NML v Medical Board of Australia
[2021] QCAT 344
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- NML v Medical Board of Australia[2021] QCAT 344
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NML v Medical Board of Australia[2021] QCAT 344
NML v Medical Board of Australia[2021] QCAT 344
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | NML v Medical Board of Australia [2021] QCAT 344 |
PARTIES: | NML (applicant) v medical board of australia (respondent) |
APPLICATION NO/S: | OCR068-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 1 November 2021 |
HEARING DATE: | 6 September 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC Assisted by: Dr J Cavanagh, Dr G Kelly, Ms J Stuckey. |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS 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 Health Practitioner Regulation National Law (Qld) s 156, s 199. Colegrande v Health Ombudsman [2017] QCAT 107 Health Ombudsman v CLT (No 2) [2019] QCAT 379 Health Ombudsman v MacBean [2019] QCAT 300 Legal Services Commission v XBV [2018] QCAT 332 Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 Pearse v Medical Board of Australia [2013] QCAT 392 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Templeton, instructed by K & L Gates, solicitors. |
Respondent: | L Marshall, instructed by Minter Ellison, solicitors |
REASONS FOR DECISION
- [1]On 28 January 2021 the respondent suspended the registration of the applicant under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 156, on the basis that it was reasonably satisfied that, because of his conduct or health, he posed a serious risk to persons, and it was necessary to take such action to protect the public. On 24 February 2021 the applicant filed in the Tribunal an application to review that decision. Subsequently a consent order was made for the respondent to reconsider its decision, and on 17 June 2021 the suspension was lifted, and the respondent imposed conditions on the registration of the applicant. The applicant has pursued his application, challenging the imposition of those conditions.
Background
- [2]The applicant was born in 1972, and was first registered as a medical practitioner in 2013 after graduating from university the previous year.[1] He had previously worked as a medical scientist in pathology. After registration, he worked in hospitals before commencing general practice training in 2016. While training, he worked for a home doctor service in various states. On 21 September 2020 he began to work as a Senior Medical Officer at the hospital in a Queensland country town, where he shared the work at the hospital, on a week-on week-off roster. During the week on, he was on call for the hospital at any time, although no doubt it was expected that in practice he would not be occupied at the hospital for much of any day, apart from a daily morning ward round. He also had a right of private practice, for which purpose he joined an established medical practice with the other medical officer, where he was expected to work full time on weekdays.[2] The medical practice surgery adjoined the hospital.
- [3]Apart from this work, he also attended advanced emergency care workshops, run by Queensland Health, and completed a Level 2 Advanced Life Saving Course. He deposed to finding the work-load greater than he had been used to, and greater than he had expected before taking the appointment. He did not know anyone in the town, and lived alone in staff accommodation, having broken up with his partner at the time of the move to the town. He found the workload stressful, and had difficulty getting enough sleep. He said that at times he took what he described as fatigue leave, to get enough rest, but this was, understandably, unpopular with the other doctor. He also had study commitments for his GP training, and was preparing for a course in paediatric emergency care. During November 2020, he also attended Health Department workshops.
- [4]The applicant deposed that in the week leading up to 29 November he had been called to or in connection with the hospital a number of times, so that he had not been able to get enough sleep.[3] By the Sunday evening, he was very tired but had difficulty sleeping, because of the pressure he was under, and a feeling that he was not able to cope. He said that, to help him sleep, he took a dose of diazepam (5 mg) from his doctor’s bag.[4] In the early hours of Monday 30 November the hospital staff sought to contact the applicant to see a patient who had presented with heart problems.[5] He did not answer his phone when called several times between 12.25 am and 12.55 am, and someone went to his residence where he was found sitting on his couch looking at his phone.[6] The applicant said in evidence that he had recently woken and seen that he had missed calls, and then he heard pounding on his door.[7]
- [5]According to the hospital staff, he called the hospital at 2 am and said he would come, arriving some fifty minutes later.[8] He saw the patient with a nurse, but appeared confused and disorientated, and behaved strangely. The nurse would not leave him alone with the patient. At one stage he was seen staring blankly at a computer screen, and ignoring a ringing mobile phone. He confused the patient who had come in that evening with another patient, and was not engaging normally with staff. He prepared a letter to a GP with incorrect information in it. He had no contact with any other patient. His on-call finished at 8 am that day, and at the hand-over to the other doctor, he could not recall anything about the patient he had seen earlier that morning.[9] Later that morning someone suggested he go home. It appears he then saw one patient at the practice at 11 am, but the rest of his patient bookings for the day were cancelled.[10]
- [6]Some time later while driving his car after getting something to eat, he did a U-turn and then collided with a parked car.[11] This has been described as a low speed collision, but he was going fast enough to cause the air-bags in his car to deploy, and afterwards his car needed towing.[12] In his affidavit he said he was driving very slowly (para 45) but he told someone at the city hospital the next day he was going 40 to 50 kph.[13] Clearly he was at that time quite unfit to drive. He was taken to the hospital, and later transferred to the hospital in the nearest city. Before the transfer he was prescribed and given Endone 5 mg at 1.50 pm. A urine sample was taken at 4.15 pm for drug screening, which revealed Oxycodone, presumably from the Endone tablet, Temazepam (when he said could have been present as a metabolite of the diazepam), Morphine (which may be present as a metabolite of codeine), codeine, said to be a large amount (which he attributed to a panadeine forte tablet he had taken a couple of days earlier, for a severe headache) clonazepam metabolite (which he could not explain), Ibuprofen and Paracetamol.[14]
- [7]At the city hospital various tests and examinations indicated that the applicant had not suffered any serious injury in the accident, but the applicant considered that he had concussion, and became angry when the medical staff did not agree with that; they said that his presentation was most consistent with substance intoxication.[15] Staff at the hospital said that the applicant was difficult and demanding, and tended to go around in circles. That he had taken the diazepam was disclosed only after he was aware of the results from the urine drug screen.[16] He resisted being discharged,[17] but eventually went back to the country down, before moving back to Brisbane. His employment was suspended, and later terminated.[18]
- [8]Police removed the applicant’s doctor’s bag from the damaged car, and returned it to the hospital where it was examined in the pharmacy. Some medication in the bag was found to be past the expiry date, the bag was not locked, and it was kept in the boot of the car, which was not appropriate in summer. These things the applicant accepted. There was also concern expressed that there were some medications in the bag which were not on the PBS list, or which were unlabelled, but the applicant in his affidavit has said that these were still appropriate medications for a doctor’s bag, and the unlabelled medication had been dispensed to him in that state. The disputed matters were not relied on strongly by the respondent.
- [9]This was not the first time the applicant had self-medicated from his doctor’s bag; he said that a couple of days earlier he had taken a Panadeine Forte, for a severe headache. He told the psychiatrist that he had taken half or one such tablet weekly or less frequently from his doctor’s bag for headaches.[19] He said in evidence that he had also, on another occasion, but when he was not on call, taken one diazepam tablet from his doctor’s bag to help him to sleep.
- [10]The applicant provided AHPRA with a report from a neurologist dated 9 December 2020, who did not think the applicant had suffered from concussion, and did not think that 5 mg of diazepam could explain the applicant’s symptoms up to the car accident; he thought the accident was caused by fatigue.[20] The applicant also saw a cardiologist who excluded a cardiac cause for his symptoms, suggesting the accident was caused by fatigue, aggravated by the effect of the diazepam.[21] The force with which the applicant defended his self-diagnosis of concussion, even at the hearing, was disconcerting, and suggested weakness of judgment, and an unjustified confidence in his own ability.
- [11]Tests of the applicant’s hair collected on 2 March 2021 and on 7 July 2021 did not reveal any drugs.[22]
- [12]The applicant was required to attend a psychiatrist for a report to the respondent, provided on 20 April 2021.[23] The report noted that the applicant said that at the country town he had “bitten off more than he could chew”, that he was sleep deprived, isolated and stressed after having split from his partner.[24] He reported some psychiatric history, having been given an antidepressant for six months in 2009, and seeing a psychiatrist in 2014 because of relationship issues; his mother and sister also had had psychiatric problems. The psychiatrist described him as overinclusive in his answers. He said there did not appear to be a substance use disorder, but he agreed with the diagnosis of Benzodiadepine Poisoning or Intoxication made at the city hospital. This may have been augmented by fatigue, work stress and other stressors. There was no evidence of an adjustment disorder, or any other psychiatric condition or disorder.
- [13]The psychiatrist considered that the applicant was safe to practise, but because of the nature of this presentation, and the potential negative impact on patient safety if he reverted to similar behaviour in the future, proposed conditions on his registration for treatment, urine drug screening and hair testing (in group 2), that he work under level 1 supervision, and that he not do after-hours, on-call or emergency duties. He should not have access to a doctor’s bag.
- [14]In a supplementary report dated 10 August 2021,[25] the psychiatrist referred to the result of the urine drug screen from 30 November, and expressed the opinion that there was likely to have been another benzodiazepine and codeine present as well as the diazepam, giving rise to concern about the ingestion of three substances resulting in the state of intoxication. This was said to explain the clinical presentation of intoxication, possibly augmented by sleep deprivation. If this occurred only on this specific occasion, it may not have shown up in the hair test for drugs. Some of the post-accident symptoms may have been caused by anxiety around the circumstances of his presentation. He considered it likely that the respondent on the Sunday night ingested diazepam, clonazepam and codeine in unspecified amounts.[26] He expressed the view that, provided the applicant was getting adequate sleep, he could with support, supervision and monitoring, do any shifts for a home doctor service.
- [15]The applicant deposed that the conditions imposed by the respondent when it lifted the suspension made getting employment difficult: para 105. It emerged in cross-examination however that he has made little effort to obtain such employment. His position appears to be that he wants to resume work with a home doctor service, and hopes that the result of this review will be conditions compatible with such work. He has completed a number of modules of self-education, and says he is committed to avoiding a repeat of the conduct which culminated in the motor vehicle accident.
Legislation
- [16]A practitioner who is the subject of immediate registration action can apply to the Tribunal for the decision to take that action to be reviewed: National Law s 199(1). In conducting the review, the Tribunal has all the functions of the respondent, and must hear and decide the application as a fresh hearing on the merits, to produce the correct or preferable decision.[27] The Tribunal takes into account the material before it, and makes the decision appropriate at the time of the review.[28] In accordance with the Health Ombudsman Act 2013 (Qld) s 126, the Tribunal sat with assessors.[29]
- [17]The National Law Provides in s 156(1) relevantly as follows:
A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if—
- (a)the National Board reasonably believes that—
- because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
- it is necessary to take immediate action to protect public health or safety; or
…..
- (e)the National Board reasonably believes the action is otherwise in the public interest.
- [18]Section 157 provides for a show cause process, and s 159 provides that the action continues until set aside on review by the Tribunal, or set aside by the respondent. By s 3(1), “The object of this Law is to establish a national registration and accreditation scheme for the regulation of health practitioners.” The objectives of the scheme include “to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.” By s 3A “The main principle for administering this Act is that the health and safety of the public are paramount.” That is the main consideration for the Tribunal in deciding this matter: s 4.
Authorities
- [19]The then Deputy President of the Tribunal, Horneman-Wren DCJ, in Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20], considered the meaning of the concept “serious risk” in the context of an immediate action provision. Most of what was said in this paragraph I would respectfully agree with, but in so far as the last sentence suggests a view that there is a serious risk to persons whenever the risk is not so remote as to be fanciful, and the harm if the risk materialises is more than trivial, I do not agree.
- [20]More recently the concept of “serious risk” was discussed by the current Deputy President of the Tribunal in Health Ombudsman v MacBean [2019] QCAT 300, in the context of the Health Ombudsman Act 2009 (Qld) s 113. His Honour said at [12]:
The term “serious risk” is not defined in the HO Act, the National Law, or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as: “of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.”
- [21]His Honour went on to say that, in assessing whether a respondent posed a serious risk to persons, it was helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk did eventuate: [14]. That approach has been adopted in other decisions, and it seems to me with respect that his Honour’s approach provides better guidance to the term “serious risk” where it appears in s 156 as well. The question is whether, considering the factors referred to, the risk arising can fairly be described by the term “serious”, in its ordinary meaning. That is the approach I have adopted.
- [22]As a general proposition, the action taken under s 156 should be the least onerous to address the relevant risk.[30] This is because, at least when acting under s 156(1)(a), the action is responsive to a risk, and the protection of the public health or safety makes the immediate action “necessary”. It follows that it should be no more than is necessary. As well, because the power is conditioned by reasonable belief in a serious risk, the Tribunal can act on allegations which have not been fully investigated or resolved, and does not undertake a detailed enquiry.[31]
Applicant’s submissions
- [23]The applicant submitted that the respondent’s actions had been based on a concern about impairment on the part of the applicant, and that the evidence of the psychiatrist had shown that there was no continuing impairment, so that immediate action was no longer necessary, and should be terminated. It is true that the effect of the psychiatrist’s report is that there is no continuing impairment, but the existence of an impairment is not the only basis on which action can be taken under s 156, and for present purposes it is not necessary to consider whether on 30 November there was an impairment, or whether what was relevant was just the conduct of the applicant. The fact that there is no continuing impairment does not mean that no immediate action is now necessary to protect the health and safety of the public.
- [24]The applicant submitted that at the time he had been under considerable stress because of the difficulty he had in coping with the workload and the study he was undertaking, as a result of which he had difficulty sleeping. It was in this context that he took the dose of diazepam, which he now recognises was a silly decision. This impaired his ability to function properly at the time he was at the hospital, although as time passed the dominant factor became exhaustion because of lack of sleep. He fully recognises the errors he committed at this time, and is resolved not to repeat them. The drug testing to date indicates that this was an isolated event, he does not have a continuing drug problem, and in those circumstances he can be safely allowed to practise in a less demanding and stressful context.
- [25]The applicant accepted the identification of the nature of the risk in the reasons for decision of the respondent, but submitted that the likelihood of its eventuating was very low, because the applicant’s actions arose in a specific set of circumstances unlikely to occur again. He had no continuing drug problem, as shown by the drug tests undertaken, and he has insight which will protect him from a similar serious lapse of judgment. The psychiatrist in his second report stated that conduct of a similar nature is much less likely to occur in the future.[32] Submissions were also made about the current specific conditions.
Consideration
- [26]The main concern for the Tribunal is that there is material suggesting that the applicant has not been frank in his evidence to the Tribunal, and in his statements to others. The main source of this concern is the evidence that the drugs the applicant admits having taken do not explain the results of the urine analysis following the motor vehicle accident. That is the effect of the second report of the psychiatrist, and is consistent with both the severity of the impairment of the applicant on the Monday and the persistence of symptoms.[33] The applicant referred to the latter as suggesting concussion after the motor vehicle accident, but the more plausible explanation seems to be that offered by the psychiatrist: that the applicant took more drugs than he has disclosed.
- [27]It is also notable that he did not disclose any inappropriate medication until after he was told the results of the urine test, showing that from the start he was defensive rather than frank about his situation. He has given differing accounts of particular events to different people, as noted earlier, including three different versions of the circumstances of his failure to answer the calls from the hospital. He said that he kept his doctor’s bag safely locked in the boot of his car,[34] yet he admitted having accessed medication from it several times while in the country town.[35] It is difficult to accept that he went to the boot of his car each time, including at 10 pm on the Sunday night.
- [28]The applicant said in his affidavit para 44 that at the time of the accident he had had only four hours sleep in the previous twenty-eight hours, because of his roster. But it is by no means clear why this was so. This covers the period from 9 am Sunday, and does not say anything about any problems with getting a good night’s sleep on the Saturday night. A nurse reported that he did not attend the hospital on Sunday morning to see a patient admitted overnight, but discharged the patient by telephone,[36] and it is not clear whether he in fact attended the hospital at all that day. He did not say when he went to sleep on the Sunday night, but presumably not before 10 pm, and he was woken before 2 am when someone came to his house. He was then at the hospital from 2.50 am, and would have spent some time attending to the patient he was called to see, although it appears he did not do anything useful when he saw him. It does not appear that he did a ward round on Monday morning, he attended a hand-over at about 8 am where he was essentially useless, and he saw one patient at the practice at 11 am, but otherwise it does not appear that he did anything useful, or was prevented from sleeping by the demands of his work, prior to the motor vehicle accident. It seems to me that the applicant has notably failed properly to account for his time between 2 am and 1 pm on the Monday, or to justify his being so tired that he took diazepam on the Sunday night to help him to sleep. If he was so tired, I would have expected him to make some attempt to get more sleep during that eleven hour period.
- [29]As well, in the witness box he was evasive, defensive and argumentative when questioned during cross-examination, and persisted in making speeches instead of giving direct answers to direct questions, despite being admonished for doing so. Overall, in the witness box he made a poor impression. He would have been nervous and anxious about the outcome, but there appeared to be more to it than that.
- [30]The applicant’s submissions have focused on taking the diazepam on the Sunday night, but this was not an isolated error of judgment on his part. He had taken diazepam from his bag on a previous occasion, admittedly not while on call, and had taken panadeine forte from his bag an unspecified number of times, including in the country town. This was improper. On the Sunday night, having taken (at least) the diazepam while on call, he then failed to respond properly to the call from the hospital. As noted, he has given differing accounts for his failure to answer the calls from the hospital. It is apparent from the descriptions of his behaviour after he came to the hospital that he was not in a fit state to deal with a patient, as he appeared to concede under cross-examination, but he did not disclose that to the people at the hospital. He then seems to have hung around the hospital for about ten hours, not doing anything very useful, but not catching up on his sleep. At one point he was advised to go home, but he did not, and saw a patient at the practice. He then drove his car when he was clearly not in a fit state to drive. When he went to the city hospital, he was not frank about what he had taken,[37] initially denying unprescribed medication. He was then difficult and argumentative in the hospital.
- [31]If this course of conduct was not the product of an impairment, it was seriously inappropriate behaviour which calls into question the applicant’s judgment and professional responsibility. This is a cause for concern, and gives rise to a reasonable belief in the Tribunal that he poses a serious risk to persons. The risk is that he might again attempt to attend to a patient when not in a fit state to do so, either because of having taken inappropriate medication, or because of overtiredness, or both. This concern is based on the risk of further self-medication, or on the risk of a failure properly to manage his time and workload so as to maintain an appropriate sleep pattern, to prevent excessive tiredness, or both. If he attends to a patient or patients when unfit to do so, there is an obvious risk of harm to the patients concerned, and that harm could be quite serious. The element which is more difficult to assess is the probability of this occurring in the future. This part is made more difficult by the concern the Tribunal has about the extent to which the applicant has been frank with it, and as to the limited confidence the Tribunal can place in the expressions of remorse and insight in the applicant’s material. This follows from the matters discussed earlier. In the circumstances, the risk to persons in the circumstances justifies the term “serious”.
Conditions
- [32]It follows that, on the approach taken by the Tribunal, it is open to take action under the National Law s 156. I do not consider that the appropriate response is simply to remove all the conditions, but it is reasonable to assess the efficacy of the existing conditions in the light of the approach of the Tribunal. The first conditions relate to continuing treatment. I appreciate that the psychiatrist proposed such conditions and in his later report considered that they remain relevant, but it is clear that the applicant is quite resistant to the idea of receiving such treatment, and in view of this, and because of the absence of any continuing impairment on the part of the applicant, I doubt the value of such conditions. They would not address what appears to be the real problems, which are poor judgment and lack of professional responsibility.
- [33]As to drug screening, the applicant has not been diagnosed with a drug related continuing impairment, and it does not appear that his conduct during the relevant event was the result of an addiction. In those circumstances, there is less risk of a relapse into regular using, but there remains a risk of occasional use if circumstances arose where the applicant felt he really needed it. In view of the lack of confidence of the Tribunal in the applicant, this risk is better countered by more frequent rather than less frequent testing, and level 2 testing should remain.
- [34]As to the requirement that the applicant practise only in an approved place, the advantage of such a condition is that it could be used to prevent the applicant practicing in a place where there would be pressure on him similar to that which he experienced in the country town. Accordingly that condition should remain, although I would expect that any reasonable proposal by the applicant to work in a particular place should be approved.
- [35]There are then a series of conditions designed to reduce the risk that the applicant will be working to the point of becoming too tired, but which as they stand are quite restrictive, excluding any night work or call-out work as well as limiting hours of work. In the circumstances it is reasonable to impose conditions designed to prevent the applicant from working to the point where he is unable to obtain sufficient sleep but more flexible conditions should be sufficient to prevent that. The applicant did not oppose a limit of 38 hours’ work per week, and such a limit (or 40 hours to allow more flexibility) could be combined with a limit of ten hours for each individual shift or session of work (including refreshment breaks) and a minimum period between two shifts or sessions of work of ten hours. That should prevent his becoming excessively tired.
- [36]The applicant argued that it was unnecessary to have reports from both an employer and a supervisor, but there is a difference, in that the supervisor is reporting on the interactions with him, while the employer is reporting on the applicant’s relationship with patients and other persons working in the practice. However, I am not persuaded of the need for two separate reports from the employer. As to the need for a supervisor, there is some force in the proposition that unless the supervisor were personally present when the applicant was working the supervisor would not be in a position to detect if the applicant turned up for work impaired. On the other hand, one of the difficulties the applicant reported in the country town was that there seemed to be no one he was comfortable talking to about the difficulties he was experiencing in the workload. In view of this, there may be some advantage in the applicant having some approved practitioner to act as a mentor, to whom he could speak about any problems which arose in managing his work, and would could assist him to deal with them before they became too difficult to manage. That would be less intrusive than a supervisor, while still providing some safeguard against a recurrence of this problem. As pointed out in the submissions of the respondent, the applicant has had some history of difficulty in managing stress and anxiety. The conditions will be modified to provide for the nomination and approval of a mentor, and for reports by the mentor.
- [37]The written submissions for the applicant did not oppose the conditions requiring him to keep an inventory in relation to any doctor’s bag kept by him, and in view of his history such conditions are appropriate, although I consider that they can be modified slightly, to require monthly reporting by him to AHPRA, and to avoid duplicating the reporting required of the employer. Since there will be no condition requiring a supervisor, the requirement for an audit of the inventory by the supervisor will also be removed, but if the applicant maintains a doctor’s bag and therefore an Inventory Record for it, there should be some provision for an audit of it. Accordingly I have provided conditions for two such audits during the first six months of practice. Whether further auditing is required after that will be a matter for the Board. The remaining conditions were uncontroversial, expect for some financial assistance about the cost of drug testing prior to the applicant’s obtaining employment.
- [38]I acknowledge the assistance of the assessors in this matter. Accordingly, the decision of the Tribunal is that the existing conditions will be modified, as follows:
- Existing conditions 1 and 2 omitted.
- Existing conditions 3, 4, 5, 6 and 7 retained.
- Condition 8 amended to read: The Practitioner must not exceed 40 hours of practice a week.
- Condition 9 replaced by: The practitioner must not work for more than 10 hours in any one continuous shift or session, including any refreshment breaks.
- Condition 10 replaced by: The practitioner must have a period without work of not less than 10 hours between any two continuous shifts or sessions of work.
- Existing conditions 11 and 12 retained.
- Condition 13 replaced by: The practitioner must arrange to have a medical practitioner of at least ten years experience who will act as Mentor for the practitioner during any period of practice, and must make contact with the Mentor at least once in every week to report how he is coping with his work, and otherwise as well if he finds himself in any difficulty in his work, such contact to be in person or by telephone.
- Condition 14 amended to read: Prior to commencing employment at each place of practice, the Practitioner must nominate to AHPRA in writing a Mentor to be approved by the Board.
- Condition 15 amended to read: The Practitioner must ensure that each nomination is accompanied by an acknowledgment in writing from the nominated Mentor that he or she is willing to undertake the role of Mentor, and is aware that AHPRA will seek reports from him or her.
- Condition 16 amended to read: If no approved Mentor is willing or able to act, the Practitioner must cease practice immediately and must not resume practice until a new Mentor has been nominated and approved by the Board.
- Condition 17 replaced by: Prior to commencing employment at each place of practice the Practitioner is to provide to AHPRA in writing acknowledgment that AHPRA may obtain information or a report or both from the Mentor on a monthly basis as to the mentoring carried out during the period since the last report, and stating any concerns held by the Mentor about whether the practitioner is practicing in a way which is consistent with the health and safety of the public.
- Existing condition 18 omitted.
- Condition 19 amended to read: If the Practitioner maintains a doctor’s bag, he must comply with the following conditions 20 to 22.
- Existing conditions 20, 21 and 22 retained.
- Existing condition 23 omitted and replaced by the following:
- The Practitioner must submit to an audit of any doctor’s bag used by him (the audit), including any Inventory Records as required by condition 18, within three months of the commencement of his practice under these conditions and again within six months of the commencement of his practice under these conditions, by permitting an auditor (the auditor) approved by the Board to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report to AHPRA in relation to the findings of the audit. The audit and the audit report are to focus on whether there is any evidence of self-medication from any doctor’s bag used by the Practitioner.
- Within 21 days of the commencement of these conditions, the Practitioner must provide to AHPRA:
- His nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Board;
- An acknowledgement, on the approved form (HPN12), that AHPRA will seek reports from the auditor at the conclusion of each audit; and
- An acknowledgement, on the approved form (HPNA12), from the nominated auditor.
- The audits will take place as and when determined by the auditor. Within 21 days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining how the audits will take place and how the area of concern for the Board will be addressed.
- Existing conditions 24 and 25 retained.
- [39]Those conditions should be subject to review by the respondent after twelve months.
- [40]The applicant also sought the making of a non-publication order in relation to the proceeding; the respondent made no submissions on this. There are provisions dealing with a non-publication order,[38] and there are provisions for non-publication of matters involving an impairment.[39] In the present case, although on the evidence there is no continuing impairment, there is evidence that at the relevant time there was an impairment, and the temporary nature of these proceedings is also relevant. In the circumstances, the temporary non-publication order made at the conclusion of the hearing should be extended until further order.
- [41]There will be an order that the parties bear their own costs of the proceeding, unless submissions in writing seeking costs are filed within fourteen days of the decision. If a party seeks costs, that issue will be decided on the papers after all submissions in writing have been received.
Footnotes
[1]Most of this is from the affidavit of the applicant.
[2]There were then two doctors at that practice, and one other GP in the town.
[3]But a file note from the investigation stated that on the Sunday he had not come to the hospital to see a patient admitted overnight, but discharged him by phone: Hearing Brief (“HB”) p 85.
[4]He told a GP in December 2020 that he took this at midnight: HB p 134. In his affidavit sworn 29 July 2021 and when he spoke to the psychiatrist in March 2020 he said between 10 pm and midnight: para 31, HB p 216; HB p 164.
[5]Information about events on this day is taken from file notes in the respondent’s material, except where indicated: HB p 84 +.
[6]The time this occurred is not clear, but the person was sent before 1.37 am: HB p 84.
[7]According to a note, he told a nurse that morning that his phone went off and he did not get the calls: HB p 88. In March 2021 he told the psychiatrist that his phone rang but he did not get to it in time, and someone came to the door and knocked while he was trying to find his door and car keys: HB p 164. That is three different versions.
[8]HB p 84; see also HB p 86.
[9]HB p 64, p 85; the other Doctor said the handover took 1¼ hours: HB p 88.
[10]HB p 85.
[11]The material does not give the exact time, but it was apparently about 1 pm.
[12]The applicant told the psychiatrist it was written off: HB p 164.
[13]HB p 43.
[14]HB p 192.
[15]HB p 54.
[16]HB p 59; he told the other doctor at the country town a couple of days after the accident: HB p 64. According to a medical note had previously told a doctor at the city hospital that he used only prescribed medication: HB p 44. Under cross-examination he denied this.
[17]HB p 54.
[18]HB p 166.
[19]HB p 166.
[20]Report of 9 December 2020, HB p 134. Under cross-examination the applicant was very critical of this report, to a surprising extent.
[21]HB p 235. The history recorded in this report is wildly inconsistent with other sources, and presumably inaccurate.
[22]HB p 157, p 188.
[23]HB p 162.
[24]The day after the accident, he told a doctor at the city hospital that he was not particularly upset by the breakup, and was okay with the isolation of living in a country town; he admitted to being stressed at work, but felt like he was coping with the challenges: HB p 49.
[25]HB p 260, verified by affidavit filed 11 August 2021.
[26]HB p 263.
[27]Queensland Civil and Administrative Tribunal Act 2009 s 19(c), 20. It follows that I am not concerned with whether there was any error on the part of the respondent in its decision: Allesch v Munch (2000) 203 CLR 172 at [23].
[28]Pearse v Medical Board of Australia [2013] QCAT 392 at [36].
[29]For their function, see the Act s 127.
[30]Colegrande v Health Ombudsman [2017] QCAT 107 at [18], and decisions there cited.
[31]I v Medical Board of Australia [2011] SAHPT 18, cited in Pearse (supra) and Colegrande (supra). See also Smith v Physiotherapy Board of Australia [2020] SACAT 67 at [67] – [70]. As to “belief”, see also Rao v Medical Board of Australia [2021] QCAT 145 at [14].
[32]HB p 267.
[33]The applicant in his affidavit filed 9 August 2021 para 50 (and under cross-examination) said that the effects of the diazepam he admitted taking would have dissipated by the time of the accident. See also the report of the neurologist: HB p 136.
[34]Affidavit of applicant para 74; letter from his solicitors to AHPRA, 26 January 2021, HB p 132.
[35]Diazepam twice, panadeine forte more than once: affidavit of applicant paras 33(c), 41.
[36]HB p 85.
[37]I do not accept his denial of saying he had taken no unprescribed medication, in view of the hospital notes as a whole, and my generally unfavourable view of the applicant as a witness. As emerged in cross-examination, he also did not advise the doctor in the city hospital of the full details of his psychiatric history, nor was this disclosed in his affidavit before the Tribunal.
[38]Queensland Civil and Administrative Tribunal Act 2009 s 66. See Legal Services Commission v XBV [2018] QCAT 332 at [26]. Such orders are not made readily: Medical Board of Australia v Waldron [2017] QCAT 443 at [81], [82].
[39]See the discussion in Health Ombudsman v CLT (No 2) [2019] QCAT 379.