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  4. Mahboub v Medical Board of Australia - [2020] QCAT 459

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Mahboub v Medical Board of Australia[2020] QCAT 459

Mahboub v Medical Board of Australia[2020] QCAT 459

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mahboub v Medical Board of Australia [2020] QCAT 459

PARTIES:

AMIRA MAHBOUB

(applicant)

v

MEDICAL Board of australia

(respondent)

APPLICATION NO/S:

OCR399-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 December 2020

HEARING DATE:

16 March 2020

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr J Cavanagh

Ms J Felton

Dr J Osborne

ORDERS:

The decision of the respondent is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where the applicant is a registered medical practitioner – where the respondent imposed conditions on the applicant’s registration pursuant to s 178 of the Health Practitioner Regulation National Law (Queensland) – where the conditions require the applicant to undertake education and be mentored – whether the way the applicant practises medicine or the applicant’s professional conduct is or may be unsatisfactory – whether a reasonable belief of, or proof on the balance of probabilities of, unsatisfactory professional performance is required to ground relevant action – whether the conditions on the applicant’s registration should be changed or removed

Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 178, s 182, s 184, s 186, s 191

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth v Baume (1905) 2 CLR 405

Coppa v Medical Board of Australia [2014] NTSC 48

Da Horta v Podiatry Board of Australia (No 2) [2017] WASC 264

George v Rockett [1990] 170 CLR 104

Hunter v Nursing and Midwifery Board of Australia [2017] NTCAT 109

Kapser v Psychology Board of Australia (No.2) [2015] NTCAT 179

Popovski v Dental Board of Australia (Review and Regulation) [2018] VCAT 73

Shahinper v The Psychology Board of Australia [2013] QCAT 593

Timothy  Lee  v Nursing and Midwifery Board of Australia [2018] SAHPT 21

Turay v Nursing and Midwifery Board of Australia [2020] QCAT 48

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

XDH v Medical Board of Australia (Review and Regulation) [2019] VCAT 377

Satyendranath Keenoo v Nursing & Midwifery Board of Australia [2020] TASHPT 3

Seymour v Nursing and Midwifery Board of Australia [2017] VCAT 901

Yap v Medical Board of Australia [2019] SAHPT 21

APPEARANCES & REPRESENTATION:

Applicant:

F M N Kennedy of Delaney & Delaney

Respondent:

M J Lucey of Clayton & Utz

REASONS FOR DECISION

Introduction

  1. [1]
    Dr Amira Mahboub (the Applicant) is registered as a medical practitioner under the Health Practitioner Regulation National Law. She holds medical qualifications, including a medical doctorate, obtained in Egypt and the United Kingdom and is a fellow of the Royal Australian College of Physicians after advanced training in General and Acute Medicine. The Applicant has practised since 1989. She is a well-qualified and experienced medical practitioner.
  2. [2]
    In November 2018 the Applicant was practising as a visiting medical officer at the Townsville Mater Private Hospital (the Hospital). On 4 November 2018 a 74 year old patient (the Patient) was admitted to the Hospital with a diagnosis of lower left leg cellulitis. The Applicant’s management of the care of the Patient was the subject of a complaint that, after referral by the Health Ombudsman to the Australian Health Practitioner Regulation Agency, was investigated by the Medical Board of Australia (the Board). On 11 November 2019 the Board decided, pursuant to s 178 of the Health Practitioner Regulation National Law (Queensland) (National Law), to impose conditions on the Applicant’s registration. The conditions require the Applicant to undertake education and be mentored. The Applicant has applied to the Tribunal to review the decision of the Board.

Complaint

  1. [3]
    The complaint was made by an adult son of the Patient (the Complainant) on behalf of the Patient on 17 November 2018. The Complainant referred to the Patient’s admission to the Hospital on 4 November 2018 for cellulitis. The Complainant alleged:
    1. (a)
      From her first contact with the Patient on 5 November 2018, the Applicant was “rude and dismissive”, spent less than 2 minutes with the Patient and did not allow him to ask questions about his condition (the Complainant was not present during this consultation).
    2. (b)
      On 6 November 2018 the Applicant was “extremely abrupt”, dismissive of concerns as to the possibility of DVT and the need for an ultrasound. The Patient’s pain had increased from 4 to 10 in the 3 days he had been treated with IV antibiotics and he was unable to walk. “Dr Mahboub scoffed at our concerns and reminded us that ‘she was physician, who knows more than a doctor and way more than a patient’. When I expressed concerns that we felt his condition was getting worse, she replied that he was getting better and she knew by looking at it … and by comparing his blood test results. We asked how that was possible when his blood test results were done in the ER when he presented 3 days ago. She then became extremely agitated and walked out.”
    3. (c)
      The Complainant’s brother reported that on 7 November 2018 the Applicant’s behaviour “was consistent with previous days and said she was extremely unhelpful, once again insisting my Father ‘just had a very mild case of cellulitis’, despite still experiencing pain as a 10 despite being on IV antibiotics now for 4 days and showing no signs of improvement.”
    4. (d)
      “On Thursday 8/11/18, with neither my brother or I present, Dr Mahboub examined my Fathers foot and roughly pulled his sock off causing him extreme pain which caused him to cry out. Dr Mahboub told him he was being theatrical and ‘just needed to harden up a bit’ and left. When I found out that afternoon I approached the nurse on duty Hanna Smith and advised her of the incident and that due to Dr Mahboub’s lack of care and derisive behaviour towards her patient, we no longer wanted my Father to be under her care. Hannah was very helpful and arranged to meet with her superiors in the morning when they were back on duty to discuss the issue.”
    5. (e)
      “On Friday morning, 9/11/2018 Hannah reported the situation to her superior Karen Gerrard, Director of Clinical Services who arranged a meeting with Dr Mahboub and requested a second opinion, which Dr Mahboub refused and immediately discharged my Father from her care. This decision from Dr Mahboub led to my Father being without any medication, including his pain medications, for 5 hours until another doctor was appointed which caused him a great deal of discomfort.”
  2. [4]
    The Complainant then goes on to praise the subsequent care of the doctor who took over the Patient’s care and favourably contrast his bed-side manner with that of the Applicant.

Medical Records

  1. [5]
    I have considered the Patient’s medical records including:
    1. (a)
      Ambulance records, admission documents and admission referral of 4 November 2018;
    2. (b)
      Integrated Notes from 4 to 9 November 2018;
    3. (c)
      Pathology results including haematology chemistry and CRP for 4, 6, 8 and 9 November 2018;
    4. (d)
      Medication charts (exhibit 3);
    5. (e)
      Observations charts (exhibit 4);
    6. (f)
      Ultrasound report of 8 November 2018.
  2. [6]
    I have considered all the Integrated Notes and particularly note the following, expanded if need be for clarity:
    1. (a)
      CRP 140

WBC 14.5 N 8.71

Clinically improved.

Patient reports decreased pain.

Thanks for left leg elevation.

Continue IV antibiotics.

(Applicant’s notes at 1145 on 7 November 2018)

  1. (b)
    Patient reports increased pain since admission and change to top of left foot and sole of left foot. One PRN dose of Endone. (nursing note at 1450 on 7 November 2018);
  2. (c)
    Swelling reduced but still hot to touch. PRN Endone given for pain with good effect. (nursing note at 2100 on 7 November 2018);
  1. (d)
    Improved. Patient complaining of severe pain left foot. Plan ultrasound left lower leg. (Applicant’s note at 1020 on 8 November 2018);
  1. (e)
    A physiotherapist’s note at 1350 on 7 November 2018[1] notes that the Patient is not suitable for progress while pain ongoing;
  2. (f)
    Patient complaining of pain in left lower leg when touched slightly. PRN Endone given at approximately 100 hours with good effect. “Patient requested 2nd opinion D/W Dr Mahboub -> NFO.” (note by M. Sorensen RN at 1445 on 8 November 2018);
  3. (g)
    Patient left lower leg/foot hot to touch. Slightly swollen compared to the right leg. Patient complaining of 5/10 pain. Patient now complaining of right lower leg pain. Patient left leg still red. (nursing note at 0900 on 9 November 2018).
  1. [7]
    The contents of a note by the Applicant at 1010 on 9 November 2018 should be set out in full, with translation by the Applicant:

Ultrasound left lower limb shows no DVT, no collection.

Patient complaining of pain since admission.

Reassurance has not worked, repeatedly.

Spoke to son who agreed he was reassured.

Patient was admitted with very mild cellulitis, not accepted as an inpatient in Townsville Public Hospital, given oral antibiotics.

Accepted here for IV antibiotics -> improved, Patient himself yesterday reported area of cellulitis not painful. Discussed with Megan -> not for second opinion. For discharge this morning.

Impression cellulitis improved, no DVT, no collection

Nil further need to remain in hospital.

Plan For discharge on oral antibiotics GP review.

  1. [8]
    I note the following note at 1203 on 9 November 2018 by Karen Gerrard, Director of Clinical Services:

“Requested to see patient by nursing staff. The patient has requested a second opinion and says he is not ready to go home. Dr Mahboub advised but not wanting to refer. Patient requested to see Dr Otaiku as he has previously looked after his wife. Referral arranged from ED to Dr Otaiku who has advised that he could consult. Patient informed.”

  1. [9]
    Ms Gerrard also made the following note in a feedback report on 9 November 2018:

“I was asked to see the patient by nursing staff as the patient had asked for a referral to a different clinician and the treating doctor Dr Mahboub refused. Before seeing the patient I met with Dr Mahboub who explained the patient had been admitted from ED and she had accepted the care. She advised that she had given required treatment and the patient was not happy. Dr Mahboub said she wouldn’t refer but had arranged for discharge of the patient. I advised that the matter had been escalated to me and I was going to see the patient.

I made it clear I was not there to question her medical care but to answer a patient complaint. The patient advised me that he couldn’t talk to Dr Mahboub and that she didn’t listen to him. When he asked for a second opinion she said he was getting better and could be discharged. The patient was dissatisfied as he had continuing pain and said he couldn’t walk. I advised that his doctor had discharged him and he requested could he be seen by Dr Otaiku who had cared for his wife previously. I met with Dr Otaiku who accepted the care and Dr Gaudin was able to write a referral.”

Applicant’s response to the complaint

  1. [10]
    The Board sought a response from the Applicant to the Patient’s complaint. In an email on 6 March 2019 the Applicant stated as follows:

“I accepted (the Patient) as an admission for cellulitis of his left lower limb under by bedcard via a telephone call from an ED doctor in the Mater Townsville Emergency Department.  He had been refused admission to Townsville General hospital 1-2 days prior and sent home with oral antibiotics as his cellulitis was not considered severe enough for IV antibiotics. 

When I saw (the Patient) the following morning I evaluated him as having mild cellulitis, I continued his IV antibiotics, explaining to him and his son that he would probably be discharged in a few days as his condition was quite mild.  He began complaining of pain in the area of cellulitis and I commenced oral Targin.  At the time I had almost 20 patients admitted under my bedcard, 3 of whom, 2 women and a man in their 70s to 80s, had been admitted with much more severe cellulitis.  The following morning he was also complaining albeit obvious clinical improvement.  If I remember correctly I then upgraded his antibiotic from Flucloxacillin to Taxocin.  He queried a deep venous thrombosis which I explained after examination was not a condition I suspected at that time.  One of his sons came out with me to the nurse station and I again explained my reasoning why I didn’t think it was a DVT and asked him if he was reassured, to which he replied yes.  I spent as much time with this patient and his son/s as with any other patient, probably more so as they seemed quite difficult to deal with and seemingly unable or unwilling to accept my explanations and reassurances.  One or 2 days later he was still complaining about not being able to walk on that foot despite further clinical and laboratory improvement although the nurses were reporting to me that he was able to ambulate.  I explained he had post-inflammatory pedal swelling which was a common occurrence and would resolve in a few days with elevation and a compression stocking.  He was obviously not convinced so I explained I would have an ultrasound of his lower limb done for his own peace of mind and if normal would discharge him on oral antibiotics the following day.  He was very difficult to deal with and became verbally rude that day.  The ultrasound was normal and I ceased his IV antibiotic and commenced oral antibiotics with a plan to discharge him the following day.  I asked his nurse that evening by telephone to fit him with a compression garment and advise him that the ultrasound was normal.

The following day I was then advised that he refused to be discharged and wished to seek a second opinion.  The CEO has been unable/unwilling to secure a Director of Medical Services for many months now and instead has appointed a nurse in this role which is unacceptable and has caused numerous problems thus far.  This nurse spoke to me and I advised her that this gentlemen was clinically improved and I had discharged him.  She then proceeded to refer the patient to another doctor who promptly reinstated IV antibiotics.  I spoke and emailed the CEO outlining my concerns and also spoke to the Medical Advisory Committee (MAC) Chairman who was very unhappy with the actions of this nurse and who asked me to send him an email as he felt this was an appropriate topic to be discussed at the next MAC meeting.  In my email I suggested a policy be formulated to deal with the occasional difficult patient who refused discharge or was difficult, and I was reassured this was officially requested at the meeting.  I also noted the inappropriate use of IV antibiotics which I felt would be addressed if there was an active Antibiotic Stewardship Program in the hospital. 

I note the doctor he was under after me diagnosed him with gout.  I disagree with this diagnosis.  His CRP was decreasing appropriately in line with his clinical improvement and his bloods were normal.  Furthermore giving steroids to any patient will miraculously improve pain regardless of the aetiology.  In my opinion, giving steroids to someone with resolving cellulitis is not best medical practice.  A few days of elevation and a compression garment would have achieved the same results.”

  1. [11]
    The Applicant went on to criticise the doctor who had taken over care of the Patient regarding an irrelevant matter, questioning his level of professionalism, before continuing:

“After I discharged the patient and he was under the care of the other doctor (the Patient) actually greeted me, saying good morning, to which I responded normally – in hindsight and in view of this complaint he was merely taunting me which is in line with his unpleasant interaction since admission. 

Liking a doctor is not synonymous with receiving good medical treatment, something I have noticed especially with GP’s here where often archaic treatments are meted out with full patient approval. (The Patient) has the right to dislike me, he does not however have the right to accuse me of incorrectly treating him.

I have worked in public hospitals all my life, and although there are occasional difficult patients, the number and attitude of patients in private who feel they are entitled to treat doctors, nurses, allied health professionals and pharmacists with rudeness is very telling.  If I spoke to a mechanic or a plumber the way some patients speak to us, they would leave and slam the door.”

  1. [12]
    The Applicant then went on to detail her unpleasant experiences with other patients at the Hospital, before continuing:

“I have and continue to admit patients for purely social reasons if appropriate.  Most of my patients are lovely and continue to see me in my rooms after being discharged however there are many instances of patients lying, being abusive and trying to be manipulative.  The customer is definitely not always right.  In light of the above examples I am now much more selective as to which patients I will accept under my care.  Patients have a right to choose which doctor they want and I have just recently transferred care to another doctor when asked by a lovely patient to do so as he was her long-time physician.  However some patients on being told they will be discharged will try anything to stay longer including malicious complaints. 

I am a very good physician and I will not apologise for a patient’s perceptions of my professionalism or management.  If this patient was not happy with my care from day one as stated he could have requested a transfer of care right then.  I will also not ‘dumb’ myself down to appeal to a subset of mainly 50-70 year old men in QLD who seem to find a confident female physician threatening.  I will definitely not accept abuse from patients or their families.  The decision to admit or discharge a patient is the prerogative of the treating physician, a few patients try to dictate these terms.  Doctors are maligned in the media and have no support in private hospitals which are allowed to be run by accountants and nurses, and are also not supported by AHPRA itself – this state of affairs cannot continue. 

In retrospect I would have definitely not accepted this patient under my care as he and his family were very difficult to deal with.  He can rest assured I will never accept any of them under my care in the future which is my right.  I have also begun notifying my medical indemnity organisation of all rude and abusive patients and relatives, there is no excuse for it if the patient has capacity and it has to stop.  I don’t believe another doctor has to be killed before changes are made.”

  1. [13]
    The Applicant then went on to allege certain inappropriate aspects of medical and nursing culture, querying why they were allowed to continue, before continuing:

“With all respect, considering the number of patients I see and manage with much more complex medical conditions, I fail to see the need to acknowledge those disgruntled patients who have non-serious medical conditions and poor attitudes.  I thought the whole idea of the Ombudsman was to stop these.  I am sick and tired of these useless and time wasting complaints.  This system is not working as agreed to by numerous colleagues who feel harassed and unsupported by the current system.  It is time things change.”

  1. [14]
    By letter dated 24 September 2019, the Board advised the Applicant of its proposed decision to impose conditions on the Applicant’s registration. In such letter it was stated:

“3.  Having considered all the information, the Board places weight on the contemporaneous evidence of the medical records and the Hospital complaint report and finds that Dr Mahboub’s performance was below the standard reasonably expected for the following reasons:

  1. a.
     Apart from ordering an ultrasound to rule out DVT, Dr Mahboub did not consider (the Patient)’s complaints of increasing pain and reduced mobility. This constitutes a failure to comply with sections 2.2.5 and 3.3.1 of the Code of Conduct, which states the importance of communicating effectively with patients that includes listening to patients and asking for and respecting their views about their health and responding to their concerns.
  1. b.
     Dr Mahboub did not consider and respect (the Patient)’s views with regards to the management of his health, as she made the decision to discharge him, despite being informed on 8 and 9 November 2018 of (the Patient’s) request for a second opinion. This constitutes a failure to comply with sections 2.1.3, 2.1.5 and 2.2.8 of the Code of Conduct, which states the importance of acknowledging and respecting a patient’s right to make their own decisions about their health and to seek a second opinion, and to facilitate the coordination and continuity of care of patients.’
  1. [15]
    In response, Kennedys, on behalf of the Applicant, by letter dated 14 October 2019, stated:

“1. In its reasons for decision the Board has found Dr Mahboub refused the patient’s request for a second opinion. That finding is not correct, although we accept that the circumstances surrounding this have not been adequately explained by Dr Mahboub in her previous response.

Dr Mahboub agrees that the patient requested a second opinion. Dr Mahboub did not refuse the patient’s request, however she did inform him that, given his request, it was appropriate that she discharge him from her care. This was consistent with the usual practice at the Mater Hospital at that time. She also told the patient that she would hand his file over to the nurse unit manager to facilitate the seeking of a second opinion, again being consistent with the usual practice of the hospital.

On the basis of the above facts it is clear that Dr Mahboub has in fact complied with her obligations as set out in section 2.2.8 of Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code).”

  1. [16]
    Kennedys then addressed the finding that the Applicant had failed to comply with sections 2.2.5 and 3.3.1 of the Code by failing to consider the Patient’s complaints of increasing pain and reduced mobility. They submitted that the Applicant clearly did consider the patient’s complaints and these were taken into account in her assessment of the treatment recommendations. The fact that the Patient disagreed with her clinical assessment did not mean that the Applicant failed to comply with her obligations referred to in the Code.
  2. [17]
    Kennedys then stated as follows:

“3.  The Board has also found that Dr Mahboub failed to comply with sections 2.1.3 and 2.1.5 of the Code.

We believe that the above submissions apply equally to these sections of the Code and that the Board should not conclude that Dr Mahboub has failed to comply. We do however accept that on the basis of the inadequate explanation in Dr Mahboub’s previous response regarding the discharge of the patient from her care and facilitating of a second opinion, it was reasonable for the Board to make the proposed findings that it did. We submit that on the basis of the additional information provided in the submissions, no findings adverse to Dr Mahboub should be made.

In summary there appears to have been some confusion around Dr Mahboub’s “discharge” of the patient and an alleged refusal to refer him for a second opinion.”

Board’s decision

  1. [18]
    By letter to the applicant dated 15 November 2019, the Board advised of its decision on 11 November 2019 that the Board had formed a reasonable belief under s 178(1)(a)(i) of the National Law that the way the applicant practises the health provision is unsatisfactory and decided to impose conditions on the applicant’s registration. The reasons for the decision included the following:

“3.  Having considered the information, the Board placed weight on the contemporaneous evidence of the medical records and the Hospital complaint report and found that Dr Mahboub’s performance was below the standard reasonably expected for the following reasons:

a. Apart from ordering an ultrasound to rule out DVT, Dr Mahboub did not to [sic] consider (the Patient’s) complaints of increasing pain and reduced mobility. This constitutes a failure to comply with sections 2.2.5 and 3.3.1 of the Code of Conduct, which states the importance of communicating effectively with patients that includes listening to patients and asking for and respecting their views about their health and responding to their concerns. 

b. Dr Mahboub did not consider and respect (the Patient)’s views with regards to the management of his health, as she made the decision to discharge him, despite being informed on 8 and 9 November 2018 of (the Patient)’s request for a second opinion.  This constitutes a failure to comply with sections 2.1.3, 2.1.5 and 2.2.8 of the Code of Conduct, which states the importance of acknowledging and respecting a patient’s right to make their own decisions about their health and to seek a second opinion, and to facilitate the co-ordination and continuity of care of the patient.

  1.  In light of the above, the Board proposed that Dr Mahboub:

a. undergo education to assist her to develop ways to communicate effectively with patients, and how to appropriately deal with difficult patients.

b. undergo a period of mentoring to ensure that Dr Mahboub has the benefit of one-on-one discussions and exploration of the proposed topics of listening and responding to patient concerns, respecting a patient’s right to make their own decisions about their health treatment and to seek a second opinion, and to facilitate the co-ordination and continuity of patient care. 

  1. The Board considered Dr Mahboub’s show cause response with regards to her refusal to refer (the Patient) for a second opinion, in which she submits:

a. She did not refuse (the Patient)’s request for a second opinion; however, she did inform him that given his request, it was appropriate that she discharge him from her care.

b. She also informed (the Patient) that she would hand over his file to the nurse unit manager to facilitate the seeking of a second opinion.

  1.  The Board does not accept Dr Mahboub’s submission for the following reasons:

a. Dr Mahboub states in her submission that she discharged (the Patient) from ‘her care’ and informed him that ‘she would hand his file over to the nurse unit manager to facilitate the seeking of a second opinion’.  However, this is not consistent with the contemporaneous medical records dated 9 November 2018, which showed that Dr Mahboub discharged (the Patient) from hospital.  Specifically, she has documented: ‘D/C [discharge] this am” and “no further need to remain in hospital.”

b. Further, the DCS has recorded on the Hospital complaint report dated 9 November 2018 that she spoke with Dr Mahboub about referring (the Patient) for a second opinion and that ‘Dr Mahboub said she would not refer but had arranged for discharge of the patient.’

  1. The Board considered Dr Mahboub’s response regarding her communication with (the Patient), in which she submits:

a.  She attempted to communicate effectively with (the Patient), however he was a difficult patient who did not accept or respond to her communication.  Accordingly, she submits that she should not be penalised for this.

b. She did consider (the Patient)’s complaints, and these were considered in her assessment of the treating recommendations.  Accordingly, whilst she accepts that (the Patient) disagreed with her clinical assessment, this does not mean that she failed to comply with her obligations in the Code of Conduct.

  1.  The Board does not accept Dr Mahboub’s submission for the following reasons:

a. The Board reasonably believes that Dr Mahboub did not listen to and consider (the Patient’s) complaints of pain and reduced mobility because:

i. The physiotherapist and nursing notes confirm on 6 November 2018 that he was complaining of increased pain and reduced mobility;

ii. The DCS recorded on the Hospital complaint report dated 9 November 2018 that (the Patient) informed her that he ‘was dissatisfied as he had continuing pain and said he couldn’t walk.’

iii. Whilst it is noted that Dr Mahboub recorded on 8 November 2018 that (the Patient) complained of ‘severe pain’ in his left foot and referred him for an ultrasound scan to rule out DVT, she did not do anything further to address (the Patient)’sconcerns.

  1. In light of the above, whilst the Board notes that patients may be difficult, it is still a medical practitioner’s responsibility to listen to patients, respect their views, acknowledge a patient’s right to seek a second opinion and to facilitate the coordination and continuity of care of patients.  The Board has therefore decided to impose education and mentoring conditions on Dr Mahboub to protect the public by ensuring that she effectively communicates with patients and respects their rights regarding the management of their health.
  1. The Board does not hold the reasonable belief that Dr Mahboub has behaved in a way that constitutes professional misconduct, and therefore, the matter does not need to be referred to the Health Ombudsman or Tribunal.
  2. The Board is of the view that it is not necessary or appropriate to refer the matter to a panel.  The concerns about Dr Mahboub’s performance do not warrant action being taken that is more serious than what the Board can take under s 178.”

Code of Conduct

  1. [19]
    The reasons for decision of the Board, quoted above, refer to certain provisions of the publication of the Board, “Good Medical Practice: Code of Conduct for Doctors in Australia” which follow:

“2 Providing good care

2.1 Introduction

In clinical practice, the care of your patient is your primary concern. Providing good patient care includes:

…

2.1.3 Facilitating coordination and continuity of care.

…

2.1.5 Recognising and respecting patients’ rights to make their own decisions.

…

2.2 Good patient care

Maintaining a high level of medical competence and professional conduct is essential for good patient care.  Good medical practice involves:

…

2.2.5  Communicating effectively with patients (see Section 3.3). 

…

2.2.8  Supporting the patient’s right to seek a second opinion.

…

3 Working with patients

…

3.3 Effective communication

An important part of the doctor – patient relationship is effective communication.  This involves:

3.3.1 Listening to patients, asking for and respecting their views about their health, and responding to their concerns and preferences.”

Section 178 of the National Law

  1. [20]
    Section 178 of the National Law relevantly provides as follows:

“178National Board may take action

  1. (1)
     This section applies if—
  1. (a)
     a National Board reasonably believes, because of a complaint or for any other reason—
  1. (i)
     the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory;

… and

  1. (b)
     the matter is not required under division 12, subdivision 1 to be referred to the health ombudsman or a responsible tribunal; and
  1. (c)
     the Board decides it is not necessary or appropriate to refer the matter to a panel.
  1. (2)
     The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student—
  1. (a)
     caution the registered health practitioner or student;
  1. (b)
     accept an undertaking from the registered health practitioner or student;
  1. (c)
     impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner—
  1. (i)
     a condition requiring the practitioner to complete specified further education or training within a specified period; or
  1. (ii)
     a condition requiring the practitioner to undertake a specified period of supervised practice; or
  1. (iii)
     a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
  1. (iv)
     a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
  1. (v)
     a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
  1. (vi)
     a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
  1. (d)
     refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
  1. (3)
     If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition.”
  1. [21]
    Section (3)(c) of the National Law states a guiding principle that “restrictions on the practice of a health profession are to be imposed … only if it is necessary to ensure health services are provided safely and are of an appropriate quality”.
  1. [22]
    Section 3A of the National Law provides for a paramount guiding principle that the main principle for administering the National Law is that the health and safety of the public are paramount. 
  2. [23]
    An issue requiring determination is the proper construction of the terms of s 178(1)(a)(i) of the National Law.  The applicant submits that, notwithstanding the provision refers to whether a Board “reasonably believes” that the way a health practitioner “practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory”, the provision should be construed so that the Board, and this Tribunal standing in the place of the Board on this review, must be satisfied on the balance of probabilities that the way a health practitioner practises the health profession, or their professional conduct, is unsatisfactory, relying upon the decision of the Northern Territory Civil and Administration Tribunal (NTCAT) in Kapser v Psychology Board of Australia (No.2).[2]
  3. [24]
    In Kapser the applicant sought a review of a decision of the respondent Board to caution her and to impose certain conditions upon her registration as a psychologist.  The decision was made pursuant to s 178 of the Health Practitioner Regulation National Law (NT), which is in relevantly identical terms to s 178 of the National Law.  NTCAT identified a question regarding the proper construction of s 178 of the National Law:

“35. Section 178 …, which does not appear to have been the subject of authoritative consideration in any Australian jurisdiction, presents real difficulty in the circumstances of this case.  Specifically, it is unclear what state of mind must be formed by the Board (and therefore by NTCAT ‘standing in the decision maker’s shoes’ on a review) before it is empowered to take disciplinary action against a practitioner.

36. On one reading of s 178 – for which the Board contends – disciplinary action could be taken against Ms Kapser in the circumstances of this case on the basis of a reasonable belief on the part of the Board (or NTCAT) that her professional conduct may have fallen below the required standard.  Ms Kapser, on the other hand, contends that the necessary state of mind is persuasion on the balance of probabilities that her conduct did fall below the required standard.

…

The nature of the belief required for the purposes of section 178(1)(a)(i)

  1. Ostensibly, section 178(1)(a)(i) sets a very low bar in terms of the state of mind the Board must have in order for s 178 to ‘apply’.  At the bar’s lowest setting, it appears that the Board (and NTCAT standing in the Board’s shoes) need only reasonably believe that the way a practitioner practises the health profession, or the practitioner’s professional conduct, may be unsatisfactory.
  2. It is well-established, including for the purposes of other provisions of the National Law, that a requirement for a reasonable belief in a state of affairs does not always entail actual persuasion on the balance of probabilities.
  3. Thus, in Coppa v Medical Board of Australia [2014] NTSC 48, which concerned the requirement in section 169 of the National Law of a reasonable belief as a precursor to the Board requiring a practitioner to undergo a health assessment, Barr J observed as follows (omitting citations, underlining added):

[51] The only limitation to Division 9 being utilized to require a health assessment is the Board’s reasonable belief under s 169 that the registered health practitioner has or may have an impairment.  In that context I turn to consider the plaintiff’s submission that the defendant did not have a reasonable belief as to the plaintiff’s impairment.  An important matter to note is that s 169 requires that the defendant reasonably believe that the plaintiff has or may have an impairment.  The words “or may have” clearly indicate that reasonable belief as to the possibility of an impairment is sufficient. 

[52] Both counsel have referred me to the decision of the High Court in George v Rockett, for the legal meaning of the word “belief”:

Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

[53] In George v Rockett, the Court described the difference between suspicion and belief, and explained that the facts which can reasonably ground a suspicion may be insufficient reasonably to ground a belief.  Nonetheless, the objective circumstances to ground the belief need not “establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.”  In that context, the Court made the statement extracted in [52] as to the meaning of, and grounds necessary for, “belief”. 

[54] Therefore, the matters the subject of belief do not need to be proven on the balance of probabilities.  It is necessary that the Board hold a reasonable belief about the requisite matters, not about whether those matters were the fact.  Most decisions in respect of such matters would be made on incomplete evidence which has not been tested or fully tested, leaving at least something to “surmise or conjecture”.

  1. If the reasoning in Coppa is applied without qualification to the interpretation of section 178(1)(a)(i) then a reasonable belief on the part of the Board as to the possibility:

a. that the way a practitioner practices the health profession; or

b. that that [sic] the practitioner’s professional conduct;

is unsatisfactory, is sufficient – assuming the requirements of section  178(1)(b) and (c) and section 179 are otherwise met – to ground action under section 178(2).”

  1. [25]
    NTCAT then noted the competing submissions of the parties as to the proper construction of the provision.[3] NTCAT went on to discuss what it considered other difficulties affecting the interpretation of s 178.[4] NTCAT considered[5] other provisions of Part 8 of the National Law before stating as follows:

“Section 178 must be viewed in context

  1. When section 178 is viewed in the context of its place in the National Law, and in particular on the basis of an assumption that the Board will at all times act on the basis of proper regard to those powers, discretions and obligations under Part 8, the uncertainties and potential absurdities regarding its operation fall away.
  2. Although section 178 purports in terms to confer power on the Board – and undoubtedly does so – it is better understood as the facultative. The section allows the Board to act in an appropriate case and at an appropriate time, but does not permit it to act in such a way as to subvert the processes otherwise established by Part 8.
  3. Thus, for the purposes of s 178(1)(a), the fact the Board has a ‘reasonable belief’ that a practitioner’s professional conduct ‘may be unsatisfactory’ – will not be an occasion for action under s 178(2) if, under Part 8, there is a more appropriate response to such a belief. In matters involving factual disputes that have not been the subject of an investigation or assessment, the appropriate response to such a belief will likely be a reference to an investigator or assessor. In such matters where there has been an investigation or assessment, the appropriate response to such a belief may be for the matter to be referred to a panel.
  4. Usually, some such further action by the Board is likely to be the proper course.
  5. There may, however, be circumstances where it is quite appropriate to the Board to act on the basis only of a belief that a practitioner’s conduct may be unsatisfactory. A practitioner might for example be prepared, without admitting unsatisfactory conduct, to agree to the Board taking action under s 178(2). A requirement in such circumstances for the Board to be positively satisfied of unsatisfactory conduct would be counter-productive.
  6. Apart from those sorts of cases, however, the belief most often necessary for the purposes of section 178(1)(a)(i) of the National Law, in order to support action by the Board under section 178(2), will be actual persuasion (that is, on the balance of probabilities) that the way a practitioner practises the health profession, or the practitioner’s professional conduct is unsatisfactory, not simply that it may be. Such a persuasion will usually, although not always, follows some sort of investigative action (involving deployment of the tools available to the Board under Part 8).” (footnotes omitted)
  1. [26]
    NTCAT ultimately ruled as follows:

“101. In the panel’s view, in the circumstances of this case, action under section 178(2) of the National Law may only be taken against Ms Kasper if NTCAT (standing in the Board’s shoes) is satisfied, on the balance of probabilities that the way she practises the health profession, or that her professional conduct, is unsatisfactory. The significance of such a finding and the seriousness of its consequences mean that there should be proof by reliable material.

  1. In addition (there be no question of professional misconduct - see section 178(a)(1)(b)), NTCAT must decide for the purposes of section 178(1)(c), that it is not necessary or appropriate for Ms Kasper’s matter to be referred to a panel under section 182 of the National Law.”

(footnote omitted)

  1. [27]
    The Applicant relies upon Kapser in submitting that, before the Tribunal could take action against the applicant pursuant to s 178(2) of the National Law, it must be satisfied “on the balance of probabilities” that the way the Applicant practises her health profession, or that her professional conduct, is unsatisfactory, not simply that it may be.  The applicant further relies upon Kapser in submitting that the Briginshaw standard of proof applies in deciding whether it is so satisfied. 
  2. [28]
    The respondent submits that Kapser ought to be considered an unorthodox interpretation of s 178(1)(a)(i) of the National Law, and an outlier, and ought not be followed.  It is submitted that the interpretation adopted in Kapser is inconsistent with ordinary principles of statutory interpretation that all words within a statutory provision are to be given their meaning and effect and that courts are not at liberty to consider words to be superfluous or insignificant.[6]  To adopt the Kapser interpretation is to seek to ignore and/or render superfluous the explicit inclusion of the words “or may be” in s 178(1)(a)(i) of the National Law.  The respondent submits that such interpretation has not been applied or adopted in any other decision in any other Australian jurisdiction, whilst the contrary interpretation contended for by the Board is an interpretation of almost universal adoption across all relevant Australian jurisdictions applying the National Law.  The respondent cites the decisions of this Tribunal in AMS v Medical Radiation Practice Board of Australia (No.2)[7] and Turay v Nursing and Midwifery Board of Australia[8]  and the decision of the Supreme Court of Western Australia in Da Horta v Podiatry Board of Australia (No.2).[9] 
  3. [29]
    The effect of the construction of s 178(1)(a)(i) of the National Law adopted by NTCAT in Kapser has some attraction because of considerations of fairness. Why should a Board, merely on the basis of a reasonable belief that a practitioner’s practice may be unsatisfactory, be empowered to place conditions on the practitioner’s registration, whereas a panel, after a hearing if requested by the practitioner,[10] at which the practitioner may be accompanied by a legal practitioner and legally represented if leave is given,[11] may only do so if it decides, presumably on the Briginshaw standard of proof, that a practitioner has behaved in a way that constitutes unsatisfactory professional performance?[12]Such considerations underlay the conclusion of NTCAT in Kapser that in circumstances such as that of the Applicant, the Board should consider referral of the matter to a panel for such a more rigorous process of consideration or, if it chose to determine the matter itself, would apply the same standard of proof and determine the same question as a panel. Such a construction is consistent with the guiding principle that the National Law operate in a “fair way”.[13] 
  4. [30]
    Nevertheless, I accept the submissions of the respondent as to the proper approach to statutory interpretation and that an application of such principles results in the construction of s 178(1)(a)(i) of the National Law that has been applied previously by this Tribunal in AMS and Turay and by the Supreme Court of Western Australia in Da Horta v Podiatry Board of Australia (No.2).[14] Such construction has also been adopted by NTCAT in Hunter v Nursing and Midwifery Board of Australia,[15] the Health Practitioners Tribunal of South Australia in Timothy  Lee  v Nursing and Midwifery Board of Australia[16] and Yap v Medical Board of Australia,[17] the Victorian Civil and Administrative Tribunal in Seymour v Nursing and Midwifery Board of Australia,[18] Popovski v Dental Board of Australia (Review and Regulation)[19]and  XDH v Medical Board of Australia (Review and Regulation)[20]and the Tasmanian Health Practitioners Tribunal in Satyendranath Keenoo v Nursing & Midwifery Board of Australia.[21]  I should not depart from these previous decisions unless convinced they are wrong and that the decision of Kapser is right.  I am not so convinced.  The Board, and the Tribunal standing in its shoes on this review, need only form a reasonable belief that the way the Applicant practises the health profession, or the applicant’s professional conduct, is or may be unsatisfactory.  Neither the Board, nor the Tribunal standing in shoes on this review, need be satisfied on the balance of probabilities that the way the Applicant practises her health profession, or the Applicant’s professional conduct, is unsatisfactory. 

Nature of the review

  1. [31]
    In conducting its review of the Board’s decision, the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.[22] 
  2. [32]
    The Tribunal is able to consider material that was not before the Board and has had regard to further evidence adduced by the Applicant. 

Evidence of the Applicant

  1. [33]
    The Applicant produced impressive references from colleagues as to her professional performance including interpersonal and communication skills with patients.
  2. [34]
    The Applicant filed a large quantity of correspondence regarding other complaints and other contentious correspondence concerning matters unrelated to the review.
  3. [35]
    The Applicant filed other correspondence with persons praising her skill and sensitivity in dealing with particular patients.
  4. [36]
    The Applicant produced evidence as to the difficulties she faced in obtaining clinical placements because of the conditions upon her registration.
  5. [37]
    The Applicant gave evidence during the hearing. She gave evidence of her understanding as to the procedures for referral and discharge of patients at the Hospital.[23]
  6. [38]
    The Applicant referred to the Patient’s haematology pathology results as showing that he was improving clinically in response to antibiotics.[24] She referred to the CRP results as also indicative of the Patient’s clinical improvement.[25] She was critical of the diagnosis of gout by the doctor who took over the patient’s care and questioned some of the subsequent clinical management.[26] She explained the medication regime of the Patient during her care of him and his subsequent management.[27] She referred to the contents of the observation chart as providing objective clinical evidence of his stable clinical state.[28]
  7. [39]
    The Applicant was taken to that part of the letter from Kennedys to the Board dated 14 October 2019 quoted in paragraph [15] of these reasons. The Applicant testified that, contrary to the terms of the letter, the Patient never asked her for a second opinion. She stated there must have been a communication breakdown between herself and the author of the letter.[29] Her evidence as to what actually occurred was as follows:

“I actually – the last time I saw the patient was on the 8th of November, when we had agreed – I think I trying to build some rapport – we had agreed that if the ultrasound – that I would do the ultrasound for him, and that if it were normal, was he happy to be discharged the following day on oral antibiotics, to which he agreed.

…

He never asked me for a second opinion. The patient’s son once came out with me to the nurse’s station and asked if he could talk to me about the – his fear of the DVT, of the deep venous thrombosis or the clot in the leg. And I reassured him, but I said to him, look, if things do, you know, get worse and there’s any more concern, it’s not actually in stone; we could always do that. And I actually did it, even though I knew, clinically, there was no DVT, but I did it to reassure him. And I even did it in a laughing manner than day. I was, like, I don’t think you’re going to be convinced unless I do the ultrasound, but everything is fine. And we did it. You know, he said to me that day, there’s no – there’s no – there’s no pain now when I touch the cellulitis. And he also – well, in some parts – I think the rapport was growing – that he would never elevate his legs, except, you know, he’d always be, like, I’m not elevating them. Said, look, I’ve elevated them, it’s good, you know, the skin is – the skin is toughening up, and that’s why you probably can’t, you know – the pain is gone.”[30]

  1. [40]
    The Applicant was taken to her email of 6 March 2019 in which she stated:

“The following day, I was then advised that he refused to be discharged and wished to seek a second opinion.”

  1. [41]
    The Applicant gave evidence as follows:

“I think I saw him on the 8th of November and we had already made the plan. He would get the ultrasound actually that day, and if it was normal, that he would be discharged the following day of all antibiotics. I think that night, I think one of – I think of the nurses called me and said he might – she may have mentioned a second opinion. I actually thought she was confused. I said, ‘No, no, no, we’ve already met.’ We’ve already decided he’s happy to get the ultrasound. If it’s normal, he’s happy to go home the next day. I even said to her, ‘By the way, has he had the ultrasound already?’ She said yes. I said, ‘What does it show, the report?’ She said no – I said, ‘Could you just reassure him and just tell him that as agreed, that we’ll be – he’ll be discharged the following day.’ When I came the following day, I was taken aback. I was surprised.

Did you see him? – I didn’t see him at all. I asked to see him. I asked permission to see him, which was refused. Then I was told he wants a second opinion. My first response was, ‘What for? What for? Everything’s fine. He’s improving clinically, his bloods are improving, there’s no DVT or collection or any other cause of pain.’ To be honest, I was – I couldn’t understand why. And then – and then I was – I think I was kept being ask for – I said, ‘What referral? We don’t do referral letters.’ I said, ‘If he doesn’t want me, fine, but to be honest, he was medically clear for discharge.’”

  1. [42]
    The Applicant testified that the patient and his family were difficult.[31]
  2. [43]
    The Applicant gave evidence of difficulties in obtaining placements because of the conditions on her registration.[32]
  3. [44]
    The Applicant was cross-examined as to the inconsistency between her evidence and what was stated in the letter from Kennedys dated 14 October 2019.[33]
  4. [45]
    The Applicant was cross-examined about her knowledge any request by the patient for a second opinion and the terms of the nursing note at 14.45 on 8 November 2018. She agreed that “NFO” could mean “no further orders”. Her recollection was that any such conversation with the nurse occurred over the telephone when the Applicant was not at the hospital.[34] When pressed that the Patient wanted a second opinion, the Applicant gave evidence as follows:

“No, I would look at as not a second opinion. I would look at as he refused to be discharged, and you – and did request for a second opinion. But the main point was that he refused to be discharged as agreed to. I think that’s the crux of the matter, to be honest. Because, the thing is, when we met and we’d already discussed that he was medically fit for discharge and he’d agreed, to suddenly about face, the very next morning and – and me here, ‘Oh, I want a second opinion.’ This is not the first time it’s happened, but it’s very, very strange when we’ve already agreed to it. So although the second opinion was used, I would look at as a refusal to be discharged.”[35]

  1. [46]
    The Applicant was taken to her note on 9 November 2018. It was suggested that it was her intention that the patient be discharged from hospital. The applicant replied:

“Absolutely. Absolutely. That was my intent and that was my clinical evaluation, that he was medically cleared and did not need to remain in hospital, and this was also discussed with probably Megan, the director of nursing, because this is not the first time that a patient has refused to be discharged. However, my job is that if then comes and says, ‘No, I don’t want to be discharged. I want a second opinion’, my role then is I’m like, ‘That’s fine.’ There is no second opinion process in the hospital. He would be discharged from my care and then the nurse would find another accepting doctor and he would be accepted by the other doctor. But definitely my … clinical … evaluation is that he no longer needed to remain in hospital, yep.”[36]

  1. [47]
    The Applicant rejected the contention that she was effectively washing her hands of the Patient and saying that ‘He’s right to be discharged from the hospital … I want nothing further to do with him’”.[37]
  2. [48]
    The Applicant maintained her evidence that she did not actually get to see the Patient on the morning of 9 November 2018.[38]
  3. [49]
    The Applicant was questioned as to that part of her note of 9 November 2018 where it seemed the words, “not for second opinion”, had been crossed out and testified:

“I think it meant what I’ve written there, that it was discussed with Megan on the night before, not for a second opinion, and for discharge this am. So I think that’s what I relayed to her on the telephone yesterday, as far as I – as far as I remember. If this is the Megan, that was the nurse that called me the previous night.

So it’s not referring to a discussion that morning with Megan? – No. No. No, this was referring to the discussion the previous night.

Why did you write not for second opinion and then cross it out? – Because I knew that this was going to – usually, when you have – you always have a feeling that people may cause problems or something. And then I thought – well, if I don’t – if I write, ‘Not for second opinion,’ they’ll say, ‘You refused a second opinion’. Like, and so I said, ‘For discharge this am.’ He’s allowed to have a second opinion.

But you say there’s no procedure for a second opinion? – There is no procedure for a second opinion. What it would be would that he would be discharged from myself and then they would find another accepting doctor to take over care…

I thought your evidence towards the earlier part of your evidence was that you’d just hand the file to a nurse - ? – Yes.

– and that nurse would hand it to another doctor, and then they change the name of the sticky? – Yes. Yes, that’s exactly the way. If they accepted the patient, they would hand it over and they would change it on the sticky.

Well, that’s a procedure for a second opinion, isn’t it? – No.

It’s one you described in your evidence? – No. No. The second opinion – it wouldn’t be second opinion. Second opinion to me implies that they’re still under me, but they’re been seen by another doctor….”[39]

  1. [50]
    The Applicant explained that she was distinguishing between a transfer of care and a second opinion.[40] The Applicant explained that what she recorded as her “Impression” in the note on 9 November 2018 was not an impression from seeing the patient that morning:

“So you were recording an impression without seeing the patient? You were recording an impression - ? – From the previous night.

-and the plan? – Yes, from the previous night. From – I’d only seen him on the previous night.

Right? – Because that was the plan. And, very often – very often in hospitals – even in public hospitals – I can do something called a nurse-led discharge. So if I see that the patient is stable, I can tell the nurse, ‘This patient will be discharged tomorrow. If there’s no problems with, you know, fever or the blood pressure’s not stable, he can be discharged. He doesn’t need to be seen again.’ That’s - even in public hospitals, that happens.

Had you – is this after you’ve asked whether you can go see the patient and you’ve been told no? – This is probably before. This is probably when I was just told he wanted a second opinion. I was actually a bit exasperated and I wrote this. And then they said, ‘No, he wants’ – ‘Can I go in and see him? Can I discuss it with him?’ They said, ‘No, he doesn’t want you to – he doesn’t want to see you.’ I said, ‘Fine. Then I will discharge the patient and you find another doctor who he wants to see.’

You didn’t hesitate in recording an impression and a plan for discharge without having actually seen the patient? – Sorry?

On that morning -? – Yes.

- when you were making the note, you didn’t – ‘No, I didn’t.’

- have a concern about recording an impression and - ? – No, at all, because –

-a plan without having seen the patient? – Absolutely. Because you see the obs chart. If there is any suspicion of deterioration, you’ll see that on the obs chart. You’ll see it in the nurse’s notes. And all his bloods were normal. All his bloods were normalised. No, I had no – absolutely no problem.”[41]

  1. [51]
    The Applicant disputed the accuracy of the notes made by Karen Gerrard on 9 November 2018.[42]
  2. [52]
    When taken to that part of her note of 9 November 2018 referring to reassurance of the Patient’s son, the applicant testified would have been a reference to a discussion with the Patient’s son on 6 November 2018, not the morning she made the notes.[43]
  3. [53]
    The Applicant maintained the validity of her clinical conclusions as to the fitness of the patient for discharge notwithstanding his complaints of pain as reported by the Patient and his son and as referred to in parts of the medical records.[44]
  4. [54]
    The Applicant gave evidence that she viewed the complaint as being a malicious complaint originating from Karen Gerrard.[45]
  5. [55]
    The Applicant was cross-examined about the contents of her email of 6 March 2019.  She was taken to that part of the email, not quoted earlier in these reasons, in which she detailed unpleasant experiences with other patients of the Hospital.  She rejected the proposition that she described instances consistent with her difficult interactions with the Patient.[46]  She was taken to material she had placed before the Tribunal regarding an unrelated complaint and did not accept that the substance of the complaint was again consistent with the complaint by the Patient regarding her behaviour.[47]  I should note at this point as follows.  Whilst there does appear to be some consistency in the nature of other patient complaints regarding their interactions with the Applicant, I am not in a position to make any reliable assessment as to the validity of those other complaints.  I have not used the evidence concerning those other complaints adversely to the Applicant in making findings as to the conduct the subject of the Patient’s complaint. That part of her email and the other material regarding other complaints is only relevant insofar as the flavour of the
    Applicant’s writing provides insight as to the Applicant’s attitude to and reaction to patients and patient complaints, whether such complaints be valid or not.
  6. [56]
    The Applicant did not accept the proposition put to her that her relationship with colleagues and patients is fine until someone questions her authority or questions her clinical judgment leading to a deterioration in the relationship.[48]
  7. [57]
    The Applicant gave evidence that she did take into account, amongst other factors, the patient’s complaints of increasing pain and reduced mobility.[49]
  8. [58]
    I have not attempted to summarise all of the Applicant’s evidence but I have considered all of her evidence.

Board’s submissions

  1. [59]
    The Board submitted that the Applicant did not impress as a credible and reliable witness.  The Applicant sought to downplay or disavow evidence when it was not convenient to the circumstances of her case including her own previous evidence.  That was most apparent in her seeking to disavow the submissions previously provided by Kennedys on 14 October 2019 and her explanation that Kennedys substantively misconceived her instructions was simply not credible.  The Board submitted that there were clear inconsistencies between the Applicant’s original submissions to the Board on 6 March 2019 and the submissions subsequently prepared by Kennedys.  It was submitted that the inference that should be drawn is that once the Applicant’s original submissions were considered by her legal representatives, she sought to substantively backtrack from them and mitigate the damage done by them.
  2. [60]
    The Board submitted that the Applicant’s submissions of 6 March 2019 would themselves give the Tribunal significant concerns as to whether the way the Applicant practises the profession, or her professional conduct, is or may be unsatisfactory, in terms of her views of, and dealings with, patients. Such comments could not be dismissed on the basis that she was frustrated at the time.  The Applicant is clearly an intelligent and well-educated person who would have clearly understood what she was expressing to the Board.  The content of the submissions by the Applicant on 6 March 2019 are concerning insofar as they reflect the Applicant’s views of patients and patients’ rights to raise complaints or be dissatisfied with care.  The Board submitted that a consideration of all the evidence before the Tribunal would lead to a conclusion that the Applicant is a practitioner who does not tolerate views which clash with her own.  The Applicant presented as a practitioner who does not deal well with other practitioners or persons challenging her opinion, as exemplified by her earlier demand for the qualifications of the Board members who made the decision and her attack upon the doctor who took over the patient’s care.
  3. [61]
    The Board submitted that there was nothing in the Applicant’s submissions or evidence which would cause the Tribunal to doubt the version of events given by the Patient. The account of the Patient and nursing staff of the Hospital should be preferred where it conflicts of that of the Applicant.  The Tribunal would find that the Patient had requested a second opinion and the Applicant had responded by discharging him from hospital.  The Board submitted that the Tribunal would comfortably form the reasonable belief that the way the Applicant practises the profession or her professional conduct is or may be unsatisfactory, such that she requires conditions on her registration of the type imposed by the Board at first instance.  Such conditions are targeted to the specific concerns in respect of the Applicant’s views on patient rights and how that informs her dealings with patients.  The conditions imposed by the Board are very much balanced and proportionate to the concerns raised in respect of the Applicant’s conduct and are no more onerous than required in the circumstances.  Given the content of the Applicant’s evidence during the course of the hearing, the Tribunal could not be satisfied that the experience of the practitioner having to go through the Tribunal process has, of itself, led to a genuine development of insight or understanding of her conduct.  The decision of the Board should be confirmed.

Applicant’s submissions

  1. [62]
    The Applicant’s solicitors have provided written submissions dated 16 March 2020, 30 March 2020 and 29 April 2020.  I will not attempt to summarise all of those detailed submissions but have considered all of their contents carefully.  What follows is my attempt to distil what is submitted as to the factual findings the Tribunal would make and the ultimate conclusions it would reach.
  2. [63]
    The Patient had been admitted to the Hospital with a mild case of cellulitis.  The Applicant extended the Patient’s stay for a period longer than strictly necessary for the treatment of mild cellulitis in response to the Patient’s concerns about pain.  On 8 November 2018 the Patient agreed that if an ultrasound was clear he would be discharged home the following day.  Later on 8 November 2018 the Applicant received a phone call from a nurse indicating that the Patient wanted a second opinion.  The Applicant was surprised and thought that the Patient must have indicated so before her conversation with the Patient about the ultrasound and discharge the following day.  She explained to the nurse to communicate the ultrasound result to the Patient and expect discharge the following day.  The Patient had never asked her for a second opinion and never did so given that the Patient refused to see her the following morning.  On 9 November 2018, after learning of the Patient’s refusal to be discharged and demand for a second opinion, the Applicant discharged the patient from her care so that his care could be transferred to another doctor.  The Applicant was willing, although surprised, for the Patient to seek a second opinion and to be transferred to another doctor, notwithstanding her expert opinion that he should be discharged from hospital.
  3. [64]
    The Tribunal would accept the evidence of the Applicant in preference to the unreliable hearsay accounts of the Patient, the Complainant and Karen Gerrard.
  4. [65]
    Not only are the conditions imposed upon her registration unnecessary but they are causing the Applicant considerable detriment by way of affecting her ability to practise and earn a living and damaging her professional reputation.
  5. [66]
    The decision of the Board should be set aside.

Consideration

  1. [67]
    The Applicant was an unimpressive witness, defensive and combative in the way she gave evidence.
  2. [68]
    The Applicant’s attempt to disavow the contents of submissions on her behalf by Kennedys in the letter of 14 October 2019 adversely affects her credibility. The terms of such letter make it plain that Kennedys were seeking to correct and clarify the submissions by the Applicant in the email of 6 March 2019 on the topic of whether the Applicant proceeded to discharge the Patient from Hospital notwithstanding his request for a second opinion. Kennedys would have been unable to make such purported correction or clarification except on the instructions of the Applicant. I do not accept that their submissions were made other than on the instructions of the Applicant because of miscommunication.
  3. [69]
    The versions of the Applicant on the crucial matter of whether she discharged the Patient from the Hospital or merely from her care changed as events unfolded – contrast her version in her email of 6 March 2019 with that in the letter of Kennedys of 14 October 2019 and her evidence during the hearing. The Applicant was prepared to change her account according to what she perceived might best assist her case.
  4. [70]
    Unlike the Board, I do not find that the Applicant did not consider the Patient’s complaints of increasing pain and reduced mobility and thus breached sections 2.2.5 and 3.5.1 of the Code of Conduct.  I think it is likely that the Applicant did give some consideration to such complaints when reaching her clinical judgment as to whether the Patient was fit to be discharged.  As to whether or not she had sufficient regard to such matter is a matter of clinical judgment on which the opinions of reasonable practitioners might differ.  I am not prepared, on the evidence before the Tribunal, to conclude that the Applicant’s clinical judgment on such a matter was unreasonable or indicative of unsatisfactory professional performance. That is despite the very real concern I have as to the Applicant continuing with her plan to discharge the Patient notwithstanding not having seen him on the morning of 9 November 2018.
  5. [71]
    However, the fact that reasonable minds might differ as to such clinical judgment highlights the importance of facilitating any request by the Patient for a second opinion as to his fitness for discharge from hospital. Like the Board, I find that the Applicant did not consider and respect the Patient’s views with regards to the management of his health, as she made the decision to discharge him, despite being informed on 8 and 9 November 2018 of the Patient’s request for a second opinion.  This constituted failure to comply with sections 2.1.3, 2.1.5 and 2.2.8 of the Code of Conduct, which state the importance of acknowledging and respecting a patient’s right to make their own decisions about their health and to seek a second opinion and to facilitate the co-ordination and continuity of care of the patient.
  1. [72]
    I find that the Applicant was aware of the Patient’s continuing request for a second opinion at the time she discharged him from hospital.  Such is established by the content of the note by M Sorensen RN at 1445 on 8 November 2018.  The notation “NFO” is consistent with the Applicant refusing such request at that time.  Likewise, the note made by the Applicant at 1010 on 9 November 2018, “Discussed with Megan –> not for second opinion”, is consistent with the Applicant having discussed such request with Ms Sorensen the previous day and refused it.  It is also consistent with the records of events made by Karen Gerrard on 9 November 2019.
  2. [73]
    I do not accept the Applicant’s contention that on 9 November 2018 she was discharging the patient from her care, rather than discharging him from Hospital, to facilitate the obtaining of a second opinion.
  3. [74]
    Such contention is inconsistent with the notes made by the Applicant on 9 November 2018 which refer to “nil further need to remain in hospital” and “for discharge on oral antibiotics GP review”.
  4. [75]
    Such contention is also inconsistent with the terms of the Applicant’s submissions to the Board in the email of 6 March 2019 in which the Applicant states:

“The following day I was then advised that he refused to be discharged and wished to seek a second opinion.  The CEO has been unable/unwilling to secure a Director of Medical Services for many months now and instead has appointed a nurse in this role which is unacceptable and has caused numerous problems thus far.  This nurse spoke to me and I advised her that this gentlemen was clinically improved and I had discharged him.”

  1. [76]
    The Applicant is clearly referring to a discharge from the Hospital. No reference is made to a discharge from her care to facilitate a second opinion. Such concoction first appears in Kennedy’s letter of 14 October 2018.
  2. [77]
    I accept the accounts of events recorded by Ms Gerrard where it conflicts with the evidence of the Applicant. Ms Gerrard’s account of the Applicant discharging the Patient from Hospital is consistent with the Applicant’s own contemporaneous notes in the medical records and her earliest submissions to the Board on 6 March 2019.
  3. [78]
    The fact that the Patient was indeed discharged is confirmed by the need that day to obtain another referral from a doctor in the Emergency Department to another physician.  I find that the Patient could have been referred to another doctor without the need for discharge from hospital - the Applicant gave evidence as to how that could have occurred and instructed Kennedys as to how it might occur.
  4. [79]
    The Applicant’s persistence in proceeding with a discharge of the Patient from hospital, notwithstanding his request for a second opinion, was a breach of the relevant provisions of the Code of Conduct and demonstrated a stubborn refusal by the Applicant to acknowledge the possibility that her clinical judgment that the patient was fit for discharge from hospital might be wrong.
  5. [80]
    The Applicant’s conduct was consistent with the impression I have from the evidence before the Tribunal, including the way the Applicant gave evidence before the Tribunal, that the Applicant is prone to respond defensively and sometimes with hostility if she feels her clinical judgment is being questioned by colleagues or patients. The Applicant clearly lacks insight into how her behaviour might negatively impact patient care. My impression was shared by all three assessors assisting me.
  6. [81]
    I reasonably believe that the way the Applicant practises her health profession, or the Applicant’s professional conduct, is or may be unsatisfactory.
  7. [82]
    For the reasons touched upon when considering the decision in Kapser, the appropriate action was for the Board to have referred the matter to a performance and professional standards panel established pursuant to s 182 of the National Law. Neither party submits I should consider such option now and such a referral would not be appropriate now.
  8. [83]
    I must thus consider whether one or more of the relevant actions specified in s 178(2) of the National Law should be taken in light of my reasonable belief.  In considering whether action should be taken, I need to have regard to the paramount guiding principle that the health and safety of the public are paramount[50] and that restrictions on the practice of the health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[51]  Whilst protection of the public is and must remain the paramount consideration, the impact of conditions upon the registration of the health practitioner is a relevant consideration and therefore conditions imposed or to address relevant risks specifically and be the least onerous possible to properly address such risks.[52]
  9. [84]
    I consider that the conditions imposed on the Applicant’s registration by the Board are apt to address the specific risks with the applicant’s professional practice and are not more onerous than required to properly address such risk.
  10. [85]
    The decision of the Board is confirmed.

Footnotes

[1] It may be that the correct date was 8 November 2018 but nothing turns on this.

[2]  [2015] NTCAT 179 (“Kapser”).

[3]Kapser at paras 64-65.

[4]Kapser at paras 66-80.

[5]Kapser at paras 81-91.

[6]Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ cited with approval by the plurality in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. 

[7]  [2019] QCAT 401 at [26]-[29]. 

[8]  [2020] QCAT 48 at [21]. 

[9]  [2017] WASC 264 at [57].

[10]  National Law, s 184.

[11]  National Law, s 186.

[12]  National Law, s 191.

[13]  National Law, s 3(3)(c).

[14]  [2017] WASC 264 at [53]-[58].

[15]  [2017] NTCAT 109.

[16]  [2018] SAHPT 21.

[17]  [2019] SAHPT 21.

[18]  [2017] VCAT 901.

[19]  [2018] VCAT 73.

[20]  [2019] VCAT 377.

[21]  [2020] TASHPT 3.

[22]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[23]  T1-5-8.

[24]  T1-8-9.

[25]  T1-9.

[26]  T1-9-ll.

[27]  T1-12-15.

[28]  T1-16-17.

[29]  T1-18 and see also T1-73-75.

[30]  T1-18.

[31]  T1-20.

[32]  T1-21.

[33]  T1-22-23.

[34]  T1-26-30.

[35]  T1-31-32.

[36]  T1-33.

[37]  T1-33-34.

[38]  T1-34-35.

[39]  T1-36-37.

[40]  T1-37.

[41]  T1-38.

[42]  T1-42-44.

[43]  T1-44-45.

[44]  T1-50-51.

[45]  T1-54-55.

[46]  T1-61–63.

[47]  T1-63–65.

[48]  T1-71–72.

[49]  T1-76.

[50]  National Law, s 3A.

[51]  National Law, s 3(3).

[52]Shahinper v Psychology Board of Australia [2013] QCAT 593 at [22]-[23].

Close

Editorial Notes

  • Published Case Name:

    Mahboub v Medical Board of Australia

  • Shortened Case Name:

    Mahboub v Medical Board of Australia

  • MNC:

    [2020] QCAT 459

  • Court:

    QCAT

  • Judge(s):

    Allen QC P, Dr J Cavanagh, Ms J Felton, Dr J Osborne

  • Date:

    07 Dec 2020

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
AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401
2 citations
Jump To
Cite 1 - [2019] QCAT 401
Cite 2 - [2019] QCAT 401
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Coppa v Medical Board of Australia [2014] NTSC 48
2 citations
Jump To
Cite 1 - [2014] NTSC 48
Cite 2 - [2014] NTSC 48
George v Rockett (1990) 170 CLR 104
1 citation
Jump To
Cite 1 - (1990) 170 CLR 104
Horta v Podiatry Board of Australia (No 2) [2017] WASC 264
3 citations
Jump To
Cite 1 - [2017] WASC 264
Cite 2 - [2017] WASC 264
Cite 3 - [2017] WASC 264
Hunter v Nursing and Midwifery Board of Australia [2017] NTCAT 109
2 citations
Jump To
Cite 1 - [2017] NTCAT 109
Cite 2 - [2017] NTCAT 109
Kapser v Psychology Board of Australia (No.2) [2015] NTCAT 179
5 citations
Jump To
Cite 1 - [2015] NTCAT 179
Cite 2 - [2015] NTCAT 179
Cite 3 - [2015] NTCAT 179
Cite 4 - [2015] NTCAT 179
Cite 5 - [2015] NTCAT 179
Popovski v Dental Board of Australia (Review and Regulation) [2018] VCAT 73
2 citations
Jump To
Cite 1 - [2018] VCAT 73
Cite 2 - [2018] VCAT 73
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Satyendranath Keenoo v Nursing & Midwifery Board of Australia [2020] TASHPT 3
2 citations
Jump To
Cite 1 - [2020] TASHPT 3
Cite 2 - [2020] TASHPT 3
Seymour v Nursing and Midwifery Board of Australia [2017] VCAT 901
2 citations
Jump To
Cite 1 - [2017] VCAT 901
Cite 2 - [2017] VCAT 901
Shahinper v Psychology Board of Australia [2013] QCAT 593
2 citations
Jump To
Cite 1 - [2013] QCAT 593
Cite 2 - [2013] QCAT 593
The Commonwealth v Baume (1905) 2 CLR 405
2 citations
Jump To
Cite 1 - (1905) 2 CLR 405
Cite 2 - (1905) 2 CLR 405
Timothy Lee v Nursing and Midwifery Board of Australia [2018] SAHPT 21
2 citations
Jump To
Cite 1 - [2018] SAHPT 21
Cite 2 - [2018] SAHPT 21
Turay v Nursing and Midwifery Board of Australia [2020] QCAT 48
2 citations
Jump To
Cite 1 - [2020] QCAT 48
Cite 2 - [2020] QCAT 48
XDH v Medical Board of Australia (Review and Regulation) [2019] VCAT 377
2 citations
Jump To
Cite 1 - [2019] VCAT 377
Cite 2 - [2019] VCAT 377
Yap v Medical Board of Australia [2019] SAHPT 21
2 citations
Jump To
Cite 1 - [2019] SAHPT 21
Cite 2 - [2019] SAHPT 21

Cases Citing

Case NameFull CitationFrequency
BMS v Pharmacy Board of Australia [2021] QCAT 3693 citations
King v Psychology Board of Australia [2022] QCAT 4232 citations
Wright v Nursing and Midwifery Board of Australia [2021] QCAT 1534 citations
WSS v Medical Board of Australia [2021] QCAT 51 citation
1

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