Medical Board of Australia v Tabriz
[2015] QCAT 530
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- Unreported Judgment
- Medical Board of Australia v Tabriz[2015] QCAT 530
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Medical Board of Australia v Tabriz[2015] QCAT 530
Medical Board of Australia v Tabriz[2015] QCAT 530
CITATION: | Medical Board of Australia v Tabriz [2015] QCAT 530 |
PARTIES: | Medical Board of Australia |
v | |
Masoud Davatgaran Tabriz |
APPLICATION NUMBER: | OCR051-14 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | 22 and 23 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 6 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS – DOCTORS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where doctor engaged in sexual relationship with patient – where doctor accused of breaching patient confidentiality – where submissions made as to which party should pay the costs of a strike – out application and substantive hearing – where question of whether the tribunal should award costs in favour of a relevant board where unprofessional conduct or professional misconduct is proven – where doctor’s solicitors had proposed matter proceed on a penalty hearing only – where Medical Board of Australia did not agree with proposal – where ultimate hearing and findings closely resembled the doctor’s proposal – where Medical Board of Australia to pay costs of and incidental to the strike – out application – where doctor to pay Medical Board of Australia’s costs of and incidental to the proceedings up until date of doctor’s proposal – where doctor to pay 50% of the costs of and incidental to the proceedings subsequent to doctor’s proposal, excluding costs of strike-out application. |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr C Wilson instructed by Lander & Rogers |
RESPONDENT: | Mr D Tait QC instructed by Avant Law |
REASONS FOR DECISION
- [1]The Medical Board of Australia referred disciplinary proceedings to the Tribunal, pursuant to s 193 of the Health Practitioner Regulation National Law, against Dr Masoud Davatgaran Tabriz on the basis that he had behaved in a way that constituted professional misconduct.
- [2]The grounds for the Board establishing professional misconduct centred upon Dr Tabriz having engaged in a sexual relationship with the patient MB. The referral further alleged six breaches of patient confidentiality. Dr Tabriz admitted the existence of a sexual relationship to the Board’s solicitors in January 2012,[1] with some dispute as to the particular facts of the allegations concerning the relationship between Dr Tabriz and the complainant. The breaches of confidentiality remained in dispute.
- [3]In September 2014 the Board filed an affidavit of the patient in which she made allegations of an episode of non-consensual anal sex. The Board’s solicitors foreshadowed an amendment of the referral to include the allegation. Dr Tabriz’s lawyers encouraged the Board to amend the application and, in January 2015, bought an application in the Tribunal seeking to have the Board file any amended referral. In the event, the Board indicated that it would not pursue the amendment.
Strike Out Application
- [4]On 17 November 2014 the Tribunal received an Application by the Respondent’s solicitors applying to strike out paragraph 29 of Annexure B to the Notice of Referral which alleged the breaches of confidentiality by Dr Tabriz of a number of his patients by identifying them by either name or sight to MB and discussing with her their personal or medical circumstances. The Application to Strike out these allegations was on the Respondent’s contention that the Board failed to provide proper particulars of the allegations sufficient enough to enable the Respondent to properly defend the allegations, or to enable the Tribunal to make any findings of a breach of confidence.
- [5]The Tribunal, on hearing the strike out application in January 2015, ordered that four of the six paragraphs outlining the grounds for a finding of a breach of confidentiality be struck out and an amended Form 36 response be filed and served. The decision of Costs was reserved.
- [6]In its reasons in the strike out application, in reserving the question of costs, the Tribunal observed:
[51] I intend to reserve costs for these reasons: that I will want to hear the parties more fully on the issue of costs of this application. I simply make the observation at this juncture that this would seem to have been a very costly exercise, on both parts, and, from the point of the tribunal’s time, has absorbed, effectively, two days to hear, consider and deliver reasons in an urgent way so that the parties know where they are going forward. I not that that is all in the context of a case in which there is admitted professional misconduct constituted by boundary violations concerning the relationship with the patient, MB. At the end of the day, there will, no doubt, be argument about sanction.
[52] I will want to hear the parties as to the extent to which any of the conduct constituting breach of confidentiality, if established, might have on the ultimate bearing on the outcome of the proceedings. I think it’s only in the circumstances of having heard from the parties about those matters –because it may be, that the Board is –even though those matters are alive, unsuccessful in relation to those issues and I think that the Board’s position concerning costs should be ventilated when all those things are known. Particularly, as I say, given what would seem to be the extent of the costs that this exercise must have caused in the overall context of the proceedings. And I’ll say nothing more about it at the moment
- [7]The remaining grounds alleging a breach of confidence were found not to have been ultimately established in the disciplinary hearing. The Tribunal observed that even if they had been established this would have had no bearing on the sanction that would have been imposed.
- [8]The Board submits that by the time of the disciplinary hearing, subsequent to the strike out application, Dr Tabriz had completed a course in patient confidentiality. Undertaking such a course by Dr Tabriz would have been the sanction the Board would have proposed with regard to the two grounds relating to a breach of patient confidentiality and therefore, the utility of proving the related particulars at the hearing was otiose. The Board submits that ‘The gravamen of this part of the referral was open to be found by the Tribunal had the matter proceeded on contested evidence. However the utility of proving the particulars which remained was overtaken when Dr Tabriz undertook a course in patient confidentiality (after the strike-out application was heard).’
- [9]That submission rather overlooks that on the substantive hearing of the referral the Board invited the Tribunal to find that there had been a breach of patient confidentiality based upon what was said by the patient in one paragraph of her affidavit. That invitation was rejected.[2]
- [10]It is submitted on behalf of Dr Tabriz that the usual principle is that costs follow the event[3] and Dr Tabriz succeeded on the application on four of the six points, with the further two not being established at the conclusion of the disciplinary hearing. It is further submitted that the inclusion of and persistence with the allegation in circumstances where patient MB could not identify any patient by name was unreasonable and unnecessarily increased costs.
- [11]Attached to Dr Tabriz’s submissions is a letter[4] sent by his solicitors to the Board’s solicitors dated 3 October 2014. In this letter it was made known that Dr Tabriz had instructed that he would agree as part of any sanction to undertaking a course in confidentiality irrespective of whether the allegations of breaching confidentiality were ultimately proven.
- [12]In my view, Dr Tabriz should have his costs of the strike out application. He was substantially successful. He had previously sought particulars. The particulars were, in respect of four of the six allegations, inadequate. The hearing of the strike-out application required substantial time and, no doubt, expense. The remaining allegations which survived the strike-out application were not pursued with any real vigour by the Board. I accept that this was in part because agreement was reached on the matters which permitted the referral to proceed as a contested hearing on sanction. However, as already noted, the Board did invite a finding of breach of patient confidentiality and, contrary to its submissions, the finding was not open. It would not have been any more open if the matter had proceeded ‘on contested evidence’. The finding was rejected on the only evidence in the Board’s own case which it relied upon to support it.
Proceedings other than the Strike Out Application
- [13]The disciplinary hearing proceeded by way of an Agreed Statement of Facts, as agreed to by the parties the day before the Hearing. There remained matters in dispute between the affidavits of the complainant and Dr Tabriz.
- [14]The Board seeks an order that Dr Tabriz pay its costs of the Referral, other than the costs of the strike out application. The Board submits that it is funded by practitioners’ registration fees and is charged under the National Law with bringing such applications. It submits that there is authority to suggest the Tribunal would usually award costs in favour of a relevant Board where unprofessional conduct or professional misconduct is proven.[5]
- [15]It is submitted on behalf of Dr Tabriz that the appropriate order for costs, other than those of the strike out application, should be that ‘the respondent should pay only a portion of the applicant’s costs, on the District scale, to be agreed or in default of agreement to be assessed on a standard basis’ to take into account the circumstances where costs were incurred which were excessive.
- [16]Dr Tabriz identifies certain evidence in the Board’s case which he says was unnecessary. He particularly identifies, on my calculation, more than 200 paragraphs of the former patient’s affidavit in this regard. He identifies some of that evidence as scandalous, particularly that in relation to the act of non-consensual sex to which the foreshadowed, but ultimately unpursued, amendment related.
- [17]The affidavit of the former patient was filed relatively early in the proceedings. I do not accept that it was unnecessary. I would allow the total costs of its preparation.
- [18]Dr Tabriz also criticizes the attaching of documents to that affidavit which he says were unnecessary as they were already in the “T documents” and the bundle of documents agreed between the parties. I have some sympathy for that submission. However, any duplication of documents was as much a function of the former solicitors for the Board filing a set of “T documents” at the time at which the referral as filed. This is an unusual course, and one not prescribed by the QCAT Act or the QCAT Rules. One might safely assume that it was done on a misunderstanding of s 21(2)(b) of the QCAT Act. That provision requires a decision-maker to provide the Tribunal with any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision. These were not such proceedings. The fact that the Board appears to have proceeded on this mistaken basis is also indicated by the fact that the documents were called “T documents”.[6]
- [19]Whilst the lodging of those documents was unnecessary, the solicitors for Dr Tabriz agreed with a further direction being made at the first directions hearing on 9 May 2014 that required the Medical Board to file and give to Dr Tabriz any further relevant documents in its possession or control. The agreed bundle of documents was not filed until 24 March 2015. To the extent that it contains documents duplicated in either the “T Documents” or the former patient’s affidavit, the solicitors for Dr Tabriz could simply have not agreed to their inclusion in the agreed bundle, or they could have been incorporated in the agreed bundle by reference. The objection which is now raised because there had been duplication should be dismissed.
- [20]Dr Tabriz contends that the Board should not have its costs associated with obtaining the expert opinion of Dr Brian Kable. He submits that Dr Kable’s evidence was based on assumptions which were not proven and as such the evidence was not relevant. He contends that the statement of agreed facts indicated Dr Tabriz’s involvement in the former patient taking the morning after pill was not treatment and that there was a dispute about the number of times it was provided.
- [21]In my view Dr Tabriz’s submissions on the issue seek to too finely dissect the proceedings. Whilst the matter proceeded on facts agreed between the parties which did not extend to those facts which Dr Kable was asked to assume in expressing his opinion, Dr Kable’s evidence preceded by many months the agreement reached as to the facts on which the sanction hearing would proceed. It may well be that the extent to which Dr Tabriz made admissions as to his limited involvement in matters concerning the patient’s use of the morning after pill was influenced by the knowledge of what Dr Kable’s evidence would be if the extent of his involvement was a fully contested issue and the facts assumed were proven. The process of resolution of issues, including through the Tribunal’s ADR processes, should not result in a conclusion that the obtaining of evidence about issues ultimately not pursued, or pursued in a more limited way, was not, at the time it was obtained, relevant. There may be cases in which evidence was demonstrably irrelevant at the time of which it was obtained. But that is not this case.
- [22]So too, Dr Tabriz’s submission that the Board ‘failed to prove to the requisite standard a number of allegations in the Notice of Referral’ does not sufficiently recognise that agreement was reached on facts through a process of negotiation.
- [23]However more generally, there is some merit in Dr Tabriz’s submission that the Board should not have all its costs of the proceedings.
- [24]On October 2014, the solicitors for Dr Tabriz wrote to the Board’s solicitors suggesting that the matter proceed to a penalty hearing only. They observed that the primary allegations were not in dispute and that Dr Tabriz had admitted that there was a sexual relationship at a time when the patient had not been formally discharged from his care. He had admitted that the patient was vulnerable due to her anxiety and depression, that a sexual relationship was conducted over several months and was continued after Dr Tabriz’s marriage, of which he had not informed the patient.
- [25]Dr Tabriz’s solicitors pointed out that there were disputes between the parties as to some details in relation to who initiated aspects of their relationship and about some of the sexual conduct. They suggested that even if the disputed matters about treatment were proven, they were of a minor nature and would make no impact upon sanction. They contended that the matters alleged concerning discussions of patients could not amount to breaches of patient confidentiality and that, even if they did, they too would have limited impact upon sanction.
- [26]In light of those observations, they suggested a penalty hearing on the basis that the parties could jointly submit that they did not consider those matters of dispute significant enough to justify the costs of a contested hearing or the stress which that would cause the former patient.
- [27]The Board’s solicitors replied on 25 November 2014. In the meantime they had provided the (largely inadequate) particulars of the allegations of breach of patient confidentiality. It was in that letter that they notified the allegation of non-consensual anal intercourse.
- [28]The Board’s solicitors offered the view that Dr Tabriz’s position as set out in the October 3 letter ignored other issues about treatment he provided to the patient and the continuation of the doctors patient relationship. It said those matters were ‘significant’.
- [29]They expressed the view that the Tribunal would be required to at least resolve:
- (a)The date the personal and sexual relationship commenced
- (b)Who initiated the relationship;
- (c)Whether the treatment was provided (and whether it amounts to ‘treatment’);
- (d)Further to subparagraph (c) Whether the advice to increase Zoloft and to take the morning after pill in circumstances in which [the patient] suffered from anaemia, amounted to providing treatment or care whilst engaged in a relationship with [the patient], and was otherwise inappropriate; and
- (e)Whether Dr Tabriz engaged in an act of non-consensual anal intercourse.
- (a)
- [30]In the event, none of these matters were required to be resolved, and none were particularly material to the sanction imposed. As I have said already, I accept that this was a function of the parties, commendably, reaching agreement on issues through negotiation. That said, however, the manner in which this referral ultimately proceeded, including the issues which were material, closely resembled the position articulated by Dr Tabriz’s solicitors in their 3 October 2014 letter.
- [31]In my view, that should be reflected in the costs order. This is not to punish the Board. That is not the purpose of a costs order. The purpose is to compensate the person in whose favour order it is made.[7] However, the extent of such compensation should, in a case like this, reflect the fact that the costs could have been more limited if the course proposed earlier in the proceedings by Dr Tabriz had been followed.
- [32]Doing the best one can, an appropriate costs order in this matter would be to allow the Board’s costs assessed on the standard basis for matters in the District Court until 3 October 2014. Thereafter, the Board should have 50% of its costs assessed on the standard basis, excluding any costs of the strike-out application.
Orders
The orders shall be;
- The Medical Board of Australia is to pay Dr Tabriz’s costs of and incidental to the strike-out application as agreed or as assessed on the standard basis for matters in the District Court.
- Dr Tabriz is to pay the Medical Board of Australia’s costs of and incidental to the proceedings as agreed or as assessed on the standard basis for matters in the District Court up until 3 October 2014.
- Dr Tabriz is to pay 50% of the Medical Board of Australia’s costs of and incidental to the proceedings as agreed or as assessed on the standard basis for matters in the District Court from 4 October 2015, such costs to exclude any costs of or incidental to Dr Tabriz’s strike-out application.
Footnotes
[1] Exhibit “A” to the Submissions on Costs filed on Behalf of the Respondent.
[2] Medical Board of Australia v Tabriz (No 3), unreported Queensland Civil and Administrative Tribunal, Horneman-Wren DCJ, 7 September 2015 at [13]-[14].
[3] Knight v FP Special Assets Ltd [1992] HCA 28; Latoudis v Casey [1990] HCA 59; Singer v Berghouse [1993] HCA 35.
[4] Attachment “A” to the Submissions on costs filed on behalf of Dr Tabriz.
[5] Nursing & Midwifery Board of Australia v Sanam [2011] QCATA 290; Medical Board of Australia v Love [2013] QCAT 603.
[6] This nomenclature appears to have been borrowed from practice in the AAT in review proceedings conducted under the Administrative Appeals Act 1975. Section 37(1)(b) is a provision analogous to s 21(2)(b) of the QCAT Act. The documents lodged with the AAT under that provision are known as the “Tribunal Documents” or “T Documents”.
[7] Ohn v Walton [1995] 36 NSWLR 77 at 79.