Small v Medical Board of Australia
[2015] QCAT 396
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- Unreported Judgment
- Small v Medical Board of Australia[2015] QCAT 396
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Small v Medical Board of Australia[2015] QCAT 396
Small v Medical Board of Australia[2015] QCAT 396
CITATION: | Small v Medical Board of Australia [2015] QCAT 396 |
PARTIES: | Dr Kristen Small (Applicant) |
v | |
Medical Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR200-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
DELIVERED ON: | 6 October 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – COSTS – where the Board decided to take immediate action and impose conditions on the registrant’s registration – where the registrant sought a review of the Board’s decision in the Tribunal – where the Board relied on two expert reports – where the registrant provided an expert report to the Board in the course of the proceeding – where the Board on the basis of the report decided it was not appropriate to take immediate action and revoked the conditions on the registrant’s registration – where the registrant sought an order that the Board pay the costs of the proceedings – where the board sought an order that each party bear their own costs – whether the Board should pay the registrant’s costs in the proceeding |
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 (QCAT Act).
REASONS FOR DECISION
- [1]On 26 July 2013 Dr Kristen Small filed in the Tribunal an application to review the decision of the Medical Board of Australia of 5 July 2013 to take immediate action in relation to Dr Small.
- [2]Dr Small was notified of the decision by a letter from the Australian Health Practitioner Regulation Agency (AHPRA) dated 8 July 2013. The letter informed Dr Small that the Board had decided to impose conditions on her registration. These conditions included that Dr Small not practise in the field of obstetrics.
- [3]Dr Small specialises in obstetrics and gynaecology. She has been a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists since 2001.
- [4]On 16 August 2013 the Tribunal set the matter down for a hearing and set a timetable for the filing of documents. The Board was required by 30 August to file its written statement of reasons for decision and any documents in its possession or control relevant to the Tribunal’s decision on review. In the statement of reasons filed on 30 August 2013 the written reasons for the decision are identified as those set out in the Immediate Action Committee minutes dated 5 July 2013 and the letter to Dr Small from AHPRA dated 8 July 2013.
- [5]The Board’s reasons for decision, as expressed in both those documents, relied upon the expert opinion expressed in reports by Dr Rod Allen and Dr Jacqueline Smith on the care provided by Dr Small to four patients.
- [6]On 30 August 2013 the solicitors for Dr Small provided to the Board a report of Dr Douglas Keeping dated 27 August 2013.
- [7]On 20 September, in accordance with the Tribunal’s directions, the solicitors for Dr Small filed three affidavits, including one which annexed the report of Dr Keeping.
- [8]By letter dated 8 October 2013 the solicitors for the Board advised Dr Small that the Immediate Action Committee had met on 4 October 2013 and determined to revoke the conditions imposed on her registration. On 30 October 2013 the Tribunal made orders, by consent, that the hearing date be vacated and the parties file submissions on costs.
- [9]It is submitted on behalf of Dr Small that the Board should pay her costs in this proceeding. It is submitted that the material before the Board did not justify the imposition of the conditions and the Board did not properly assess the circumstances themselves or have sufficient regard to the submissions made on behalf of Dr Small prior to the immediate action being taken.[1]
- [10]The Board submits that the Tribunal should make an order that each party bear their own costs. It is submitted that the Board relied on expert opinion provided to it, which was appropriate, it rejects that by relying on expert opinion it failed properly assess the circumstances itself. It is further submitted that the opinion expressed, particularly by Dr Allen, was not an unreasonable basis for the Board to take immediate action. The Board adopted as its own the opinions of Dr Allen and Dr Smith.
- [11]The report of Dr Keeping, which was provided in the course of the proceeding in the Tribunal, persuaded the Board that this was not an appropriate case to take immediate action.[2] Dr Keeping, whilst expressly stating that he had had no criticism of the Board for whom he had a very deep respect and whose role in arbitrating in difficult cases he did not envy, nonetheless expressed the view that in coming to the wrong conclusion in this case:
“I fear that they have put too much emphasis on the very definite and prescriptive opinion of one clinician (Dr Allen), not tempered by the more experienced wisdom of Dr Smith.
There is one case (Case 1) which at most is worthy of possible criticism, which would be in a grey zone as to whether it would or would not meet a level to be considered negligent.
There are two cases of very debatable conflict with hospital guidelines – worthy of discussion over a cup of coffee but no more.
There is one case which is not a case at all.
I cannot for the life of me understand how the last three cases have found their way to the Medical Board.”
- [12]Importantly, Dr Keeping expressed his opinion directed toward the two issues which were relevant to the exercise of the power to take immediate action under s.156 of the National Law:
- did Dr Small because of her practice or performance pose a serious risk to persons, and, if so;
- was it necessary to take the immediate action to protect public health and safety.
- [13]In his direct consideration of those issues, Dr Keeping said:
“I have never been clearer in my mind about a case, that the summation of these four cases does not add up to anything approaching that level of censure.”
- [14]By contrast, Dr Allen’s opinions were expressed in the context of the investigation as to whether Dr Small may have been guilty of unprofessional conduct, or professional misconduct. In respect of each of the cases which he reviewed he stated:
“The question is whether Dr Small’s conduct, skill, judgment or care exercised, were below the standard reasonably expected by the public or the practitioner’s professional peers.”
- [15]It would not appear that Dr Allen was asked to express an opinion on the issues relevant to the exercise of the Board’s powers to take immediate action.
- [16]This was also apparently the case with Dr Smith. Paragraph 3 of her report states:
“In all cases, the question being raised is whether or not Dr Small’s professional conduct and her exercise of professional knowledge, skills & judgement were of a standard that would reasonably be expected by the public or by her peers of a specialist obstetrician”.
- [17]In its reasons for its decision the Board said:
“The Committee believes that the conduct which forms the basis of the notifications namely the clinical care afford (sic) the patients and their children by you is conduct which is substantially below the standard reasonably expected of a practitioner of equivalent of training and experience.
The Committee has decided that it is necessary to take the action the Committee has decided to take as the Committee has formed the view that if the conditions were not imposed then the public would be at risk as there was a real likelihood that you would continue to practice your profession in the way that you practised your profession in providing care to the patients.”
- [18]The basis for the Committee’s reasoning from past unprofessional conduct to present and future risk to persons when the four cases concerned occurred in 2010 and 2011 is not disclosed or apparent. It is not the case that a Board forming a view as to past unprofessional conduct, or even professional misconduct of a practitioner, of itself, will necessarily support a view as to serious risk to persons.
- [19]Pursuant to s 201 of the Health Practitioner Regulation National Law (Queensland) the Tribunal may make any order about costs it considers appropriate for a proceeding. However, in all proceedings in which an order for costs is made, its purpose “is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made”.[3]
- [20]The Board submits that the Tribunal should endorse the approach adopted in Baxendale-Walker v Law Society[4] that the ordinary rule in civil procedure that costs follow the event “has no direct application in these types of matters as a decision made by the Board in exercising its powers under s.156 is done so with the same objective as disciplinary proceedings; that is, to protect the public.”[5] I agree; but that does not mean that there will not be appropriate cases in which to order costs against the Board.[6]
- [21]In my view, this is an appropriate case in which to award costs in favour of Dr Small. It is not a case in which the Board acted with understandable urgency in the face of perceived risk before any investigation could be carried out. There had been a lengthy investigation. Expert opinion had been received; but those opinions were not, at least directly, obtained on the issues relevant to the exercise of the particular immediate action powers of the Board. The extent to which they were not seems reflected in the strong views of Dr Keeping that the relevant statutory test was not met; and, it would seem, in the Board’s ready acceptance of those views in its decision to remove the conditions.
- [22]The Medical Board of Australia will be ordered to pay the costs of Dr Small of and incidental to the review proceedings as agreed or, in the absence of agreement, as assessed on the standard basis for matters in the District Court.
Footnotes
[1] Written submission on behalf of the applicant, Dr Kristen Small in relation to the issue of costs, filed 18 November 2013, [12] and [13].
[2] Board’s submissions on cost, filed 28 November 2013, [16].
[3] Ohn v Walton [1995] 36 NSWLR 77 at 79 per Geeson CJ; Latoudis v Casey (1990) 170
CLR 534 at 543 per Mason CJ, 562 – 563 per Toohey J and 566 – 567 per McHugh J.
[4] [2007] 3 All ER 330.
[5] Board’s Submissions on costs, paragraph 6.
[6] Li v Medical Board of Australia (No.2) [2013] QCAT 594.