Medical Board of Australia v De Lacy
[2017] QCAT 86
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- Unreported Judgment
- Medical Board of Australia v De Lacy[2017] QCAT 86
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Medical Board of Australia v De Lacy[2017] QCAT 86
Medical Board of Australia v De Lacy[2017] QCAT 86
CITATION: | Medical Board of Australia v De Lacy [2017] QCAT 86 |
PARTIES: | MEDICAL BOARD OF AUSTRALIA (applicant) v GEOFFREY DE LACY (respondent) |
APPLICATION NUMBER: | OCR30-16 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | 28 February 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne Sheridan, Deputy President Assisted: Dr G Powell Dr H Mudgil Mr M Halliday |
DELIVERED ON: | 3 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDIAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – where the applicant Board decided to take immediate action and place conditions on the registration of the respondent practitioner– where the Tribunal imposed a set of conditions agreed to by the parties – where it was a condition that the Board review the conditions upon receipt of an investigation report – where the practitioner applied for removal or variation of the conditions – where pursuant to s 196(2)(b)(ii) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law) the Tribunal imposed a new set of conditions – where the Board received and considered the investigation report and made a decision that the practitioner had engaged in unprofessional conduct – where the Board filed an application or referral of disciplinary proceedings pursuant to s 191 of the National Law – whether the conduct of the practitioner with respect to the patients was such that some further action under s 196 of the National Law is required – whether the practitioner has a case to answer Health Practitioner Regulation National Law (Queensland) 2009 (Qld), s 3A, s 196 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46 Geoffrey De Lacy v Medical Board of Australia [2016] QCAT 53 Medical Board of Australia v Dolar [2012] QCAT 271 |
APPEARANCES and REPRESENTATION:
APPLICANT: Mr R Devlin QC of counsel, instructed by Lander & Rogers
RESPONDENT: Mr G Diehm QC of counsel, instructed by Ashurst
REASONS FOR DECISION
Background
- [1]Dr De Lacy was first registered as a medical practitioner in Queensland on 30 June 1989.
- [2]In or about September 2013, the Australian Health Practitioners Regulation Authority (AHPRA) received a notification from Dr Moreny, a medical colleague, with respect to the clinical performance of Dr De Lacy in his treatment of 14 identified patients.
- [3]As a result of that notification, on 29 November 2013 the Medical Board of Australia (Board) decided to take immediate action against Dr De Lacy under s 156 of the Health Practitioner Regulation National Law 2009 (Qld) (National Law). Pursuant to its powers under s 156, the Board imposed conditions on the registration of Dr De Lacy.
- [4]A review of that immediate action decision was brought before the Queensland Civil and Administrative Tribunal (Tribunal). The parties reached a negotiated position and the Tribunal imposed a set of conditions agreed by the parties (2014 Conditions).
- [5]The 2014 Conditions included conditions requiring Dr De Lacy to be subject to supervision for the performance of colorectal, bariatric and abdominal or intra-abdominal laparoscopic or open surgery procedures (the procedures). It was one or other of those procedures which had been performed on the patients, who were the subject of the notification. That supervision was required to be extended to patient selection, performance of the procedures and post-operative care.
- [6]Dr Pitre Anderson was appointed supervisor and acted in that capacity until January 2015, at which time due to ill-health he was unable to continue to fulfil that role. During his period of supervision, Dr Anderson found Dr De Lacy to be competent and fully compliant with the conditions imposed on his registration. Dr Anderson stated that he had identified no issues of concern with the high quality of his surgical performance.[1] Importantly, Dr Anderson was of the view that the supervision conditions on Dr De Lacy’s registration could be removed.[2]
- [7]Given Dr Anderson’s report, Dr De Lacy brought an application to AHPRA for removal of the 2014 Conditions. That application was refused by the Board pursuant to its decision of 15 September 2015. Proceedings before the Tribunal to review the Board’s decision were then commenced by Dr De Lacy in October 2015. Those proceedings were heard on 16 and 17 March 2016. By that time, due to the absence of an alternative supervisor, Dr De Lacy had been unable for a period of some 15 months to perform the procedures which had been the subject of the supervision conditions pursuant to the 2014 Conditions.
- [8]By March 2016, it was the view of the experts called both by the Board and by Dr De Lacy that, as a result of the significant period of not being able to perform the procedures, Dr De Lacy may have lost some skills in relation to the performance of the procedures making a period of further supervision necessary.
- [9]At the hearing in March 2016, a joint expert report was tendered and, to clarify the areas of disagreement, the experts were called. The Tribunal accepted that there was need for a period of six months for certain supervisory conditions to remain with respect to the procedures and imposed a new set of conditions (2016 Conditions).[3]
- [10]The earlier 2014 Conditions also included a condition that “the Board will review these conditions upon receipt of the investigation report.” At the time of taking immediate action, in accordance with s 158 of the National Law, the Board had decided to conduct an investigation. The investigation report was to consider Dr De Lacy’s management of the 14 patients; being those patients the subject of the notification which had led to the immediate action by the Board and the resultant imposition of the 2014 Conditions.
- [11]The Board received and considered the investigation report and made a decision on 10 December 2014 that Dr De Lacy had engaged in unprofessional conduct in his management of eight of the 14 patients. Despite the Board’s decision, no further action was taken by the Board in relation to that decision until 3 March 2016, when the Board filed an application or referral of disciplinary proceedings pursuant to s 191 of the National Law. It is these proceedings which are currently before the Tribunal.
Current Misconduct Proceedings
- [12]The initial application in these proceedings filed by the Board alleged that Dr De Lacy had engaged in professional misconduct, or alternatively unprofessional conduct, in his management of eight patients (the current proceedings). The Board subsequently, in December 2016, filed an amended referral which limited the allegations to five patients and alleged unsatisfactory professional performance, not professional misconduct or unprofessional conduct as previously alleged.
- [13]It is significant that by the time the current proceedings were commenced in March 2016, Dr De Lacy had been practising subject to conditions requiring supervision in relation to the performance of the procedures for over two years. The treatment provided by Dr De Lacy to all patients the subject of the current proceedings had been provided prior to the imposition of any conditions. Further, at the time of commencing the current proceedings, the Board had before it the monthly supervisor reports prepared by Dr Anderson and, as stated in the Board’s submissions in these proceedings, Dr Anderson had concluded that he considered Dr De Lacy to be competent and able to practice free of any conditions.
- [14]By that time, if the views of Dr Anderson were accepted, the original mischief requiring the immediate action imposing conditions on the registration of Dr De Lacy had been appropriately dealt with through supervision. In any event, at that time, despite the view of Dr Anderson, the supervision conditions still remained on Dr De Lacy’s registration.
- [15]In these circumstances, the issue in the current proceedings is whether the conduct of Dr De Lacy with respect to the patients the subject of the notification was such that some further action under s 196 of the National Law is required. Given the conditions already imposed, that action would not be directed to the continuing performance of the procedures by Dr De Lacy, but rather to the need for the imposition of a caution, reprimand, suspension or cancellation.[4]
- [16]In considering the possible appropriate action, both the Board and this Tribunal need to be mindful that the guiding principle in the administration of the National Law is that the health and safety of the public are paramount.[5] The jurisdiction is protective, not punitive.[6] The previous steps taken by the Board and this Tribunal had clearly achieved the paramount objective of protecting the health and safety of the public; the supervision conditions had achieved the object of ensuring the original concerns regarding the practitioner’s performance had been removed. In those circumstances, it is an open question as to whether there was any utility in the Board pursuing separate misconduct proceedings.
- [17]In the current proceedings, each party relied on the same experts who had given evidence in the earlier proceedings in relation to the appropriate conditions to be imposed on the practitioner’s registration. In these proceedings, the focus of the expert opinion was the nature of the alleged behaviour by Dr De Lacy in the treatment of each of the patients the subject of the referral. The experts, Dr Franz for the Board, and Prof Padbury for Dr De Lacy, were directed to participate in an expert conclave and to provide to the Tribunal a joint expert report. The experts provided a joint report filed 15 July 2016 (the initial joint report) and a supplementary joint report filed 31 August 2016 (the supplementary joint report).
- [18]Following their initial joint report, there remained five patients of concern. By the time of the supplementary joint report, it was stated that the only point of disagreement was the post-operative management of one patient, patient LM. In respect of the other four patients, the experts accepted that there were no particular concerns; the treatment provided being described by the experts variously as not giving rise to any particular concerns; reasonable; not representing a major departure from standard; and the risks of surgery having been well explained and documented.
- [19]By the time the matter was due to come on for hearing before the Tribunal, that differing opinion in respect of the one patient still led the experts to proffer different conclusions. Dr Franz for the Board in the supplementary joint report concluded:
As a result, particularly in light of the care given to patient LM and some of the points raised in earlier cases, it would appear, in my opinion, that the registrant has performed to a lesser standard [than] would be expected of an experienced general surgeon.
- [20]In his subsequent report dated 5 December 2016, Dr Franz stated that in fact it could be argued that Dr De Lacy “departed from a standard expected of our junior trainees.”[7]
- [21]In the supplementary joint report, Prof Padbury for Dr De Lacy concluded that he did:
not believe that the registrant has performed to a lesser standard than would be expected of an experienced general surgeon. While there have been some criticism of the aspects of care, in all agreed cases the conclusion was that the care was not below an expected standard. The only disagreement was the post-operative management of LM as above.[8]
- [22]In Prof Padbury’s later report dated 13 January 2017, in referring to the reference by Dr Franz to “junior trainees”, Prof Padbury stated, “I strongly disagree with this statement and I don’t believe that Dr De Lacy has performed at an inferior standard.”[9]
- [23]Reference to their subsequent reports, however, makes it clear that the principal difference of opinion between the experts was dependant on a finding of fact as to at what point Dr De Lacy became aware of the deterioration in patient LM’s condition.
- [24]In fact, the Board considered the divergence of opinion to be such that the Board filed, two business days prior to the hearing date, an application for miscellaneous matters seeking leave to withdraw the referral.
- [25]The making of that application is also not surprising given the further monthly supervisor reports the Board now had before it. Dr Russell, who had been Dr De Lacy’s supervisor in the period from May 2016 to December 2016, in his affidavit filed in the proceedings and sworn 18 January 2017 stated that he had identified no issues of concern with his clinical performance. Dr Russell, consistent with the view previously expressed by Dr De Lacy’s former supervisor Dr Anderson, absolutely endorsed the lifting of all conditions and stated that he believed Dr De Lacy should be free to practise unrestricted as a consultant general surgeon.[10]
- [26]In its submissions filed with the application for leave to withdraw, it was stated, however, that the Board “has no ability to withdraw or vary those matters that are considered by the Tribunal.”[11] The submissions further stated that:
Notwithstanding section 46 of the QCAT Act, the parties acknowledge that the Tribunal must determine whether the joint proposal is appropriate and what action ought be taken to address any risk to the public.[12]
- [27]Whether that truly reflected the position of both parties is unclear. In making oral submissions on behalf of Dr De Lacy, Mr Diehm QC submitted that s 46(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) should not be given the meaning proposed by the Board and that s 46(1) gave to the Board the right to withdraw. In fact, Mr Diehm QC submitted that it was contrary to the statutory scheme for the Tribunal to be asked in matters referred to under the National Law to grant leave to withdraw.
- [28]The position taken on behalf of Dr De Lacy by Mr Diehm QC was that the Tribunal should either determine that the Board has the power to withdraw, or proceed to a hearing under s 196 and, based on the material before the Tribunal, dismiss the referral. Later Mr Diehm QC acknowledged that the appropriate order would be one under s 196(1)(a) of the National Law.
- [29]Following those submissions, a short adjournment was granted at the request of the Board to enable instructions to be obtained from the Board.
- [30]At the resumed hearing, Mr Devlin QC, counsel for the Board, told the Tribunal the Board would proceed to a hearing under s 196. The Board then read the material listed in its submissions filed in support of its miscellaneous application. Importantly, the material read by the Board included the affidavits of each expert attaching the joint expert reports and the final opinion of each expert together with the affidavits of each supervisor attaching the monthly supervisor’s reports and including the opinion of the supervisors as to the competency of Dr De Lacy.
- [31]Counsel for Dr De Lacy read the two affidavits of Dr De Lacy, one dated 3 August 2016 and the other dated 25 December 2016.
- [32]As a result of the approach taken by the Board, it is unnecessary for the Tribunal to determine the miscellaneous application and in particular for the Tribunal to determine the interpretation to be given to s 46 of the QCAT Act in disciplinary proceedings involving health practitioners.
- [33]In proceeding pursuant to s 196, Mr Devlin QC referred the Tribunal to para 51 of the Board’s submissions where it was said,
…the Applicant acknowledges that in light of the opinions recently delivered, there is a real risk that there is insufficient basis for a finding of misconduct. The outcome of the Tribunal’s request for the Experts to provide further evidence leaves the case in relation to the Respondent’s treatment of patient LM somewhat marginal. And, in turn, raises the question of the utility of the proceedings now that those matters have been clarified by the Experts.
- [34]Mr Devlin QC made a further statement on behalf of the Board as follows:
The Board concedes, consistently with the statement there, that upon consideration of all the evidence now before the Tribunal, in particular, the recently obtained expert opinion evidence for the Board, which opinion had narrowed to the extent that the practitioner in this instance has no case to answer to the charge that specifically in respect of any procedures the subject of the referral that the practitioner behaved in a way that constituted unsatisfactory professional performance. The Board concedes that should the Tribunal agree with this concession upon the consideration of the evidence, it will be appropriate to take no further action on this referral. The Board recognises in all respects, the objectives and guiding principles of the National Law sections 3 and 3A have been satisfied.[13]
- [35]Mr Diehm QC submitted that, in view of the concessions made by the Board, the appropriate order for the Tribunal to make was an order under s 196(1)(a).
Decision
- [36]The Tribunal has considered the evidence, the essential parts of which are referred to earlier in this decision. Based on that evidence, the Tribunal agrees with the concessions made. The evidence does not support a finding that Dr De Lacy has behaved in a way that constitutes unsatisfactory professional performance. The Board itself in making its submissions acknowledged that such a finding may be difficult. Dr De Lacy has no case to answer and no further action is to be taken.
Costs
- [37]The parties submitted that the appropriate order in terms of costs was that each party should bear their own costs of the proceedings. That position is consistent with the provisions of s 100 of the QCAT Act, which provides that “[o]ther than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding”; that is the default position.[14]
Footnotes
[1]Affidavit of Dr Pitre Anderson filed 23 December 2016.
[2]Submission of the Applicant in Support of the Application filed 24 February 2017, [46].
[3]Geoffrey De Lacy v Medical Board of Australia [2016] QCAT 53.
[4]National Law, s 196.
[5]National Law, s 3A.
[6]Medical Board of Australia v Dolar [2012] QCAT 271, [30].
[7]Affidavit of Robert John Franz sworn 5 December 2016, Exhibit RJF-2, p 4.
[8]Supplementary Joint Report filed 31 August 2016.
[9]Affidavit of Professor Robert Padbury filed 19 January 2017, Exhibit RP4.
[10]Affidavit of Dr Andrew John Russell worn 18 January 2017, [15].
[11]Submission of the Applicant in Support of the Application filed 24 February 2017, [12].
[12]Submission of the Applicant in Support of the Application filed 24 February 2017, [13].
[13]Transcript of Proceedings 29 February 2017, 1-15 LL34 -45.
[14]Medical Board of Australia v Wong [2017] QCA 42.