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WSS v Medical Board of Australia[2021] QCAT 5

WSS v Medical Board of Australia[2021] QCAT 5

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

WSS v Medical Board of Australia [2021] QCAT 5

PARTIES:

WSS

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR048-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 February 2021

HEARING DATE:

19 – 23 October 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,

Assisted by:

Dr D Khursandi,

Dr J Cavanagh,

Mr M Halliday

ORDERS:

Review adjourned for further consideration.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – HEALTH AND PERFORMANCE ASSESSMENTS – review of decision of respondent to impose conditions – whether applicant’s performance unsatisfactory – whether applicant has impairment – whether power to impose conditions arises – applicant having history of problems working in various hospitals

Health Practitioner Regulation National Law (Queensland) s 5, s 178, s 199.

Compton v Deputy Commissioner Stewart [2010] QCAT 384

DYB v Medical Board of Australia [2019] NSWCATOD 162

Grant v HCCC [2003] NSWCA 73

HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418

Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management [2011] QCAT 710

Medical Board of Australia v Wong [2015] QCAT 439

Pearse v Medical Board of Australia [2013] QCAT 392

Qasim v HCCC [2015] NSWCA 282

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Wilson instructed by Moray & Agnew, Solicitors

REASONS FOR DECISION

  1. [1]
    This is an appeal under the Health Practitioner Regulation National Law (Queensland) (“the National Law”) s 199 from a decision of the respondent, as varied from time to time, to impose conditions on the registration of the applicant. The applicant is and has been for some time a registered medical practitioner. In January 2018 the respondent imposed conditions requiring supervision, and treatment. The applicant in 2018 applied to the Tribunal to review the conditions. The hearing was delayed because, unfortunately, last year the Tribunal was for a time not conducting hearings with parties present in a hearing room.

Legislation

  1. [2]
    The National Law provides relevant in s 178:
  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; or
  1. (ii)
    a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment;

…

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)
    the Board decides it is not necessary or appropriate to refer the matter to a panel.
  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. [3]
    The term “impairment” is defined in s 5 relevantly as follows:

impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –

  1. (a)
    for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession

…

  1. [4]
    An impairment otherwise within that definition does not cease to be an impairment just because it is amenable to treatment, and if properly treated would not affect detrimentally the practitioner’s capacity to practice the profession.[1]
  2. [5]
    In Queensland QCAT is the responsible Tribunal for the purposes of s 199. For the purposes of the review, the Tribunal has all of the functions of the decision maker for the decision being reviewed.[2] It follows that the proceeding before the Tribunal is a consideration de novo of the matter decided by the Board, rather than something like judicial review of the decision of the respondent.[3] The decision is based on all evidence before the Tribunal, and the Tribunal is not bound by the conclusion of the respondent in taking action under s 178. It follows that it would be open for the Tribunal to impose more stringent conditions than those imposed by the respondent,[4] although before doing so it would be necessary to give the applicant the opportunity to make submissions in that context.

Background facts

  1. [6]
    The respondent took action after two incidents involving the applicant’s interactions with particular patients two days apart, while he was working at a Queensland hospital. I refer to these as Patient A and Patient B. A good deal of the evidence at the hearing, and the submissions of the applicant, were directed to those two incidents, but it is relevant for the Tribunal to take into account the whole history of the applicant’s medical work in Australia, particularly because there were aspects of the applicant’s behaviour in relation to those two patients which reflect a pattern of behaviour of the applicant, and because there is also an issue about whether the applicant has an impairment for the purposes of the National Law.
  2. [7]
    The applicant was medically qualified in Sri Lanka in 1996, and started a training course in oncology, but dropped out. He has reported difficulty in getting through his work in the hospital there, and having to keep working after hours to get it done, which he attributed to time management.[5] He moved to the United Kingdom in July 2003[6] but did not qualify to practice there, and took a position at a hospital at Alice Springs in July 2005, where he remained for a year (p 1-19). Since then he has worked at a variety of hospitals, sometimes on the basis that a position at one hospital led to a posting for a period to another.[7] It is not clear whether he has ever been accepted onto a training programme.[8] As time passed he was working as a principal house officer alongside other doctors who had been qualified for shorter periods than he had. He is now 52 (p 1-18).
  3. [8]
    The applicant told a psychiatrist that there were concerns raised about his communication style and interpersonal difficulties at the hospital where he was working in 2007-8, that at other places there were concerns raised about his time management, and that in 2011 there was an issue about prescription of a medication.[9] In October 2013 there was a notification made to AHPRA about the applicant, that his professional performance and communication manner at the hospital were not adequate. He left that hospital, and obtained a position at another hospital. A performance appraisal in February 2014 was generally positive, but noted that communications skills need to be enhanced.[10] Between January and March 2014 hospital management received multiple complaints about the manner in which the applicant communicated.[11]
  4. [9]
    On 8 April 2014 the applicant told a psychiatrist at the Victorian Doctor’s Health Programme that there had been complaints or concerns about his communications style throughout his time in Australia.[12] On 9 April 2014 there was a notification to AHPRA, which led to an investigation. In the second half of September 2014 he attended a psychologist in Victoria, attempting to overcome his problems.[13] From August 2014 he worked in a general practice, where no issues were raised with AHPRA about his performance,[14] although he said his employment at that practice was terminated.[15] On 5 June 2015 the respondent imposed conditions on his registration, requiring level three supervision, and treatment by a general practitioner, a respiratory and sleep medicine physician and a psychologist.[16]
  5. [10]
    In July 2015 he was given a position as a Principal House Officer (PHO) at an outer suburban hospital in Brisbane. It appears that almost at once there was some dissatisfaction with his performance, and he was counselled by supervisors.[17] Concerns included difficulty in synthesizing clinical history, not responding in a timely way to patients at risk of deterioration, needing constant chasing up about duties, not understanding processes, disregarding suggestions and being rude and abrupt in his manner. On 25 August 2015 restrictions were placed on his duties.[18] He was confined to day shifts, and he was encouraged to finish up his work so that he did not stay on at the hospital after 4.30 pm without approval from his consultant.

Patient A

  1. [11]
    On 8 September 2015 at about 11.45 am, A presented to the hospital with a cough which on two occasions had been with blood.[19] He was assessed in the emergency department at about 1.00 pm where a diagnosis of congestive heart failure was made, with possible exacerbation of chronic obstructive pulmonary disease.[20] He was started on medication and supplementary oxygen, and referred to the medical department, as a result of which he was seen by the applicant by 3.45 pm. The applicant diagnosed type one respiratory failure, which was correct, although he also posed a list of differential diagnoses, some of which were highly unlikely.[21] One possibility was a condition which would have improved if A had been laid flat without oxygen, and at one stage the applicant ordered this, he said as a test (p 1-86), although he did not wait to see how the patient responded. As a result, when A responded by becoming more distressed, it was necessary for the nurses to call someone from the emergency department, who reversed the changes.[22]
  2. [12]
    There is a system used in Queensland hospitals for assessing respiratory difficulty, called the Queensland Adult Deterioration Detection System (“QADDS system”). This produces scores from various inputs, such as respiratory rate and blood oxygen saturation levels, which a nurse can use to determine what medical attention is required. After the applicant had seen A and ordered medication and a particular level of supplementary oxygen,[23] his condition was such that, applying the QADDS system, he required emergency medical attention. Given that he had just been seen, it was reasonable to see if his condition improved before taking further action, such as providing assisted breathing, although I accept that that was the appropriate next step if there was not some improvement.[24] In view of his condition, he should have been admitted to an intensive care or high dependency unit (“HDU”), but the applicant says he was told that there were no such beds available.[25] There was some evidence that that was not true,[26] but it was reasonable for the applicant to act on what he was told.
  3. [13]
    What the applicant then did however was to adjust the parameters of the QADDS system for A, so as to downgrade his care level. This meant he could be admitted to an ordinary medical ward. At the hearing, and for some time before, the applicant’s position was that he adjusted the QADDS system because there was no HDU bed available. However, in a document which is undated but was sent to the hospital on 20 November 2015, he said that on his assessment A was not too unwell to go to a general ward, and made no mention of the absence of any HDU bed.[27]
  4. [14]
    The applicant did this despite having previously been counselled not to adjust QADDS scores (p 1-38) and without first speaking to the medical consultant on call; by this time there was no medical consultant present at the hospital. The applicant said in the 2015 letter (HB 660) and in evidence (p 1-79) that he did not call her as he had no specific question he wanted to ask her, and that consultants had in effect discouraged him from calling them.[28] As well, he said he knew that she had a young baby, and did not want to disturb her unnecessarily. There were however a number of reasons why speaking to the consultant was appropriate, indeed necessary for the applicant:
    1. (a)
      The consultant should be spoken to about any admission.[29]
    2. (b)
      The consultant should approve the treatment plan, which involved deciding what to do with the patient, particularly for such an ill patient.
    3. (c)
      It was the consultant who was responsible for managing admissions to the HDU,[30] where A needed to be.
    4. (d)
      If the alternative to admitting A to a ward was to transfer him to another hospital, that was something which required the involvement of the consultant.[31] It was therefore necessarily a matter for the consultant to decide whether to accommodate A on a ward, or transfer him.[32]
    5. (e)
      The consultant should have been informed about the state of the patient in such circumstances, so that she would know that there was a patient with a significant condition who perhaps ought to have been in an HDU, but would not have been.[33] She may have come in to see his condition for herself, or spoken about A to the registrar who was taking over from the applicant.
    6. (f)
      The applicant had been specifically instructed to speak to consultants about patients.[34]
  5. [15]
    Professor Brown said that the applicant should have discussed the patient with his consultant immediately.[35] Dr Bowler said in effect the same thing (p 1-70, 74), as did Dr McCaffery.[36]
  6. [16]
    There was some contention at the hearing about whether A should have had assisted breathing applied at once, using Continuous Positive Airway Pressure (“CPAP”).[37] Professor Brown, who reported on the applicant to the respondent, expressed the clear view that that was appropriate, and he stood up well to cross-examination.[38] He said it was indicated because the patient had been on a diuretic and a vasodilator and his breathing rate had not fallen.[39] The applicant called a respiratory physician, Dr Bowler, who was also quite experienced in this area, who considered that it would have been reasonable to see how A progressed with the medication he was receiving, which he regarded as appropriate, and to apply assisted breathing only if there was no improvement within a limited time.[40] He did consider that the patient should have been placed in an HDU or intensive care unit, and that the applicant should have spoken to his consultant. Dr McCaffery, a paediatric intensive care specialist, also called by the applicant, agreed, somewhat reluctantly, that CPAP was likely to have worked well on A, although he did not regard it as then necessary; he also said A should have been in an HDU, and needed appropriate monitoring.[41]
  7. [17]
    I accept that this is a matter on which minds could reasonably differ. Nevertheless, it was clear that Dr Bowler and Dr McCaffery considered that A needed to be closely watched, and his care escalated if there was no improvement in a reasonable time (p 1-66). Accepting that there were two views open about whether to apply assisted breathing at once, the alternative required close supervision of the patient, which did not occur.
  8. [18]
    Professor Brown was particularly critical of the alterations to the QADDS scores, describing them as almost incompatible with survival.[42] He also expressed concern about the justification advanced by the applicant in his written submission to the hospital, which Professor Brown said demonstrated dangerously flawed logic, with poor grasp of the conduct of acute medical care in a critically ill patient.[43] The applicant continued to seek to defend his adjustments to these scores in his submissions to the Tribunal (#92). Dr McCaffery was also critical of the modifications of the QADDS scores.[44] The problem was that A’s breathing rate was already high, and should have been decreasing with treatment (p 2-19). If it did not decrease within a reasonable time, treatment needed to be escalated, whereas under the scores as adjusted the respiratory rate could get worse without triggering an alarm (p 2-20). If the rate keeps going up, the patient becomes exhausted, which can lead to sudden respiratory failure (p 3-57). That can occur quickly, and one should not wait for it to happen (p 3-58).
  9. [19]
    Dr Bowler said that one cannot just adjust the QADDS scores and walk away (p 1-68), and, in the case of the respiratory rate, the adjustment the applicant made was excessive, and dangerous (p 1-72). Measurement of respiratory rate can be an inexact process (p 2-40) but this is really a reason to be cautious about raising the upper limit for a patient who is expected to improve, and who needs escalation if there is no improvement. I accept that the adjustments made by the applicant were excessive and inappropriate, and ought to have been subject to a time limit. The worst aspect of this however is that it occurred without his discussing the matter with the consultant.
  10. [20]
    The applicant argued that A was not a candidate for CPAP because it could be administered only in an HDU, and there were no beds free in the unit at the hospital.[45] But if the patient required CPAP and there were no such beds free, he required transfer to another hospital.[46] I suspect that the issue here was his reluctance to speak to the consultant. As Dr Bowler pointed out, even if A was not given CPAP he still belonged in an HDU, not a general ward, unless he was to get extra attention there, which did not occur (p 1-66). The applicant also raised arguments about what others had done or not done, but I am concerned with what the applicant did or did not do.
  11. [21]
    At some point the applicant should have handed over to the next Medical Registrar, but the handover was undocumented.[47] The applicant claimed that he would have alerted the next registrar to the fact that A was “a bad patient”, that is, one whose condition was of concern (p 1-79), but it seems that that person did not see A, whose condition continued to deteriorate. Dr McCaffery agreed that there was a failure to arrange appropriate follow up by the incoming medical registrar (p 2-16), which was important (p 2-25). Nurses alerted the Senior House Officer on “ward call” twice but the matter was not escalated, I suspect because of the altered QADDS parameters,[48] until A suffered a heart attack.[49] As well, staff on a general ward are not used to managing such an unwell patient. A lingered on for a few days before his life support was turned off.
  12. [22]
    Professor Brown described A’s condition as one which was treatable, with a high survival rate.[50] The applicant was defensive in submissions about A’s death, and claimed that his prospects for survival were poor anyway,[51] but I prefer the evidence of Professor Brown, that A should have been able to go home from the hospital after proper treatment (p 3-46). The applicant argued that A should have been palliated,[52] or that CPAP was not appropriate because it might not have worked,[53] but both suggestions were rejected by Professor Brown (p 3-66), whose evidence I accept. I also emphatically reject both suggestions, particularly the former. I consider that A should have been transferred to a hospital where there was room for him in an HDU or ICU, if there was in truth no HDU bed at that hospital, and that A did not go to an HDU because the applicant did not speak to the consultant on call, which he clearly should have done. This was a significant failure by the applicant to provide proper treatment.

Patient B

  1. [23]
    Two days later, on 10 September 2015, Patient B presented to the emergency department at the hospital, complaining of a possible seizure. He was known to suffer from a condition which had been extensively investigated, including by a consultant neurologist, who concluded that it was a functional neurological disorder.[54] The emergency consultant decided that he would be admitted overnight, largely because it was impractical for him to return home that evening, although it was indicated that B should be kept under observation for symptoms of epilepsy (p 1-100). He came to the attention of the applicant, who examined B thoroughly, including giving him what was intended to be a full neurological examination.[55] He then evidently did some research, and announced that he had worked out a diagnosis, a rare degenerative condition of the nerves.
  2. [24]
    B subsequently complained about the way in which the applicant behaved.[56] He said that the neurological examination was unnecessarily rough and painful, the examination lasted for too long, and the diagnosis was revealed in an uncaring way, but the most serious complaint related to his genitalia. B was born female but now identifies as male, and has had some treatment to give him a more masculine appearance, but has not had surgical modification of his genitalia. He complained that the applicant questioned him extensively about this, and his sexual history, twice asked permission to inspect his genitals, which was refused, and later pulled his pants down so as to look at them briefly.[57] Unsurprisingly, B was very upset about this. B did not give evidence, but there was little in his letter which the applicant directly disputed, apart from some matters of detail about the timing of the examination, and the number of times particular tests were repeated. In those circumstances, it is appropriate to proceed on the basis that, broadly speaking, it was an accurate reflection of B’s experience.
  3. [25]
    The applicant conceded that he had had little experience in undertaking a full neurological examination,[58] and it seems clear that his conduct of this one was at least inexpert, if not actually incompetent. One aspect of the examination was to test the ability to detect the difference between a sharp and a blunt application of mild pressure, called a pin prick test.[59] There is a particular device which is made for doing such a test, although any reasonably sharp object can be used. One expert witness spoke of using the end of a straightened paper clip.[60] What the applicant used was the needle[61] from a hypodermic syringe, which is not appropriate because it is specially designed to penetrate the skin with minimum pain, and therefore particularly unlikely to be detected as sharp.[62]
  4. [26]
    The applicant claimed that his use of a needle was supported by a medical text book, the relevant page of which he included in his material. In fact, the book said precisely the opposite (p 1-97; p 2-63, 64). That he had not noticed this is worrying, and more worrying is that he argued the point when confronted with the text in cross-examination (p 2-68), even claiming that Dr Lehn had said that you have to penetrate the skin for the test (p 2-64) when in fact he said the opposite (p 2-54). This suggests that the applicant is unwilling to accept correction, even when it is clear that he is wrong.[63] There were other aspects of the test complained of which were criticized by Professor Brown, although he appears to have taken at face value the detail of B’s statements about the number of times tests were repeated.[64]
  5. [27]
    A major failing in relation to this examination was that the applicant should not have been carrying it out at all. The plan for B had already been devised by the consultant in the emergency department, and the applicant should not have departed from that without having discussed the patient with his consultant and obtained approval. There was simply no reason for him to be trying to work out what B was suffering from, when that had already been determined by a consultant neurologist.[65]
  6. [28]
    The most concerning aspect of the applicant’s treatment of B however was his forcible examination of B’s genitalia. Any investigation of B’s gender issues was of no relevance to this presentation.[66] It is not a matter for the Tribunal to decide whether that conduct amounts to the criminal offence of sexual assault, although if the conduct did fall within the scope of that offence, that serves to underline how seriously inappropriate such conduct was. I am satisfied and find that B had not consented to such an examination.[67] That should have been the end of the matter, unless such a thing was necessary in order to perform an urgent life-saving procedure. That was obviously not the situation, as the applicant conceded (p 1-134).
  7. [29]
    The applicant claimed that the purpose of the examination was to exclude a particular medical condition,[68] but, apart from the fact that B could not have been suffering from that condition anyway,[69] a desire to investigate it provided no justification for an examination of the patient’s genitals without consent. The applicant also conceded at one point that his reason for investigating B’s sexual status was self-education.[70] Without the patient’s consent, that was totally inappropriate.[71]
  8. [30]
    What the applicant did became more concerning because he did not seem to realize during the hearing the seriously wrongful nature of this aspect of his conduct. On two occasions he asked questions which sought to justify this action, first by reference to the possibility of B having some medical condition, then because B’s condition was very unusual.[72] As I pointed out to him, this demonstrated a serious lack of insight into the wrongfulness of his conduct. Later his approach to the neurological examination changed, and he cross-examined one bemused witness, seeking to elicit more and more colourful condemnation of his conduct in undertaking it.[73] As emerged in his questioning of a later witness, this was tactical,[74] but it appeared to be confined to the conduct of the neurological examination, rather than extending to the forced exposure of the genitalia. This was similar to a point made by him in a submission to the respondent some time ago, where he had referred to examining women’s breasts to detect lumps which may be cancer, without their consent, where the consent had been withheld for cultural reasons.[75] This points to a lack of appreciation of the necessity for informed consent by a patient to any medical examination and procedure under Australian law and practice standards.
  9. [31]
    When the applicant thought he had identified the relevant neurological condition, he disclosed this to B in the middle of the night with an air of triumph, and left some pages about the condition, printed from Wikipedia, on B’s bed. B did not have that condition, which was serious, but the thought that he did have it would have caused a good deal of distress to B.[76] Other matters of concern about the applicant’s treatment of this patient include the fact that all this occurred after the applicant had finished his shift, when he should not have been at the hospital at all,[77] and that again there was no discussion of his proposed action with a consultant. I expect that that was because he knew that the consultant would never have approved such an examination.[78]
  10. [32]
    The applicant called a neurologist who had been investigating B, and who provided a report in which he stated that the applicant’s examination appeared appropriate, and that the diagnoses the applicant suggested were very reasonable (HB 2624). In evidence he said he agreed with the diagnosis of functional neurological disorder (p 2-50) and that he had not seen the complaint by B until that morning (p 2-52). Having done so, he did not endorse the manner of the applicant’s examination (p 2-53, 57).

Subsequent history

  1. [33]
    The applicant lost his position at that hospital because of this conduct. He was suspended on 18 September 2015, and remained suspended until his contract lapsed.[79] In February 2016 his solicitors advised AHPRA that he was not currently working, and that since November 2015 he had completed a course Enhancing Professional Practice, had received training in Mastering Your Risk, and had successfully completed the Advanced Life Support course.[80]
  2. [34]
    In 2016 he was employed at a base hospital in another state.[81] A performance review in April 2016 showed performance just adequate for communication with colleagues, patients and family, and for awareness of professional and personal boundaries.[82] A review the following month, by a different consultant, gave the same rating for those areas, and for clinical judgment/decision making, self-awareness (recognizing limits of his ability, and seeking assistance), and teamwork.[83] A document of 5 October 2016 said that the applicant had been the subject of frequent complaints from staff and patients about his manner and his competence.[84]
  3. [35]
    On 11 November 2016 the Director of Clinical Services at that hospital prepared a memo dealing with the applicant, in which he referred to “frequent complaints from staff and patients” which included being rude to patients, colleagues, nurses and junior staff, showing a lack of compassion towards, and having poor communication with, patients, not responding when urgently needed, having limited insight into clinical priorities, being slow in his work, and being incompetent with procedures.[85] He said that the applicant’s note taking was clear and comprehensive, and showed an understanding of the issues and reasonable treatment, and he was regarded as having a good knowledge of medicine.
  4. [36]
    The Director considered that the applicant was trying to address the problems when they were raised with him, and had succeeded to some extent, but remained less efficient than his colleagues. His attempts had been undermined to some extent because more junior practitioners and staff had lost respect for him. In view of his inability to perform procedures, the Director recommended that his employment be terminated. On 15 November 2016 he was suspended pending an investigation into his communication skills, and clinical competence.[86] He resigned that employment in December 2016.[87]
  5. [37]
    In October 2017 the Medical Board of Western Australia refused to approve his working as a resident medical officer at a hospital in that state, on the ground of his notification history, and difficulty in providing appropriate supervision.[88] The applicant wrote a letter of complaint about that decision, with intemperate language.[89] He claimed that his extensive notification history was the result of racist prejudice against him, and made an irrelevant, disparaging personal comment about one nurse who had complained.
  6. [38]
    On 15 March 2018 the applicant wrote a complaint to the Health Ombudsman about Professor Brown, criticizing in great detail, over some 45 pages, his report to the respondent.[90] Parts of this were quite intemperate, such as paragraph 2.03 (HB 1057) where he claimed that the treatment he gave to A was “certainly superior” to that proposed by Professor Brown, which was “grossly inadequate”. He claimed there were 145 errors in the report to the respondent. This letter was consistent with characteristics of the applicant’s personality noted below, under “Impairment”.
  7. [39]
    For a time, the applicant worked in various non-medical positions, including taxi driver. In August 2018 he started to work at a general practice in another state,[91] but his supervisor was not happy with his performance in that position, and on 2 November 2018 he was given one month’s notice; he resigned the same day.[92] The supervisor advised AHPRA of complaints to her from patients and staff of poor communication, over-diagnosing, poor rapport and empathy, that he was resistant to constructive feedback, and that his prescribing of S4 and S8 medication was concerning (HB 1865).
  8. [40]
    Since June 2019 the applicant has worked at a general practice in a provincial area with three other doctors (p 1-16, 17), and his supervisors have been positive about his performance.[93] The principal of the practice gave evidence during the hearing, and spoke favourably of the applicant’s work, although he mentioned that there were still issues with the applicant’s non-verbal communications, such as ensuring that the next patient was following him into his room when called (p 5-38, 39). There also was some apparent reluctance to make eye contact with the patients. One positive sign was that he reported that the applicant would ask him for his opinion on patients at times (p 5-39) and discussed interesting patients with colleagues (p 5-47). The applicant still displays an interest in diagnosis (p 5-40), he produces better than average patient documentation (p 5-41) and he handles drug-seekers well (p 5-43).[94]
  9. [41]
    The principal of the practice indicated a willingness for the applicant to remain in the practice (p 5-46). The applicant however still wishes to return to hospital work,[95] and continues to hope that someday he will be accepted onto a training programme (p 1-18). He finds general practice less challenging than work in a hospital, where there are a lot of acutely ill patients (p 5-66) and feels his talents are not being fully used (p 5-67). He claims that he has been prevented from obtaining a hospital position by the conditions imposed by the respondent.[96] That may well be true, although his employment history at a number of hospitals around Australia is also quite likely to tell against him.

Impairment

  1. [42]
    One matter which the respondent investigated was the question of whether the applicant suffered from any impairment. The applicant was reviewed by a psychiatrist who concluded that he was a high functioning individual with an autism spectrum disorder (ASD). This was a matter in contention before the Tribunal, witnesses were called, and the applicant relied on other reports. I note that in a submission the applicant made to AHPRA on 28 August 2017, he said he accepted the diagnosis of ASD.[97] That may have been at a time when he lacked additional evidence about the matter.
  2. [43]
    In the second half of 2014 the applicant attended a psychologist in Victoria to obtain assistance, after he lost a hospital position.[98] The psychologist noted from what he said that concerns about him at work were his being too autonomous, being impolite and disrespectful, and losing his temper with staff, poor communication, arguing with consultants or not following their advice, acting without speaking to consultants, and showing impatience and a lack of empathy. The applicant admitted his problems were long standing, and presented as intelligent, and frustrated at his plight. A further series of sessions was envisaged, but I consider that the applicant continued to display those characteristics during his subsequent hospital positions.
  3. [44]
    In August 2015 the applicant consulted a psychologist in Brisbane, Dr Rostas, who provided a report to AHPRA.[99] This report discussed his presenting problems, in terms similar to the report from the Victorian psychologist, and summarized his problems as difficulty with closeness and emotional connection, lack of empathy and poor communication skills. In an email in October 2015 she expressed the view that he had a high functioning ASD, which she thought would explain his difficulties, and some of his behaviour in response to his anxiety.[100] In a further report of 2 December 2015 she said that further exposure to him and the results of two assessments supported this conclusion.[101] At that time she was focused on assisting him cope with the loss of his position at the hospital. In a report in February 2016 she noted that in December 2015 he was quite anxious, and single minded around a problem-solving approach.[102] She thought his behaviour could be moderated. In a report of 25 May 2016, she advised there had been one further session, by telephone, and said that the applicant was very motivated to understand his difficulties, and improve his interpersonal functioning, but she did not change her opinion.[103]
  4. [45]
    On 29 September 2016 a psychiatrist, Dr Keller, reported on the applicant to the NSW Medical Council.[104] The applicant had admitted to not handling stress in the workplace well, which could lead to poor communication style. Dr Keller noted a tendency to be critical of nursing staff, which he suspected prompted complaints about the applicant, and a tendency to minimize issues relating to workplace problems. He suspected that both insight and judgment were impaired to some extent. He did not agree with a diagnosis of ASD, but referred to personality traits on the narcissistic spectrum. “Features that are consistent with this include his marked interpersonal sensitivity; his sense of entitlement; his explosive anger when sensing frustration or being slighted; and his inability to see problems from the perspective of others. He also displays a tendency to externalize his issues and shift blame onto other people.”[105] Despite these aspects of personality dysfunction, he did not consider that the applicant met the criteria for impairment. He recommended further psychological treatment, and continued supervision and mentoring, with the latter being better in the long term.
  5. [46]
    The applicant was seen by a psychiatrist, Dr McAulay, on 15 March 2017 for the purposes of a report to AHPRA.[106] Dr McAulay formed the impression that the applicant has a high-functioning presentation of ASD, requiring support, without intellectual or language impairment. This was said to have a detrimental effect on his capacity to practice as a doctor, and he required further assessment, psychological support and treatment, and appropriate clinical supervision. He was concerned about effective interactions with patients, colleagues, nursing and other support staff.
  6. [47]
    In January 2020 Dr McAulay, in a further affidavit, said that he had seen additional material, that his opinion was unchanged, that some of the conditions on the applicant should be removed, but most of them retained, or modified, and that the hospital setting presented greater challenges for the applicant.[107]
  7. [48]
    On 2 March 2018 the applicant was seen by a psychiatrist, Dr Aizenstros, on referral from his general practitioner.[108] In a letter of that date, he expressed the opinion that, although having some features of ASD, the applicant did not have the full criteria for that condition, and was not precluded from work with appropriate supervision. He considered the then current restrictions too burdensome. On 18 July 2018 he reported to AHPRA to the same effect, as he did in a report on about 10 October 2018. In his affidavit he noted that, as a result of observations over time of the applicant, including interactions with staff, it became apparent that he had significant interpersonal communication and executive functioning difficulties, features of ASD.[109] He considered that the ability of the applicant to undertake specialist training was significantly restricted by his interpersonal difficulties, and limited insight into his vocational strengths and weaknesses.
  8. [49]
    Dr Aizenstros said that in 2018 the applicant was suffering considerable frustration, being unable to find suitable work which met the respondent’s requirements in the same state as his wife and son, so it was a very difficult time for him (p 4-70). This made it difficult to assess his capacity to work (p 4-76). He said that an ability to cope in general practice for some time without complaints was positive for him, but that it did not throw light on whether the applicant was suitable for hospital work p 4-71. He thought that the applicant could work as a junior medical officer in a hospital (p 4-74). 
  9. [50]
    From July 2017 the applicant attended a psychologist, who reported to AHPRA on 24 April 2018 that the applicant had complied with treatment directions and had engaged in counselling in a genuine and appropriate manner.[110] He had not seen anything to indicate that the applicant was not fit to practice, but noted that he had not been working as a medical practitioner during that period.
  10. [51]
    From June to September 2018 the applicant undertook a course of social skills and communication training run by a psychologist, Dr Goode, who gave evidence.[111] She said that the testing she undertook was generally not consistent with a diagnosis of ASD, but she suspected that this was because the applicant was not answering truthfully.[112] He did not improve much during the course, she suspected because he did not accept the diagnosis, and the need to change his behaviour (para 30, HB 1972). She pointed out that he had been receiving advice and counselling for years and nothing had changed (p 4-55). The applicant at one stage sent her two intemperate emails after he saw a file note of a conversation she had with AHPRA along the lines of her evidence.[113] She said in evidence that his long, detailed rebuttals of adverse expert reports, with many annexures, was characteristic of autism (p 4-61). Her position was that the applicant has ASD, and does not have any insight into the existence of that condition (p 4-62). She thought that someone with ASD would perform better in a hospital environment than in general practice, because of the greater scope for supervision (p 4-64).
  11. [52]
    On 10 April 2019 a psychologist, K Danswan, reported to the applicant on the results of further psychological testing, which did not produce results consistent with ASD.[114] She expressed the opinion that, although the applicant had some traits consistent with ASD, the full criteria were not met. One of the tests indicated a lower than average ability for analysing and exploring a system, unusual for a medical practitioner, which strikes me as consistent with some of the problems the applicant has experienced working in hospitals. She also noted some bluntness when dealing with others, although she considered that he showed an appropriate level of empathy when discussing patient B. She considered that some further treatment and some mentoring would be of assistance, but did not consider the current level of supervision necessary. In oral evidence, she said she had some concern about whether the applicant was to some extent answering questions so as to manipulate the outcome, rather than honestly (p 4-40). She did not observe any behaviour during their sessions which concerned her (p 4-45). She considered that there should be someone with whom he had to consult on a regular basis (p 4-43).
  12. [53]
    The applicant attended a psychiatrist Dr Purssey on three occasions in the first half of 2019. Dr Purssey in his reports considered him fit to practice, and in October 2019 noted that the applicant was enjoying his general practice work, with no difficulties.[115] The reports are very terse, and do not address whether Dr Purssey considered that the applicant suffered from any psychiatric disorder or condition which might affect his ability to practice medicine.
  13. [54]
    A psychologist who treated the applicant in 2019 reported that questionnaires used to test for ASD indicated that the applicant did not qualify for that diagnosis, although there were some indications of characteristics suggestive of the possibility of ASD, particularly a communication style which seemed rude or abrupt at times, particularly with staff.[116] She also expressed some concern about his capacity to take direction. Her report noted an admission that, when at the hospital attended by patients A and B, he “did ignore” directions to liaise more with supervisors and specialists, on the basis of his “vast existing knowledge of procedures.”[117] She considered he may have difficulty in taking direction from authority figures, because of experiences in childhood. This I consider would impact adversely on his ability to function well in a hospital setting. She considered at first that he was despondent and low in mood, although by October 2019 there was an improvement in his overall mental health.[118] This may reflect his settling in to general practice. She considered he was fit to practice (HB 2085).
  14. [55]
    The applicant called a forensic psychiatrist Dr Brand, who had prepared a report dated 2 October 2019.[119] She rejected the diagnosis of ASD, largely because there was no evidence of relevant symptoms in the early development period,[120] or display of restricted, repetitive patterns of behaviour. She commented that some of his personality traits might be in keeping with Social (Pragmatic) Communication Disorder, but he did not meet the diagnostic criteria for that condition. Features she noted included impaired ability to adjust communication to meet the needs of the listener. She considered that he was safe to practice with level 3 supervision, and that the conditions then existing were unduly restrictive.
  15. [56]
    Under cross-examination Dr Brand agreed that the applicant had some ASD traits (p 4-15). She conceded that there may be personality features which do not amount to a disorder which impair his efficiency in medical practice (p 4-18, p 4-22). She stressed that some practitioners could still practice safely with ASD (p 4-22). She said that her task was to determine if the applicant had a major mental illness, and she concluded that he did not (p 4-24). She thought he probably had a mental disorder, but had not carried out the necessary formal assessment (p 4-25). She said that personality traits are difficult to modify, particularly as one gets older (p 4-26).

Action by the respondent

  1. [57]
    In January 2018 the respondent first imposed conditions on the registration of the applicant, requiring supervision and treatment.[121] On 23 February 2018 the applicant filed an application to the Tribunal to review that decision. The decision was amended in July 2018 in response to a direction by the Tribunal under the QCAT Act s 23.[122] A further direction under s 23 by the Tribunal resulted in another reconsideration, which confirmed that decision on 10 October 2018. On 11 December 2019 the respondent again reconsidered its decision, which resulted in a further amendment to the conditions, which reduced the extent of supervision required, but some supervision was still required, as was some continuing treatment.[123]
  2. [58]
    The conditions were reviewed again by the respondent in June 2020, and the respondent wrote to the applicant proposing to remove the conditions for supervision if the applicant was working in general practice.[124] In response the applicant wrote an intemperate letter to the respondent complaining about its approach, and making disparaging comments about the members of the Board, and about Professor Brown.[125] Dr McAulay considered that the letter showed someone who was angry, upset and frustrated by the process and what he had experienced (p 3-15). It suggested some continuing impairment in communication skills. It also called into question his judgment (p 3-32). Dr Brand described it as the ranting of a hurt, desperate and angry man that had full capacity and has not been mentally unwell (p 4-21). She could not say whether it reflected a lack of insight, or a lack of self-restraint (p 4-25). No modification was made to the conditions pending the hearing before the Tribunal.

Applicant’s submissions

  1. [59]
    The submissions of the applicant, provided orally and later in writing, including a second version which extended to 66 pages, cover a large number of matters, and are difficult to summarise comprehensively. A large number of the points made were in the nature of general complaints about a perceived unfairness in the system of regulation, and the processes of the Tribunal hearing, which I need not address, other than by saying I am satisfied that the hearing has been fair to the applicant.
  2. [60]
    He conceded that here had been multiple performance issues raised (#26) but submitted that only some had been substantiated (#27). As I have set out, much of the evidence about the earlier performance issues came from practitioner’s notes of what they had been told by the applicant himself, and there is no reason to doubt that these issues existed. 
  3. [61]
    In relation to Patient A, the applicant conceded that he should have discussed the case with his consultant, claiming that his failure to do so was because he had postponed doing so, and eventually it did not get done (#51, #56).[126] This was not supported by evidence, or raised by him in earlier versions. He pointed out, correctly, that he had diagnosed the patient accurately, and the treatment he nominated was correct, at least so far as it went. He went on to set out technical arguments about the precise cause of A’s breathlessness, which I do not regard as important. He submitted that the weight of the evidence indicated that A was not a candidate for immediate CPAP treatment, which I accept is a matter of medical judgment, and he acknowledged that there were further things he could have done, including:

liaising closely with the admitting physician or intensivist (Intensive Care Specialist); summoning the consultant on-call for assistance, if you cannot handle the situation alone; handing over the patients, at the end of the shift, to your counterpart; arranging follow up at regular intervals (inversely proportionate to the degree of severity of the condition of the patient) by colleagues.[127]

But he did not advance any good reason why he should not have discussed this patient with the consultant on call, and arranged appropriate follow up by the incoming medical registrar, and even if some temporary modification of the QADDS scores was appropriate, he did not provide any justification for just changing the scores and walking away. His submissions did not address these fundamental errors in his management of Patient A.

  1. [62]
    With regard to Patient B, the applicant submitted that the diagnosis of Functional Neurological Disorder had subsequently been shown to be incorrect by DNA testing (#144) but this was contrary to the evidence of Dr Lehn, that that was still the diagnosis. The applicant submitted that it was appropriate for him to come to his own conclusion about B’s diagnosis, and to undertake whatever examination was required for that purpose (#144). He argued that the criticism of Professor Brown was based on material he did not then have access to (#145), but the records from his hospital that he had access to clearly identified the existing diagnosis, and that it had been made by a specialist neurologist. That was all he needed. 
  2. [63]
    In relation to the neurological examination, he submitted that the complaint of B was exaggerated in the number of times that particular tests were repeated, which may well be true. I expect B’s figures were estimates, and are more a reflection of his subjective impression of the examination than a precise count of repetitions. Otherwise he generally did not dispute the factual content of the complaint, although he took exception to some of the language used (#193). He continued to attempt to justify the use of an hypodermic needle for the pin prick test (#177-188, #194-197). He said that when he saw B he was quick to realise that he should have an organic disorder, because of his profound disability (#201). He did not address the forced examination of the genitalia, other than by saying that he thought there was an organic basis for B’s gender dysphoria, because it is extremely rare (#228).[128] He conceded that the way in which he disclosed his supposed diagnosis to B, without first discussing it with his consultant, was not appropriate (#357).
  3. [64]
    On the question of impairment, he submitted that the evidence overall, especially that of Dr Brand, excluded a diagnosis of Autistic Spectrum Disorder (#263). He analysed the justification put forward by Dr McAulay for his diagnosis, and submitted that, apart from the absence of information about his childhood, Criterion B for the condition in DMS5 was not in fact met because he had much more extensive leisure activities than Dr McAulay had realised.
  1. [65]
    He proposed that the impairment from which he suffered in the past was lack of insight (#288). This he attributed to a defence mechanism called repression, associated with his unhappy marriage. This is not supported by any of the psychiatric or psychological evidence before the Tribunal. He submitted that the definition of impairment in the National Law has a temporal element, and is concerned with a condition which has a current effect, or a likely future effect, on the capacity to practice the profession.[129] He submitted that the improvement in his performance, and presumably in his mental state, since July 2019, was attributed to the fact of his now living alone (#293). He submitted that he had now developed insight into his vulnerabilities, and as a result had been performing satisfactorily under supervision, so that he was now fit to perform without supervision (#297, 298).
  2. [66]
    He was critical of Dr Goode, submitting that her diagnosis was not based on the proper criteria for the condition, but on impression, in a way which could not be verified scientifically, and that she had accused him of falsifying the answers in the tests he had undertaken because the result of the tests did not fit in with her intuitive diagnosis. He pointed out that other practitioners had come to the opposite conclusion. Overall, the weight of the expert opinion was that he did not have ASD.
  1. [67]
    He submitted that he was more suited to hospital practice than general practice, because of his experience in hospital practice, and his knowledge of acute medicine. He added at (#360): “In hospital practice, there is a demand on your skills in clinical procedures, more than that in general practice. These procedures are fairly basic and are within my ‘skill set’ to handle.” The difficulty with this argument is that, at his last hospital position, he was not allowed to do procedures, and his employment eventually ended because of that.[130] By contrast, he said there is a greater focus in general practice on social skills and good communication with the patients (#361). He is concerned that his patients will complain about him, to the point where he finds meeting a patient “a terrifying experience” (#366). Despite his concern, he has been able to avoid complaints in a period of eighteen months in general practice, and hospital doctors also have to deal with patients, and need good communication and a bedside manner.
  2. [68]
    He pointed out that he has successfully completed various courses offered overseas involving acute medicine, including the acute medicine examination for specialist physicians in the UK, and that is consistent with other evidence that he has a high level of medical knowledge. This he considers wasted in general practice, and prefers to work in a hospital, even if he does not gain entry into a specialist training programme. He gave examples of patients he had come across in general practice whom he had found confronting, but such people are also met with in hospitals (#376-379). He claimed to have learnt his lesson, and in the future would always go to his superiors and would never alter QADDS scores even if this meant repeatedly reviewing the patient (#388-390).

Respondent’s submissions

  1. [69]
    Counsel for the respondent outlined the applicable legislation and referred to some authorities on the operation of such a review,[131] and on the test for an “impairment”.[132] He submitted that the evidence supported the conclusion that the applicant had an impairment, even if all the criteria for a diagnosis of ASD were not present. The evidence was that his attitude and behaviour interferes with his practice of medicine. He had long standing problems with communication, his attitude to patients and those he sees as inferiors, and anger management issues. He submitted that a number of aspects of the treatment of Patients A and B were unsatisfactory.
  1. [70]
    The respondent referred to the ten matters which were the basis of the original decision of the Board, and submitted that nine of them had been substantiated by the evidence at the hearing. He reviewed the evidence in relation to impairment, and submitted that the letter from the applicant of 3 August 2020 was troubling, and showed that the applicant still had anger management issues, and problems with judgment. He also referred to changes in the conditions imposed by the respondent since its original decision of 17 January 2018.

Consideration

  1. [71]
    The National Law provides in s 3(2)(a) that one of its objectives is “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.” Section 3A provides: “The main principle for administering this Act is that the health and safety of the public are paramount.” By s 4, the Tribunal is required to exercise its review function having regard to the objectives and guiding principles set out in s 3, and the paramount guiding principle under s 3A.
  1. [72]
    I should say something about credibility. My impression is that the applicant was generally honest in his evidence, but not always reliable, trying at times to present himself in the best possible light. At one point he claimed that he was banned from working after 4.30 pm only after he had seen Patients A and B (p 1-87), and later, that he was working a late shift on the day he saw B (p 1-94). In fact he was confined to day shifts on 25 August 2015.[133] At (p 1-91) under cross-examination he initially admitted that he knew of B’s diagnosis when he examined him, but later denied that he did. If the latter is correct, he had not properly read the documents from the emergency department. In view of this, it is necessary to treat the applicant’s evidence with some caution. There is no reason to be concerned about the credibility of any other witness.
  2. [73]
    The first issue is whether the way the applicant practices his profession, or his professional conduct, is or may be unsatisfactory. By the National Law s 5:

unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

This is of course not a definition of unsatisfactory professional conduct, but it throws some light on the meaning of that term in s 178. I expect the main difference is that “performance” is concerned with what is done in the practice of the profession, whereas “conduct” can extent to matters outside that, as shown by the extended definition of “unprofessional conduct” in s 5.

  1. [74]
    This matter is to be decided by reference to the conduct of the applicant in relation to Patients A and B, as it was by the respondent. It is convenient to deal with the specific categories of conduct listed by the respondent, in order. Dealing with Patient A, the first issue was one of Clinical Care – failure to use the QADDS system appropriately, including modifying the respiratory rate to allow an upper limit of 44 breaths per minute. The issue here needs to be considered in context, where the effect of the adjustment was that A was admitted to a general ward, rather than to a High Dependency Unit where he belonged. All of the experts agreed that he needed to be in an HDU, or in intensive care, or, at a minimum, with special, additional care in a ward, if that could be arranged. The applicant instead simply adjusted the scores, did not put a time limit on this, did not tell the incoming registrar what had been done and to monitor the patient, did not arrange extra care for A, and did not inform the consultant on call of the situation.
  2. [75]
    All of the experts said that the adjustment to the respiratory rate made by the applicant was inappropriate.[134] It was not an excuse that this was proposed by a nurse, however senior or experienced. Patient A should have been improving with treatment, otherwise his care needed to be escalated, whereas the adjusted scores allowed for deterioration, and would not detect a failure to improve. I regard the adjustment to the QADDS score for respiratory rate as a significant failure of clinical care, and as amounting to unsatisfactory professional conduct.
  3. [76]
    The second clinical care issue for Patient A was the failure to refer A to the specialist physician on call. That the applicant should have done so is clear, for the reasons listed earlier, and he conceded as much in submissions (#51). This was something he had been counselled to do, and there was certainly no good reason not to do so. It is significant that he admitted to a psychologist in 2019 that, while at the relevant hospital, he had “ignored” directions to liaise more with specialists, because of his existing vast knowledge.[135] His position appeared to be that his expertise was such that he could handle patients without assistance, as shown by the answer during his evidence that he had no specific question to ask the consultant (p 1-79). He did in fact need to discuss what was to be done with A with the consultant, because only she could control the allocation of HDU beds, or the transfer of A to another hospital. I regard this matter as a more significant failure of clinical care, and as also unsatisfactory professional conduct.
  4. [77]
    In relation to Patient B, the first matter was Clinical Care, examining B inappropriately for an unnecessary amount of time, causing inappropriate delay to his care. There was no question of care being delayed: B did not require any specific care. As well, it is clear enough that the applicant was not examining B continuously for seven and a half hours, although I accept that there was an excessive[136] and inappropriate examination of B, essentially because B should not have been subjected to a neurological examination by the applicant at all. B already had a diagnosis by a specialist neurologist, and in those circumstances it was unnecessary and inappropriate for the applicant to be investigating him further, based on the assumption that the existing diagnosis was or might have been wrong. That was particularly the situation when the applicant lacked the skill and experience to be able to carry out a competent neurological examination of B. I find that it was unsatisfactory for the applicant to have conducted any neurological examination at all of B, and that this was a failure of clinical care.
  5. [78]
    The next matter was that during that examination there was excessive testing of B’s hands and feet, causing him unnecessary pain. It is clear that the pin prick test was carried out incompetently because of the use of an hypodermic needle, and the penetration of the skin. Further, the tests were carried out with sufficient degree of repetition to distress the patient, which was inappropriate. I find that this was unsatisfactory professional conduct.
  6. [79]
    The next matter was that the applicant incorrectly diagnosed B with a particular condition known by the acronym CADASIL. It is clear that, because of tests undertaken by neurologists, B did not have that condition, so in that sense the diagnosis was incorrect. On the other hand, one of the neurologists who had also examined B regarded the diagnosis as a reasonable one, presumably on the basis that it was made in ignorance of the test results excluding it.[137] Putting aside the issues that the applicant should not have been embarking on a search for a diagnosis at all, and the manner of its communication (dealt with elsewhere) I am not persuaded that arriving at this diagnosis in itself represented a failure of clinical care which was unsatisfactory professional conduct by the applicant.
  7. [80]
    The next matter was a boundary violation, in the form of inappropriate questions about B’s sexual status, history, functions and organs, and requesting to see B’s genitalia. This questioning occurred, and I accept that it was irrelevant to B’s presentation, and inappropriate. The suggestion that the applicant was investigating the possibility of Testicular Feminisation Syndrome seems to have been a relatively recent invention, and in any case was not something the applicant should have been investigating. I consider that the allegation of boundary violation was made out. The applicant regarded B as an interesting specimen for study. This was unsatisfactory professional conduct.
  8. [81]
    The next matter was the boundary violation constituted by the examination of B’s genitalia without his consent. Again, I accept that occurred, and that B had not consented to it. This was done out of medical interest on the part of the applicant, but that was no excuse in circumstances where B was not consenting. I regard this as a seriously wrongful boundary violation, which was unsatisfactory professional conduct. It was the manifestation of an attitude that the patient’s personal integrity did not matter.
  9. [82]
    The next matter was the applicant’s failure to communicate openly and effectively with B, including when communicating the diagnosis of CADASIL. Again I consider that this was made out in relation to the communication of the diagnosis. I accept that the applicant simply left same pages of printout from the internet about the condition on B’s bed, for him to read for himself, which was completely inappropriate given the serious nature of the condition. The applicant should not have communicated the diagnosis at all without discussing the matter with his consultant. I have no doubt the applicant did not speak to his consultant about B because he knew at the time that he should not have been investigating B at all. This was again unsatisfactory professional conduct.
  10. [83]
    The last clinical care matter was the proposition that the applicant had failed to comply with the restrictions placed on him by the hospital. As I have already said, I consider that the true situation was that the applicant was deliberately ignoring the restrictions placed on him, because he considered that he had sufficient ability to be able to decide for himself what he would do. He was not keeping to the restriction that he not work after 4.30 pm, and I regard his excuse, that he had started the patients before 4.30 pm,[138] as not legitimate. It had been his long standing practice to work back to compensate for his relative inefficiency in dealing with patients, dating back to his time in Sri Lanka, presumably to avoid giving the impression that he was not pulling his weight. He was also ignoring the instruction to speak more to consultants, and not to pursue unlikely diagnoses. This was again unsatisfactory professional conduct.
  1. [84]
    Overall I accept that the way the applicant practiced his profession, or his professional conduct, was unsatisfactory, in the eight respects identified above.[139] The remaining issue is whether the applicant has an impairment. As the decision of the Board was made pursuant to s 178 of the National Law, the Tribunal in conducting the review must decide two issues:
    1. (a)
      Whether the registrant suffers from an impairment as that term is defined in the National Law; and
    2. (b)
      If the Tribunal determines the registrant has an impairment, and only then, determine what conditions, if any, should be placed on the registrant’s registration.[140]
  1. [85]
    The first of these issues has two elements: whether the applicant has, relevantly, a mental impairment, disability, condition or disorder, and whether it affects, or is likely to affect, detrimentally his capacity to practice his profession. As to the first of these elements, I do not consider that it is necessary to show that the applicant has a particular disorder falling within the DSM5, because the collection of words used includes condition, which must include something which does not amount to a disorder. Accordingly, it is not necessary to show that there is something of sufficient seriousness to amount to a disorder in order to satisfy this part of the definition. As well, it is not necessary for the Tribunal to make a specific finding as to a particular mental health diagnosis.[141]
  2. [86]
    Although it is clear that the applicant has features of an ASD, there is controversy about the diagnosis. The approach of Dr Brand is logical in terms of a strictly formal application of the DSM5 criteria, although I would expect that practitioners with considerable experience of dealing with patients with ASD would have some capacity to recognize the condition without a formal diagnostic process. It is interesting that two psychologists who had the applicant complete written test questionnaires designed to detect ASD both obtained results inconsistent with that condition, and both were doubtful of the accuracy with which the applicant had answered the questions.[142] Strictly speaking, Dr Brand does not say that the applicant does not have ASD, just that with the available information it is not possible to make a diagnosis of ASD. On the whole, although I am suspicious, the evidence overall is not sufficient, and I am not prepared to find that the applicant does have ASD.
  3. [87]
    There is also the consideration that one psychiatrist, Dr Keller, noted the presence of a number of personality traits on the narcissistic spectrum, although he did not consider that they amounted to an impairment. Some of these features were quoted earlier, and they were on display in the course of the proceeding, and in the applicant’s history, such as the reluctance on his part to talk to consultants, and a reluctance to accept that he was wrong about anything. That was certainly manifested in the proceeding, for example by his reluctance to accept that he was misrepresenting the text book about the pin-prick test.
  4. [88]
    There have been other examples of this. He was very critical of Professor Brown and his opinions,[143] for example, arguing with him about the five year survival rate for cardiac failure (p 3-45, 46)[144] and about whether Patient A could have had obstructive lung disease (p 3-52). Although the Tribunal has not accepted everything that Professor Brown said, he was a very well qualified and impressive witness, who stood up well under cross-examination, and the Tribunal did generally accept his evidence. In these circumstances, the applicant’s criticism of Professor Brown largely rebounds on himself. The first psychologist from 2014 noted as one of his problems arguing with consultants (HB 749), and the most recent psychologist expressed concern about his taking direction from authority figures (HB 2080).
  5. [89]
    Overall, the impression I have from all the evidence is that, although the applicant has a good theoretical knowledge of medicine, his performance in the practice of medicine is not as good as he thinks it is. This seems to be a large part of his problem: he does not discuss cases with consultants because he considers that he does not need their help, when in fact he does, and in any case the consultants need to be aware of what is going on, because there are decisions which only they can make. There is also plenty of evidence that there has been a continuing pattern of his being rude to or abrupt with nurses, and others whom he sees as being in a subordinate position. These range from the earliest report from a psychologist before the Tribunal (2014)[145] to the report of the psychologist who treated him in 2019.[146] At his last hospital, it was said that he had lost the respect of junior medical staff (HB 1376).
  6. [90]
    This combination points to the main difficulty which the applicant has experienced in working in hospitals, his inability to work effectively as part of a team. Hospital work is very much a matter of team work, and it appears clear that the applicant has shown a consistent pattern over about ten years of difficulty in working as part of a hospital team. This has been attributed in some of the evidence to his communication difficulties, which some have attributed to ASD. It has not been particularly obvious in the more formal setting of the Tribunal hearing, and it occurs to me that it would not arise particularly in general practice, where the doctor ordinarily deals with the patient personally, or refers the patient to a specialist or hospital. This is consistent with the comment of Dr Aizenstros, that the ability to cope with general practice without complaints for eighteen months did not throw light on whether the applicant was suitable for hospital work (p 4-71).
  7. [91]
    There has also been evidence of communication difficulties with patients in the hospital setting, including with B, and no doubt this can apply in general practice as well. The evidence suggests that this arises, to some extent, from a tendency to treat a patient as a diagnostic problem to be solved, rather than as a human being with feelings and personal integrity, to be helped. I have noticed a tendency to be judgmental in his dealings with Patient A for example, where he was keen to stress that A was a smoker and a drinker, and seemed to be using this as a basis to justify limiting care to him. There was something like this also in his accounts of difficult patients he has come across in general practice,[147] and although he recognizes that he has the same duty to provide care for patients regardless of their political or world views, he appears to have some difficulty in putting this into practice. That is going to be a difficulty for him in practicing medicine, in whatever setting.
  8. [92]
    The evidence shows that the applicant has personality features which, whether they lie on the autistic spectrum or the narcissistic spectrum, or perhaps straddle both, amount collectively to at least a condition of his mental state. It is on the authorities not necessary to identify a particular psychiatric pigeon-hole into which he fits, and indeed he may not fit squarely into any particular hole, but that does not mean that he does not have at least a condition of the mind. The important issue for the purposes of the National Law is whether the second part of the test is satisfied, whether it affects, or is likely to affect, detrimentally his capacity to practice his profession.
  9. [93]
    Dr Keller who saw him in 2016 recommended further treatment and supervision, changing to mentoring in the long term, which suggests that what he described as a personality dysfunction could interfere with his practice of medicine (HB 391). Dr McAulay considered that what he identified as ASD had a detrimental effect on his capacity to practice as a doctor, because of concerns about effective interactions with patients, colleagues and other staff (HB 1019). In January 2020 and in his oral evidence he confirmed that opinion, and said that the hospital setting presented greater challenges for the applicant (HB 2184). Dr Aizenstros considered that his ability to undertake specialist training was significantly restricted by his interpersonal difficulties, and limited insight into his vocational strengths and weaknesses (p 4-69), although he thought he could work as a junior medical officer (p 4-74). Dr Brand considered he was safe to practice with Level 3 supervision, although personality features which do not amount to a disorder could impair his efficiency (HB 439, p 4-18, 22).  She said she thought he probably had a mental disorder, but could not confirm that (p 4-25). Only Dr Purssey considered the applicant as fit to practice without qualification (HB 2091). The weight of the expert evidence therefore supports a finding that the mental condition of the applicant affects, or is likely to affect, detrimentally his capacity to practice his profession, and I so find. Such a finding is supported by the continuing difficulties that the applicant has had working in hospitals over a period of about ten years, which do not seem to have diminished with time; if anything, his problems in hospitals have become worse, and his last two positions ended with him suspended because of what was regarded as poor performance. It follows that the applicant has an impairment for the purposes of the National Law.

Conclusion

  1. [94]
    Hence on the review the Tribunal has found that the way the applicant practised his profession, or his professional conduct, was unsatisfactory in eight respects, and that the applicant has an impairment. I should record that these findings have been made with the benefit of the assistance of the assessors. That enlivens the power under s 178 of the National Law. As I indicated during the hearing, the Tribunal, having reached this point, will publish its findings, and invite further submissions at to what conditions, if any, the Tribunal should impose on the registration of the applicant, in the light of those findings.
  2. [95]
    For the reasons given earlier, the Tribunal is not confined to the conditions currently on the applicant, or something less than that. In view of the finding about the existence and nature of the impairment, one possible condition would be that the applicant not practice in a hospital. The revised submissions in writing of the applicant have already addressed this issue extensively, but it has not been addressed by the respondent, and the applicant may wish to add something. As well, either party may propose other conditions. The Tribunal can receive further submissions in writing, or if required a further oral hearing can be arranged, although that will be subject to the availability of the assessors, and of a hearing room.

Footnotes

[1]Medical Board of Australia v Wong [2015] QCAT 439 at [72]; HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418 at [54].

[2]Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), s 19.

[3]Pearse v Medical Board of Australia [2013] QCAT 392.

[4]Compton v Deputy Commissioner Stewart [2010] QCAT 384 at [29]; Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management [2011] QCAT 710 at [19].

[5]Report of Dr Keller 29 September 2016, p 3, HB 388.

[6]Note by applicant to report of Dr McAulay, HB 398. In evidence he said from September 2003 to September 2005, p 1-19.

[7]In his revised written submissions, the applicant identified 19 hospitals where he had worked: #347.

[8]At one point he claimed that he started as a trainee physician at one hospital (p 1-20), but left that position after conflict with a consultant: transcript p 1-22, 23; note of interview with applicant, 12 April 2017, affidavit of Spry, sworn 22 February 2019, exhibit HAS-14, HB 714.

[9]Report of Dr Brand 2 October 2019 p 4, HB 442. See also Report of Dr Keller p 3, HB 388.

[10]HB 417.

[11]Affidavit of Spry, sworn 22 February 2019, exhibit HAS-5, HB 584.

[12]Letter to AHPRA, dated 7 October 2014, HB 383. She attributed the difficulties to his personality.

[13]Affidavit of Spry, sworn 22 February 2019, exhibit HAS-12, HB 684.

[14]Affidavit of Spry, sworn 22 February 2019, exhibit HAS-5, HB 585.

[15]Revised written submissions of the applicant #351.

[16]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-5, HB 582 +. He was not advised of this until he received a letter sent to an earlier address on 14 July 2015, after he obtained another job.

[17]Letter Director Medical Services to Office of Health Ombudsman, dated 28 October 2015, p 3, HB 210, 572. He was specifically told to be concerned about deteriorating ADDS scores, and that consultants needed to be informed of unwell patients. See also affidavit of Steel, sworn 24 April 2019, exhibit GS1, HB 1927, a complaint from high dependency unit nurses.

[18]Affidavit of Steel, sworn 24 April 2019, para 7, exhibit GS2, HB 1929.

[19]Letter Director of Medical Services to Office of Health Ombudsman, dated 21 April 2016, HB 2568.

[20]Letter dated 28 October 2015 above, p 4 HB 211 said he was not seen by an emergency consultant. He was however seen by a registrar: Letter to OHO, dated 21 April 2016, p 2, HB 2569. A consultant was told of the patient later, after the trial of lying him flat.

[21]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 5, HB 1158. This was not necessarily a bad thing, at least in theory, so long as it did not delay treatment: McCaffery p 2-7.

[22]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 5, HB 1158; Brown p 3-49.

[23]Which was appropriate: Affidavit of McCaffrey, sworn 13 April 2020, para 5.16, HB 2639.

[24]It would also have been reasonable to apply assisted breathing at once, given the time during which A had already been receiving treatment; this is a matter of medical judgment, discussed below.

[25]The hospital had an HDU, but no intensive care unit.

[26]Affidavit of Steel, sworn 15 January 2020, para 8, 11; HB 472, 473; p 4-32.

[27]Affidavit of Steel, sworn 24 April 2019, para 15, exhibit GS-10, para 13, 14, HB 1958, 1959. He identified the risk of respiratory deterioration as one where the rate dropped, not where it increased: para 10, HB 1960. Professor Brown in his report said this was wrong: p 10 HB 1163. In a submission made to AHPRA on 28 August 2017, the applicant said that he could not remember if there were vacant beds in the HDU at the hospital: affidavit of Spry, sworn 22 February 2019, exhibit HAS-21, HB 741. He said then that he adjusted the QADDS scores at the suggestion of a senior nurse: HB 740.

[28]That could not have been the case with this consultant, as he had never spoken to her before: revised submissions in writing of applicant #91.

[29]As he admitted: p 1-61. He had previously been told to do this: p 1-39.

[30]Steel, p 4-33; p 4-35.

[31]Steel, p 4-36.

[32]Most patients who are quite unwell are transferred away from that hospital: Steel, p 4-34.

[33]He had been told that consultants need to be told of unwell patients: p 1-40.

[34]See note 16 above.

[35]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 8, HB 1161.

[36]Affidavit of McCaffrey, sworn 13 April 2020, para 5.22.3, HB 2644; transcript p 2-14.

[37]See the Health Service Guidelines, HB 43.

[38]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 6; HB 1159; transcript p 3-47; cross-examination p 3-48, p 3-55.

[39]Brown, p 3-47. He said that A did not ever really get better, despite the other treatment: p 3-64.

[40]Comment by Dr Bowler dated 19 September 2019, HB 499. See also p 1-75.

[41]Affidavit of McCaffrey, sworn 13 April 2020, paras 5.21.8, 5.21.10, HB 2643.

[42]Affidavit of Brown, sworn 25 February 2019, exhibit AB2 p 9, HB 1162; transcript p 3-57.

[43]Affidavit of Brown, sworn 25 February 2019, exhibit AB2 p 10, HB 1163.

[44]Affidavit of McCaffrey, sworn 13 April 2020, para 5.27.5, HB 2646; transcript p 2-23.

[45]Transcript, p 1-54. Indeed, he claimed in evidence that he would have ordered it if there had been an HDU bed available: p 1-55. Later he said that he did not think A really needed it: p 1-82. See also what she said in his submission to the hospital on 20 November 2015: Affidavit of Steel, sworn 24 April 2019 para 15, exhibit GS10, HB 1959.

[46]Brown, p 3-56. There is a critical care network in Brisbane, to coordinate the available resources: Brown, p 3-47.

[47]Transcript p 1-78. But in a submission to AHPRA of 28 August 2017, the applicant said that he failed to hand over A to the night medical registrar: Affidavit of Spry, sworn 22 February 2019, exhibit HAS-21, HB 736, 741.

[48]Brown, p 3-56.

[49]This occurred shortly after A had walked to the toilet without oxygen. He had been given diuretics, and it is plausible that he did this because, in a busy general ward, there was no response to his call button, another reason why he should have been in an HDU: transcript, p 2-37, 38. See also Brown, p 3-67.

[50]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 7, HB 1160; transcript p 3-46, p 3-69.

[51]See for example letter from applicant to Deputy President Allen DCJ, dated 31 January 2020, para 18, HB 483.

[52]Revised written submissions of applicant, #92(g).

[53]Revised written submissions of applicant, #392(e).

[54]As the applicant knew: p 1-91. This appeared in the notes from the emergency department, three times: Brown p 3-87. The applicant argued that after subsequent gene testing B had a different diagnosis, but that was not correct: Brown p 3-73.

[55]He admitted to Dr McAulay that he saw B as a diagnostic challenge, and was attempting to come up with a diagnosis: Report of Dr McAulay p HB 400. See also applicant’s complaint of 15 March 2018, para 8.07, HB 1082, where he admitted that he treated B as a diagnostic challenge.

[56]Affidavit of Steel, sworn 24 April 2019, exhibit GS6, HB 1944.

[57]The applicant admitted that he did this in an unsigned note in response to the original complaint provided to the hospital: Affidavit of Spry, sworn 22 February 2019, exhibit HAS-11, para 08, HB 664. He claimed there that he had B’s consent. In the note he admitted that this was for his medical interest: para 07. Dr Lehn described the whole investigation as grossly inappropriate: p 2-53.

[58]Transcript, p 2-83, where he conceded that his standards were quite low.

[59]Dr Lehn, p 2-54. It is not suppose to pierce the skin.

[60]Brown, p 3-79. He said the use of a needle was unforgiveable.

[61]An example is exhibit 1.

[62]Transcript, p 2-66. He did this even though he had a Neurotip (exhibit 2), something specifically made for this purpose, available to him at that time.

[63]In his revised written submissions, he said that the terms used in the textbook were ambiguous: #177. They were quite clear to me. He continued to argue that a needle was appropriate: #178.

[64]Report, p 13, HB 1166. See also Brown, p 3-82.

[65]Affidavit of Brown, sworn 25 February 2019, exhibit AB2, p 15; HB 1168; Brown, p 3-74. This was so, even if the neurologist was still following up the investigation: p 1-92.

[66]As the applicant admitted in a submission to AHPRA dated 28 August 2017: affidavit of Spry sworn 22 February 2019, exhibit HAS-21, HB 748. See also Dr Lehn p 2-53, 55.

[67]In early responses to this complaint the applicant said nothing about consent, or said he thought B was consenting. In a submission to AHPRA dated 28 August 2017, he said “I felt compelled to do this, as I thought it was relevant to the medical history of the patient, and could explain the gender dysphoria.” Affidavit of Spry sworn 22 February 2019, exhibit HB 748. In his affidavit of 26 March 2020 p 14, HB 2586, he relied on “verbal consent at the beginning which is usual”, apparently a reference to consent to the examination generally. But B had refused to allow this earlier in the examination.

[68]Affidavit of applicant, sworn 26 March 2020, p 14, HB 2586; transcript, p 1-105. This was apparently raised for the first time in a letter from his solicitors to the OHO, 16 November 2015, p 2, HB 577, where the fact of a brief inspection was admitted, and persisted in up to and at the hearing.

[69]Brown, p 3-76, which evidence I accept. This shows that the applicant’s suggestion of that condition was defensive, and displays medical ignorance.

[70]Transcript, p 1-122. He admitted to Dr McAulay that he was focused on the medical interest of the case: report of Dr McAulay, HB 400. In a submission, he said it was relevant to B’s overall medical history: affidavit of Spry, sworn 22 February 2019, exhibit HAS-24, HB 888. He did not suggest in that submission that B had consented.

[71]Brown p 3-83.

[72]Cross-examination of Dr McAulay, p 3-35; re-examination of Dr Brand, p 4-29, using language she found offensive.

[73]Dr Danswan (psychologist), p 4-50 – 52.

[74]Transcript, p 4-62, cross-examination of Dr Goode.

[75]See Notice of Board decision to take action, dated 25 January 2018, reasons para 38.

[76]The diagnosis should have been discussed with a consultant before telling the patient: Lehn, p 2-57, 58.

[77]He had been told on 25 August, and on 8 September, that he was not to be there after 4.30 pm without approval: p 1-43. See also affidavit of Steele, sworn 24 April 2019, paras 7, 8, exhibit GS2, GS3, HB 1929, 1932.

[78]Affidavit of applicant, sworn 26 March 2020, para 39H, HB 2589.

[79]Affidavit of Steel, sworn 24 April 2019, paras 10, 19, HB 1922, 1923, exhibit GS5, HB 1941.

[80]Affidavit of Spry, sworn 22 February 2019, exhibit HAS-9, HB 635.

[81]Affidavit of Ali, sworn 27 February 2019, para 2, HB 1343.

[82]Affidavit of applicant, sworn 23 August 2019, exhibit 55, HB 420, 421.

[83]Ibid, HB 418, 419.

[84]Affidavit of Ali, sworn 27 February 2019, para 8, exhibit OA4, HB 1361.

[85]Affidavit of Ali, sworn 27 February 2019, exhibit OA7, HB 1376.

[86]Affidavit of Ali, sworn 27 February 2019, para 13, HB 1345.

[87]Transcript p 2-74. He was subsequently advised that, had he not reigned, his employment would have been terminated: Affidavit of Ali, sworn 27 February 2019, para 21, HB 1346.

[88]Affidavit of McAulay, sworn 24 February 2019, exhibit JMcA7, HB 1103. This was part of a bundle of material sent by the respondent’s solicitors to Dr McAulay on 21 February 2019.

[89]Ibid, HB 1093 +.

[90]Affidavit of Brown, sworn 25 February 2019, para 6, exhibit AB-4, HB 1283 +. There were also complaints to the National Health Practitioner and Privacy Commissioner, the Australian College of Emergency Medicine and the Anti-Discrimination Commission of Queensland: ibid paras 7 – 9.

[91]Affidavit of Coleman, sworn 4 March 2019, para 30, exhibit JC26, HB 1827.

[92]Affidavit of Budd, sworn 27 March 2019, exhibit JB1, HB 1869.

[93]See for example affidavit of applicant, sworn 18 August 2020, documents 113 – 116, HB 2692 +; affidavit of Coleman, sworn 13 January 2020, exhibit JC45, HB 2055 +.

[94]Yet the applicant complained that he had difficulty with them: Revised written submissions #383, -4.

[95]See for example applicant’s letter to Deputy President Allen DCJ, dated 31 January 2020, para 6, HB 479; transcript p 5-50, p 5-66; revised submissions in writing of applicant #32. But he told Dr Brand that he appreciates that general practice is less stressful, and he enjoys the people in the area: Report, dated 2 October 2019, page 4; Brand, p 4-19. He would prefer general practice to not working at all: p 5-61.

[96]Revised submissions in writing of applicant #31.

[97]Affidavit of Spry, sworn 22 February 2019, exhibit HAS-21, HB 749.

[98]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 684 +.

[99]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 689 +.

[100]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 692.

[101]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 694.

[102]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 688.

[103]Affidavit of Spry, sworn 22 February 2019, para 5, exhibit HAS-12, HB 697.

[104]Affidavit of applicant, sworn 23 August 2019, exhibit 29, HB 386.

[105]Report of Dr Keller p 6, HB 391. All of these features were displayed in the course of this proceeding. Dr Brand agreed the applicant had these features: p 4-24. Dr McAulay also said that a reluctance of the applicant to speak to consultants would be consistent with a narcissistic personality, as was a reluctance to accept that he was wrong and someone else was right: p 3-24.

[106]Affidavit of McAulay, sworn 24 February 2019, exhibit 2, HB 1012 +.

[107]Affidavit of McAulay, sworn 16 January 2020, HB 2184.

[108]Affidavit of Aizenstros, sworn 20 February 2019, HB536. The letter to the GP was exhibit JA-2, that to AHPRA was exhibit JA-3.

[109]He could not make a diagnosis of ASD, since the applicant had not undertaken the full diagnostic assessment process: p 4-69.

[110]Affidavit of Coleman, sworn 4 March 2019, exhibit JC10, HB 1714.

[111]Affidavit of Goode, sworn 19 October 2019, HB 1967.

[112]Ibid para 27, HB 1970. Or it could indicate a total lack of insight: p 4-54.

[113]Affidavit of Coleman, sworn 4 March 2019, exhibit JC33, HB 1838; exhibit JC35, HB 1843.

[114]Report of K Danswan, dated10 April 2019, HB 497. She had seen him twice in October 2017, and twice in March 2019: p 4-38.

[115]Affidavit of Coleman, sworn 13 January 2020, exhibit JC47, HB 2087, 2089, 2091.

[116]Affidavit of Coleman, sworn 13 January 2020, exhibit JC46, HB 2079.

[117]Ibid, HB 2080.

[118]Ibid, HB 2081, 2083.

[119]Affidavit of Brand, sworn 11 October 2019, annexure; HB 439.

[120]She said the diagnosis was excluded by an absence of collateral information about his childhood: p 4-17; p 4-21.

[121]Affidavit of Spry, sworn 22 February 2019, para 30, exhibit HAS-25, HB 891.

[122]Ibid, para 32, exhibit HAS-26, HB 940.

[123]Affidavit of Spry, sworn 15 January 2020, para 8, exhibit HAS29, HB 2114.

[124]Affidavit of applicant, sworn 18 August 2020, document 119, HB 2704.

[125]Letter applicant to respondent, dated 3 August 2020, HB 2679. Under cross-examination he sought to defend some of these statements: p 2-80, 81, 86 (but not all of them: p 2-89).

[126]See also #89: “I postponed the task; I would have been synthesizing the case in my mind, for a while; and eventually, seemed to have forgotten talking about it, altogether. This was a significant act of omission.” (Italics to show amendment, not emphasis.)

[127]Revised written submissions of applicant, #137. Italics indicate changes in the revised version.

[128]Indeed, he submitted that B was such an uncommon presentation that it was unlikely that he would face a similar situation in the future: #356.

[129]This is not the case; a condition can be an impairment even if it is in remission, or controlled by medication.

[130]Affidavit of Ali, sworn 27 February 2019, exhibit OA7, HB 1376; para 13 HB 1345; para 21 HB1346.

[131]Pearse v Medical Board of Australia [2013] QCAT 392.

[132]Medical Board of Australia v Wong [2015] QCAT 439; HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418; DYB v Medical Board of Australia [2019] NSWCATOD 162.

[133]Affidavit of Steele, sworn 24 April 2019, exhibit GS2, HB 1929.

[134]Professor Brown, report p 9, transcript p 3-75; Dr McCaffery p 2-20; Dr Bowler p 1-72.

[135]Affidavit of Coleman, sworn 13 January 2020, exhibit JC46, HB 2080.

[136]A reasonable time for a thorough neurological examination by a registrar was 1.5 hours: Dr Lehn p 2-52.

[137]Report of Dr Lehn, HB 2624.

[138]See for example transcript p 1-93.

[139]This may go further than s 178 requires, which is just a “reasonable belief” on the part of the Tribunal: Mahboud v Medical Board of Australia [2020] QCAT 459. I regard the evidence as sufficiently clear to make definite findings, on the balance of probability.

[140]HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418 at [30].

[141]Grant v HCCC [2003] NSWCA 73 at [12]; Qasim v HCCC [2015] NSWCA 282 at [64]; DYB v Medical Board of Australia [2019] NSWCATOD 162 at [192].

[142]Dr Goode HB 1927; Ms Danswan HB 497, p 4-40.

[143]Note the complaints made about Professor Brown to the Health Ombudsman, National Health Practitioner and Privacy Commissioner, the Australian College of Emergency Medicine and the Anti-Discrimination Commission of Queensland, referred to in the affidavit of Professor Brown, sworn 25 February 2019, his letter to Deputy President Allen DCJ, dated 31 January 2020 paras 20 – 33, HB 483-8, and his letter to the respondent dated 3 August 2020, HB 2679.

[144]He persisted with this in his revised written submissions, #48.

[145]Affidavit of Spry, sworn 22 February 2019, exhibit HAS21, HB 749.

[146]Affidavit of Coleman, sworn 13 January 2020, exhibit JC46, HB 2079. See also Dr Keller HB 386.

[147]Revised written submissions of applicant, #376-9.

Close

Editorial Notes

  • Published Case Name:

    WSS v Medical Board of Australia

  • Shortened Case Name:

    WSS v Medical Board of Australia

  • MNC:

    [2021] QCAT 5

  • Court:

    QCAT

  • Judge(s):

    Member D J McGill SC

  • Date:

    09 Feb 2021

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
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
2 citations
Jump To
Cite 1 - [2010] QCAT 384
Cite 2 - [2010] QCAT 384
DYB v Medical Board of Australia [2019] NSWCATOD 162
3 citations
Jump To
Cite 1 - [2019] NSWCATOD 162
Cite 2 - [2019] NSWCATOD 162
Cite 3 - [2019] NSWCATOD 162
Grant v HCCC [2003] NSWCA 73
2 citations
Jump To
Cite 1 - [2003] NSWCA 73
Cite 2 - [2003] NSWCA 73
HSK v Nursing and Midwifery Board of Australia [2018] QCAT 418
4 citations
Jump To
Cite 1 - [2018] QCAT 418
Cite 2 - [2018] QCAT 418
Cite 3 - [2018] QCAT 418
Cite 4 - [2018] QCAT 418
Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management [2011] QCAT 710
2 citations
Jump To
Cite 1 - [2011] QCAT 710
Cite 2 - [2011] QCAT 710
Mahboub v Medical Board of Australia [2020] QCAT 459
1 citation
Jump To
Cite 1 - [2020] QCAT 459
Medical Board of Australia v Wong [2015] QCAT 439
3 citations
Jump To
Cite 1 - [2015] QCAT 439
Cite 2 - [2015] QCAT 439
Cite 3 - [2015] QCAT 439
Pearse v Medical Board of Australia [2013] QCAT 392
3 citations
Jump To
Cite 1 - [2013] QCAT 392
Cite 2 - [2013] QCAT 392
Cite 3 - [2013] QCAT 392
Qasim v Health Care Complaints Commission [2015] NSWCA 282
2 citations
Jump To
Cite 1 - [2015] NSWCA 282
Cite 2 - [2015] NSWCA 282

Cases Citing

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v KMW [2025] QCAT 1052 citations
WSS v Australian Health Practitioner Regulation Agency [2025] QSC 1891 citation
WSS v Medical Board of Australia [2025] QCAT 1041 citation
WSS v Medical Board of Australia [2022] QCAT 4471 citation
WSS v Medical Board of Australia (No 2) [2021] QCAT 1901 citation
1

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