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Medical Board of Australia v Kanyowa[2016] QCAT 450

Medical Board of Australia v Kanyowa[2016] QCAT 450

CITATION:

Medical Board of Australia v Kanyowa [2016] QCAT 450

PARTIES:

Medical Board of Australia

(Applicant)

 

v

 

Tinashe Kanyowa

(Respondent)

APPLICATION NUMBER:

OCR023-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Suzanne Sheridan, Deputy President

Assisted by:

Mr L Frossard

Dr J Osborne

Dr G Powell

DELIVERED ON:

7 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation (National Law) Act 2009 (Qld) (National Law), the tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct.
  2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
  3. Pursuant to s 196(2)(b)(i) of the National Law and in accordance with the attached schedule of conditions, the tribunal imposes a condition on the respondent’s registration that within six months of the date of this order he undertake the learning plan proposed to be conducted by Dr Zaharias or such other plan with such other medical educator as approved by the applicant addressing the principles of appropriate certification and the assessment requirements for providing a medical certificate in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld).
  4. Pursuant to s 196(3) of the National Law, the review period for the condition is six months.
  5. Subdivision 2, Division 11, Part 7 of the National Law applies to the condition.
  6. The respondent is to pay the applicant’s costs to be agreed, or failing agreement, to be assessed on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where a patient attended upon the respondent general practitioner for a medical assessment regarding his suitability to continue to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld) – where the practitioner’s assessment was inadequate and fell below the appropriate standard – where it is alleged and admitted that the practitioner engaged in unprofessional conduct – where a statement of agreed facts and joint proposal on sanction are submitted – whether the practitioner engaged in unprofessional conduct – whether the proposed sanction is appropriate

Health Practitioner Regulation National Law Act 2009 (Qld), s 125(2)(b), s 126(3)(b), s 127(3)(b), s 196(1)(b)(ii), s 196(2)(a), s 196(2)(b)(i), s 196(3)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3)

Medical Board of Australia v Andrew [2015] QCAT 94, considered

Medical Board of Australia v Martin [2013] QCAT 376, applied

Re: Dr Bernard Ka Lim Lau [2008] NSWMPSC 1, considered

Re: Dr Cindy Yau Lee Wong [2007] VMPB 6, considered

REPRESENTATIVES:

 

APPLICANT:

Lander & Rogers for the applicant Medical Board of Australia

RESPONDENT:

Moray & Agnew Lawyers for the respondent Dr Tinashe Kanyowa

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background

  1. [1]
    The respondent, Dr Tinashe Kanyowa, is a medical practitioner holding general registration under the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).  Dr Kanyowa was first registered with the Medical Board of Australia (Board) as a medical practitioner on 8 February 2010.[1]
  2. [2]
    On 19 June 2015, the Australian Health Practitioner Regulation Agency (AHPRA) received a complaint regarding the professional conduct of Dr Kanyowa from the Office of the Health Ombudsman.[2] 
  3. [3]
    On 22 February 2016, the Board referred disciplinary proceedings against Dr Kanyowa to the Queensland Civil and Administrative Tribunal (tribunal) pursuant to s 193B of the National Law.  Dr Kanyowa has conceded he has engaged in unprofessional conduct, and the matter has proceeded before the tribunal by way of a statement of agreed facts and joint submissions on sanction and costs.

Conduct

  1. [4]
    The grounds set out in the referral relate to Dr Kanyowa’s treatment of patient EY at the Tara Medical Centre in March 2015. 
  2. [5]
    On 2 March 2015, patient EY consulted Dr Kanyowa for a medical assessment regarding his suitability to continue to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld).[3] 
  3. [6]
    Dr Kanyowa had consulted with patient EY on four occasions prior to 2 March 2015.  In his affidavit sworn 30 July 2016, Dr Kanyowa deposes to the fact that during those previous consultations:

Patient EY was never disoriented, nor did he display any cognitive impairment or other behaviour that would raise any concern in respect of Patient EY’s mental health, cognitive function, orientation, or other matter that would be relevant to his suitability to hold, possess, and/or use a firearm’s (sic) licence.[4]

  1. [7]
    Upon his attendance on 2 March 2015, patient EY provided Dr Kanyowa with a letter from the Queensland Police Service (QPS) dated 13 February 2015 (QPS letter).  The QPS letter advised patient EY that his firearms licence had been suspended.  It required him to immediately surrender his firearms licence and any weapon held by its authority.  Relevantly, it stated:

To enable a determination on your current suitability to continue to be the holder of a licence, it is requested that you provide a medical report issued by a doctor or psychologist which outlines your suitability to continue to possess and/or use firearms held under your licence/s under the provisions of the Weapons Act 1990.

  1. [8]
    The QPS letter referenced attachments, including a suspension notice and a QCAT information notice.[5]  The information notice attached to the suspension notice stated:

Concerns have been raised in relation to the state of your mental health as the result of information received that you may be suffering from dementia.  The reasons for suspecting this is due to:

  1. (a)
    advising police that your wife had left you when in fact it is my understanding that your “wife” was actually a picture of a young lady in a European magazine;
  2. (b)
    further you believed someone was in your house and had woken you up.  Again, on police investigating, found no person had entered your dwelling;
  3. (c)
    you had advised police that Romanian men are always attending your property and taking things – what things – you do not know;
  4. (d)
    police observe that your house is full of what I understand to be junk and likewise your vehicle.
  1. [9]
    Dr Kanyowa says he was not shown either of the attachments to the QPS letter.[6]
  2. [10]
    During the consultation on 2 March 2015, Dr Kanyowa opened and reviewed the past several entries in EY’s patient file.[7]  He noted that there were no recent concerns regarding patient EY’s suitability to hold, possess and/or use a firearm, nor did the records contain any relevant alerts or warnings.[8] 
  3. [11]
    Dr Kanyowa had patient EY undertake a screening test for cognitive impairment and a mini cog test.  He assessed patient EY for orientation, enquired about patient EY’s mood and obtained a psychiatric history.  Dr Kanyowa says that the history given and the assessments undertaken by patient EY on 2 March 2015 gave him no cause for suspicion or doubt regarding patient EY’s suitability to hold, possess and/or use a firearms licence.[9] 
  4. [12]
    On that basis, Dr Kanyowa provided patient EY with a medical certificate stating he had no psychological or physical problems that would prohibit him from holding a firearms licence.   
  5. [13]
    Following his consultation with patient EY, Dr Kanyowa received a telephone call from Sergeant Brooke Flood of the QPS. 
  6. [14]
    Sergeant Flood informed Dr Kanyowa that earlier that day, patient EY had attended the Tara Police Station and informed her he had delusions that Romanians were spying on him.  Sergeant Flood expressed concern that patient EY was not suitable to hold, possess and/or use a firearms licence.[10]
  7. [15]
    Following his telephone conversation with Sergeant Flood, Dr Kanyowa completed a notification to the Weapons Licencing Branch advising that because of patient EY’s mental or physical condition he was unsuitable to possess a firearm.[11]
  8. [16]
    Dr Kanyowa admits that in the consultation on 2 March 2015 he failed to have adequate regard to the QPS letter.  He did not review the QPS letter in sufficient detail, and failed to realise he had not been provided with the suspension notice and QCAT information notice referenced in the letter.  Those notices ought to have put Dr Kanyowa on notice that there were concerns regarding patient EY’s mental health.[12]
  9. [17]
    Dr Kanyowa accepts his conduct amounts to unprofessional conduct in that his assessment of patient EY was inadequate and fell below the appropriate standard.[13]  He acknowledges that in the circumstances, a mini mental state exam and a combined capacity and risk assessment, including assessment of the relevant personality, physical and cognitive factors would have been the appropriate assessment.[14]  He also accepts he probably should have given consideration to referring patient EY to a psychiatrist for further assessment or consulted with the Tara Medical Centre’s psychologist.[15]
  10. [18]
    The statement of agreed facts refers to three entries imported into the Tara Medical Centre records for patient EY on 22 August 2012.[16]  Those records refer to patient EY having experienced some confusion and disorientation following major surgery.  Dr Kanyowa accepts that he did not review the entry on 22 August 2012 during his consultation with patient EY on 2 March 2015.  Whether that entry was relevant to patient EY’s suitability to hold, possess and/or use a firearms licence may be doubted.  The entry on 22 August 2012 was made some two and a half years prior to the relevant consultation with Dr Kanyowa, and in the context of patient EY’s undergoing and recovering from surgery.[17]
  11. [19]
    However, the tribunal does accept that Dr Kanyowa’s conduct in failing to give adequate regard to the QPS letter and its missing attachments was of a lesser standard than that which might reasonably have been expected of him by the public and his professional peers.
  12. [20]
    Pursuant to s 41 of the National Law, a code or guideline approved by a National Board is admissible in proceedings against a registered practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession.  The standard of professional conduct reasonably expected of Dr Kanyowa is set out in the Board’s Good Medical Practice: A code of conduct for doctors in Australia (Code).[18]  Relevantly, the Code provides:

8.2.2  Medical reports, certificates and giving evidence

The community places a great deal of trust in doctors.  Consequently, doctors have been given the authority to sign a variety of documents, such as death certificates and sickness certificates, on the assumption that they will only sign statements that they know, or reasonably believe to be true.  Good medical practice involves:

…

8.2.2 Taking reasonable steps to verify the content before you sign a report or certificate …

  1. [21]
    It was inappropriate for Dr Kanyowa to rely solely on the medical history as reported by patient EY in order to inform clinical observations about the patient’s mental health.  Having been given the QPS letter, Dr Kanyowa should have undertaken a more comprehensive medical assessment, or referred patient EY to a specialist for further assessment.  In the circumstances, the tribunal finds that Dr Kanyowa has engaged in unprofessional conduct as that term is defined in the National Law.  Dr Kanyowa concedes this, and appropriately so.

Submissions on sanction

  1. [22]
    Having determined that the conduct amounts to unprofessional conduct, in accordance with s 196(2) of the National Law, the tribunal must now decide the appropriate sanction to be imposed. 
  2. [23]
    As previously mentioned, the parties have jointly proposed a sanction.  The determination of sanction in disciplinary proceedings remains a matter in the discretion of the tribunal, notwithstanding any agreement reached between the parties.  Nevertheless, where parties have reached a joint position on sanction, the tribunal would not generally depart from that position unless the proposed sanction falls outside the permissible range of sanction for the conduct.[19]  As recognised by Deputy President Judge Horneman-Wren SC, there are important public policy reasons why a jointly proposed sanction within the permissible range should not be departed from:

It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.[20]

  1. [24]
    The parties jointly propose that the appropriate orders are that:
    1. Dr Kanyowa be reprimanded by the tribunal;
    2. Conditions be imposed on Dr Kanyowa’s registration; and
    3. Dr Kanyowa pay the Board’s costs on the standard basis.[21]
  2. [25]
    The schedule of conditions proposed by the parties require Dr Kanyowa undertake and successfully complete a program of education, approved by the Board and including a reflective practice report, in relation to the assessment requirements for providing a medical report in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld). 
  3. [26]
    Given the specificity contemplated by the proposed conditions, the tribunal held concerns regarding the existence of an appropriate program of education.  Consequently, on 1 September 2016, the tribunal directed the parties to file further submissions on sanction indicating the program or programs available for the practitioner to undertake which would satisfy the requirements set out in the parties’ schedule of proposed conditions. 
  4. [27]
    On 9 September 2016, Dr Kanyowa’s representatives filed further submissions.  Those submissions confirmed that the respondent had been unable to identify an existing education program which would fulfil the requirements set out in the proposed conditions.  Accordingly, Dr Kanyowa’s representatives made enquiries of medical education providers as to the availability of tailor made education programs.
  5. [28]
    The education process proposed on behalf of Dr Kanyowa involves a three hour, face-to-face session with medical educator Dr George Zaharias on the assessment requirements for providing a medical report in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld).  Specifically, Dr Zaharias’ learning plan will focus on:
    1. The circumstances that led to the notification to AHPRA;
    2. Principles of appropriate certification;
    3. Relevant case studies, assisted through the use of DVD materials and journal articles; and
    4. The assessment requirements for providing a medical report in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990.
  6. [29]
    On 23 November 2016, the Board’s representatives advised the tribunal that the usual course is that any proposed educational course is considered by the Board immediately after the tribunal publishes its decision.  The Board’s representatives were of the view that, on the assumption the tribunal is persuaded that a condition requiring education is appropriate, it would be for the practitioner to formally put forward a proposed course for the Board's consideration.  The Board’s representative advised that they would provide feedback to the representatives for Dr Kanyowa on the proposed course, suggesting what they described as “minor changes”.  They did that by letter to the solicitors for Dr Kanyowa dated 24 November 2016.
  7. [30]
    On 2 December 2016, the solicitors acting for Dr Kanyowa provided to the tribunal an updated learning plan.  The plan dated 27 November 2016 appears to incorporate the suggestions contained in the letter from the solicitor for the Board, resulting in the length of the plan being increased from a three hour to a four hour face to face session.  The tribunal is satisfied the learning plan is an appropriate plan of education.

Relevant authorities

  1. [31]
    In support of the proposed sanction, and in the absence of any authority directly on point, the parties referred the tribunal to the decisions of Re: Dr Cindy Yau Lee Wong,[22] Medical Board of Australia v Andrew,[23] and Re: Dr Bernard Ka Lim Lau.[24]
  2. [32]
    In their joint submissions, the parties distinguished the earlier decision of the Medical Practitioners Board of Victoria in Wong.  In that case, over a period in excess of three years, Dr Wong had issued approximately 985 medical certificates to some 475 sex workers certifying them as free from sexually transmitted diseases and fit to work.  In all cases, Dr Wong admitted that she had not conducted the necessary pathology or taken any notes of her treatment.  Indeed, she had not even medically examined a significant portion of the patients. 
  3. [33]
    Given the scale of Dr Wong’s activities and the significant potential for harm, the Medical Practitioners Board found that Dr Wong had engaged in professional misconduct of a serious nature.  Her registration was cancelled for a period of three years.
  4. [34]
    That decision is clearly distinguishable from the instant case.  As pointed out in the joint submissions, Dr Kanyowa’s conduct was an isolated event, which he immediately took steps to correct.  The result was that the patient did not receive his firearms license.
  5. [35]
    In Andrew’s case, Dr Andrew provided two medical certificates, three years apart, certifying a patient with a history of post-traumatic epilepsy as medically fit to drive.  The certificates were issued contrary to specialist opinion.  Shortly after the second certificate was issued, the patient was driving a motor vehicle which struck and killed a pedestrian. 
  6. [36]
    The tribunal found that Dr Andrew had engaged in professional misconduct, and ordered that he be reprimanded, with various conditions imposed upon his registration.
  7. [37]
    In their submissions, the parties distinguish that decision on the grounds that Dr Kanyowa failed to have due regard to the QPS letter, as opposed to Dr Andrew’s wilful disregard to relevant information that contraindicated the provision of a medical certificate. 
  8. [38]
    Further, in Andrew’s case, the tribunal found that an aggravating feature of the conduct was the fact that the very risk to public safety, which the requirement for epileptics to obtain medical certification as to fitness to drive safeguarded against, had been realised.[25]  Given Dr Kanyowa’s timely notification to the Weapons Licensing Branch of patient EY’s unsuitability to possess a firearm, that is not the case here.
  9. [39]
    Finally, in Lau, Dr Lau backdated three medical certificates for two patients, certifying them as suffering from various conditions rendering them unfit to attend school.  In reality, Dr Lau had not examined the patients, and the only basis for his diagnoses was the information provided by the patients themselves. 
  10. [40]
    In that case, the New South Wales Professional Standards Committee found that there was no evidence that Dr Lau had intentionally misled the recipients of the certificates.  However, the Committee did emphasise the importance of ensuring the accuracy of medical certificates.  In the circumstances, the Committee found Dr Lau guilty of unsatisfactory professional conduct.  It ordered he be reprimanded, and imposed a condition that he complete, at his expense, a course on medical ethics.
  11. [41]
    The parties point out that in this case, as in Lau, there is no evidence Dr Kanyowa acted with intent to mislead.  However, it is submitted that other factors, such as the risk to public safety, support the imposition of a condition that requires the respondent undertake an educational course in relation to firearms licencing assessment.

Sanction

  1. [42]
    It is well established that the determination of disciplinary proceedings should in no sense be punitive.[26]  The two prime objectives in disciplinary proceedings are the protection of the public and the maintenance of the profession in the eyes of the public.[27]
  2. [43]
    Given the nature and extent of the delusions patient EY is reported to have experienced, his continuing to hold a firearms licence created a very real risk of harm to both himself and the public.  The serious consequences of inappropriately issuing a medical certificate stating that a person is fit to hold a firearms licence calls for general deterrence.  A sanction must be imposed which impresses upon medical practitioners the significance of their obligations when assessing whether someone is fit to hold such a licence. 
  3. [44]
    Nevertheless, despite the seriousness of Dr Kanyowa’s conduct, there are a number of factors which must be taken into account in mitigation.
  4. [45]
    While Dr Kanyowa’s conduct during the consultation of 2 March 2015 fell below the requisite standard, once informed of patient EY’s potential health issues, he immediately made a notification to the Weapons Licensing Branch that patient EY was unsuitable to possess a firearm.[28] Dr Kanyowa’s prompt action prevented the risk to the public safety from being realised.
  5. [46]
    Dr Kanyowa has been entirely forthcoming and cooperative with the Board since being notified of the complaint made against him.  Dr Kanyowa’s cooperation has allowed the parties to put before the tribunal a comprehensive statement of agreed facts and submissions on sanction, such as to obviate the need for a contested hearing.
  6. [47]
    Dr Kanyowa deposes to the fact that the consultation with patient EY was the first time he had ever been asked to provide a medical certificate in relation to a person’s suitability under the Weapons Act 1990 (Qld).[29]  Dr Kanyowa has subsequently “taken steps to ensure [he] is familiar with the requirements for firearm assessments.”[30]  He says: 

I have reviewed the material available on the website for the weapons licensing branch of the Queensland Police Service.  This material included information relating to the weapons and health issues and information for medical professionals.

I also reviewed the information booklet published by the Weapons Licensing Branch entitled ‘Health and Weapons’, which provides information and advice to health professionals, specifically, information in relation to persons with mental illness possessing firearms.[31]

Dr Kanyowa has reviewed and reconsidered his obligations under the Code, particularly his obligation under 8.8 to take all reasonable steps to verify the content of any report or certificate.[32]

  1. [48]
    The level of education Dr Kanyowa has undertaken of his own initiative is indicative of a significant degree of insight into his conduct.  He appears to be a conscientious practitioner who has endeavoured to learn from his mistake.  Indeed, Dr Kanyowa has no prior complaint history, nor has he been the subject of prior disciplinary action. 
  2. [49]
    In the circumstances, the tribunal is satisfied that the sanction proposed falls within the appropriate range and serves the intended purpose of disciplinary proceedings.
  3. [50]
    Pursuant to s 196(2)(a) of the National Law, Dr Kanyowa will be reprimanded.  This is not a trivial sanction.  It is a public denunciation of his conduct, which is recorded on the public register of practitioners.[33]  In all the circumstances, it would seem appropriate to the tribunal for such record to remain on the register for a period of no longer than 12 months, though ultimately that is a matter for the Board.[34]
  4. [51]
    Given the degree of education Dr Kanyowa has already undertaken with respect to the assessment requirements for providing a medical report in relation to a person’s suitability to hold a firearms licence, a further course may be redundant.  Given the seriousness of the potential risk to the public and the fact that the parties have agreed upon an education condition, the tribunal will make an order requiring the completion of further education.  However, any condition to be imposed by the tribunal must be capable of being fulfilled.
  5. [52]
    The tribunal is satisfied the education process proposed to be conducted by Dr Zaharias is more than sufficient for the purposes of ensuring that Dr Kanyowa understands the importance of the requirements and duties imposed upon him when certifying the fitness of a person to hold a firearms licence.  Rather than requiring the Board to approve a program of education, it is sufficient to impose a condition that Dr Kanyowa undertake the education process with Dr Zaharias within six months.  If for some reason Dr Zaharias becomes unavailable to act as the medical educator, the process should be undertaken with a medical educator approved by the Board.  
  6. [53]
    Pursuant to s 196(2)(b)(i) of the National Law, conditions in the form of the schedule to these reasons will be imposed upon the registration of the practitioner. 
  7. [54]
    Pursuant to s 196(3) of the National Law, the tribunal is required, if conditions are being imposed upon a practitioner’s registration, to nominate a review period for the conditions. The parties propose six months’ as the review period for the conditions, and that seems appropriate.  An order will be made to that effect.
  8. [55]
    Finally, the tribunal will also make an order that Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.  This order recognises that s 125(2)(b), s 126(3)(b) and s 127(3)(b) of the National Law require an adjudication body[35] to decide, when imposing a condition, that that Subdivision applies to the condition, so that the condition may be changed or removed by the Board pursuant to s 125, s 126 or s 127.

Costs

  1. [56]
    The parties have agreed that Dr Kanyowa should pay the Board’s costs to be agreed, or failing agreement, to be assessed upon the standard basis.
  2. [57]
    Such an order was regularly made under s 195 of the National Law, which conferred a broad jurisdiction on the Tribunal to “make any order about costs it considers appropriate for the proceedings”.  However, following the removal of s 195 by the Health Ombudsman Act 2013 (Qld),[36] the issue of costs falls to be determined under the provisions of the QCAT Act.
  3. [58]
    The relevant provisions of the QCAT Act provide that each party to a proceeding must bear its own costs unless otherwise provided in the QCAT Act or by an enabling Act,[37] or unless the interests of justice require it.[38]  The matters to which the tribunal may have regard in deciding whether to award costs are set out in s 102(3) of the QCAT Act. Those matters include “anything else the tribunal considers relevant.”
  4. [59]
    In this case, the parties have consented to the making of an order awarding costs.  In those circumstances, it seems appropriate that the cost of the proceedings be borne by the erring practitioner.
  5. [60]
    The appropriate order is that Dr Kanyowa should pay the Board’s costs.

Orders

  1. [61]
    Accordingly, the tribunal orders that:
    1. Pursuant to s 196(1)(b)(ii) of the National Law, the tribunal finds that Dr Kanyowa has behaved in a way that constitutes unprofessional conduct;
    2. Pursuant to s 196(2)(a) of the National Law, Dr Kanyowa is reprimanded;
    3. Pursuant to s 196(2)(b)(i) of the National Law and in accordance with the attached schedule of conditions, the tribunal imposes a condition on Dr Kanyowa’s registration that within six months of the date of this order he undertake the learning plan proposed to be conducted by Dr Zaharias or such other plan with such other medical educator as approved by the Board addressing the principles of appropriate certification and the assessment requirements for providing a medical certificate in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld);
    4. Pursuant to s 196(3) of the National Law, the review period for the condition is six months;
    5. Subdivision 2, Division 11, Part 7 of the National Law applies to the condition; and
    6. Dr Kanyowa is to pay the Board’s costs to be agreed, or failing agreement, to be assessed on the standard basis.

SCHEDULE OF CONDITIONS

  1. Dr Kanyowa (Practitioner) must undertake the education process with Dr Zaharias or such other plan with such other medical educator as approved by the Medical Board of Australia (Board) addressing the principles of appropriate certification and the assessment requirements for providing a medical certificate in relation to a person’s suitability to hold, possess and/or use a firearms licence under the Weapons Act 1990 (Qld).
  2. The Practitioner must complete the education process within six months of the imposition of these conditions.
  3. Within 28 days of the completion of the education process, the Practitioner is to provide to the Board:
    1. (a)
      evidence of successful completion of the education process; and
    2. (b)
      a reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learned in the education into the Practitioner’s practice and confirmation that the Practitioner has not included the education process or the preparation of this reflective practice report to satisfy his continuing professional development requirements.
  4. The Practitioner must not use the education process and/or the reflective practice report undertaken in compliance with these conditions to satisfy the Practitioner’s CPD requirements.
  5. Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to the Australian Health Practitioner Regulation Agency (AHPRA), on the relevant form, the details of any and all places of practice, together with, where relevant, confirmation from the Senior Practice Manager (the senior person) at each and every place of practice that they have sighted a copy of these conditions.
  6. With each and every subsequent place of practice the Practitioner must, within seven days of the commencement of practice, provide to AHPRA the details of the subsequent place of practice together with written confirmation, where relevant, from the senior person at each and every subsequent place of practice that they have sighted a copy of these conditions.
  7. With each and every alteration to these conditions the Practitioner must, within seven days of the notice of alteration of these conditions, provide to AHPRA, written confirmation from the senior person, where relevant, from the senior person at each and every place of practice that they have sighted a copy of the altered conditions.
  8. Unless expressly provided for within a condition, all costs associated with compliance with these conditions are at the Practitioner’s own expense.
  9. The Practitioner will provide to the Board any documentary evidence required by these conditions, within the timeframes specified.
  10. Failure to comply with these conditions may be a ground for health, conduct or performance action against the Practitioner.

Footnotes

[1]  Joint submissions on behalf of the parties, [2].

[2]  Ibid, [3].

[3]  Statement of agreed facts, [2].

[4]  Affidavit Dr Kanyowa, [9].

[5]  Statement of agreed facts, [10]-[11].

[6]  Ibid, [13].

[7]  Ibid, [9].

[8]  Affidavit Dr Kanyowa, [10].

[9]  Statement of agreed facts, [17].

[10]  Ibid, [20]-[21]; affidavit Sergeant Flood, [11]-[21].

[11]  Statement of agreed facts, [22].

[12]  Ibid, [23]-[25].

[13]  Ibid, [23]; joint position on finding and sanction, [1].

[14]  Statement of agreed facts, [26].

[15]  Affidavit Dr Kanyowa, [27].

[16]  Statement of agreed facts, [5].

[17]  Ibid, [7].

[18]  Bundle of agreed documents, tab 10.

[19] Medical Board of Australia v de Silva [2016] QCAT 63; Medical Board of Australia v Fitzgerald [2014] QCAT 425.

[20] Medical Board of Australia v Martin [2013] QCAT 376, [93].

[21]  Joint submissions on behalf of the parties, [33].

[22]  [2007] VMPB 6 (Wong).

[23]  [2015] QCAT 94 (Andrew).

[24]  [2008] NSWMPSC 1 (Lau).

[25] Medical Board of Australia v Andrew [2015] QCAT 94, [105].

[26] Medical Board of Australia v Jansz [2011] VCAT 1026.

[27]  See, for example, Medical Board of Australia v Martin [2013] QCAT 376.

[28]  Affidavit Dr Kanyowa, [14].

[29]  Ibid, [6].

[30]  Ibid, [28].

[31]  Ibid, [29]-[30].

[32]  Ibid, [31].

[33]  National Law, s 225.

[34]  Ibid, s 226.

[35]  Section 5 of the National Law defines “adjudication body” to include the tribunal.

[36] Health Ombudsman Act 2013 (Qld), subparagraph 50 of s 326.

[37]  QCAT Act, s 100.

[38]  Ibid, s 102(1).

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Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Tinashe Kanyowa

  • Shortened Case Name:

    Medical Board of Australia v Kanyowa

  • MNC:

    [2016] QCAT 450

  • Court:

    QCAT

  • Judge(s):

    Sheridan DCJ

  • Date:

    07 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Medical Board of Australia v Andrew [2015] QCAT 94
3 citations
Jump To
Cite 1 - [2015] QCAT 94
Cite 2 - [2015] QCAT 94
Cite 3 - [2015] QCAT 94
Medical Board of Australia v de Silva [2016] QCAT 63
1 citation
Jump To
Cite 1 - [2016] QCAT 63
Medical Board of Australia v Fitzgerald [2014] QCAT 425
1 citation
Jump To
Cite 1 - [2014] QCAT 425
Medical Board of Australia v Jansz [2011] VCAT 1026
1 citation
Jump To
Cite 1 - [2011] VCAT 1026
Medical Board of Australia v Martin [2013] QCAT 376
3 citations
Jump To
Cite 1 - [2013] QCAT 376
Cite 2 - [2013] QCAT 376
Cite 3 - [2013] QCAT 376
Re: Dr Bernard Ka Lim Lau [2008] NSWMPSC 1
2 citations
Jump To
Cite 1 - [2008] NSWMPSC 1
Cite 2 - [2008] NSWMPSC 1
Re: Dr Cindy Yau Lee Wong [2007] VMPB 6
2 citations
Jump To
Cite 1 - [2007] VMPB 6
Cite 2 - [2007] VMPB 6

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v Davis [2018] QCAT 2152 citations
1

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