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Medical Board of Australia v Bird[2019] QCAT 148

Medical Board of Australia v Bird[2019] QCAT 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Bird [2019] QCAT 148

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(Applicant)

 

v

 

PHILIP BIRD

(Respondent)

APPLICATION NO/S:

OCR130-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 April 2019

HEARING DATE:

21 March and 29 March 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:

Dr E Burkett
Dr G Powell
Mr M Halliday

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. Pursuant to s 196(1)(b)(i) of the Health Practitioner Regulation National Law (Queensland), Dr Bird has behaved in a way that constitutes unsatisfactory professional performance with respect to his diagnosis and treatment of patients JM, PB and DM.
  2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), Dr Bird is cautioned.
  3. Dr Bird is to pay the board’s costs of and incidental to the proceedings in the sum agreed.
  4. The proceeding is adjourned to a date to be fixed to determine whether any, and if so what, conditions are to be imposed.

THE TRIBUNAL DIRECTS THAT:

  1. Dr Bird must file in the tribunal five (5) copies and serve on the board one (1) copy of any further material upon which Dr Bird seeks to rely, by 4.00pm on 7 May 2019.
  2. The board must file in the tribunal five (5) copies and serve on Dr Bird one (1) copy of any material and submissions upon which the board seeks to rely, by 4.00pm on 17 May 2019.
  3. Dr Bird must file in the tribunal five (5) copies and serve on the board one (1) copy of submissions upon which Dr Bird seeks to rely, by 4.00pm on 24 May 2019.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where registrant admitted conduct in relation to three patients the subject of the Referral – where Board  adduced no evidence and sought no finding in relation to other five patients the subject of the Referral –where parties agreed conduct in relation to three patients was unsatisfactory professional performance – where registrant has practised subject to an undertaking - where parties agreed sanction including terms of conditions to be imposed – whether the sanction is appropriate

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the parties had reached agreement on costs – where the practitioner had agreed to pay the Board’s costs as agreed or in default of agreement as assessed on the District Court Scale – whether the interests of justice require the Tribunal to make an order as to costs

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where the practitioner applied for a non-publication order to prohibit the publication of documents filed but not read at the hearing – where the circumstances under which a non-publication order may be made are statutorily prescribed – whether the non-publication order in those terms was necessary

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law

(Queensland), s 5, s 193B, s 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62(3), s 63, s 66, s 90, s 100, s 102, s 230

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, distinguished

Harmon v Secretary of State for Home Department

[1983] 1 AC 280, cited

Health Ombudsman v Antley [2016] QCAT 472, cited Hearne and Anor v Street and Ors (2008) 235 CLR 125, distinguished

Medical Board of Australia v Bird [2014] QCAT 411, cited

Medical Board of Australia v Gallery [2013] QCAT 224, followed

Medical Board of Australia v Martin (No 2) [2013] QCAT 377, cited

Medical Board of Australia v Wong [2017] QCA 42, followed

P v Australian Crime Commission (2008) 250 ALR 66, distinguished

Pearse v Medical Board of Australia [2013] QCAT 392, followed

Smith v Harris [1996] 2 VR 335, distinguished

APPEARANCES & REPRESENTATION:

 

Applicant:

G. R. Rice, instructed by Lander and Rogers

Respondent:

K.A Mellifont QC, instructed by Moray & Agnew Lawyers

REASONS FOR DECISION

  1. [1]
    On 18 June 2014, the Medical Board of Australia (Board) referred to the tribunal disciplinary proceedings against the respondent, Dr Bird. The referral was made pursuant to s 193B of the Health Practitioner Regulation National Law (Queensland) (National Law) on the basis that the Board had formed the reasonable belief that Dr Bird had behaved in a way that constituted professional misconduct.
  2. [2]
    The grounds of the referral arose from notifications received by the Australian Health Practitioners Regulation Authority (AHPRA) in the period between 2010 and 2013 concerning the conduct and practice of Dr Bird in relation to the treatment of patients with Attention Deficit Hyperactivity Disorder (ADHD).

The Referral

  1. [3]
    By its initial referral, the Board applied to the tribunal to conduct a hearing to decide whether a disciplinary ground was established arising from Dr Bird’s treatment of twelve patients in the period between 2002 and 2012, and in particular:
    1. (a)
      in relation to eight patients, his diagnosis of ADHD in the period between 2002 and 2010;
    2. (b)
      in relation to eleven patients, his prescribing of Dexamphetamine, a drug used in the treatment of ADHD, in the period between 2003 and 2012; and
    3. (c)
      in relation to various patients, his conduct of clinical research in relation to the use of low dose Dilantin and/or Epilim, in the period between 2006 and 2012.
  2. [4]
    It was alleged the diagnosis was contrary to the diagnostic and statistical manual of mental disorders prepared by the American Psychiatric Association and known as DSM IV, and contrary to the guidelines published by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and known as Practice Guidelines 6.
  3. [5]
    Generally, in respect of his diagnosis, treatment and management of patients diagnosed with ADHD, it was alleged that there was a pattern of conduct whereby Dr Bird was diagnosing and treating ADHD when he ought to have been treating the patients’ primary disorder or comorbid disorders.
  4. [6]
    It was alleged by engaging in the conduct, Dr Bird had behaved in a way that constituted professional misconduct, or in the alternative unprofessional conduct.
  5. [7]
    At the time of the filing of the initial referral, the Board filed an application seeking a non-publication order. The Board sought an order prohibiting the publication of the contents of any document produced to the Tribunal and evidence given before the Tribunal that could identify any of Dr Bird’s patients listed in the referral, with the exception of Anthony Thomson. A non-publication order in those terms was made by the Tribunal on 20 June 2014 in the exercise of its powers under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  6. [8]
    Dr Bird subsequently sought to broaden that order to extend it to any document filed in the proceedings and any evidence given before the Tribunal. The variations were opposed by the Board. The Tribunal refused the application but, in doing so, extended the non-publication order to any of Dr Bird’s patients, not only those mentioned in the referral, with the exception of Anthony Thomson.[1] In giving his decision, Judge Horneman-Wren, referring to the reasons outlined in Medical Board of Australia v Martin (No 2),[2] commented that it is in the interests of justice that documents that contain information that is personal and sensitive remain confidential. He said this is especially so when the party in question has not participated in the proceeding. The non-publication order would avoid endangering the physical or mental health or safety of persons, the vulnerability of the patients being accepted, and avoid the publication of confidential information which would be contrary to the public interest.
  7. [9]
    By a further decision of Judge Horneman-Wren dated 9 October 2015, the terms of the non-publication order were confirmed as requiring the parties, consistent with paragraph 11 of QCAT Practice Direction No 6 of 2011, to file a redacted version of all documents filed to date and any documents to be filed subsequently so as to remove any material which may not be published pursuant to the non-publication order made by the Tribunal on 22 August 2014.[3]

The Amended Referral

  1. [10]
    On 4 July 2016, the Board filed an amended referral. The amended referral reduced the allegations against Dr Bird to eight patients, patients SN, DM, PB, ME, JM, SO’N, DL and CD. The amended referral removed all allegations with respect to four patients, patient Anthony Thomson and patients MD, DG and JT. 

The Further Amended Referral

  1. [11]
    On 8 March 2017, the Board filed a further amended referral. It was that referral which was relied on at the hearing. That referral amended further the general allegations and deleted some of the particulars of the allegations in respect of the eight patients. The amendments are identifiable by a strike through in the further amended referral.
  2. [12]
    In respect of the eight patients, the allegations centred on both the diagnosis of ADHD and the use in the treatment of those patients of Dexamphetamine. It was said, in respect of those patients, that Dr Bird diagnosed ADHD when such a diagnosis was not reasonably available because there was no evidence, or no sufficient evidence of the existence of the condition. Further, Dr Bird had prescribed Dexamphetamine when it was inappropriate to do so and without first obtaining a second opinion.
  3. [13]
    It was said that Dr Bird’s treatment of those patients demonstrates Dr Bird had engaged in a pattern of conduct in which he:
    1. (a)
      makes a diagnosis of ADHD in patients that is not supported by the clinical evidence or the patient’s clinical history;
    2. (b)
      further or in the alternative to paragraph (a), makes a diagnosis of ADHD in patients that is contrary to the clinical evidence or the patient’s clinical history;
    3. (c)
      primarily treats patients for ADHD whereby he ought to be treating the patient’s primary disorder or comorbid disorder;
    4. (d)
      fails to adequately treat the patient’s primary disorder or comorbid disorder; and
    5. (e)
      inappropriately prescribes and treats patients with Dexamphetamine.

Dr Bird

  1. [14]
    Dr Bird was first registered as a medical practitioner on 29 November 1990.
  2. [15]
    Dr Bird was admitted as a Fellow of the RANZCP in early 1997.  Over time, Dr Bird developed special interests in the fields of psychopharmacology of affected disorders, the treatment of eating disorders, acquired brain injury, ADHD, autistic spectrum disorders and the assessment and treatment of memory disorders.[4]
  3. [16]
    Dr Bird estimates that in the period between 2002 and March 2017, he would have seen in excess of 1500 ADHD patients.[5]

Conditions and Undertakings

  1. [17]
    On 8 July 2013, as the result of the notifications made to the Board, conditions were imposed on Dr Bird’s registration. On 23 October 2013, Dr Bird gave undertakings to the Board, which included undertakings that:

1 I will refer:

1.1 all patients prescribed dexamphetamine in excess of 40 mg per day and methylphenidate in excess of 80 mg per day; and

1.2 all patients who suffer with ADHD and a current relevant co-morbid psychiatric illness with potential to be exacerbated by the commencement of stimulant medication.

2 I will maintain a second opinion register for each such patient referred to in paragraph 1 herein.

3 I will send, by email, a copy of the second opinion register to the Board on the 1st of each month, or if the 1st does not fall on a business day, the next business day.

4 I will obtain a cardiologist review of all patients prescribed dexamphetamine in excess of 40 mg per day and methylphenidate in excess of 80 mg per day.

5 I will not self-prescribe, in accordance with good medical practice.

6 I will not withdraw the authority addressed to AHPRA dated 16 July 2013.

7 I will allow a representative of the Board to inspect, take and/or copy, patients records held at any facility at which I might from time to time work, at such time/s as required by the Board, for the purpose of monitoring compliance with these conditions.[6]

  1. [18]
    At the time of the hearing, Dr Bird continued to practice pursuant to the terms of that undertaking[7]

Expert Evidence Generally

  1. [19]
    At some stage in the proceedings Dr John Varghese was briefed as an expert by the Board and Dr Joel Aizenstros was briefed as an expert for Dr Bird. The experts met prior to the hearing.
  2. [20]
    At the hearing, the matter proceeded in the Tribunal on the basis of the further amended referral filed 8 March 2017 and by way of an agreed statement of facts. Whilst separate submissions were filed, the parties had reached an agreed position as to sanction. The only evidence filed was the affidavit of Dr Bird sworn 28 February 2017 and an extract from the affidavit of Dr Bird sworn 6 September 2016.
  3. [21]
    The agreed statement of facts recorded where the experts, through the expert conclave, had been able to reach joint agreement.
  4. [22]
    The experts jointly agreed that:
    1. (a)
      Dr Bird had tried his best to find solutions for very complex patients, often with multiple comorbidity;
    2. (b)
      diagnostic tools are a component in the assessment and the monitoring of the diagnosis and response to treatment of ADHD but are not, in themselves, enough to confirm diagnosis of this condition;
    3. (c)
      the field of adult ADHD is still developing;
    4. (d)
      the changes in the diagnostic and statistical manual of mental disorders prepared by the American Psychiatric Association (DSM) shows a progressive change towards a more pragmatic approach to diagnosis of ADHD;
    5. (e)
      the relevant DSM when Dr Bird was diagnosing and treating these patients was the fourth edition, known as DSM-IV TR; and
    6. (f)
      the most important changes to the diagnostic criteria for ADHD occurred in the fifth edition (DSM-V).
  5. [23]
    Relevantly, the experts noted the important changes in the fifth edition:
    1. (i)
      ADHD was grouped with other neurodevelopmental disorders, rather than behaviour disorders;
    2. (ii)
      the age of onset criteria increased from 7 to 12 years;
    3. (iii)
      for adults and adolescents aged 17 and above, only five symptoms are now required instead of the six needed for younger children;
    4. (iv)
      new symptom examples were added;
    5. (v)
      there was an updated definition of situational pervasiveness;
    6. (vi)
      definitions of ADHD severity were added; and
    7. (vii)
      autism spectrum disorder was removed as an exclusion criteria.
  6. [24]
    In the written submissions of the applicant, it was commented that the Experts’ Conclave Report records a difference in the experts’ respective views as to “the threshold at which ADHD may be diagnosed.”[8] It was said that Dr Varghese had expressed the view that, “A diagnosis of ADHD requires life-long symptoms and impairment proportional to life circumstances. It requires fingerprints of symptoms throughout life...”, and Dr Aizenstros had expressed the view that, “It is sufficient for a diagnosis of ADHD if symptoms are enduring across the life span and manifest impairment for a minimum of six months’ duration as per DSM criteria…”
  7. [25]
    Both experts agreed that any diagnosis of ADHD required an “assessment of longitudinal history of significant impairment in academic, social or occupational settings”.[9]
  8. [26]
    It was agreed, as stated in the statement of agreed facts, that Methylphenidate and Dexamphetamine are stimulant medications which engage the presynaptic release of Catecholamines, in particular Dopamine, and that the RANZCP supports the use of these drugs in the treatment of ADHD for which there is a sound basis of evidence.
  9. [27]
    Whilst Dexamphetamine is a recognised beneficial treatment for ADHD, it is also a drug of dependence and only available on authority from the Drugs of Dependence Unit of Queensland Health.
  10. [28]
    It was accepted that in order for there to be a sound basis of evidence, the longitudinal history would need to support the diagnosis. In the submissions of the applicant, in referring to the Expert Conclave Report, it was said both experts agreed that the symptoms must endure “through a person’s life, commencing in childhood, and impairment from those symptoms.”[10] In addition to the inclusion criteria relating to symptoms and impairment, the experts agreed that the exclusion criteria that the symptoms not be better accounted for by another disorder become of particular significance when a patient presents with a comorbid disorder whose symptoms can overlap with ADHD.[11]

Patient JM

  1. [29]
    In respect of patient JM, a female patient aged 81, both experts agreed that the diagnosis of ADHD was “questionable” and Dexamphetamine treatment for ADHD was inappropriate.
  2. [30]
    It was accepted that the actual cause of patient JM’s cognitive issues were unable to be confirmed, given:
    1. (a)
      her former frontal leucotomy;
    2. (b)
      her eating disorder;
    3. (c)
      her former insulin therapy and unmodified ECT;
    4. (d)
      her history of CVA; and
    5. (e)
      her life long history of anxiety and depression with multiple, and unsuccessful trials of psychotropic medication.
  3. [31]
    It was noted by both parties that the use of Dexamphetamine was only trialled for a one week period from 24 May 2006 and only trialled using a very low dose. Patient JM was reviewed by Dr Bird on 30 May 2006. Patient JM had reported that the benefits of Dexamphetamine were quickly lost and Dr Bird ceased the use of the medication.

Patient PB

  1. [32]
    In respect to patient PB, it was Dr Varghese’s view that there was insufficient evidence to warrant a diagnosis of ADHD and it was alleged that prescribing dexamphetamine was inappropriate.
  2. [33]
    PB was a 51 year old male patient who had been treated by Dr Bird from March 2002 to 2005 in relation to his conditions of major depression and anxiety. PB was an inpatient of the Sunshine Coast Private Hospital Mental Health Unit at the time he was first reviewed by Dr Bird in 2002. He had been admitted with intense suicidal ideations.
  3. [34]
    In December 2004, Dr Bird requested that PB, together with PB’s wife, undertake the rating scale assessment, which can be used to support a diagnosis of ADHD. It was accepted PB had a complex mental health history.
  4. [35]
    As part of the longitudinal history, the patient had reported struggling academically at school and repeating year 11 and not finishing year 12. The patient had had success in sport and was the school sports captain. Subsequently, the patient had completed year 12 and a university degree in social science.
  5. [36]
    Following undertaking those tests, in early January 2005, PB was diagnosed as suffering from ADHD. PB was started on Dexamphetamine treatment in February 2005.
  6. [37]
    PB disengaged from treatment in March 2005, less than one month after commencing Dexamphetamine treatment. The patient re-engaged Dr Bird in 2009 for a relapse of his depressive condition.

Patient DM

  1. [38]
    In respect of patient DM, like patient PB, in Dr Varghese’s view there was insufficient evidence to warrant a diagnosis of ADHD and it was alleged prescribing Dexamphetamine was inappropriate.
  2. [39]
    DM was a 47 year old male who was referred to Dr Bird by a respiratory physician. Dr Bird first interviewed the patient on 17 April 2003. Dr Bird interviewed the patient on six occasions including an interview with the patient’s wife before diagnosing the patient in September 2003 with ADHD and prescribing Dexamphetamine.
  3. [40]
    It was accepted that DM was a complex mental health patient who had a history of social anxiety disorder and subsequent reliance on benzodiazepines, chronic sleep disturbance, previous major depressive disorder and subsequent low grade depressive symptoms.
  4. [41]
    It was accepted Dr Bird had taken a detailed longitudinal history in which the patient had reported, amongst other things, being placed in the ‘top stream’ at high school but being easily distracted with reports stating that he could have done better and his concentration in lectures was inconsistent. The patient had completed an engineering degree and had worked in the engineering department of a multinational for a long period of time.
  5. [42]
    DM remained on Dexamphetamine treatment until December 2011; over eight years.

Patients PB and DM

  1. [43]
    In respect of both patients PB and DM, Dr Bird accepted the view of Dr Varghese, that there was “insufficient in the longitudinal history as to significant impairment in academic, social or occupational functioning attributable to ADHD”, and insufficient from the rating scale assessment,[12] to warrant a diagnosis of ADHD. Further, the Board alleges, and Dr Bird accepts, that prescribing Dexamphetamine was inappropriate. Dr Varghese expressed the view that obtaining a second opinion concerning the diagnosis of ADHD prior to commencement of Dexamphetamine in respect of each patient would have been wise, albeit he accepted not mandated.

The Other Five Patients

  1. [44]
    At the hearing, the Board did not adduce any evidence or pursue that any findings be made in relation to the other five patients, patients SN, ME, SO’N, DL and CD, the subject of the further amended referral. Further, the Board did not seek that there be any finding of a pattern of conduct of Dr Bird making a diagnosis of ADHD in patients not supported by or contrary to clinical evidence on the patient’s clinical history, nor a pattern of failing to treat the patient’s primary disorder or comorbid disorder, and nor a pattern of inappropriately prescribing patients with Dexamphetamine.
  2. [45]
    In its submissions, the Board referred to the decision of the Tribunal in Medical Board of Australia v Gallery[13] where it was said:

After hearing evidence from experts called by the Board and Dr Gallery about his treatment of FMN, the Board decided it would not proceed further with those allegations… the Tribunal must observe the Board’s decision to proceed no further and cannot make any findings about Dr Gallery’s treatment of FMN.[14]

  1. [46]
    In relation to the five patients to whom no evidence was led and no findings sought, the Board requested that the Tribunal make directions that the allegations in the further amended referral will not be proceeded with any further. In subsequent submissions filed 3 April 2017 on behalf of Dr Bird, in the alternative, it was submitted that the Tribunal could appropriately make no findings with respect to the allegations in the further amended referral which are not contained in the statement of agreed facts.

Categorisation of conduct

  1. [47]
    The parties agreed that Dr Bird’s behaviour in relation to the three patients constituted unsatisfactory professional performance.
  2. [48]
    Unsatisfactory professional performance of a registered health practitioner is defined in the National Law to mean:

The knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.[15]

  1. [49]
    The Board submitted, and Dr Bird accepted, that the clinical errors of judgments made in respect of the three patients constituted unsatisfactory professional performance.
  2. [50]
    In his care of those three patients, there is no suggestion that Dr Bird was lacking in knowledge, care for the patients or commitment to understanding the ADHD condition. It is accepted he consulted the patients and administered relevant screening tests.
  3. [51]
    In relation to those three patients, who were complex patients with comorbid conditions, as submitted on behalf of the Board, his clinical failing was “in essence to close on a diagnosis of ADHD with either inadequate evidence, or questionable evidence, and where obtaining a second opinion would have been wise”.[16] 
  4. [52]
    Dr Bird accepts that by treating the patients in the manner alleged, he had behaved in a way that constitutes unsatisfactory professional performance. Dr Bird accepts that absent that second opinion, prescribing Dexamphetamine was inappropriate.
  5. [53]
    The Tribunal is satisfied the conduct accepted by Dr Bird in relation to those 3 patients is appropriately categorised as unsatisfactory professional performance.

Sanction

  1. [54]
    The Board submitted, and Dr Bird accepted at the time of the hearing, that on the basis of the admissions made, a caution together with the imposition of agreed conditions on Dr Bird’s registration would be appropriate.
  2. [55]
    Whilst the parties had reached a joint position as to sanction, an independent discretion must always be exercised by the Tribunal.[17] However, it is also accepted that the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct.[18] 
  3. [56]
    The conditions proposed were similar to the terms of the undertaking given on 23 October 2013, and focused on Dr Bird obtaining second opinions in respect of two classes of cases:
    1. (a)
      Patients who suffer with ADHD and a current relevant comorbid psychiatric illness with the potential to be exacerbated by the commencement of stimulant medication; and
    2. (b)
      Patients who suffer with ADHD and a current relevant comorbid psychiatric illness and to whom it is intended to prescribe Dexamphetamine in excess of 40 mg per day and Methylphenidate in excess of 80 mg per day. 
  4. [57]
    As a result of questions raised by the Tribunal, by submissions received on 3 April 2017 on behalf of Dr Bird, it was proposed that the need for second opinions should be limited to patients who suffer from adult ADHD, where “adult” is defined “to mean a person who has reached the age of 18 years”. It was submitted that, given that each of the three patients in respect of which there was substandard performance were all adults, and there was no evidence before the Tribunal of inadequacy with respect to non-adult ADHD, the condition should be limited to adult patients. In its submissions dated 10 April 2017, the Board opposed the limitation. 
  5. [58]
    It was agreed, however, that the requirement that the patient must have a current relevant comorbid psychiatric condition was appropriate for the purposes of the conditions. Based on the evidence before the Tribunal and the allegations made in relation to the three patients, there was no need for a second opinion in patients whose comorbid conditions were in remission. The inclusion of the need for there to be current comorbid conditions was supported by the affidavit of Professor Coghill.[19] 
  6. [59]
    The diagnoses of the three patients in respect of whom evidence was led at the hearing were made in 2006, 2005 and 2003 respectively. The notifications to the Board were made in the period between 2010 and 2013. 
  7. [60]
    In his affidavit, Dr Bird detailed the steps he took not long after he became aware of the first of the complaints. He detailed the supervision session with a senior practitioner in Western Australia and subsequent sessions with a professor of the University of Sydney. He underwent a full risk review of his practice and requested that the RANZCP conduct an audit. He referred to his continued involvement in ADHD peer review groups. 
  8. [61]
    Importantly, Dr Bird acknowledged that these proceedings have given him “a further appreciation for the complex conditions that many patients present with and the need for further continued education and collaboration with experienced colleagues.”[20] The acceptance by Dr Bird of the need to obtain second opinions is reflected in the terms of his undertaking given to the Board in October 2013. It is consistent with the agreement reached between the parties in terms of the imposition of ongoing conditions.
  9. [62]
    Dr Bird’s acceptance of the need for consultation was consistent with his agreement for mentoring. 
  10. [63]
    All the steps taken by Dr Bird since the matters the subject of these notifications were raised are indicative of a very high level of insight. In his affidavit sworn 3 April 2017, Dr Bird refers to the passage of approximately eleven years since the last diagnosis relevant to these proceedings. He states that since that time he has “worked hard to continue to improve myself, with education, peer development, self-reflection, and dedication to my work and my patients.” 
  11. [64]
    The references from his fellow practitioners speak of his dedication to his patients, his willingness “to seek advice and guidance from his colleagues”[21] and “to discuss cases and treat patients collaboratively.”[22] Dr Hall, who in the past four or five years has provided second opinions on a significant number of Dr Bird’s patients, states that he has “the utmost respect for his professionalism” and says that he has “observed his commitment to a high standard of practice and to an ethical and caring attitude in assisting patients.”[23]
  12. [65]
    There is no evidence before the Tribunal of any further notifications to the Board since the notifications given in the period between 2010 and 2013. At the time of the hearing, there was no suggestion that Dr Bird had not complied with the conditions imposed or the undertaking given.
  13. [66]
    It would seem that the steps taken by the Board were achieving the object of ensuring the original concerns regarding Dr Bird’s performance were being appropriately dealt with by the obtaining of second opinions where necessary and by monitoring by the Board.
  14. [67]
    There seems no doubt that, consistent with the statements of Drs Varghese and Aizenstros, the field of ADHD in adults is still developing. 
  15. [68]
    In all the circumstances, if an order had been made at or about the time of the hearing, the agreed sanction of a caution and the imposition of conditions for unsatisfactory professional performance identified in the statement of agreed facts was, in the view of the Tribunal, appropriate. 
  16. [69]
    At or about that time, the imposition of the conditions, as detailed in the draft minute of orders as attached to the submissions filed on behalf of Dr Bird dated 3 April 2017, would have been appropriate. Those conditions are an attachment to these reasons.  The Tribunal was grateful for the input of Professor Coghill[24] and Dr Kneebone[25] in respect of the appropriate wording of the conditions, including the relevance of guidelines produced by the RANZCP and guidelines endorsed by RANZCP. 
  17. [70]
    Those conditions were not dissimilar to the terms of the undertaking given by Dr Bird on 23 October 2013, except the proposed conditions imposed on Dr Bird an additional obligation of engagement in mentoring. 
  18. [71]
    Since the hearing of this matter in March 2017, there has been an unfortunate delay in the Tribunal’s decision for which the Tribunal apologises. As a result, in finalising these reasons the Tribunal considered it appropriate to ask the parties to confirm whether, in the intervening period, Dr Bird had remained subject to his undertaking, and if so whether he had continued to comply with the undertaking. 
  19. [72]
    In separate correspondence to the Tribunal dated 24 April 2019, the parties individually confirmed that Dr Bird continued to practise subject to his undertaking. Importantly, in accordance with the terms of his undertaking, it is not suggested that Dr Bird has not continued to refer patients for a second opinion when necessary. 
  20. [73]
    That means, given the Tribunal’s delay, that Dr Bird has continued to be monitored by the Board for an additional two year period. The draft conditions proposed by the parties had envisaged a review of the conditions, including the proposed condition of monitoring by the Board, after two years. Given the passage of time, it is the Tribunal’s view that it should receive further evidence and submissions to determine whether such a condition should now be imposed and if so, the appropriate review period for such a condition. 
  21. [74]
    At the time of the hearing, the parties had proposed a condition requiring Dr Bird be mentored. Whilst at or about the time of the hearing, the Tribunal considered it would have been appropriate for such a condition to be imposed, again given the passage of time, the absence of further complaint and the continued benefit gained from obtaining second opinions, the Tribunal considers it is appropriate to receive further evidence and submissions to determine whether such a condition should now be imposed, and if so, the appropriate review period for such a condition. 
  22. [75]
    The Tribunal will make appropriate directions to allow the provision of that evidence and those submissions 

Costs

  1. [76]
    In reaching a joint position, the parties agreed that Dr Bird should pay the Board’s costs in the sum agreed. 
  2. [77]
    Since the introduction of the Health Ombudsman Act 2013 (Qld), the issue of costs falls to be determined under the QCAT Act. Pursuant to s 100 and s 102 of the QCAT Act, the parties must each pay their own costs, unless “the interests of justice require” the Tribunal to make a costs order against a party. 
  3. [78]
    Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice requires a costs order, including the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant. 
  4. [79]
    The Court of Appeal in Medical Board of Australia v Wong[26] described it as “a basis for departing from the default position.”[27] Judicial Member the Honourable James Thomas AM QC in Health Ombudsman v Antley[28] said the proper approach for the Tribunal is whether there are “countervailing considerations”.[29] 
  5. [80]
    In its submissions, the Board referred to the fact that historically, where misconduct was established, the tribunal would usually make an award of costs in favour of the relevant Board. It was submitted that a factor to be taken into account is that registration boards are funded by their registrants and their funds are limited. Further, it was said that medical practitioners are often insured in the event of an award of costs being made. 
  6. [81]
    The parties have reached an agreed position, and in the circumstances of this case, it is appropriate that the Tribunal have regard to that negotiated position. The Tribunal considers it is appropriate to make the order as to costs as submitted by both parties. 

Variation to Non-publication order

Orders sought

  1. [82]
    As part of these proceedings, submissions were made on behalf of Dr Bird seeking the making of a further non-publication order. The order sought was in the following terms:

That pursuant to section 66(1)(a) of the QCAT Act, publication of the contents of any document or other thing produced to the Tribunal, or order of the Tribunal, to the extent that it references and/or pertains to patients DL, ME, CD, SN and SO’N is prohibited, and to the extent that it references and/or pertains to patients JM, DM and PB beyond that which appears in the statement of agreed facts is prohibited. 

  1. [83]
    Initially, in making submissions in support of the order, it was said that the order was necessary to avoid the publication of confidential information or information where publication would be contrary to the public interest. Further or alternatively, it was submitted the order was necessary in the interest of justice. 
  2. [84]
    At the hearing, the focus of the submissions appeared to be directed to the disclosure of all allegations in the further amended referral. At the hearing, the Tribunal indicated that it was not persuaded that it would be an appropriate exercise of the Tribunal’s powers to vary the terms of the previous non-publication order so as to prohibit in any respect the full publication of the further amended referral, being the referral relied upon by the Board at the hearing. 
  3. [85]
    At a subsequent hearing, following the receipt of a request from a media organisation for access to the record of proceedings, an application was made on behalf of Dr Bird for the making of a non-publication order in the following terms: 

That pursuant to section 66(1)(a) of the QCAT Act, publication of the contents of any document or other thing produced to the Tribunal, but not read in the sanction hearing, is prohibited. 

Submissions of the parties

  1. [86]
    At the subsequent hearing, despite the written submissions, counsel for Dr Bird confirmed that the only subsection that was relied upon was s 66(2)(e); that is, that the Tribunal considers the order is necessary for any other reason in the interests of justice. Appropriately, it was accepted that the current non-publication order was sufficient to protect patient confidentiality. 
  2. [87]
    The submission was that the non-publication order in respect of material filed and not read is necessary in the interests of justice “in order to uphold the philosophy underpinning the law relating to the Harman undertaking.”[30]  In the written submissions, it was said the publication of that material should be prohibited on the basis that the parties to the proceedings would be bound by the undertaking in Hearne and Anor v Street and Ors[31] and as such, the parties would not be entitled to disseminate or otherwise publish that material, and it would be an anomaly for such a restriction to be placed on the parties, but no equivalent restriction placed on the public.  It was submitted that such a restriction was even more important in a case where both parties have contended that the Tribunal not read that material because it was not relevant to the determination of the proceedings before the Tribunal. 
  3. [88]
    In referring to the power of inspection permitted by s 230 of the QCAT Act, it was submitted that such right is subject to any non-publication orders; so a party does not necessarily have a “complete and blanket right”[32] to get something because they have paid a fee. Counsel says the question becomes what is an appropriate non-publication order. 
  4. [89]
    It was submitted that the affidavits are produced under “compulsion via direction from the tribunal”.[33] It was said that the parties are not subject to the rules which apply to penalty privilege. 
  5. [90]
    It was further submitted that in circumstances where the Board does not pursue allegations in the further amended referral with respect to five patients and does not seek to lead any evidence in relation to three patients other than that which is contained in the statement of agreed facts, the prohibition against the release of such material was in the interests of justice. 
  6. [91]
    In making the submissions, reference was made to the adverse and incorrect media reporting, including the reporting of matters which have been discontinued and the impact of that on Dr Bird and his family. 
  7. [92]
    On behalf of the Board, it was submitted that in dealing with the issue “one has to firmly keep in mind the prima facie or default position which is provided under the QCAT Act by section 230.”[34]  It was said, a third party under that section has an entitlement to inspect and copy any record that has been filed in the proceeding at any time. Counsel submitted that it is not correct to say, as contended by the respondent, that until a document is read in open court, the material remains private. He said, that is simply not true: the entitlement of a third party to inspect and copy includes any time prior to the hearing. It happens all the time when new proceedings are filed. It was said, “One reads reports about it in the paper, and obviously the press have accessed the court file to be able to report on such matters.”[35]
  8. [93]
    The legislature, it was submitted, has opted in favour of open access to all documents that are filed in the Tribunal, and that position is only altered by s 66. The onus is then on the party seeking an order for non-publication of any documents filed to make out a basis for it under one of the provisions of s 66(2) of the QCAT Act. 
  9. [94]
    It was said, reliance on authorities not the subject of the same statutory regime are of limited assistance. 
  10. [95]
    Here, it was said, the criterion which is advanced is that material has been filed and not relied on, and not tested. It was submitted, that if the test of the interests of justice was whether a document was relied on at a hearing, the consequences of such a limitation would be that all files in QCAT would be quarantined from inspection until after a hearing, and if a matter settled without a hearing, there would be no material read in open court. 
  11. [96]
    It was accepted that there may be occasions where deleterious effect on an individual could fall within the interests of justice. However, in order to act, the Tribunal would require evidence of that, which it does not have in this case. 

Consideration

  1. [97]
    As observed in Pearse v Medical Board of Australia,[36] the clear intent of the QCAT Act is that in matters before the tribunal generally, as with matters in court, the proceedings before the tribunal will be public and records of the proceedings will be available to the public. Section 90 requires that proceedings be held in public and s 230 requires the keeping of a record and the access to that record by non-parties. That access is subject to the terms of a non-publication order.
  2. [98]
    The circumstances when the tribunal may make a non-publication order are identical to the circumstances as to when the tribunal may order that the proceedings, or part of the proceedings, be held in private. 
  3. [99]
    Section 66(1) provides: 
    1. (a)
      the contents of a document or other thing produced to the tribunal;
    2. (b)
      evidence given before the tribunal;
    3. (c)
      information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified. 
  4. [100]
    Section 66(2) of the QCAT Act prescribes the limited circumstances in which the tribunal may make an order prohibiting publication, if it considers such order is necessary. Those circumstances include, as relied on by Dr Bird here, the making of a non-publication order “for any other reason in the interests of justice.”[37] 
  5. [101]
    Section 66(1)(a) is directed towards a document or other thing produced to the tribunal. At first sight, this might be thought to be directed towards a document or other thing ordered to be produced by a party or non-party under s 62(3) and s 63 respectively of the QCAT Act. Section 66(1)(a) would not appear to be so limited, however. Section 230, which confers a right of access to documents filed in the registry, specifically states that the section does not authorise, entitle or permit a person to access a part of a record containing anything whose publication or disclosure is prohibited under a non-publication order. This exception does not neatly fit with any of the powers of s 66(1). Ordinarily, things filed would not be described as something produced to the tribunal, nor would things filed be described as “evidence” or “information”.   The Board did not argue to the contrary.
  6. [102]
    On the basis that there is power to make an order of the type referred to under s 66, there cannot be any doubt that the onus is on the party seeking the making of the order, in this case, Dr Bird. Dr Bird must satisfy the Tribunal that the making of such an order is necessary for one of the criteria specified in s 66(2).
  7. [103]
    The criterion advanced by Dr Bird is that the order is necessary “in the interests of justice” on the basis that the material filed had not been relied upon and therefore not tested; consistent with what was said to be the philosophy underpinning the Harman undertaking.
  8. [104]
    This is not how the QCAT Act operates. Section 230 requires the registrar to keep a record containing all documents filed in the registry. On payment of the prescribed fee, any person may inspect a record kept and obtain a copy of a part of a record kept. There is no distinction between documents filed but not read. Access to the record is available at any time. 
  9. [105]
    The legislative provision is quite different to the one considered in P v Australian Crime Commission,[38] Hearne[39] and Smith v Harris,[40] upon which Dr Bird relied in making oral submissions. It is also unclear how the implied undertaking by parties not to make use of documents acquired through discovery (discussed in such cases as Harmon v Secretary of State for Home Department,[41] Hearne[42] and Central Queensland Cement Pty Ltd v Hardy,[43] upon which Dr Bird also relied) has relevance to the statutory regime under which the tribunal acts. 
  10. [106]
    Under the legislative regime which applies to this tribunal the making of a non-publication order requires the Tribunal to be satisfied the order is necessary on one of the limited criteria specified. The starting position is that the record of proceeding is available for inspection by non-parties. 
  11. [107]
    Reference was made to the inaccuracy of media reporting and to the impact on the reputation of Dr Bird. Whilst inaccuracy of reporting is unfortunate, neither proved inaccuracy of reporting nor the possibility of inaccuracies would ordinarily be a basis for non-publication to non-parties “in the interests of justice”. Such an approach would be inconsistent with the statutory regime. 
  12. [108]
    These proceedings and the matters it has raised and which have been agitated publicly no doubt have had an impact on Dr Bird and his family. However, there is no evidence as to the extent of that impact nor its deleterious impact in this case. Ordinarily, the existence of even unfavourable publicity for a party would not be sufficient for the making of a prohibition order “in the interests of justice” with respect to material which otherwise forms part of the record of proceedings. 
  13. [109]
    Orders are already in place to prohibit the publication of any material which may identify any of Dr Bird’s patients and material otherwise relevant to the health of Dr Bird, the publication of which would be publication of confidential information and certainly would be contrary to the public interest. 
  14. [110]
    The Tribunal is not satisfied that it is appropriate to make a non-publication order in the terms requested. 

Orders

  1. [111]
    Accordingly, the decision of the Tribunal is that:
    1. Pursuant to s 196(1)(b)(i) of the Health Practitioner Regulation National Law (Queensland), Dr Bird has behaved in a way that constitutes unsatisfactory professional performance with respect to his diagnosis and treatment of patients JM, PB and DM. 
    2. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland),  Dr Bird is cautioned. 
    3. Dr Bird is to pay the Board’s costs of and incidental to the proceedings in the sum agreed. 
    4. The proceeding is adjourned to a date to be fixed to determine whether any, and if so what, conditions are to be imposed. 
  2. [112]
    The Tribunal will make directions in the following terms: 
    1. Dr Bird must file in the Tribunal five (5) copies and serve on the Board one (1) copy of any further material upon which Dr Bird seeks to rely, by 4.00pm on 7 May 2019.
    1. The Board must file in the Tribunal five (5) copies and serve on Dr Bird one (1) copy of any material and submissions upon which the Board seeks to rely, by 4.00pm on 17 May 2019.
    2. Dr Bird must file in the Tribunal five (5) copies and serve on the Board one (1) copy of submissions upon which Dr Bird seeks to rely, by 4.00pm on 24 May 2019.   

ATTACHMENT A

Conditions are imposed upon Dr Bird’s registration in the following terms:

  1. (a)
    Dr Bird will refer for a second opinion all patients who:
    1. suffer with adult ADHD and a current relevant comorbid psychiatric illness with the potential to be exacerbated by the commencement of stimulant medication.
    2. suffer with adult ADHD and a current relevant comorbid psychiatric illness and to whom it is intended to prescribe Dexamphetamine in excess of 40 mg per day and Methylphenidate in excess of 80 mg per day.

Dr Bird will not, with respect to (i) commence stimulant medication; and with respect to (ii) will not prescribe dexamphetamine in excess of 40mg per day or methylphenidate in excess of 80mg per day, until receipt of the second opinion.

  1. (b)
    Dr Bird will maintain a second opinion register for each such patient referred for a second opinion. 
  2. (c)
    Dr Bird will send a copy of the second opinion register to the Board on the first business day of each month.
  3. (d)
    Dr Bird will allow a representative of the Board to inspect, take and/or copy patient records held at any facility and at which he might from time to time work, at such time(s) as required by the Board, for the purpose of monitoring compliance with these conditions.
  4. (e)
    Dr Bird will advise the Board, in writing, within seven days, in the event that he obtains employment or credentialing at any other facility.
  5. (f)
    Dr Bird must be mentored by another registered health practitioner in relation to the diagnosis and treatment of adult ADHD.
  6. (g)
    For the purpose of this condition, “mentoring” is defined as a relationship in which a skilled registered practitioner (mentor) helps to guide the professional development of another practitioner.
  7. (h)
    The mentoring should comprise a minimum of 12 sessions with each session being a minimum of one hour duration.
  8. (i)
    The mentoring must be for a minimum of 12 months.
  9. (j)
    Within 28 days of the notice of the imposition of these conditions, Dr Bird must nominate, in writing, the name of a mentor(s) to be approved by AHPRA. Dr Bird must ensure:
    1. The nominated mentor(s) is a registered medical practitioner who holds unrestricted registration and holds specialist registration in psychiatry.
    2. The nomination is accompanied by the contact details for each nominated mentor(s) together with a detailed copy of each of the nominated mentor(s) curriculum vitae which demonstrates that the mentor has the necessary training, experience and/or qualifications in order to provide the mentoring required.
    3. The nominated mentor(s) must not be in a close collegiate, family, social or financial relationship with Dr Bird and must not be associated with the practice where Dr Bird is currently employed or any affiliated practices.
    4. The nomination is accompanied by written confirmation from the proposed mentor(s) that they have read these conditions and agreed to the nomination, they are not in a relationship with Dr Bird as described in j(iii) and they agree to provide the report outlined in j(vi) and acknowledge that a copy of the mentor report will be released to Dr Bird by the Board.
    5. The nomination is accompanied by a written mentoring plan outlining the form the mentoring will take, how it will address the Board’s concerns and the proposed schedule for mentoring.
    6. The nomination is accompanied by written acknowledgement from Dr Bird that AHPRA will obtain reports from the mentor. These reports will be provided to the Board and should include details of the number of mentoring session(s) including details of whether or not Dr Bird has, in the opinion of the mentor, satisfactorily participated in and understood the focus of the mentoring. The reports may be obtained at any or all of the following occasions:
      1. every three months;
      2. at the conclusion of the mentoring relationship in order to confirm the outcomes of mentoring;
      3. whenever the mentor has a concern or becomes aware of a concern regarding Dr Bird’s conduct of professional performance; and
      4. when requested either verbally or in writing by AHPRA or the Board.
  10. (k)
    In the event the mentor is no longer willing or able to provide the mentoring required, Dr Bird is to provide a new nomination to the Board in the same terms as previous nominations. Such nomination must be made by Dr Bird within 14 days of becoming aware of the termination of the mentoring relationship.

Footnotes

[1] Medical Board of Australia v Bird [2014] QCAT 411.

[2]  [2013] QCAT 377.

[3] Medical Board of Australia v Bird [2015] QCAT 422.

[4]  Affidavit of Dr Bird sworn 27 February 2017, para 121.

[5]  Ibid, para 122.

[6]  Schedule of Undertaking dated 23 October 2013.

[7]  Supra, para 137.

[8]  Submissions of the applicant dated 7 March 2017, para 37.

[9]  Ibid, para 38.

[10]  Supra, para 38.

[11]  Supra, para 36.

[12]  The CAARS self and observer reports.

[13]  [2013] QCAT 224. 

[14]  Ibid at [6]-[7]. 

[15]  National Law, s 5.

[16]  Submissions of the Applicant filed 8 March 2017, para 40. 

[17] Pharmacy Board of Australia v Arulogun [2013] QCAT 685. 

[18] Medical Board of Australia v Martin [2013] QCAT 376. 

[19]  Affidavit of Professor Coghill dated 31 March 2017. 

[20]  Affidavit of Dr Bird sworn 27 February 2017, para 128. 

[21]  Annexure PB-11 to the Affidavit of Dr Bird sworn 27 February 2017. 

[22]  Annexure PB-14 to the Affidavit of Dr Bird sworn 27 February 2017. 

[23]  Annexure PB-9 to the Affidavit of Dr Bird sworn 27 February 2017. 

[24]  Affidavit of Prof Coghill dated 31 March 2017. 

[25]  Affidavit of Dr Kneeborn dated 31 March 2017. 

[26]  [2017] QCA 42 (Wong). 

[27]  Wong, [35]. 

[28] Health Ombudsman v Antley [2016] QCAT 472 (Antley). 

[29]  Antley, [61]. 

[30]  Transcript of Proceedings dated 29 March 2017, p 5, L 27-28. 

[31]  (2008) 235 CLR 125 (Hearne). 

[32]  Transcript dated 29 March 2017, p 5, L 13. 

[33]  Ibid, page 6, L 31. 

[34]  Ibid, page 15, L 45-47. 

[35]  Ibid, page 16, L 17-19. 

[36]  [2013] QCAT 392. 

[37]  QCAT Act, s 66(2)(e). 

[38]  (2008) 250 ALR 66.

[39]  (2008) 235 CLR 125.

[40]  [1996] 2 VR 335.

[41]  [1983] 1 AC 280.

[42]  Supra.

[43]  [1989] 2 Qd R 509. 

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Bird

  • Shortened Case Name:

    Medical Board of Australia v Bird

  • MNC:

    [2019] QCAT 148

  • Court:

    QCAT

  • Judge(s):

    Sheridan J

  • Date:

    26 Apr 2019

Appeal Status

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

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