his professional judgment. For example, in his submission dated 22November 2012 he stated that prior to 26 September 2012 he had not been able to contact SLC and was disappointed to learn that she was “now being treated at the Royal Brisbane and Women’s Hospital”. He also said that he had not heard from his wife “for a couple of days” prior to accessing her medical records on 26 September 2012. However, he has since admitted that he saw his wife at the RBWH on 25 September 2012 as the Board witnesses attest.
- Moreover, in his submission dated 2 October 2012 he said that SLC informed him that she was under the care of Dr Burge at the RBWH on or about 20 September 2012 and gave her verbal consent to contact Dr Burge about her new diagnosis. Although he says he spoke to Dr Burge on the phone around 20 September 2012 (which Dr Burge denies) he sent an email on the 25th introducing himself as a junior doctor and providing personal details suggestive of an initial contact.
- The Tribunal finds that SLC probably separated from Dr Shah, physically and emotionally, around 12 August 2012. That reality would have dawned on him within a couple of days if not straightaway. SLC’s conduct from 12 August 2012 is incompatible with any reasonable ground for Dr Shah to believe that their relationship was intact and ongoing. Likewise, his own conduct belies with such a belief.
- The Tribunal rejects Dr Shah’s assertion that he and SLC were “in regular contact until 28 September 2012”. Although SLC may have underestimated or understated the extent of their contact in stating at  of her sworn affidavit that “I had not spoken to (Dr Shah) since I left our apartment in Nambour in August 2012” the telephone records themselves do not support Dr Shah’s case that their relationship was intact and ongoing or, in any event, in such a shape that SLC was likely to have wanted him involved in and kept abreast of her treatment.
- It is highly improbable that Dr Shah reviewed SLC’s medical records on 26 September 2012 to confirm that what she had said about being admitted to the RBWH was true. It is unlikely that the pair spoke on 26 September at all in light of the fact that SLC had filed the police report even though he did not get to find out about that until the end of the month.
- Whatever Dr Shah thought (or wants the Tribunal to believe he did) it is clear that from SLC’s point of view that he was not someone who could ethically be involved in her treatment after mid-August 2012 or entitled to monitor or be informed of her progress.
- The Tribunal finds that Dr Shah abused his position of trust and confidence as a doctor and fell short of the standard of conduct that might reasonably be expected of him by the public or his professional peers. He breached his professional code of conduct by failing to maintain professional boundaries in respecting and protecting SLC’s privacy and her right to confidentiality.
- The Tribunal is satisfied that the allegations pleaded in the referral at 16(e)-(h) and each of the three matters at  are false and were calculated to mislead. Accordingly, it finds that Dr Shah is liable to sanction for professional misconduct based on his substandard course of conduct in the three years between 2012 and 2014.
- The Health Practitioner Regulation National Law (Queensland) 2009 (‘National Law’) provides for restrictions on the practice if it is necessary to ensure health services are provided safely and of an appropriate quality.
- The Board submits that the stance taken by Dr Shah at the hearing is inconsistent with his assertion that he now realises with the benefit of hindsight that accessing SLC’s records without her written consent was “incorrect” with a fully demonstrated self-awareness, insight and self-reflection and a period of suspension from practice of up to 12 months together with course in ethical decision making and patient confidentiality to be completed within six months is called for.
- As counsel for Dr Shah rightly points out a man has a right to earn a living via his professional calling unless he loses that entitlement by due process and law.
- Dr Shah claims that his deceptive conduct does not satisfy that criteria because it does not involve any significant risk of harm or incompetence and that even a short suspension would not serve the primary purpose of community protection.
- He says that misleading the Board about inappropriately accessing SLC’s medical records and emailing Dr Burge does not warrant a sanction that would have the practical effect of preventing him from providing for his new wife and baby and that an adverse finding itself or a reprimand and/or a fine would adequately meet the deterrent purpose of disciplinary action.
- He also points to the added stress, embarrassment and humiliation he has had to endure in the course of these proceedings of having his marriage difficulties, untested allegations of domestic violence and embarrassing details of his personal life including him immigration status being probed and racked over for three years.
- Medical Board v Martin is relied on as authority for the proposition that proportionality is a necessary touchstone of the discretionary exercise and that temporary incapacitation is not the only way of achieving the policy goals of protection and deterrents in cases where the stress, cost and associated publicity may suffice.
- It is submitted on Dr Shah’s behalf that making a misleading statement to cover up a minor breach is not as bad as concealing a much more serious transgression such as lying to obtain registration a person is not qualified for or competent to do.
- The Medical Board of Australia v Holding is cited in support of the contention that where the initial conduct is at the lower end of the spectrum of unprofessional conduct (but more contrary to public interest) a reprimand and modest fine can be enough. In that case a doctor sent inappropriate text messages to a female patient he was interested in dating and misled the Board about it over an extended period of time before admitting it.
- In Medical Board of Australia v Ochnik a medical practitioner who delayed attending to a patient with serious symptoms for half an hour to place bets at a TAB and then gave false explanations for the delay was reprimanded and fined.
- The effect of the mitigating submissions was that although deceptive conduct in relation to boundary violations or malpractice may warrant suspensions because they are seriously contrary to the public interest and professional standards, sanctions that do not deprive Dr Shah of his right to practise in his profession and earn an income to support his family should be preferred, having regard to the fact that the principal conduct was not suspendible in itself.
Findings as to penalty
- It may be accepted that an adverse finding coupled with a monetary penalty can in some cases even of deceptive conduct satisfy all relevant disciplinary purposes and that a public reprimand lowers the reputation of the practitioner. However, this is not a case of unintended and later corrected misinformation. The Tribunal is satisfied that Dr Shah knew that it was wrong to do what he did and instead of admitting it at the first opportunity he continued until the end of the proceedings to attempt to justify them and minimise the gravity of consistently denying them to the Board including in written responses.
- The medical profession is one requiring scrupulous candour at all times. It is an indispensable duty inherent in the role.
- The failure of a practitioner to be frank with the regulatory authority evidences a character flaw suggestive of an inability to be honest in his professional dealings with colleagues and clients.
- A period of suspension from practice is called for to mark the seriousness of a failure to meet that basal requirement. The public cannot have any confidence in a medical practitioner given license to behave the way Dr Shah did here.
- In Psychology Board of Australia v Wakelin the practitioner admitted not being “completely forthcoming” with the Board about an ethical violation with a patient. The Tribunal found at  that the character revealed by the practitioner’s actions in misrepresenting the truth to the professional body in an unsuccessful attempt to cover up her actions amounting to professional misconduct warranted disqualification from reregistration for a total of 18 months was appropriate despite a plea of guilty. Mitigating circumstances including a claim that she was under a great of deal of stress at the time, her voluntary cessation of practice, seeking psychological counselling and considerable financial difficulties for her and her family as well as severe embarrassment as a result of the loss of her practice.
- In dealing with the question whether the terms of a draft consent order in these terms was “too light a response, given the serious aggravation of the overall conduct by the respondent’s attempted deception of the Board” the Tribunal noted that comparative cases suggested a suspension of around 6 to 12 months for the sexual misconduct on its own and that the additional deceptive conduct might justify an effective loss of registration of up to two years but was ultimately satisfied that the agreed sanctions were within range albeit barely.
- In Chiropractic Board of Australia v Brubaker the respondent admitted to giving false or misleading information to a Board investigator, failing to give requested information and obstructing an investigation as well as failing to maintain proper health records. The Tribunal accepted that the parties’ jointly proposed sanction of suspension of registration for two months was appropriate to address the misconduct, protect the public, uphold the standards of practice and maintain public confidence.
- In Medical Board of Australia v Putha a doctor with medical qualification from India misrepresented her eligibility for conditional registration by exaggerating her overseas experience for about 18 months. She was regarded as a competent practitioner, was immediately remorseful and cooperative, did not try to minimise her conduct and was motivated by desperately wanting to work as a doctor in Australia.
- Her falsities enabled her to obtain registration that she would not otherwise have been granted which the Tribunal considered warranted the cancellation of that registration and precluding her from reapplying for reregistration for 12 months.
- In the Tribunal’s view any sanction less than an adequate but not excessive period of suspension from practice will erode public confidence in the disciplinary process and the medical profession. With the additional proposed orders a period of six months, in our opinion, strikes the proper balance and meets all the intended disciplinary purposes.
- Pursuant to s 196(1)(b) of the National Law, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(d) of the National Law the respondent’s registration is suspended for a period of six months.
- Pursuant to s 196(2)(b) of the National Law, a condition is imposed upon the respondent’s registration in the following terms:
- a)The respondent must undertake a course of ethical decision making and patient confidentiality to be completed within six months of the Tribunal’s decision.
- b)Within 28 days of the imposition of the condition, the respondent must nominate to the Board for approval, in writing, a course of education addressing ethical decision making in patient confidentiality to be undertaken by him.
- c)The respondent must provide with the nomination to the Board, a copy of the course curriculum.
- d)The respondent is to complete the course to a satisfactory standard within six months of receiving the written approval of the Board.
- e)Within three months of completing the course, the respondent must provide written evidence to the Board of the satisfactory completion of the course.
- f)All costs and expenses in relation to this condition are to be at the respondent’s expense.
- Pursuant to s 196(3) of the National Law, the respondent may not seek a review of the condition for a period of three (3) months.
- The respondent is to pay the applicant’s (Board’s) costs of and incidental to the proceedings, as agreed, or otherwise as assessed.
 Medical Board of Queensland v Martin  2 Qd R 129.
  QCAT 632.
  SAHPT 7.
 Medical Board of Australia v Grant  QCAT 285 at .
 Medical Board of Western Australia v BHAM  WASAT 190 at .
 cf Medical Board of Western Australia v BHAM where the registrant failed to disclose Medicare fraud convictions and lied to another doctor to secure loans of $35,000 as well as failing to disclose his status as undischarged bankrupt for which he was found guilty of infamous conduct.
  QCAT 516.
 Psychology Board of Australia v Wakelin  QCAT 516 at .
  QCAT 30.
  QCAT 159.
- Published Case Name:
The Medical Board of Australia v Shah
- Shortened Case Name:
The Medical Board of Australia v Shah
 QCAT 158
22 Mar 2016