Pluta v Medical Board of Australia
[2021] QCAT 212
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- Unreported Judgment
- Pluta v Medical Board of Australia[2021] QCAT 212
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Pluta v Medical Board of Australia[2021] QCAT 212
Pluta v Medical Board of Australia[2021] QCAT 212
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pluta v Medical Board of Australia [2021] QCAT 212 |
PARTIES: | Andrew Pluta |
(applicant) | |
v | |
Medical Board of Australia | |
(respondent) | |
APPLICATION NO/S: | OCR090-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 7 June 2021 (ex tempore) |
HEARING DATE: | 7 June 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where the applicant medical practitioner applies to review a decision of the Medical Board of Australia to place conditions on the applicant’s registration – whether the decision of the Board should be stayed pending the determination of the application Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 Asinas v Medical Board of Australia [2020] QCAT 490 Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 Magill v Queensland Law Society Inc [2019] QCAT 392 |
APPEARANCES & REPRESENTATION: | |
Applicant: | RK Nattrass of Moray & Agnew Lawyers |
Respondent: | MJ Brooks instructed by MinterEllison |
REASONS FOR DECISION
- [1]The applicant, Dr Andrew Pluta, has filed an application to review a decision of the Medical Board of Australia (Board) on 8 March 2021 and has also applied for a stay of that decision, pending the determination of the application to review.
- [2]The decision of the Board on 8 March 2021 was to form a reasonable belief under section 178(1)(a) of the Health Practitioner Regulation National Law (Queensland) (National Law) that the way the applicant practises the profession is unsatisfactory and to impose conditions on the applicant’s registration under section 178(2)(c) of the National Law.
- [3]Condition 1 requires the applicant to undertake and successfully complete programs of education, approved by the Board and including a reflective practice report, in relation to:
- medical record keeping; and
- communication with patients, with an emphasis on:
- the management of complex and complicated patients;
- dealing with difficult patients, such as those suffering from drug dependence and/or drug-seeking patients; and
- medical professionalism, namely the value and skills that the profession and society expect of general practitioners in Australia.
- [4]Further conditions regarding education provide for the mechanics of approval of education courses and evidence of successful completion of the education.
- [5]The conditions imposed by the Board also require the applicant to be mentored by another registered general practitioner in relation to medical record-keeping and communication with patients. The conditions require mentoring comprising a minimum of 10 one-hour sessions over a 10-month period covering the following topics:
- appropriate medical record keeping in a general practice setting;
- managing and treating complex patients;
- appropriate communication with complex, difficult and demanding patients;
- how to diffuse difficult situations in practice, such as, drug-seeking patients; and
- expected professional behaviour when communicating with patients.
- [6]Other conditions provide for the mechanics of the Board’s supervision of such mentoring conditions and for obtaining reports from the mentor.
- [7]The third category of conditions require the applicant to submit to an audit of his practice within 28 days after the completion of the education conditions and thereafter on a three-monthly basis. Further conditions provide for the details of such audits, approval of auditors, a written audit plan, and approval of auditors.
- [8]The final condition provides that all costs associated with compliance with the conditions on his registration are at the applicant’s own expense.
- [9]In a letter dated 12 March 2021, the Board outlined its reasons for the formation of the reasonable belief and the imposition of conditions. The Board considered notifications by two of the applicant’s patients, the applicant’s previous notifications history and, in particular, a performance assessment report completed on 4 August 2020 after a performance assessment conducted on 22 July 2020 by two general practitioners appointed by the Board. In its reasons, the Board stated as follows:
- …In summary, the performance assessment report identified the following:
- Dr Pluta exhibited adequate knowledge of general practice (GP) presentations. However, he has elected to have a large number of “very challenging” patients with complex needs, which includes managing patients on drugs of dependence programs and HIV and Hepatitis C positive patients.
- Dr Pluta’s insistence of seeing patients for 10-minute consultations does not allow him much time to address the complex medical needs for such patients, other than providing them with repeat prescriptions. Furthermore, his inflexible approach of “one issue per consultation” would make it difficult for him to provide adequate GP care to complex patients.
- Dr Pluta was asked to comment on shared care of drug dependent patients with other GP’s and shared prescribing. The report identified that he did not have a plan for how to deal with multiple prescribers for the one patient, however, he believes in one prescriber for drugs of dependence. Accordingly, the report identified that drug dependent patients would find it hard to get routine medical care for other medical issues from Dr Pluta, due to his one issue per consultation policy.
- Dr Pluta’s record keeping was unsatisfactory. In particular, patients’ health summary, medication lists and past patient history were not adequately documented by Dr Pluta. Furthermore, his progress notes were often brief and did not contain enough clinical detail.
- In relation to communication with patients, Dr Pluta blames difficult and demanding patients, long waiting times and the practice billing policy. He also noted that he has been “standing his ground" with such patients.
- When reviewing Dr Pluta’s communication with patients during the performance assessment, the assessors noted that Dr Pluta’s communication and rapport building in some instances was satisfactory. However, there were some instances where his communication with patients were of a concern. Of note:
- In relation to a patient who presented for renewal of referral to a specialist for chronic obstructive pulmonary disease “he mumbled his speech, rarely made eye contact with the patient and rarely addressed the patient by name.”
- A 62-year-old patient attended and reported neck pain, tinnitus and right knee pain. The patient had a complicated story in relation to his ailments. The report noted that Dr Pluta “became frustrated with the patient’s complicated story” and interrupted the patient with “what annoys you most?” Dr Pluta also appeared convinced that the patient was to blame for aggravating the original injury, and the assessors noted that “it was clear Dr Pluta did not always listen to this patient or appear to allow the patient to tell their story. ”
- In summary, the performance assessment proposed the following conditions:
- Education in relation to medical record keeping, patient communication and professionalism.
- A monthly mentor program with a senior GP colleague, who is not in the same practice and not previously known to Dr Pluta. The mentor does not need to be involved in drug addiction medicines, and it would be ideal if he/she was an experienced generalist.
- Quarterly audits in relation to Dr Pluta’s record keeping practices, and in particular, his documentation of assessment, diagnoses, management plans, medication monitoring and comprehensive care for chronic diseases.
Board decision on 14 December 2020
4. On 14 December 2020, we considered the investigator’s report and decided the following:
- Whilst acknowledging Dr Pluta’s heavy caseload of difficult and complicated patients; we placed weight on the performance assessment report, and formed a reasonable belief that his performance in relation to record keeping and communication with patients is unsatisfactory and that he failed to comply with sections 2.2.5, 3.3.1, 3.3.2, 3.3.7 and 8.4.1 of the Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) (Code of Conduct).
- We were concerned with Dr Pluta’s performance regarding his communication with patients, his inflexible approach of “one issue per consultation” and reluctance to consider longer consultations for more complicated patients.
- We considered that mentoring and education conditions in relation to communication will ensure Dr Pluta improves his communication skills with patients and is equipped with skills to appropriately deal with demanding patients, including, how to appropriately diffuse difficult situations involving drug seeking patients.
- Furthermore, given Dr Pluta has previously been cautioned for keeping medical records below the standard expected, we agreed with the recommendations in the performance assessment report and considers that education and mentoring conditions and quarterly audits are necessary. This will ensure that Dr Pluta’s keeps detailed medical records to the standard expected.
- In coming to this decision, we considered Dr Pluta’s written submissions and the minutes from the meeting dated 9 October 2020 under the section 176 of the National Law. Dr Pluta did not demonstrate any insight or reflections in his submissions or the meeting, and instead, placed emphasis on the Practice’s one issue per consultation policy and fault on "difficult and demanding patients."
- [10]The applicant swore an affidavit in which he deposed to the expected cost and inconvenience he would suffer in complying with the conditions on his registration in the absence of an order staying those conditions pending the final hearing.
- [11]He estimated that the cost of the educational courses may exceed $1,000. He anticipated that attending a mentoring session could require his absence from his practice for at least half a day once a month, resulting in his loss of income from practice in addition to any professional costs charged by the mentor, which he estimated could amount to about $10,000 over 10 months.
- [12]He deposed that preparation for each of the required audits would lead to his absence from practice for at least a day per audit, at least four days in total, and that the cost of the audits themselves would likely be at least $12,000 plus GST.
- [13]He thus anticipated that, if the conditions were not stayed, he would have to incur at least $22,000 in expenses in addition to lost income as a consequence of being unable to attend work for one or two days each month. He deposed that the disruption to his practice would affect his regular patients and that, being the only practitioner at his medical centre with the necessary prescriber approval to provide opiate replacement therapy, his absence from practice could have adverse effects on his patients’ outcomes and health.
- [14]The applicant concluded by deposing that he believed that if he was required to comply with the current conditions now there would be a significant financial impact upon him and also a risk to his patients.
- [15]The applicant was cross-examined as to an issue regarding a previous caution in relation to recordkeeping, but was not challenged as to his evidence regarding the likely consequences upon him of compliance with the conditions.
- [16]The applicant has made submissions with regard to the detail or the contents of the performance assessment report relied upon by the Board. I will not refer to those submissions in detail, but the applicant points to the absence of anything that would suggest any risk to patients, the limited material regarding any deficiencies in communication, and what is submitted to be a fundamental error in the author’s understanding and, consequently, the Board’s understanding of a policy of the medical centre regarding bulk-billed 10-minute consultations.
- [17]The applicant submits that he has an arguable case in respect of the review proceedings which weighs in favour of the granting of a stay. The applicant refers further to the considerable burden upon him if the conditions remain pending a final hearing such that, in the absence of a stay of the conditions, the application to review would be rendered nugatory. The applicant submits that there is no public risk in him being permitted to practise without restrictions pending the final hearing and that the Board has failed to identify any public interest that favours a stay. The applicant points out that the provisions of the National Law only prohibit a stay of immediate action decisions by the Board.
- [18]The Board submits that the conditions imposed on the applicant are not onerous and do not prevent him from practising. The expertise of the Board should be given proper weight in light of its concerns as to the applicant’s ongoing performance, especially in the context of incomplete evidence before the Tribunal at this interlocutory stage. The Board submits that the effect of the conditions is not so burdensome so as to render nugatory the other factors that must be taken into account by the Tribunal when granting a stay. The Board points out that the conditions do not require the mentoring to occur face to face and that mentoring by way of remote communication would not require the absences from practice deposed to by the applicant. The Board submits that the decision of the Board was not only informed by the performance assessment report but also by the notifications by patients and the applicant’s previous notification’s history.
- [19]Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides as follows:
22 Effect of review on reviewable decision
- (1)The start of a proceeding for the review of a reviewable decision under this Act does not affect the operation of the decision or prevent the implementation of the decision.
- (2)However, subsection (1) does not apply –
…
- (b)to the extent the operation of all or part of the reviewable decision is stayed by an order of the Tribunal under this section that is still in effect.
- (3)The Tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act.
- (4)The Tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following –
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the Tribunal by the decision-maker for the reviewable decision;
- (c)the public interest.
- [20]The terms of the section make it clear that the default position is that an application to review a decision will not affect the operation of the decision or prevent the implementation of the decision. It is only if the Tribunal considers a stay is desirable that the discretion will be exercised to stay the reviewable decision. A stay is not just for the asking. As stated by the President of the Tribunal in Magill v Queensland Law Society Inc [2019] QCAT 392 at [12]:
…The applicant must satisfy the Tribunal on the present application that there is a cogent reason for the stay. In that regard, Chesterman J in Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 said at [28]:
In particular, it should be accepted that an applicant for a stay of a recommendation that his name be removed from the roll of legal practitioners should show a cogent reason for the stay, and he will not do so merely by showing that he will be unable to practise his profession until his appeal is heard and allowed. Every practitioner who is suspended from practice or whose name is removed from the roll suffers that prejudice, but it is clearly not right that a stay is or should be granted as a matter of course. Something more must be shown than ‘prejudice’ of this kind. The additional factors which would justify a stay must be such as outweigh the public interest and having unfit practitioners debarred from practice. That interest is to be afforded particular significance.
- [21]There is a public interest in the Board being able to meet the objectives in section 3(2)(a) of the National Law to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. The paramount guiding principle for the Board and the Tribunal in administering the National Law is that the health and safety of the public are paramount.[1] I also note the guiding principles that include that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[2]
- [22]In addition to those factors specified in section 22(4) of the QCAT Act, it is also necessary to have regard to considerations such as the prospects of success of the application for review and the balance of convenience. I agree with the observations of Judicial Member D J McGill SC to that effect.[3]
- [23]With respect to section 22(4)(a) of the QCAT Act, obviously the interests of the applicant will be affected if an order for a stay is not made. In the absence of a stay, the success of an application to review will not be such as to place the applicant in a position as if the decision successfully appealed against had not been made. In the meantime, the applicant will incur expense and be subject to other burdens as a consequence of the conditions. The applicant will have no recompense for such an expense and burdens if a stay is not granted and he is ultimately successful in his application to review a decision. Obviously, such consideration weighs in favour of a stay, but for the reasons stated by Chesterman J in Legal Services Commissioner v Baker (No 1),[4] it is not by itself sufficient to warrant the grant of a stay. In that respect, I also accept the submissions on behalf of the Board that the financial burden and the consequent time away from practice required by compliance with the conditions is likely to be considerably less than that feared by the applicant.
- [24]In relation to the prospects of success of the application to review a decision, there are obvious limitations in the Tribunal forming a view as to that matter at this stage. This is the type of matter where I expect the assistance of members of the medical practitioners’ panel of assessors will be particularly important in the Tribunal reaching its decision.
- [25]I note the submissions on behalf of the applicant as to the reasons why the applicant’s case should be considered at least arguable, if not strong, upon review. On the other hand, this is a decision by a professional Board, which adopted recommendations of two highly qualified and experienced general practitioners.
- [26]The decision of the Board is not so clearly wrong and the applicant’s prospects of success so clearly good as to weigh in favour of a stay. My necessarily limited but provisional view is that the prospects of success upon the application to review weigh marginally against the granting of a stay.
- [27]With respect to section 22(4)(c) of the QCAT Act, I have already referred to the public interest in the Board carrying out its statutory functions to regulate practitioners in the interests of health and safety of the public. That public interest weighs against the granting of a stay of the Board’s decision.
- [28]Taking into account all the material before me, those matters mandated by section 22(4) of the QCAT Act, my provisional assessment as to the applicant’s prospects of success in the application to review and those competing considerations on the balance of convenience, I am not persuaded that it is desirable to grant a stay of the decision of the Board, except for one aspect, and that is the requirement in condition 1(a) of the conditions that the applicant undertake and successfully complete a program of education in relation to medical record keeping.
- [29]That condition was imposed upon the recommendation of the authors of the performance assessment report, following their assessment of the applicant’s record keeping on 22 July 2020.
- [30]The applicant has deposed to having undertaken a record keeping course on 6 September 2020 and has exhibited a certificate of completion of the Avant Learning Centre course on medical records and documentation as part of Avant’s CPD education program.
- [31]The Board points out that such education course was not approved by the Board nor followed by a reflective practice report, as required by the current conditions. Nevertheless, on its face, it appears to be substantial evidence that the applicant has undertaken an appropriate education course in relation to record keeping which would, obviously, impact upon the necessity for him to undertake any further education in record keeping. That is sufficient to justify a stay of that part of the Board’s decision, pending a final hearing.
- [32]So, the orders of the Tribunal are:
- The Tribunal stays the operation of part of the decision of the Medical Board of Australia on 8 March 2021, insofar as condition 1(a) of the conditions requires the applicant to undertake and successfully complete a program of education approved by the Medical Board of Australia and including a reflective practice report in relation to medical record-keeping.
- The application for a stay of the decision of the Medical Board of Australia on 8 March 2021 is otherwise refused.
- The matter will be listed for a directions hearing at 9.30 am on 30 July 2021.
- [33]And I should say for clarity, so that there no misunderstanding: the limited terms of the stay does not affect the terms of condition 5, insofar as it relates to mentoring regarding medical record keeping; nor, of course, any of the terms of the conditions regarding auditing of practice insofar as they refer to medical record keeping.