Jeffrey v Medical Board of Australia
[2021] QCAT 298
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Jeffrey v Medical Board of Australia[2021] QCAT 298
- Add to List
Jeffrey v Medical Board of Australia[2021] QCAT 298
Jeffrey v Medical Board of Australia[2021] QCAT 298
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jeffrey v Medical Board of Australia [2021] QCAT 298 |
PARTIES: | Mark Kenneth William Jeffrey |
(applicant) | |
v | |
Medical Board of Australia | |
(respondent) | |
APPLICATION NO/S: | OCR312-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 13 September 2021 (ex tempore) |
HEARING DATE: | 13 September 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Dr Eleanor Chew Dr Anne Fitzgerald Dr John Scott Phipps |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AN DAPPLICATION FOR ORDER DIRECTING REGISTRATION – where the Board decided to take immediate action and impose conditions on the applicant’s registration – where the applicant sought a review of the Board’s decision to impose conditions on his registration – whether the applicant presents a serious risk to persons – whether the decision of the Board should be set aside Queensland Civil and Administrative Tribunal Act 2009, s 33 Health Practitioner Regulation National Law (Queensland), s 125, s 156, s 178 Azam v Medical Board of Australia [2013] QCAT 611 |
APPEARANCES & REPRESENTATION: | |
Applicant: | D Callaghan, instructed by Avant Law |
Respondent: | JD Byrnes, instructed by Clayton Utz |
REASONS FOR DECISION
- [1]The proceedings before the Tribunal relate to an application by Dr Mark Jeffrey (the practitioner) pursuant to section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) to review a decision made by the Board on 4 September 2020 pursuant to section 125(5) of the Health Practitioner Regulation National Law (Queensland) (National Law) to the extent to which the Board refused to remove the conditions restricting his registration as a medical practitioner imposed initially by the Board on 6 September 2017.
- [2]That decision was based on a reasonable belief held by the Board at that time pursuant to section 178(1)(a)(i) of the National Law, and related factually to a lower facelift performed on a patient by the practitioner at the Oo La La Cosmetic Skin & Laser Clinic (the clinic) on 22 August 2015. The practitioner was, and still is, registered as a general practitioner and is a member of the Royal College of General Practitioners.
- [3]At all relevant times, he has practised at the Surfers Health Medical Centre (the Centre), which he owns, at shop 27, 3184 Surfers Paradise Boulevard, Surfers Paradise, and/or as a contractor at the clinic (of which he is a director) at Chevron Renaissance, lobby 2/23 Ferny Grove, Surfers Paradise. The Board’s action on 6 September 2017 was pursuant to the powers vested in it by section 178 of the National Law.
The review jurisdiction of the Tribunal
- [4]Section 19 of the QCAT Act is in these terms:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the Tribunal –
- (a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
- (b)may perform the functions conferred on the Tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
- (c)has all the functions of a decision-maker for the reviewable decision being reviewed.
- [5]It is common ground that the review involves a fresh hearing, and the purpose of the review is to produce the correct and preferable decision.[1]
- [6]Section 24(1) of the QCAT Act provides for the functions of the Tribunal in the exercise of the review jurisdiction, namely, the Tribunal may:
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision;
- (c)or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.
- (a)
- [7]Section 178 of the National Law is in these terms (relevantly):
178 National Board may take action
- (1)This section applies if –
- (a)a National Board reasonably believes, because of a complaint or for any other reason –
- (i)the way a registered health practitioner registered by the board practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; …
- [8]It is common ground that the proper legal approach in relation to applications of this nature is that mandated by his Honour Judge Alexander Horneman-Wren SC, who was then the Deputy President of the Tribunal, in Azam v Medical Board of Australia [2013] QCAT 611 at paragraph [16]:
In my opinion, the test to be applied in considering such an application is whether it has been demonstrated that the conditions are, in all the circumstances at the time at which the application is being considered, no longer necessary or appropriate. The circumstances will include, but not necessarily be limited to: the nature of the proceedings by which the conditions were imposed; the purpose of those proceedings; the purpose for which the conditions were imposed; and the current circumstances of the registrant.
- [9]This is not a case such as Azam where the Board decided to take immediate action under section 156(1)(a) of the National Law, although the application then being dealt with by the Tribunal was an application to review a refusal to alter conditions in the context of the Board having originally decided to take immediate action. It is also not a case where the Board has conducted an investigation and taken action such as the imposition of conditions. Rather, the conditions imposed were pursuant to section 178(1)(a)(i) and (2)(c) of the National Law.
A short factual history
- [10]The relevant history can be derived and summarised succinctly from the letter from AHPRA dated 15 September 2017,[2] notifying the practitioner of the Board’s Committee’s findings that, pursuant to section 178(1)(a)(i) of the National Law, it (on behalf of the Board) reasonably believed that his professional performance was unsatisfactory and, as a result , the Board imposed 28 conditions on his registration, which can be divided generally into four categories:
- (a)limitations on practice (1-5).
- (b)supervision (6-13).
- (c)education (14-17).
- (d)audit (18-25).
- (a)
- [11]The remaining conditions were of a standard type, related to inability to comply as a result of an emergency, notification to AHPRA from supervisors, its response and costs.
- [12]The practitioner then had no prior disciplinary history and has had none since.
- [13]The applicant, in his submissions characterises, the relevant conduct as “a single complaint about a single episode of surgery within a specific and limited area of cosmetic surgery”. A fair assessment of the Board’s basis for its reasonable belief,[3] suggests the conduct was more serious than that. As the reasons note, the relevant committee engaged an independent assessor and obtained a number of reports from the assessor, Dr John Flynn. The applicant, with legal advice, made submissions throughout, but did not appeal the Board’s decision and the imposition of the conditions.
- [14]The relevant surgery was conducted on 22 August 2015 at the clinic by the practitioner. The real focus of the committees’ concerns was that the procedure conducted involved a facelift procedure involving the superficial musculoaponeurotic system (SMAS) of the face and neck.
- [15]The applicant’s position at that stage was that it did not, although he accepted that he had caused nerve damage. I understand from what I was informed today by his counsel that his position has not changed. There is no doubt that in the proceedings the patient suffered nerve injuries on both the right and left side of the face.
- [16]Dr Flynn had access to all the relevant clinical notes of the practitioner, and considered his various responses, including responses to Dr Flynn’s report. Dr Flynn concluded that those injuries were most likely to have occurred during the surgery itself.
- [17]It is appropriate to summarise the committee’s conclusions in relation to conflicts between the applicant’s account and the independent opinion of Dr Flynn.[4]
1.1 The committee note the independent opinion of Dr Flynn that concludes that the nature of the injuries and the time relationship ‘indicates that this injury occurred at the time of, or as a result of, the quick lift surgery’. The committee further notes Dr Flynn believed that the nerve injuries (on both the right and left sides of the face) were most likely to have occurred during the surgery itself.
1.2 The committee note that Dr John Flynn considered the practitioner’s performance of the procedure was likely too aggressive and the “outcome is below the standard reasonably expected of a doctor performing this procedure”. Dr Flynn questioned the actual placing of the sutures, which could not be determined by the clinical records provided. The committee note the practitioner’s response in relation to where the sutures were placed during the procedure; however, the committee concurs with the opinion of Dr Flynn that if the sutures were placed in the areas suggested, then injury to the nerve should not have occurred.
1.3 Dr Flynn further opined that the fact that bilateral facial nerve injuries were sustained represented a failure on behalf of the practitioner to appreciate the risks inherent in the procedure.
1.4 Dr Flynn stated that ‘no doctor should be practising in a scope of practice in which he or she does not have appropriate training and experience in the procedures they wish to perform’. Dr Flynn considered the Quicklift procedure a surgical procedure which ‘requires surgical skills, appropriate facilities and training’. The committee note that Dr Flynn suggested that the practitioner provide further information in relation to his training in performing these procedures - however, the committee note this information was not provided by the practitioner in his final submission.
1.5 The committee note that Dr Flynn believed that further information should be obtained with respect to the facility and equipment used during the procedure as this was not documented in any of the clinical records. The committee are (sic) concerned that the practitioner failed to provide further information in relation to this in his final submission, or provide further clinical records.
1.6 The committee has formed a reasonable belief that the procedure that the practitioner performed on the notifier was inadequate and the practitioner failed to appreciate the risks of the procedure. With the limited clinical records provided by the practitioner, the committee is unable to verify parts of the practitioner’s submission in regard to the procedure.
1.7 The committee considers that the practitioner’s knowledge, skill or judgment possessed, or care exercised in performing this procedure was below the standard reasonably expected of a practitioner of an equivalent level of training and experience.
- [18]Despite always maintaining that the procedure did not involve SMAS, the applicant at that time was prepared to give an undertaking to the Board that he not perform procedures involving SMAS; however, for reasons articulated in the decision, the relevant undertaking was not given in an approved form, and the Board proceeded to impose conditions. This is not a criticism of the practitioner.
- [19]The applicant ultimately completed an education course and the Board removed conditions 14-17 on the application of the applicant on 29 May 2020.[5] As part of his present application to remove conditions (i.e. those the Board refused to remove and are now under review), the Board agreed to remove condition 3 of the conditions, which was then in these terms:
- Any surgical facelift procedure involving superficial musculoaponeurotic system (SMAS) of the face and neck performed by the practitioner is to be conducted in a licensed facility.
- [20]The parties agree that as a result of the Private Health Facilities Act 1999 (Qld) and the Private Health Facilities Regulation 2016 (Qld) (the credentialling legislation), procedures of this nature can only be performed in licensed, private health facilities by suitably qualified and accredited practitioners. The Board agreed, therefore, that condition 3 was no longer necessary and it was removed.
- [21]The parties disagree about the extent of the regime mandated by this legislation, particularly in relation to the possible future credentialling of the applicant to perform such procedures. He has provided a statutory declaration,[6] sworn on 29 June 2020, in which he declares that, since 6 September 2017, he has not performed any surgical procedures involving the SMAS of the face and neck, and will not perform such a procedure in Queensland or elsewhere; does not have the qualifications to perform such a procedure; and will not apply for such credentialling qualifications in the future.
- [22]The Board says this is insufficient as, without the remaining conditions, “public safety is then vested in the hands of a (credentialling committee) of unknown constitution”.[7]
- [23]
- [24]In that affidavit, which is in similar terms to his previous statutory declaration, the practitioner (relevantly) swears:
- From 6 September 2017, I have not performed any surgical facelift procedures involving the superficial musculoaponeurotic system (SMAS) of the face or neck.
- From the date of this affidavit, I will not perform any surgical facelift procedures involving the superficial musculoaponeurotic system (SMAS) of the face or neck in Queensland or elsewhere.
- As at the date of this affidavit, I do not have any credentials or privilege with any private hospital or other health facility or organisation in Queensland or elsewhere which would allow me to perform any surgical facelift procedures involving the superficial musculoaponeurotic system (SMAS) of the face or neck.
- From the date of this affidavit, I will not apply to any private hospital or other health facility or organisation in Queensland or elsewhere for any credential or privilege which would allow me to perform any surgical facelift procedures involving the superficial musculoaponeurotic system (SMAS) of the face and neck.
- I acknowledge that a breach of the declarations made in this affidavit would provide a basis for disciplinary action to be taken against me with respect to my registration as a medical practitioner.
- [25]It is also not in dispute that the monthly monitoring and auditing of the applicant over the past now approximately four years has raised no concerns about the applicant’s practise of his profession.
- [26]There is no suggestion that he has undertaken any procedure that could be described as a facelift procedure involving SMAS of the face and neck.
Consideration
- [27]Returning to the test set out in Azam, it must be borne in mind that the Board’s original decision related to a single episode of surgery. Although it could be said that in some of his responses at the time, the practitioner may have been inappropriately defensive, nevertheless, he did not seek to challenge the Board’s decision and the conditions at the time by appealing to the Tribunal.
- [28]The Board’s submissions in relation to the effect now of the credentialing legislation on the issue of the protection of public health and safety are not persuasive. Although the removal of the conditions would mean that the Board loses the ability to supervise the applicant’s practice, given his performance since, to maintain conditions as they presently stand would, in my opinion, go beyond what is protective and would verge on being punitive.
- [29]The Board says that it will accept a National Law undertaking in lieu of the conditions. Although the applicant was willing to provide an undertaking originally, he is now unwilling to do so as he says it affects his ability to supervise registrars in his practice.
- [30]The Board disputes this, or at least submits that the evidence in this regard is unpersuasive, however, I do not think that it is necessary to resolve this because of the primary findings set out above.
- [31]The applicant has provided two significant documents: one a statutory declaration, and another an affidavit filed in the Tribunal, which I have referred to in detail above.
- [32]If he does act contrary to what he swears he will do or not do, the consequences, certainly professionally, will be potentially dire. His position is very relevant to the issue of protection of the public from harm from him ever again:
- (a)attempting to qualify to perform such surgery; and/or
- (b)performing such surgery into the future.
- (a)
- [33]For those reasons, on the application the Tribunal orders as follows:
- Pursuant to section 24(1)(b) of the QCAT Act, the Tribunal sets aside the decision of the respondent dated 4 September 2020 and substitutes its decision that all conditions be removed from the applicant’s registration.
- Each party to the proceeding is to bear the party’s own costs of the proceeding.