Keys v Medical Board of Australia
[2015] QCAT 143
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- Unreported Judgment
- Keys v Medical Board of Australia[2015] QCAT 143
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Keys v Medical Board of Australia[2015] QCAT 143
Keys v Medical Board of Australia[2015] QCAT 143
CITATION: | Keys v Medical Board of Australia [2015] QCAT 143 |
PARTIES: | Dr Matthew Keys |
v | |
Medical Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR148-11 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 30 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISIPLINARY PROCEEDINGS – APPEALS – where practitioner a specialist obstetrician and gynaecologist – where patient suffered haemorrhaging as a result of caesarean section performed by the practitioner – where the Performance and Professional Standards Panel found conduct constituted unsatisfactory professional performance and imposed conditions on practitioner’s registration – whether practitioner failed to maintain adequate records or provide a full and accurate account to colleagues – whether practitioner demonstrated a lack of insight and reflective practices – whether conditions should be imposed – where parties jointly submit the correct and preferable decision the Tribunal ought to impose |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
- [1]On 21 May 2013 the Tribunal ordered that certain conditions imposed on Dr Keys’ registration as a medical practitioner be removed. The existence of these conditions significantly impeded Dr Keys’ ability to qualify as a specialist in intensive care medicine.
- [2]Having been successful in the review application, Dr Keys has applied for an order that the Board pay his costs of the proceeding. The application is opposed by the Board. It contends that each party should bear its own costs.
- [3]The proceedings were conducted in the review jurisdiction of QCAT. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that each party is to bear its own costs of proceedings in the Tribunal. Section 102 permits the granting of costs if the Tribunal considers that the interests of the justice require it. Dr Keys contends that this is such a case.
- [4]The evidence filed by the applicant in support of the application for the removal of the conditions included affidavits from eminent medical practitioners who overwhelmingly recommended the removal of the conditions. Dr Keys’ professional history since imposition of the conditions also supported the removal of the conditions. The Board did not challenge any of this evidence. As was said in the decision, on the basis of this evidence, it would be perverse if Dr Keys could not join the ranks of those in his chosen field of specialty.[1]
- [5]The only evidence to cast any doubt on what might be regarded as an otherwise predictable outcome was that of Dr Tall. The evidence went, especially, to Dr Keys’ character. However, close scrutiny of this evidence also led to the conclusion that it was unlikely it would raise any serious impediment to the removal of the conditions, even if it had been accepted by the Tribunal.[2]
- [6]The Board contends that under section 125 of the Health Practitioner Regulation National Law Act 2009 (Qld) it did not have the ability to review the conditions imposed and they could not be reviewed until the Tribunal made orders renewing the HPT decision. It also submits, rightly, that Dr Keys carried the onus to demonstrate that the conditions should be removed. It did not challenge the evidence adduced by Dr Keys, but in view of the complaint made by Dr Tall, it felt compelled to put the detail of that complaint before the Tribunal. In doing so the Board submits it was discharging its obligations under section 21 of the QCAT Act to assist the Tribunal.
- [7]Dr Keys, on the other hand, contends that the Board did more than merely assist the Tribunal. It deliberately adopted an adversarial approach to the proceeding, rather than simply abiding the decision of the Tribunal. It actively opposed the application to have the decision of the HPT renewed. There was disputation about the constitution of the Tribunal with respect to assessors; but despite this the hearing went ahead on 29 April 2013. There is also criticism because the Board wanted to adjourn the hearing to further investigate the complaint made by Dr Tall; but this was refused.
- [8]It is to be borne in mind that “the purpose of an order for costs is to be indemnity or compensate the person in whose favour it is made, not to punish the person against whom it is made.”[3]
- [9]The removal of the conditions on Dr Keys’ registration was always a decision that could only be made by the Tribunal. The onus was on him to satisfy the Tribunal that it was appropriate to do so based on the cogent and reliable evidence to be produced by him. Therefore, he was always going to have to prepare and adduce the necessary evidence to achieve this outcome; which he has done.
- [10]It was appropriate for the Board to include the evidence of Dr Tall (and Ms Dann) in the matters to be considered. It was reasonable for both parties to appear at the hearing to assist the Tribunal in the consideration of all the evidence.
- [11]Notwithstanding the criticisms made by Dr Keys of the Board’s conduct in the proceedings, I am not of the view that it acted in a way that unnecessarily disadvantaged Dr Keys.
- [12]Even though Dr Keys was successful, costs do not simply follow the event; and there are other considerations. The Board is funded by registration fees and its resources are limited.
- [13]In the circumstances the appropriate order is that each party should bear its own costs, including reserved costs.