Sharma v Medical Board of Australia
[2015] QCAT 86
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- Unreported Judgment
- Sharma v Medical Board of Australia[2015] QCAT 86
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Sharma v Medical Board of Australia[2015] QCAT 86
Sharma v Medical Board of Australia[2015] QCAT 86
CITATION: | Sharma v Medical Board of Australia [2015] QCAT 86 |
PARTIES: | Devi Lata Sharma (Applicant) |
v | |
Medical Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR113-14 |
MATTER TYPE: | Occupational regulation matter |
HEARING DATE: | 9 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 9 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY 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):
APPLICANT: | Mr A Forbes of Lander & Rogers Lawyers |
RESPONDENT: | Mr O'Gorman SC instructed by Ashurst Lawyers |
REASONS FOR DECISION
- [1]On 13 May 2014, a Performance and Professional Standards Panel established by the Medical Board of Australia pursuant to section 182 of the Health Practitioner Regulation National Law Queensland (National Law) decided to place conditions upon the registration of Dr Sharma pursuant to section 191 of the National Law. The conditions imposed took the form of requiring Dr Sharma to undertake certain courses in professional development and to enter into mentoring arrangements. Those mentoring arrangements were initially proposed to be for a period of six months, but were extendable in circumstances in which the board was unsatisfied at their conclusion.
- [2]Dr Sharma appealed against the decision of the professional standards panel to the Tribunal. The decision was an appellable decision within the meaning of section 199 of the National Law. Dr Sharma also applied to have the decision stayed pending the final determination of her appeal. On 21 June 2014, for reasons published on 25 June 2014, the Tribunal stayed the decision.
- [3]Dr Sharma is a specialist obstetrician and gynaecologist. The action taken by the panel concerned a Caesarean section which was performed by Dr Sharma on 19 November 2009 at the Royal Brisbane Women’s Hospital. At the time, Dr Sharma was working at the hospital as an obstetrician and gynaecologist under the supervision of Professor Ian Jones.
- [4]Dr Sharma was a registrar on duty on this occasion and performed the Caesarean section on the patient shortly before the end of her shift on that day. Having ended her shift, Dr Sharma had nonetheless not left the hospital and was tending to other patients when notification was received that the patient upon whom the Caesarean section had been performed was suffering difficulties. In particular, there appeared to be haemorrhaging. Dr Sharma attended back at the operating theatre with another doctor who had by then taken over as the registrar on duty. A further procedure was performed on the patient in which Professor Jones also assisted, and the patient’s haemorrhaging was attended to.
- [5]The decision of the performance and professional standards panel was that in association with the events concerning that Caesarean section, the panel decided that the way in which Dr Sharma practiced the medical profession constituted unsatisfactory professional performance as that expression is defined in the National Law. The panel found that the conduct by which it was satisfied that Dr Sharma had engaged in unsatisfactory professional performance was: that she had failed to maintain adequate records; she had failed to provide a full and accurate account of the procedure to her colleagues; that she had demonstrated a lack of insight and reflective practice. On that basis, the Panel determined to impose the conditions to which I have referred.
- [6]A considerable volume of material has been filed in the proceedings both by the Board pursuant to section 21 of the Queensland Civil and Administrative Tribunal Act 2009 and in the form of affidavits in support of Dr Sharma’s appeal. That affidavit material, as well as including affidavits by Dr Sharma herself, also include affidavits from Professor Jones and from Professor Raine.
- [7]The parties have jointly proposed an order which, it is submitted on behalf of Dr Sharma, is supported by the material which has been filed in the proceedings and for the reasons set out in written submissions filed today by learned senior counsel on behalf of Dr Sharma.
- [8]The orders which are proposed jointly by the parties are that the decision of the performance and professional standards panel is affirmed insofar as it found that Dr Sharma behaved in a way that constituted unsatisfactory professional performance and that the grounds upon which that finding would be made were that Dr Sharma had failed to maintain adequate records and had failed to provide a full and accurate account of the procedure to colleagues.
- [9]The decision of the panel is to be set aside insofar as it found that Dr Sharma had demonstrated a lack of insight and reflective practices. The conditions imposed by the panel are also to be set aside.
- [10]It is apparent that the position jointly proposed by the parties has been reached after considerable negotiation both within the Tribunal’s processes for alternative dispute resolution and between the parties themselves. For reasons which the Tribunal has expressed in other matters, there are good public policy reasons why the Tribunal should not depart from orders agreed between the parties in disciplinary proceedings where what is proposed falls within the range of appropriate orders which might be made.[1]
- [11]It is the Tribunal’s view that the orders which are presently proposed by the parties do fall within the appropriate range for a sanction concerning a finding of unsatisfactory professional performance on the part of Dr Sharma.
- [12]The orders proposed satisfy the protective nature of the proceedings that is intended to be achieved in disciplinary matters. In that regard, it has been noted that the conditions which were imposed were in relation to further education and mentoring arrangements and the material discloses that much has been done by Dr Sharma on an ongoing basis in relation to further education in the period which has transpired since these events occurred almost five years ago.
- [13]In those circumstances, it is appropriate for the Tribunal to make orders as per the draft provided by the parties, which I will initial and place with the papers. They include an order that the parties bear their own costs.
Footnotes
[1] Medical Board of Australia v Martin [2013] QCAT 376 at [91]; Medical Board of Australia v Andersen [2014] QCAT 374; Medical Board of Australia v Fitzgerald [2014] QCAT 425; Medical Board of Australia v Ciriello [2014] QCAT 459; Medical Board of Australia v Doolabh [2014] QCAT 582; Psychologist Board of Australia v Golus [2015] QCAT 012; Pharmacy Board of Australia v McAllan [2015] QCAT 020; Chiropractic Board of Australia v Brubaker [2015] QCAT 030.