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Pawape v Medical Board of Australia[2023] QCAT 262

Pawape v Medical Board of Australia[2023] QCAT 262

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pawape v Medical Board of Australia [2023] QCAT 262

PARTIES:

GIBSON PAWAPE

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR028-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 June 2023

HEARING DATE:

13 & 14 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Professor Peter Baker

Dr Jennifer Cavanagh

Ms Margaret Ridley

ORDERS:

  1. The decision of the Board made on 1 February 2023 is set aside;
  2. The Tribunal decides pursuant to s 178(1)(a)(i) of the National Law that it reasonably believes that the way in which the applicant practises the health profession, and his professional conduct may be unsatisfactory;
  3. The Tribunal decides to take action pursuant to s 178(2)(c) of the National Law to impose conditions on the applicant’s registration in the terms set out in Exhibit 2; and
  4. The parties are given liberty to apply within 14 days.

CATCHWORDS:

PROFESSIONS AND TRADES – MEDICAL PRACTITIONER – REVIEW OF DECISION OF NATIONAL BOARD – where the applicant is a registered medical practitioner – where for many years the applicant has been subject to conditions on his registration imposed by interstate regulators and the Board – where a performance assessment was undertaken at the direction of the Board – where the applicant disputes the conclusions of the assessors – where Board initially formed a reasonable belief that the applicant because of his conduct or performance poses a serious risk to persons and reasonably believed it was necessary to take immediate action pursuant to s 156 of the National Law – where the Board suspended the applicant’s registration – where the applicant filed an application to review the decisions of the Board in this Tribunal – where the Board later lifted the suspension and imposed conditions pursuant to s 156 of the National Law –  where leading up to the hearing of the application the Board decided to end the immediate action pursuant to s 156 and formed a reasonable belief pursuant to s 178 of the National Law that the way in which the applicant practises his profession or his professional conduct is or may be unsatisfactory – where Board decided to impose conditions on the applicant’s registration – where the parties agreed and the Tribunal permitted the original application to proceed as if the decision challenged was the decision of the Board pursuant to s 178 – where the applicant in his filed material and  in his evidence challenged almost all of the conclusions of the Board appointed assessors – where the applicant relied on his own evidence as to what constitutes proper practice and conduct as a doctor and did not rely on any other expert evidence – where assessors did not give evidence but one of the patients who was one of 5 observed by one of the assessors did give evidence on behalf of the applicant – where in the same time frame of the performance assessment, the applicant had presented a number of cases to an assessor appointed by the College and had consulted with patients in the presence of another assessor appointed by the College – where the Board assessors indicated that they expected Ahpra to follow up with at least one of those assessors and where neither Ahpra nor the Board did so – where the applicant placed evidence of the assessments conducted by the other assessors before the Tribunal – where in answer to questions the applicant gave evidence of clinical practice and decision making – where 3 of the patients whose consultations were observed by one of the Board assessors were asked by the applicant at earlier consultations to be present at a time when he knew the assessment was to be undertaken – whether there was any proper clinical reason for these patients to be seen by the applicant on that day – where the applicant admitted to some deficiencies in note keeping but not to the extent as asserted in the performance assessment – where evidence of reports to Ahpra from a number of mentors and supervisors appointed under the conditions on the applicant’s registration in relation to his performance and conduct at two general practices in North Queensland in which he worked including the practice in which he was working at the time of the performance assessment directed by the Board were before the tribunal – whether the applicant has an over inflated opinion of his own performance and clinical decision making – whether the applicant is prepared to act collegiately and take advice from other professionals with whom he is working – where the applicant has not practised as a doctor for some years

ONUS OF PROOF ON REVIEW PROCEEDINGS – where because of the change of tack taken by the Board prior to the hearing no submissions were made as to whether or not in proceedings in relation to a s 178 decision the Board has any evidentiary onus

Health Practitioner Regulation National Law (Queensland) ss 3, 3A, 156, 178

Queensland Civil and Administrative Tribunal Act 2009 ss 19, 20, 23, 28

AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400

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

Colagrande v Health Ombudsman [2017] QCAT 107

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

APPEARANCES &

REPRESENTATION:

Applicant:

The applicant appeared on his own behalf

Respondent:

C Templeton instructed by Clayton Utz Lawyers

REASONS FOR DECISION

  1. [1]
    On 13 and 14 March 2023, the Tribunal heard an application by a general practitioner, Dr Gibson Pawape (the applicant), to review a decision made by the Medical Board of Australia (the Board) on 1 February 2023 and communicated to the applicant on 6 February 2023 (the Reviewable Decision). The Reviewable Decision imposed conditions on his general registration pursuant to section 178(2) of the Health Practitioner Regulation National Law (Queensland) (National Law). The conditions generally relate to limitations in practice, e.g., practise only in place(s) approved by the Board, supervised practice (described as indirect level 1 supervision); education; mentoring and auditing.
  2. [2]
    Prior to evidence, counsel for the Board, Mr Templeton, attempted, with limited success, to narrow the issues particularly relating to the conditions. The hearing brief (HB) in this matter is very large.[1] The current schedule of conditions is located in the SHB filed 9 March 2023.[2]
  3. [3]
    As a result of Mr Templeton’s sincere but largely unsuccessful attempts to narrow the issues with the applicant, the Board has provided the Tribunal and the applicant with an amended schedule of conditions which I have subsequently marked exhibit 2 to avoid confusion. The HB is so big because of regulatory action taken against the applicant as a result of a number of notifications made to the Australian Health Practitioner Regulation Agency (Ahpra), between October 2017 to 4 November 2021.
  4. [4]
    Substantially, the Reviewable Decision is based on a performance assessment conducted at the request of the Board, at the applicant’s then place of work, the Townsville GP Superclinic on 13 August 2021 by Associate Professor Harry Jacobs (by zoom) and Associate Professor Peta-Ann Teague who attended in person. Before discussing the relevant law, it is necessary to set out a brief history, of both the applicant’s medical career and the issues concerning regulators leading up to the performance assessment.

Brief history

  1. [5]
    The applicant obtained his Bachelor of Medicine/Bachelor of Surgery from the University of Papua New Guinea in 1989.[3] He has been registered as a medical practitioner in Australia since 1998.[4]
  2. [6]
    The applicant was previously subject to conditions on his registration by the Medical Council of NSW (MCNSW).[5] These conditions, imposed on 14 September 2018, required the applicant to seek approval from the MCNSW for his employment, to be supervised, and not to work in any locum positions.[6]
  3. [7]
    By letter dated 29 August 2019, the MCNSW made a complaint to the Officer of the Health Ombudsman (OHO) about the applicant allegedly breaching these conditions.[7] Specifically, it was alleged that the applicant practised at the West Bundaberg Medical Centre without the approval from the MCNSW of this employment, without an approved supervisor, and as a locum.[8] The complaint also alleged that the applicant failed to hold professional indemnity insurance, in contravention of registration requirements.[9] The applicant appears to have accepted that he practised in contravention of these conditions, but blamed it on his recruiting agency.[10]
  4. [8]
    On 4 November 2019, the OHO referred the complaint by the MCNSW about the breach of conditions to Ahpra for management. It was assigned notification number 00428107.[11]
  5. [9]
    On 20 April 2020, delegates of the MCNSW resolved to require the applicant to undergo a performance assessment.[12] However, by letter dated 23 June 2020, the MCNSW referred the referral for a performance assessment, together with four open complaints to Ahpra to manage given the applicant’s relocation to Queensland.[13] These four complaints appear to have been consolidated and assigned notification number 00447292.[14] The four complaints relate to two allegations, namely that:[15]
    1. a.
      On 27 January 2018, the applicant used offensive language to a registered nurse, …by calling her a “smart arse black cunt”; and
    1. b.
      On 14 February 2018, the applicant slapped a 5-year-old patient during a consultation.
  6. [10]
    The investigation of these notifications remains open and in relation to both the allegations set out above, the applicant strongly denies the allegations. For the purposes of this review, the Tribunal will treat these as allegations only.
  7. [11]
    On 27 August 2020, the Board decided to require the applicant to undergo a performance assessment.[16] The Board also proposed to take immediate action and impose conditions on the applicant’s registration akin to those that had been imposed by the MCNSW.[17] The Board invited the applicant to make a submission in response to that proposal.[18] the applicant provided a submission on 9 September 2020.[19] On 10 September 2020, the Board decided to take immediate action and impose conditions on the applicant’s registration.[20] The applicant did not seek to review those conditions, as was his right.
  8. [12]
    In summary, those conditions require that the applicant:[21]
    1. a.
      only practise in places approved by the Board and not be the only medical practitioner on site or practise as a locum medical practitioner;
    1. b.
      not exceed 30 patient consultations per day and not more than 150 patient consultations in one week;
    1. c.
      be supervised by another medical practitioner who is always physically present at the workplace;
    1. d.
      be mentored by another medical practitioner.
  9. [13]
    On 16 June 2020 and 24 July 2020, the applicant prescribed himself Lipitor and aspirin, and Diaformin, respectively.[22] This was despite the applicant not being approved to practise in any location by the Board and not having a supervisor or mentor appointed.[23] The applicant admitted having done so, but said that these medicines were for his mother, who resides in Papua New Guinea and required the applicant to send the medicines to her from Australia.[24]
  10. [14]
    The applicant practised from the Pinnacle Medical Centre during the period September 2020 to April 2021.[25] He was supervised by Dr Olga Gonzalez (Dr Olga) and mentored by Dr Martin Gonzalez (Dr Martin).[26] Dr Olga and Dr Martin provided several reports to the Board in respect of the applicant’s practice.[27] Ms Kerrie Rankin, Practice Manager, also provided reports to the Board in respect of the applicant’s compliance with the conditions on his registration.[28]
  11. [15]
    Initially, Dr Martin opined that the applicant practised safely and recommended a reduction in the conditions on the applicant’s registration.[29] In that report to Ahpra on 6 January 2021, Dr Martin noted that in his opinion, “from what I have witnessed of (the applicant’s) clinical judgement and reasoning, that he practices safely”.[30] In that same report,[31] by reference to the period of mentoring from 21 September (when the applicant commenced working at Pinnacle) to 20 December 2020, Dr Martin notes that his mentoring consisted of “[m]onthly face to face mentoring meetings of approximately one hour duration” with the applicant, who initially expressed “a firm resistance to his restrictions. His attitude appeared to be that the restrictions were not, in his opinion, an appropriate result (sic) to the events that led to them.”
  12. [16]
    On 30 March 2021[32] and 7 April 2021,[33] Dr Martin raised concerns about the applicant’s practice in telephone calls to Ahpra. During those phone calls, Dr Martin reported:
    1. a.
      Issues had been raised with the applicant’s adherence to clinic policies, his management of patients including polypharmacy, and his attitude towards clinical staff and colleagues.[34]
    1. b.
      The applicant “is not open to accepting advice. He is defensive and resistant. He does not see that there is any need for him to change. He demonstrates no insight into any deficiencies identified. He is not willing to change. He is always right.”[35]
    1. c.
      That he had “concerns with the (applicant’s) capacity to perform in the role of GP. He has limited knowledge of basic GP practices and had to strongly encourage the (applicant) to get him to take up the extra GP training. Dr (Martin) does not believe that, given his attitude, (the applicant) is trainable. He is not able to take on board even basic evidence based medical practices”.[36]
    1. d.
      that “in his 30 years of practice, Dr (Martin) has never encountered a practitioner so defensive and resistant to assistance. He does not believe (the applicant) is able to be rehabilitated”.[37]
    1. e.
      the applicant became aggressive towards colleagues and staff at the practice.[38]
  13. [17]
    Sadly, given the applicant’s attitudes and responses, particularly to Mr Templeton during the hearing (to which I will refer later), Dr Martin’s comment to Ahpra in those telephone calls to the effect that the practitioner does not believe he needs any help or that his practices or behaviour needs to change, was not only prescient but borne out on the evidence in the review hearing before the Tribunal.
  14. [18]
    In the second telephone call on 7 April, Dr Martin advised Ahpra that he and Dr Olga had decided to withdraw their support for mentoring and supervisory roles.[39] Relevantly to the applicant’s criticisms of Associate Professor Teagues’ observations about his behaviour, attitude and clinical decision making during the performance assessment, it is worth quoting from the recorded record of that conversation:[40]

Last two meetings with Dr Olga (supervisor), Dr Pawape became very aggressive. Dr Olga had to call the PM to remove the practitioner. This behaviour is not acceptable. Initially, at the start of his employment, the practitioner was displaying defensive behaviours, and he has now become aggressive. A number of nurses have expressed their dissatisfaction with the inappropriate behaviour they experienced from a practitioner.

The clinic serves as a GP training clinic and over the years the clinic has dealt with many difficult registrars and doctors; GP’s with restrictions, with mental health issues, with knowledge deficits. These doctors have always been well managed and supported with successful outcomes. The clinic has persevered with Doctor Pawape but have been unable to make any progress with him.

  1. [19]
    The report to the Board by Dr Olga reported that:
    1. a.
      In the period of 21 September 2020 to 20 October 2020, she believed that the applicant was “… an over confident Doctor who needs to improve clinical Knowledge in order to incorporate several Differential Diagnoses on his clinical work. (The applicant) lacks knowledge and understanding of GP standards and practice functioning. Including internal communication with other Doctor and staff (sic)”.[41]
    1. b.
      The applicant displayed improvements in his work and attitude towards his colleagues, with regular compliments from patients. By November and December 2020, Dr Olga, opined that the applicant managed patients to the standard expected of a GP in Australia. Dr Olga recommended reduction in the restrictions on the applicant’s registration.[42]
    1. c.
      By April 2021, her relationship with the applicant was “irreparable” and the applicant was defensive and aggressive towards Ms Rankin, Dr Olga and Dr Martin. Dr Olga removed herself as the applicant’s supervisor with immediate effect.[43]
  2. [20]
    The reports to Ahpra from Dr Olga indicate that the applicant is capable of practising safely, and having respectful relationships and interactions with colleagues, but, in response to any form of criticism or advice contrary to his own opinions, by the time of the final report,[44] he is described by her as “defensive and aggressive”, which in turn led to her decision to remove herself as his supervisor. It is worth noting that the supervision condition that was then operable and binding on the applicant, was in very similar terms to the supervision condition imposed by the Board in its 1 February 2023 decision under review, except as to the frequency of observation and discussion.[45]
  3. [21]
    The applicant then transferred employment to the Townsville GP Superclinic where he worked from July 2021 to September 2021.[46] He was supervised by Dr Coulter and mentored by Dr Nicholls, and the senior person at the practice nominated for the purposes of complying with the conditions on the applicant’s registration was Natasha Milivojevic.[47] Dr Nicholls mentor’s report is before the Tribunal.[48] The mentoring plan developed by Dr Nicholls, to which the applicant agreed was very comprehensive.[49]
  4. [22]
    During the time the applicant worked at the Townsville GP Superclinic concerns were raised that he was consulting in excess of 30 patients per day in breach of the conditions of his registration.[50] The applicant made submissions in respect of that issue, in which he appears to have accepted he did consult with more than 30 patients on some days, but that this occurred because there was a need to see those patients and because the systems that the Townsville GP Superclinic were inadequate to track how many patients the applicant was consulting with.[51] It was also accepted by Dr Nicholls that the applicant “probably saw more than thirty patients on a few days in June or June/July of the quarter assessed.”[52]
  5. [23]
    As with the reports from his practice at Pinnacle, the report of Dr Nicholls demonstrates that with appropriate supervision, and, most importantly, the genuine cooperation of the applicant, he is capable of practising safely and engaging in effective and harmonious relationships with others working at the clinic. In the respondent’s original submissions filed 29 July 2022, Mr Templeton fairly summarised Dr Nicholls’ report in the following terms.[53]
  6. [24]
    Dr Nicholls provided a report to the Board in relation to the period 11 June 2021 to 31 August 2021. In that report Dr Nicholls reported, inter alia, that:[54]
    1. a.
      The applicant was a significantly better medical practitioner than he was when he commenced at the Townsville GP Superclinic. However, every significant area of improvement concerned a fundamental area of practice and should not have been an issue in the first place.[55]
    1. b.
      The applicant’s medical records did not meet expected standards. In particular, his initial medical record-keeping did not include an adequate description of the reason for his patient’s encounter and the logic behind his management plans. He responded appropriately to guidance and his records came up to standard.[56]
    1. c.
      The applicant had not put patients at risk. However, there were three occasions in which his management of his patients should have been better than it was.[57]
    1. d.
      The applicant developed effective, harmonious relationships with others working at the Townsville GP Superclinic, although on several occasions he reacted with unnecessary hostility, including when an Ahpra assessor was onsite.[58]
    1. e.
      The applicant’s current restrictions should not be lifted. Until such times as he had satisfied supervisors, mentors, assessors and Ahpra that he should be allowed to practise with less supervision in place.[59]
  7. [25]
    Dr Coulter provided supervision reports to the Board on 31 August 2021 and 22 September 2021.[60] In his report of 31 August 2021, Dr Coulter referred to having “several concerns” and reported a matter involving the applicant and an Aboriginal or Torres Strait Islander patient that left the patient “distraught”.[61] In his report of 22 September 2021, Dr Coulter reported that the applicant was not compliant with his supervision requirements;[62] that there was “poor contact” and “many discussions of what he wants rather than accepting that he is part of an extended team;”[63]and that the applicant “continued with low, bordering on absent thinking of medical options”.[64]
  8. [26]
    Dr Coulter was having daily contact with the applicant and was well able to observe all aspects of his practice and conduct.[65] As at the date of that report (22 September 2021), Dr Coulter advised Ahpra that the applicant had “left the practice”.[66]

The law

  1. [27]
    In exercising its review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal “has all the functions of the decision-maker for the Reviewable Decision being reviewed”.[67] The purpose of the review is to produce “the correct and preferable decision”.[68] The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[69] This allows the Tribunal to consider material beyond that considered by the Board and consider circumstances that have developed and/or changed since the decision of the Board.[70]
  2. [28]
    In the Board’s initial submission relating to the review of its immediate action under section 156 of the National Law, Mr Templeton submitted that the Board “bears the onus of demonstrating that the decision is the correct and preferable one”.[71] In support of that submission, he cited the then Deputy President’s decision in Colagrande v Health Ombudsman [2017] QCAT 107 at [5]. The Tribunal was then dealing with similar provisions in relation to the powers of the Health Ombudsman, who had decided that he had a reasonable belief that the health practitioner posed a serious risk to persons, and that it was necessary to take immediate action to protect public health and safety by the imposition of disputed conditions. At [5] her Honour wrote:

[5]  …. Being a hearing de novo, it is also not disputed that the original decision-maker…bears the onus to show that the decision made is the correct and preferable one. The onus will be on the Health Ombudsman to convince the Tribunal that the correct and preferable decision is a condition prohibiting the practitioner from seeing female patients.

  1. [29]
    Her Honour was not referred to an earlier decision of Cormack v Queensland Police Service - Weapons Licensing Unit [2015] QCATA 115 at [32] – [33] which is often quoted in relation to this issue in relation to decisions based on reasonable belief pursuant to section 178(2) of the National Law. It appears that the parties proceeded on the basis that the decision maker in Colagrande had the onus of proof. The passages in Cormack are often cited as authority for the proposition that in proceedings of this nature, each of the parties has a practical ouns to advance their respective positions before the Tribunal. The Appeal Tribunal was there dealing with different legislation; however, the relevant legislation requires the decision maker (the Police Service) to be “satisfied” of certain things before proceeding to revoke (in that case) a licence to hold a firearm. One of the arguments advanced by the appellant was that the service held the onus of proving that he was not a fit and proper person to hold a licence before it could revoke the licence. The Appeal Tribunal disagreed with that argument. The Tribunal wrote at [29]-[35]:

[29]  Onus of proof is a common law concept developed to help solve practical issues of litigation between parties in courts of law. It has legal and evidentiary aspects and its use outside courts of law is to be approached with ‘great caution’. This is particularly the case with an administrative tribunal such as QCAT, which is not bound by rules of evidence and can inform itself in any way it thinks appropriate. (Section 28(3)(b), QCAT Act)

[30]  In McDonald v Director-General of Social Security (1984) 6 ALD 6 at 9 Woodward J observed:

Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts.

[31]  McDonald involved an issue similar to the issue here. The statutory social security scheme permitted the decision maker to cancel a pension if he or she was of the opinion that the person was no longer permanently incapacitated. It was held that if the decision maker was of the opinion a person was no longer permanently incapacitated then he or she had both a right and a duty to cancel the pension. Further that:

In doing so he must act in good faith on the information available to him, but no question of onus arises.

[32]  In effect, a common sense approach is to be adopted in respect of the evidence. As Woodward J said in McDonald (at 11):

It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts lead to an unfavourable inference being drawn - but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it…

[33]  Rather than treating the issue as one of onus of proof, the correct approach therefore is to construe the relevant statute to determine who, practically, has to provide evidence of what. This has been otherwise referred to as the “practical onus”.

[34]  Further, the statutory weapons licensing scheme does not support an onus upon the authorised officer to prove that the licensee was no longer a fit and proper person to hold a licence. First, the principles of the Act make it clear that weapon possession and use of subordinate to the need to ensure public and individual safety. And, secondly, the authorised officer may revoke the licence “if satisfied” the licensee is not a fit and proper person - that the discretion should arise from the opinion of the authorised officer is inconsistent with that officer bearing an onus to prove, in fact, that the holder is not fit and proper.

[35]  Accordingly, we find that the decision maker did not bear the onus of proving that the licensee was not a fit and proper person.

  1. [30]
    I respectfully disagree with the proposition that because section 20(2) of the QCAT Act provides that the Tribunal must hear and decide a review by way of a fresh hearing (de novo) on the merits, in order (pursuant to section 20(1)) “to produce the correct and preferable decision” that the statute places the onus of proof on the decision maker.
  2. [31]
    As the members of the Appeal Tribunal in Cormack observed, the Tribunal is a creature of statute, and the QCAT Act contains provisions that strongly mitigate (in the exercise of its review or appeal jurisdiction) against the adoption by the Tribunal of common law principles such as onus of proof.[72] Section 21 places an obligation on the Board to use its “best endeavours to help the Tribunal so that it can make its decision on the review”.
  3. [32]
    In the supplementary submission filed in relation to the review of the section 178 decision, the Board does not refer to onus of proof. Nor does the applicant in his various submissions.
  4. [33]
    Section 178 of the National Law provides (relevantly):
  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; …
  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… –

…

  1. (c)
     impose conditions on the practitioner’s … registration, including…
  1. i.
    a condition requiring the practitioner to complete specified further education or training within a specified period;
  1. ii.
    or 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. [34]
    In AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, the Tribunal described this two-phase task as follows:

[26]  I am required to determine whether, pursuant to section 178(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner’s professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are often appropriate quality.

[27]  With respect to the terms of s 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting a proposition. The condition for the exercise of the power pursuant to section 178 of the National Law turns on the existence of the relevant reasonable belief and does not require finding on the balance of probabilities that the belief is correct or true.

[28]  The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory - it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient. (emphasis in original)

  1. [35]
    The second phase - if the Tribunal reaches the requisite state of reasonable belief - is explained in the associated decision of AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 (albeit in relation to a practitioner who had a health impairment):

[41]  … The crucial question is the appropriate conditions to be placed upon the practitioner’s registration in light of that reasonable belief. In considering that question, I have regard to the paramount guiding principle of the health and safety of the public and the guiding principle in s 3(3)(c) of the National Law that restrictions on the practice of the health profession are to be imposed only if necessary to ensure health services are provided safely and are of an appropriate quality. Whilst the protection of the public is, and must remain, the paramount consideration, the impact of conditions upon the registration of the health practitioner is a relevant consideration and conditions imposed ought to address relevant risks specifically and be the least onerous possible to properly address such risks.

  1. [36]
    Since that decision, the relevant provision in the National Law relating to guiding principles, has been altered. However, in my opinion it does not alter the principles set out in that decision. Section 3A(1) of the National Law now provides the main guiding principle of the national registration and accreditation scheme is that the following are paramount:
    1. a.
      protection of the public;
    1. b.
      public confidence in the safety of services provided by registered health practitioners and students.

Section 3A(2) of the National Law now provides that the other guiding principles of the national registration and accreditation scheme includes:

        …

  1. c.
    restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

Background

  1. [37]
    The Reviewable Decision made on 1 February 2023 must be seen in the context of previous actions taken by the Board under section 156 of the National Law and the performance assessment conducted by the Board that took place on 13 August 2021.
  2. [38]
    The Board, after providing the applicant with the ability to make submissions in response, primarily to the performance assessment report, suspended the applicant’s registration on 21 October 2021 by way of immediate action pursuant to section 156 of the National Law.[73] That decision was affirmed by the Board on 3 February 2022.[74]
  3. [39]
    On 2 December 2022, the Tribunal made an order pursuant to section 23 of the QCAT Act, inviting the Board to reconsider its decision.[75] The Board reconsidered its decision and decided to end the suspension and took immediate action by imposing conditions on the applicant’s registration under s 156(1)(a) of the National Law.[76]
  4. [40]
    Ultimately, on 1 February 2023, the Board decided to end the immediate action taken under s 156 of the National Law.[77] On that day, the Board decided to impose conditions on the applicant’s registration pursuant to section 178(2) of the National Law.

The performance assessment

  1. [41]
    The performance assessment was undertaken at the Townsville Superclinic on 13 August 2021 by Associate Professor Peta-Ann Teague and Associate Professor Harry Jacobs.[78] Dr Teague attended in person, and Dr Jacobs by zoom because of COVID restrictions in place at the time.[79]
  2. [42]
    The joint report of both assessors is dated the same date and signed by both.[80] I note this because in his criticisms of the report, the applicant refers to the report as that of Dr Teague. From the date he received the report, in the many documents that he filed in the Tribunal, and during cross-examination by Mr Templeton over a number of hours, his criticisms (of clinical skill, incompetence, lack of experience, bias) are primarily directed at Dr Teague. As one of many examples, I refer to the applicant’s response to the Board’s original submissions filed 29 July 2022. That response commences at page 2073 of the OHB. Most of the applicant’s criticisms, are directed at Dr Teague. Only on 2 occasions; at the bottom of 2087, paragraph 11, and paragraph 12, page 2092) could I find a reference to Dr Jacobs.
  3. [43]
    He is extremely critical throughout his material of Dr Teague and only refers occasionally to Dr Jacobs as part of the assessment team and co-author of the report. Neither Dr Teague nor Dr Jacobs gave evidence in the review hearing.
  4. [44]
    Their respective CVs are in exhibit one. Both are highly qualified medical practitioners, with an extensive history in teaching medical students and doctors. Dr Jacobs has a long, distinguished history in general practice in Mackay and on the Sunshine Coast, and a long association with UQ and JCU in teaching and training roles. Since 1998, as an accredited surveyor for Australian General Practice, Dr Jacobs has visited over 950 practices.
  5. [45]
    Dr Teague has been the director of the JCU training program at the JCU in Townsville since 2016. In the applicant’s trial submission, he effectively accuses Dr Teague of deception by including in her CV with respect to one of her then current appointments “General practitioner Maranoa Medical Centre, Roma Qld”.[81] His point seems to be that this could not be so because she is based in Townsville.
  6. [46]
    Clearly the CV was made available to Ahpra prior to 13 August 2021. The applicant’s comments involve pure speculation and as Dr Teague did not give evidence, no adverse inference can be drawn against her.
  7. [47]
    It appears that both assessors were involved in the introductory interview with the applicant. I infer that Dr Teague did observe the applicant’s interaction with five patients “over 3 hours”.[82] The consultations are referred to in Appendix 2 of the assessor’s report.[83] Fifteen patient records were randomly selected from August 2021 and reviewed by both assessors.[84] Dr Jacobs had had a lengthy discussion with Dr Nicholls on 10 August 2021.[85] Both assessors spoke with Dr Nichols on 13 August 2021.[86] I infer that a “structured clinical practice (SCP) interview” was conducted with the applicant in the afternoon of 13 August by both assessors.[87] Both assessors interviewed Dr Coulter prior to the introductory interview on 13 August.[88] They describe him as a “very experienced supervisor”.[89]
  8. [48]
    To describe the performance assessment as catastrophic for the applicant would be a significant understatement. To some extent, and for the reasons I hope I will expose, in my opinion some of the conclusions of the assessors are not fair to the applicant, particularly in relation to aspects of his clinical skill in the consultations observed. However, many of their criticisms are borne out by:
    1. a.
      The way in which the applicant has conducted himself during these proceedings; and
    1. b.
      his evidence before the Tribunal.
  9. [49]
    An example, (among many) is his response to this finding of the assessors as a result of the SCP:

Dr Pawape has no insight into his deficiencies and the case discussion was terminated after 90 minutes as he was not listening and was taking over the assessor. This was a very combative discussion between colleagues.[90]

  1. [50]
    In his lengthy response to the assessor’s report, and specifically at 2108 of the OHB, in response to this passage, the applicant writes:

I had the insight to remain quite (sic) she (sic) Dr Teague was spewing untruth and respectfully waited until later to respectfully went back (sic) to point this out. The afternoon session was not going to go on for ever (sic), 90 minutes is about right. She is putting a negative spin on everything. Like I said the worse (sic) evaluation by an arrogant individual.

Me providing an explanation was miss (sic) construed as combative. A spirited discussion is welcome in medicine. Dr Teague expected me to be less informed less educated as her report clearly indicated. Casting me in he worse (sic) negative light she possibly could. Me giving educated informed answers was enraging for her because I did not fit her pre (sic) conceived perception of me. The moment I met her she was bad news it (sic) palpable. She was a bully, she changed the official schedule. She was supposed to have met me first thing at 0830 am but instead she wasted 30 minutes in the morning from 0830 hrs to 0900 hours with my supervisor. Which she was scheduled to meet in the afternoon at 1300 hrs (sic). However she was rushed and bullying in her questioning. I did not make much of it initially but it became more apparent later on that she was bullying. What is quantifiable is the mistakes she has made in her report.

  1. [51]
    This response is a highly charged attack on an experienced colleague, without any reference to Dr Jacobs, who was also present for the SCP and co-author with Dr Teague of the whole report, including the passage being criticised.  The response suggests to me (consistent with his response to criticisms from his supervisors and mentors at both Townsville practices), that it is the applicant who is “arrogant” and “combative” and not Dr Teague. As I will demonstrate, in many of his responses to Mr Templeton, he demonstrated the same arrogance and lack of insight into any possibility that his clinical decision making may be wrong or misguided from time to time.
  2. [52]
    In the direct observation process, Dr Teague observed consultations between the applicant and five patients over three hours. The patients are referred to in Appendix 2 to the report,[91] as patients 1-5. From the medical records in the hearing brief, patient 1 was observed from 9:06 am, patient 2 from 9:32 am, patient 3 from 9:50 am, patient 4 from 10:02 am, and patient 5 from 10:26 am. At most, this seems to be a period of less than two hours.
  3. [53]
    Neither Dr Teague nor Dr Jacobs gave evidence, and this was not explored, but one of the many criticisms of the report made by the applicant, is that the assessment (particularly in relation to clinical skills, patient management, prescribing and interaction and communication with patients) was not thorough enough i.e., only five patients were observed; to justify the harsh criticisms of his skills. The summary of findings in relation to the direct observation process is as follows:[92]

Doctor Pawape’s communication and consultation skills are poor. He interrupts patients, frequently talks over them and then has to ask for information that the patient has already. He repeats questions a number of times. He focuses primarily on writing notes on the computer, rather than actively listening to the patient. In three observed consultations he placed the BP cuff on the patient’s arm and commenced taking their BP before establishing the reason for the consultation. When asked about this practice, he stated that he does it as he might forget to check the patient’s BP later. He does not elicit the patient’s agenda. He frequently uses jargon.

His history taking and examination is disorganised and deficient. He displays the clinical reasoning error of premature closure, and does not demonstrate rational use of investigations. The deficits in history and examination result in poor diagnostic process with unclear management plans.

He is extremely doctor centred in his consultation style.

  1. [54]
    In relation to the records audit, the assessors set out their findings in tabular form,[93] in most areas he was deemed “satisfactory”, but in those which he was deemed “unsatisfactory”, that is qualified by the comment “not always”.[94] This issue was not explored, as neither assessor gave evidence, but I can infer:
    1. a.
      the Board’s retreat from its original section 156(1)(a) position was predominantly (I infer) because of the performance assessment; and
    1. b.
      by way of its current proposal for conditions (see exhibit 2) which are less onerous than had been previously imposed, but similar to the ones operating at the time of the assessment; and because Mr Templeton did not cross-examine the applicant about these records except for one, I infer that the Board does not place the assessors’ comments about record keeping and care provided as being a major factor in the formation of its “reasonable belief”. The assessors’ summary of the records audit is in these terms:[95]

As always in medical records much of the data is contributed by a variety of clinicians [GP’s, RN’s, staff] so the completeness of the record does not always reflect on one doctor.

The medical records presented have sub-standard progress notes to reflect the content of the consultations. They do not contain the “key features” of the consultation that is expected of a competent GP. These features include: the history, [patient’s story of illness including red flags or experience with chronic disease]; relevant physical examination; problem list and/or differential diagnosis leading to rational selection of investigations, established diagnosis and evidence-based management plans. Management plans need to contain prescribing with documented informed consent and non-pharmacological management such as lifestyle interventions with adequate patient education. Specific follow-up is also to be documented.

The records reviewed contain serious deficits in multiple areas as indicated in the comments Appendix 1. Of the records reviewed, a number contain serious deficiencies….

  1. [55]
    As I have noted above, the assessment of the records audit in tabular form shows that, in a number of respects, the applicant’s record keeping was satisfactory, and in relation to the “care provided” section, the “unsatisfactory” classifications are qualified by the comment “not always”. It is hard to rationalise these findings with the heavily critical comments in the summary of findings referred to above.
  2. [56]
    I also think that as a matter of fairness to the applicant, this quite damning summary has to be read down in the light of the Board’s position at the hearing. For example, he was not questioned about the records referred to in the last paragraph of the summary. He disputes those observations in his materials.
  3. [57]
    In relation to staff/colleagues/supervisor reviews, the assessors’ summary in their report is as follows:[96]

Dr Evan Nicholls was interviewed by H Jacobs on Tuesday 10/8/21. Dr Jacobs had a lengthy discussion with Dr Evan Nicholls [practice owner and mentor for Dr Gibson Pawape]. Evan reports Dr Pawape has no problems with staff or patient communication, had poor records at the beginning but is improving. Dr Pawape is invited to attend all practice teaching activity but does not always attend when invited. Evan confirms that the exam preparation is for FRACGP not College of Physicians. The supervision that Dr Evans Nicholls and his colleagues are providing is in accord with conditions on (sic) AHPRA register. On Thursday 12/8/21 Dr Nicholls was contacted to create remote login to records using AnyDesk.

On Friday 13/8/21 during the performance assessment, both assessors had the opportunity to speak to Dr Nicholls. Dr Nicholls confirms the observation that Dr Pawape does not listen. He also states that Dr Pawape’s attendance at practice education activity is intermittent.

  1. [58]
    As discussed later in these reasons, the interviews with Dr Nicholls as the applicant’s mentor were conducted by Dr Jacobs on 10 August 2021 and with both assessors on 13 August 2021. Consistently with his earlier assessments, Dr Nicholls reported that the applicant had no problems with staff or patient communication but had poor records at the beginning but is improving. He commented that the applicant was preparing for the FRACGP examinations and not the College of Physicians.[97] I note that in a number of the interviews with the Medical Board Committee prior to the Reviewable Decision, the applicant seemed to be confused about these qualifications in this regard. He is not a member of the FRACGP, nor is he a member of the College of Physicians.
  2. [59]
    Dr Nicholls also confirmed that the applicant does not listen, and he stated that his attendance at practice education activities is intermittent.
  3. [60]
    Prior to the introductory interview with the applicant on the morning of 13 August, the assessors interviewed Dr Coulter, who they described as very experienced.[98] Dr Coulter told them that it took a while for the applicant to settle in the clinic, that he is not a ‘team player’ and his personality is a ‘driver’ [‘my way or the highway’], but this is settling down a little.[99] Dr Coulter told the assessors that the applicant was a committed learner but is not picking up on patient psychology and struggles with empathy.[100] He told the assessors that he and the applicant discussed cases once or twice per week, but his presentation style was very direct and doctor centred.[101] The error of ‘early disclosure’ is in evidence.[102] There has been no direct observation by Dr Coulter, but a recent observation was conducted by a PEP Medical Educator.[103]
  4. [61]
    PEP stands for Professional Education Program and as noted by Drs Teague and Jacobs in the assessment report,[104] it is part of the Remote Vocational Training Scheme which is supervised by the college staff.[105] They note that Dr Jacobs spoke to someone from the training scheme about a telephone workplace-based assessment performed on 30 July 2021 by Dr Sarah Fergusson. The assessors wrote:[106]

…It involved 4 observed consultations and 2 cases were discussed. In spite of Doctor Pawape’s verbal consent and discussion with the RVTS CEO, RVTS will not discuss the details of the WBA on the phone without written consent of Dr Pawape. The assessors will leave it to AHPRA to chase up this information in the coming weeks.

  1. [62]
    As I will discuss later in the reasons, the assessors expected that Ahpra would follow up this information. However, that has not yet happened.
  2. [63]
    In relation to the scenarios discussed during the SCP interview,[107] most included patients observed by Dr Teague that morning, mainly patients 2, 3 and 5, and I will discuss these later in my reasons.
  3. [64]
    In their report, the assessors summarised the SCP findings in the following terms:[108]

These case discussions highlight the deficiencies in Dr Pawape’s clinical reasoning. He is very often accepting of the first or most likely diagnosis that comes to mind [cognitive bias of of early closure]. He does not listen or answer the question asked. He becomes very defensive when challenged. Doctored-centred care was discussed. Dr Pawape demonstrates the extreme of doctor-centred care but refuses to accept this observation. He was observed to record a BP reading on three patients at the start of the consultation before hearing their main complaint. He refuses to accept that this damages rapport. He believes he needs to do this in case he forgets to check the BP later.

He believes he has performed well as a GP because some patients like him. He fails to understand the concept of ‘popularity v competence’. Dr Pawape was made aware that there was major concern on the part of the assessors for the quality of his records. He appears not to accept this fact. He is aware that the records reviewed contain comments by the assessors about the deficiencies see Appendix 1 & 2 (sic).

Dr Pawape has no insight into his deficiencies and the cases discussion was terminated after 90 minutes as he was not listening and was talking over the assessor. This was a very combative discussion between colleagues.

  1. [65]
    As to the summary of assessment:[109]

Dr Gibson Pawape has global deficiencies in his clinical skills, reasoning and judgement. He has demonstrated poor communication skills today in consultations with patients and discussion with colleagues. He does not listen and often talks over patients and colleagues. He does not directly answer the question that is asked. Dr Gibson Pawape exhibits an extreme of doctored-centred behaviour and needs to rectify this approach to patient care. His consulting and medical records cause serious concern for public safety. He has no insight and appears not to use the excellent supervisors he has in this practice. His current educational and supervisory arrangements are inadequate to ensure public safety.

  1. [66]
    This summary can only be described as damning.
  2. [67]
    The conclusions and recommendations of the assessors are also damning:

Based on the assessors’ findings, deficits from the skills matrix requiring remediation were observed.

The knowledge, skill or judgment possessed, or care exercised by, Dr Gibson Pawape in the practice of medicine is substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. He has failed to make best use of an experienced teaching practice. He has failed to self-reflect on the global deficiencies in his clinical skills, reasoning and judgement. He has demonstrated poor communication skills today in consultations with patients and discussion with colleagues. He does not listen, often talks over patients and colleagues and does not directly answer the question that is asked. Dr Gibson Pawape exhibits an extreme of doctored centred behaviour and needs to rectify this approach to patient care. (emphasis in original)

  1. [68]
    The assessors go on to recommend conditions including the highest level 1 supervision.[110] Level 1 supervision not only requires  the supervisor to be physically present physically at the workplace at all times when the applicant is providing clinical care, but also requires the applicant to consult with the supervisor about the management of all patients at the time of the consultation and before the patient leaves the practice.[111] The other conditions recommended by the assessors related to intensive educational auditing conditions and require a further performance assessment within six months.[112]
  2. [69]
    As noted above, the Board, acting on the basis of this damning performance assessment suspended the applicant’s registration. Despite the Board setting aside that immediate action and then taking action under section 178(2)(c) of the National Law (the Reviewable Decision), the applicant (not surprisingly) has not been able to find employment since he left the Superclinic.
  3. [70]
    As he has not worked as a general practitioner since September 2021, he is now faced with returning to practice requirements if he is able to gain employment.

The Remote Vocational Training Scheme

  1. [71]
    As the assessors noted in relation to patient 3, despite Dr Jacobs’ attempts to discuss an apparent assessment by Dr Sara Fergusson described in the assessment report,[113] as “4 observed consultations and 2 cases were discussed” on 30 July 2021, this was not possible, and the assessors expected Ahpra to chase up this information in “coming weeks”.[114]
  2. [72]
    In fact, Dr Fergusson was involved in observing a consultation between the applicant and patient 3 on 5 August 2021.[115] There are also a number of college assessor notes attached to emails from the applicant to Ahpra.[116]
  3. [73]
    As I now know, there was another assessment done on 9 July 2021 by another assessor (Dr Thomas Heany) appointed for the purposes of the remote training scheme by the College, and one of those assessments appears to relate to patient 1.[117] In those assessments, which appear to have been done remotely and involve presentation of the patients (including patient 1) by the applicant, Dr Heaney gives the applicant an “at expected standard” rating for all the cases assessed which is obviously in complete contrast to the clinical assessments undertaken by Drs Teague and Jacobs.[118]
  4. [74]
    It is clear from the examination of what is an enormous brief, that on many occasions, the applicant has referred to the assessments done by Dr Fergusson and Dr Heaney as contrasting to, and being in conflict with, the assessments undertaken by Drs Teague and Jacobs, particularly in relation to the five patient consultations observed.
  5. [75]
    He has raised this in his material on many occasions. He was the one who sent Dr Heaney’s assessment notes to Ahpra as an attachment to an email dated 11 October 2021.[119]
  6. [76]
    In the assessment reports forwarded by the applicant to Ahpra on 11 October 2021 there are assessment reports prepared by Dr Heaney in relation to six cases presented by the applicant including a presentation in relation to patient 1.[120]
  7. [77]
    In relation to patient 1, on the occasion of the presentation of that patient to Dr Heary, the same or similar areas covered by the performance assessment including communication skills, therapeutic reasoning to overall competence were assessed and  Dr Heaney gives the applicant the highest ranking which is “at expected standard”.[121] The comments made by him e.g., under managing uncertainty – he writes “good example here”, under “professionalism”, – he writes “teamwork and partnership here”, and these comments are in complete contrast to the wholly negative assessment of Drs Teague and Jacobs in relation to the same patient on 13 August 2021.[122] That is just over a month later. Of course, it is one thing to be present when the consultation is being conducted, and something different when the doctor being assessed is presenting the case to the assessor.
  8. [78]
    Because of the focus on the performance assessment report and the assessor’s concerns about the applicant’s clinical competence and conduct, in both the review hearing and in the Reviewable Decision, these other assessments (taken in the same general timeframe), are obviously relevant to these proceedings.
  9. [79]
    In the applicant’s many submissions, and in his trial submission, and in his recorded performances before board panels prior to the Board making the Reviewable Decision (15 December 2022, and another chaired by Dr Richardson on 18 January 2023),[123] the applicant has referenced these “documents” as evidence that he submits contradicts the findings of Dr Teague and Dr Jacobs on 13 August 2021. These reports were not the subject of any questioning at the hearing, and to be frank, I had not appreciated that they may be relevant to the Tribunal’s task on the review. As a result, I caused an email to be forwarded to the parties in these terms:

During the course of preparing my reasons, I have attempted to understand the significance of the material that appears (for example) at 260-309 of the Hearing Brief (HB), which appears to relate to clinical observations undertaken in July and on 5th August by at least two doctors on behalf of the RACGP. Certainly one of the doctors appears to be Dr Sara Fergusson who was present ( I assume by Zoom) when patient 3 was seen by the applicant on 5th August. There appears to be another doctor describes as “RTO Assessor Thomas” who observed clinical consultations in July including what appears to be patient 1 on 9th July 21, (see 264 HB).The assessors refer to this issue in the last paragraph of p 2 of their report (217-218 HB).

The applicant has always (in his many documents and submissions to the Tribunal including a brief reference in his trial submission) sought to contrast what appears to be the favourable assessments of the RACGP assessors with the unfavourable assessments of Drs Teague and Jacobs all in the same general time frame. They (Drs Teague and Jacobs) clearly anticipated that Ahpra would “chase up this information”.

Unfortunately, I had not appreciated the potential significance of this material and of course none of the assessors gave evidence at the review hearing.

Could the parties point me to any information before the Tribunal which may be in response to that last paragraph of the performance assessment report referred to above?

Given the emphasis now on that report in the respondents revised decision, and bearing in mind that the applicant is not legally represented, it appears to me that as a matter of fairness I make this unusual request.

  1. [80]
    As a result of an error I made, my request to the Deputy President’s associate to send the parties this email initially went directly to the applicant, from my home email and he responded on the same day. He attached various documents, many of which are in the hearing brief, and referenced a number of his submissions. The other assessor he identified as Dr Thomas Heaney.
  2. [81]
    The Board’s solicitor replied to the associate on 18 April 2023 in these terms:

We refer to the above matter and the request for clarification from Judicial Member Robertson. I apologise for the delay in my response. My instructor and other relevant persons within Ahpra were on leave last week which delayed our ability to obtain instructions.  

We are instructed that following receipt of the performance assessment report the Ahpra investigators did not make any further enquiries with Remote Vocational Training Scheme (RVTS). On 11 October 2021 Dr Pawape emailed documents relating to the RVTS PEP to Ahpra (See hearing brief page 260-278 as identified by Judicial Member Robertson). We are instructed that these documents were considered during the course of the investigation.

Please don’t hesitate to contact us should Judicial Member Robertson require any further information.

  1. [82]
    The applicant was provided with this response as were the Board’s solicitors with his.
  2. [83]
    Neither Dr Fergusson nor Dr Heaney were further approached by Ahpra. I can infer from the full final paragraph on page 217 of the hearing brief that Dr Teague and Dr Jacobs were aware of the role of Dr Fergusson, but not Dr Heaney in the RVTS assessment of the applicant conducted by the College. The assessors assumed that that Ahpra would follow up information about Dr Fergusson’s assessment performed via zoom with the applicant observing four consultations and discussing two cases.
  3. [84]
    As is clear from the recent email from the Board’s solicitors, Ahpra appears to have ignored this advice. This has caused me considerable concern. Dr Fergusson actually observed the applicant’s consultation with patient 3 on 5 August 2021 i.e., only eight days prior to the observation of a consultation involving the same patient, and she is far less critical of the applicant than are the Board assessors.  Drs Teague and Jacobs did not even refer to Dr Heaney. His assessments were performed on the basis of the presentation of six cases to him by the applicant. It was the applicant who provided the Tribunal with what is described as a “reference” from Dr Heaney dated 19 January 2022 which is in these terms:[124]

I have been involved in reviewing a number of cases that Dr Gibson Pawape has presented as part of his GP training PEP programme.

This has been via telephone conversation and by review of the information documented. The role is a remote one, there has not been any face to face assessment.

In total he has presented six cases. This has included the summary of the case, the approach to each including the history and examination findings, plus the reasoning and evidence used on each occasion to determine a differential diagnosis. He has also presented the evidence base that he has used to determine a treatment regime. I found each presentation to be logical and safe.

I am aware there has been certain issues that are not related to his clinical knowledge. I cannot comment on these.

From my observation Gibson Pawape has good clinical knowledge and reasoning.

  1. [85]
    From his letterhead, Dr Heaney appears to be a highly qualified doctor with the following degrees and accreditations – MBBS, FACRRM, PhD (Medicine), MHA, DRCOG, GAICD.[125] One of the cases that he looked at was in relation to patient one. According to his reports,[126] his assessments took place on 5 July 2021, 11 June 2021, 9 July 2021, (this was patient one), 10 June 2021, and 8 June 2021. In all he gave the applicant the highest possible rating which is “at expected standard”.[127] In relation to patient 1 he provided positive feedback - “good persistence, good teamwork, good at listening to the patient”.[128]
  2. [86]
    In relation to Dr Fergusson, the zoom consultations she observed were all on 5 August 2021 and not on 30 July 2021 as suggested by the assessors.[129] The Tribunal does not have all the records relevant to her observations, which is regrettable. For example, she appears to have observed a consultation involving patient one,[130] but there are no consultation notes relating to that visit despite there being records from the clinic relating to this patient from 18 May 2021 – 13 August 2021.[131] She observed a consultation with Patient 3 on 5 August 2021,[132] but there is no assessment report from Dr Fergusson, and Ahpra and the Board (I infer) did not see fit to follow up so that the Tribunal would have this information. Dr Fergusson’s comments are generally positive, but she does make some suggestions “for development” in relation to the records of the four patients involved on 5 August 2021.
  3. [87]
    None of this was explored at the hearing. This information has not been followed up by Ahpra or the Board as suggested by Dr Teague and Dr Jacobs.
  4. [88]
    The Board’s solicitors say that the material provided to Ahpra by the applicant on 11 October 2021 was considered by the Board in its decision under review. These assessments (or perhaps only Dr Fergusson’s) are referred to obliquely in para 9.[133] Although mentioned in the Reviewable Decision which ended the period of immediate action,[134] it is clear (as articulated in the Board’s submissions and in the hearing) the performance assessment on 13 August 2021 is the primary focus underpinning the Board’s decision. The Reviewable Decision was made under s 178 of the National Law, and not under s 156. Section 156 requires a reasonable belief that because of his “conduct or performance” the applicant poses “a serious risk to persons”, and it is necessary to take immediate action. Section 178 requires what could be described as a lower bar – a reasonable belief … that “the way (the applicant) practises the health profession, or (the applicants) professional conduct, is or may be unsatisfactory”.

Patients 1-5

  1. [89]
    It was the assessor’s summary and findings in relation to the five patients whose consultations were actually observed by Dr Teague on 13 August 2021 that occupied most of the hearing time before the Tribunal. Most of this was by way of evidence from the applicant but included the two witnesses he called, Mr VM who was patient 5, and Dr George Tadros, a general practitioner from Gympie.
  2. [90]
    In relation to the five cases observed by Dr Teague and reported on by her and Dr Jacobs, it became apparent to them that the applicant had specifically asked patient 1 (mother or father), patient 2 and patient 3 at an earlier visit to come in on 13 August 2021, because he thought each case would demonstrate his clinical skills, and in particular that he was a safe practitioner and indeed (in relation to patient 1), an exceptional practitioner.[135]
  3. [91]
    In relation to the applicant’s clinical notes of the consultation on 13 August 2021, he had seen the child (patient 1) on 7 August 2021. By then the child had been diagnosed with severe anaemia and was being treated successfully. The applicant says that he diagnosed anaemia on 18 June 2021, and he is very critical of his colleagues in the practice who had not (he says) considered this as a diagnosis. Drs Teague and Jacobs were critical of the applicant’s clinical notetaking on 11 June 2021,[136] but it is clear that he did order a full blood test that day, in relation to which the pathologist called later on to say that the child’s haemoglobin was extremely low. The applicant did record as his assessment that the child had severe anaemia. He records (after getting the pathology report):

Spoke with dad. They were at TUHED (Townsville University Hospital Emergency Department) reception area. Spoke with Judy triage nurse to see the Paed doctor asap.

  1. [92]
    I do not read the assessor’s notes on patient 1 as being a criticism of him for diagnosing anaemia on 11 June; rather the assessors are critical of:
    1. a.
      his notetaking on that day; and
    1. b.
      his lack of understanding of jaundice which was one of the reasons he noted for the visit that day.
  2. [93]
    I agree with the applicant that it appears that the blood test he ordered that day did lead to the diagnosis of anaemia, but by 13 August 2021, the child was being successfully treated at the hospital.
  3. [94]
    The assessors are also critical of the clinical need for a visit on 13 August, when he had seen the child on 7 August 2021 and the child had had a blood transfusion at the hospital, was on iron supplement and “cheerful and brighter”. As to why he wanted liver function tests on 11 June, he says he did so because the mother said the child looked “yellow”. In response to Mr Templeton’s questions about why he thought jaundice was a possibility – hence the liver function test being part of the plan recorded in the notes; he said words to the effect that the light in the clinical room gave the child “a yellowish tinge”, an observation he does not record in his notes. Professor Baker asked him if he examined the baby’s eyes – a basic clinical step if a doctor suspects jaundice. He said he thinks he did, but that is not recorded in the notes.
  4. [95]
    Although the applicant appears to accept that he did arrange for the child to be seen by him on 13 August when he knew the assessors were to be present, he was very reluctant to accept that there was no clinical justification for the visit that day, a criticism made of him by Drs Teague and Jacobs. He asserts that Dr Teague discussed the case, and I infer the criticisms of him as recorded in the report, during the consultation. However, it is clear that is not so and that her notes were recorded later and not in the presence of the mother. As with the other cases, he could see nothing wrong with arranging for a patient to come in at the time he knew he was going to be the subject of a Board directed performance assessment. I agree with Drs Teague and Jacobs, that given his consultation on 7 August, there was no clinical reason to see the child again on 13 August. I reject the applicant’s evidence that because the child had a cough, this justified the visit. He seems to think that because the mother consented to the assessor being there and (as he said on a number of occasions “there was no law against it”), the visit was justified.
  5. [96]
    An unjustified consultation or a consultation for no clinical reason, in the circumstances here, has ethical and perhaps legal implications. That was not explored with him, and I am not prepared to make any adverse finding against him, apart from accepting Dr Teague’s and Dr Jacob’s opinion that there was no clinical justification for the appointment. Perhaps some reason why he made this arrangement, can be gleaned from a very common criticism that can be inferred from the evidence of his mentors and supervisors, and the assessors themselves, and that is he has a significantly overinflated sense of his own competence, is always right, and is defensive and even aggressive in the face of criticism from colleagues. In relation to this case, in his response to the assessment report, he states:[137](in a reference to patient 1)

All my clinical cases I have actually helped whilst other colleagues fail. For seeing more than 30 cases a day, there were cases like the 11 months’ old baby I helped save his life not take away life or hurt…. For saving the life of an 11-month-old baby because he was an extra unbooked case on the day…. That’s the kind of life and death rescue I make happen. That saved the day; for the baby, for the parents, save the clinic from poor reputation, and salvaged my fellow doctors from malpractice.

  1. [97]
    One of the constant criticisms of the applicant is his alleged failure to listen, and to speak over patients, and his tendency to focus on taking notes on his computer and not listening to the patient. In her notes on case 1,[138] Dr Teague and records (I infer) that she heard the applicant say that the child “is tolerating iron well”, but that the mother had said earlier that it was difficult to get the child to take iron. In those notes (that is at page 249 of the hearing brief), the assessors’ main criticism about his clinical decision‑making and judgment, is that he stated as the reason for the visit as “jaundice and lethargy”, whereas, as the assessors note, the 11 June notes record his assessment as being “severe anaemia”.
  2. [98]
    The assessors appear to proceed on the basis that he was clinically incompetent because he explored the possibility of jaundice by ordering liver function tests on 11 June 2021. In my opinion, this is unfair to him as the notes show that he diagnosed anaemia which was confirmed as a result of him ordering a full blood count for the child. On 11 June 2021 he does not record in his notes “growth and development, immunisation status, travel, weight or temperature, hydration presence or absence of scleral icterus, lymphadenopathy, or organomegaly”, a focus of criticism of his clinical skills in the assessment report. This seems to me to be calling for the applicant to achieve a level of near perfection; in circumstances in which as it proved, the baby was severely anaemic which was discovered that day as a result of the blood tests ordered by the applicant.

Patient 2

  1. [99]
    Again, in relation to patient 2, the assessors note “reason for attendance unclear”[139] and:

During the consultation it became evident that this patient had also been asked by Dr Pawape to attend on the day of the Ahpra assessment so that he can demonstrate that he had “listened to the patient.”

  1. [100]
    He had seen the 61-year-old lady two days earlier. Despite setting the review day for a next appointment on 13 August at that time, he could not adequately explain why he was seeing her again so soon. In his notes of the 13 August consultation, he inexplicably writes:

“Its important to build a rapport with the patient. Therefore passed no judgments.”

  1. [101]
    On this issue, he agreed with Mr Templeton on at least two occasions that one of the reasons he saw this lady so soon after the previous consultation was because of the Ahpra assessment. He then asserted strongly that she was not there so that he could impress Dr Teague. He had set the review date on 11 August 2021 i.e., at a time when the patient was not suffering from a bout of diarrhea.
  2. [102]
    As a general observation, the applicant in his evidence was a very unsatisfactory witness even accounting for the fact that he was giving evidence via video link and was unrepresented. He is obviously an intelligent man. However, as in many of his submissions to the Board, and in many filed in these proceedings, he had a propensity to engage in lengthy discursive answers, often not directed at the question, and, at times in his responses to Mr Templeton, particularly in relation to medical issues, he was patronising. These apparent aspects of his character were the subject of criticisms by the assessors in their report.
  3. [103]
    He was asked why he wrote the unusual note on the 13th of August, and he gave evidence to the effect it was indicative of his desire to control the patient and not have her control him. In relation to her recorded complaint on 22 June 2021 consultation which he records as “right pain (poking) woke up with it 1/7”;[140] he could not explain where the pain was, but speculated that because he prescribed eye drops, it may have been in her eye, but he was “not sure”.
  4. [104]
    He agreed that there was nothing in his notes to suggest that he assessed the “headache” she complained of on 22 June 2021. In the SCP he was asked questions by the assessors,[141] as to why he had asked the patient to return so soon. He did not mention diarrhea to them, rather he said it was because he wanted to check her home blood pressure readings which he did not do so during the consultation.
  5. [105]
    It is common ground that this lady’s blood pressure on 22 June 2021 of 189/96 was very high. By the time of the 13 August consultation, it was 162/106 which he assessed on the Cardiovascular Risk Evaluation Scale at 5 percent probability of developing cardiovascular disease in the next 5 years, which he regarded as a high risk; but which Drs Teague and Jacobs (supported by the Tribunal assessors) says is a low risk.
  6. [106]
    In a number of reports (and this case is an example of a number) the notes recorded by the applicant differ from the notes (I infer) recorded by Dr Teague during the consultation. For example, she records the blood pressure as 166/99 and the diarrhea as existing 2/52 post having second covid vaccination.
  7. [107]
    None of this was explored with the applicant in cross-examination. As I have noted on a number of occasions, neither Dr Teague nor Dr Jacobs gave evidence. The applicant did agree, after much dissembling, that his notes on 22 June 2021 were inadequate. One of the cases (apart from 1 and 5) that the applicant frequently turns to, to indicate that he is competent and safe, is what he describes as “case #10 at the TGPSC, the 12-year-old indigenous girl with rheumatic heart disease”.
  8. [108]
    As far as the material before the Tribunal reveals, the medical record relating to the applicant’s consultation with this child is at page 499 of the OHB. In the assessor’s report, reference is made to patient 6, a 63-year-old man who did consult with the applicant on 13 August, but which consultation was not observed by Dr Teague. He consulted with this patient on 7 August 2021, and in their report,[142] the assessors are critical of the ordering of an echocardiogram, where there was no clinical reason to do so. In his material, the applicant is very critical of Dr Teague for making what he describes as a mistake, or a “rooky error” as in fact, the ECG was ordered for the 12-year-old girl on 7 August 2021.[143]
  9. [109]
    During his evidence, the applicant agreed that with respect to the notes of his consultation with patient 6 (who is the grandfather of the 12-year-old girl), he, the applicant, amended the notes of 7 August 2021 on 13 August 2021 at 5:54:03 pm, so well after Dr Teague and Dr Jacobs had completed their work. So, it follows it was the applicant who made the error in recording the EEG for the grandfather on 7 August 2021, when in fact he had ordered it for the 12-year-old granddaughter on the same day. The granddaughter does suffer from rheumatic heart disease. I can safely infer that the assessors raised this with him on 13 August, but it was not until after they left that he corrected the record.
  10. [110]
    Dr Teague was also critical of the applicant’s clinical judgment in not interrogating patient 3’s statement that “she had second dose COVID vaccine … (and) thinks diarrhoea was due to that”. As Dr Teague notes this was accepted uncritically by the applicant. On 22 June 2021, the patient (as discussed above) had complained of headache which was not assessed by the applicant despite his knowledge of a history of hypertension and a blood pressure that day of 189/96. Professor Baker asked the applicant a number of questions about patient 2. He asked the applicant why he did not order a COVID test on 13 August. The applicant agreed that he should have done that but did not.
  11. [111]
    By reference to his notes of the 22 June 2021 consultation,[144] Professor Baker asked the applicant whether he considered (because of the headache and very high blood pressure) malignant hypertension, a very dangerous condition, rather than simply deciding to review the patient in 7 days as recorded in the notes. Unlike other responses to questions from the professional assessors, the applicant did not really directly answer Professor Baker.[145] His response (as it was on a number of occasions) was (according to him) to tell a patient (presumably if suddenly very unwell) to go to the emergency department of the hospital, but there is nothing in the notes to this effect. Professor Baker also asked the applicant if he checked for papilledema. In a long discursive answer,[146] he appears to accept that he did not but should have.
  12. [112]
    Patient 2 also had a long-term issue with anxiety and depression and was on medication for this.[147] During the SCP (which involved both Dr Teague and Dr Jacobs) the case was discussed.[148] The assessors report that the applicant had not (in his contact with the patient on 22 June, 13 July, 11 August, or 13 August) conducted a mental health examination. The applicant in his evidence endeavoured to justify this on the basis that she had “had anxiety for a long time”. The assessor’s write:

There is no record of this counselling of patient regarding the mechanism of actions of the medications, its efficacy, proposed duration or potential adverse effects.

  1. [113]
    In his evidence the applicant says he did touch on these issues on 22 June when he gave her a prescription for Citalopram (an SSRI) but there is no note on that day to that effect.

Patient 3

  1. [114]
    This lady was seen by the applicant on 31 July 2021.[149] On that occasion, he notes she presented with a sore left eye “blood initially and pus now”. He examined her and noted “left eye +, lower eye lid medal (sic) corner small ulcer”. He diagnosed a “left stye”. He saw her again on 5 August 2021, and, on that occasion Dr Fergusson from the RACGP program was present apparently by zoom. As noted earlier, although the Tribunal has Dr Fergusson’s reports on other consultations, she observed that day, we do not have this one. On that occasion, his notes record that she presented with a “left eye bacterial conjunctivitis”, and he notes “review when I return from leave 13.8.21”.[150]
  2. [115]
    Again, the assessors, and in particular Dr Teague who was present on 13 August 2021, are critical of the applicant on the basis that “it appeared that this patient had been specifically asked to attend on the day of the Ahpra assessment rather than there being a clinical indication”. According to the notes on 13 August 2021,[151] the reason for the consultation was a “social circumstances review”.
  3. [116]
    During the course of the SCP, the assessors questioned the applicant about this patient. The assessors record that the applicant “justified his diagnoses (i.e., stye, ulcer, conjunctivitis), on different occasions as being due to having a “complicated stye” at the first consultation. This is not what is recorded in the notes. This is another example of an area of questioning when the applicant was quite patronising towards Mr Templeton, who was questioning him about the prescribing of antibiotics (capsule and drops) on 31 July 2021 for what he described as a left stye.[152] He ultimately agreed with Mr Templeton that the three conditions are different but can be related. To be fair to the applicant, and in the absence of any material from Dr Fergusson, and given that on 31 July he noted “left eye pus”, the prescribing of antibiotics was clinically justified contrary to the criticism of the assessors.
  4. [117]
    By 5 August, he notes that she was “getting better now”. What is concerning is his evidence in response to questions from Dr Cavanagh about the lack of any note either on 5 August or 13 August of him having examined the patient’s eye. Because there are no notes, he was unable to say that he actually examined the patient’s eye on either of these occasions. As he pointed out both in answers to Mr Templeton and to Dr Cavanagh, on 5 August, he noted she was “getting better now”; and the ulcer (as he described it) “had completely disappeared”[153]; but the difficulty for him is that there is no note to that effect. In that same answer, he seems to suggest to Dr Cavanagh that “the ulcer was still there”, and this was the reason for scheduling the 13 August appointment. When asked by Dr Cavanagh why he had not then said anything about the eye in his 13 August notes, he reverted to the theme of his responses to Mr Templeton, that the 13 August appointment was focused on the “social circumstances” of the patient and (by inference) not her stye.
  5. [118]
    His confusing and confused answers to Dr Cavanagh, strongly support the comment of Drs Teague and Jacobs referred to above that, again, this patient was there for no real clinical reason. Again, the applicant did not see anything wrong with asking a patient to come in on the day when he knew he was being assessed by the Board appointed assessors as to his performance. He seems to think that as the patient consented, there was no problem. Again, he does not appear to understand that ethical and legal issues are in play where a doctor sees a patient for no clinical reason, at a time when he knew he would be under scrutiny.
  6. [119]
    His evidence that the clinical justification for the 13 August appointment was a “social circumstances review” cannot be accepted. Apart from the fact that his own notes on 5 August suggest he took details then of her “social circumstances”; Dr Teague notes that he was asked by the patient at the end of the consultation if he was going to examine her eye and he performed a cursory examination, which is not referred to in his notes. In answers to a question from me,[154] he said, “from what I recollect; … the ulcer was … completely disappeared” – suggesting:
    1. a.
      he did examine the eye; and
    1. b.
      he made no note of this.
  7. [120]
    In relation to the assessors’ comments about the nature of the condition of the eye, to the effect that he told them that it was a complicated stye, his answer to a question from Professor Baker,[155] is informative. In answer to questions from Mr Templeton, the applicant had referred to the possibility of a cancer in the eye e.g., a BCC or an SCC or if, as I doubt, he thought this at the time of any of those consultations, it would have been important, indeed vital, to record that in the notes which he did not.
  8. [121]
    He seemed to accept that conjunctivitis, stye and ulcer were all separate conditions. His discursive, confusing response to Professor Baker does show clinical confusion, and a serious failure in notetaking. Otherwise, I am very concerned about his lack of understanding of the potential seriousness of arranging to see patients for no valid clinical reason when he knew that his performance was to be assessed by the Board appointed assessors.

Patient 4

  1. [122]
    Patient 4 was, on 13 August 2021, a 34-year-old man, and an existing patient of the practice who had not seen the applicant before. As with a number of the patient consultations observed, Dr Teague is critical of the applicant’s practice of commencing the consultation by asking questions about smoking, alcohol and allergy history before establishing the reason for the visit, and by taking blood pressure and typing while asking the patient about the reason for the visit which was for a widespread itchy rash. He does not record in his notes what he thought may have caused the rash. His reference to “Mission” is Mission Beach, and he asked no questions about exposure to plants or animals. In his evidence he said he thinks he did ask about fever, myalgia, pain and diarrhoea, but there is nothing in the notes to that effect. In his notes he records “had mixed peanute (sic)” but Dr Teague says the patient said he did not have a peanut allergy (which the applicant disputes) at the same time acknowledging that he did not have a peanut allergy.[156]
  2. [123]
    In response to questions from Mr Templeton, the applicant was once again discursive and confusing in his answers, saying at one point (in relation to the cause) “it could be a number of causes”,[157] and the patient had used over the counter antihistamines which had not been effective, which is not recorded in the notes, although Dr Teague notes the use of the over-the-counter medication in her notes. I do not understand that there is any criticism of the applicant prescribing Phenergan; however, he seems to agree that his notes do not contain details that he says he did establish from the patient, e.g., absence of fever, pain etc. because they are “focused” notes on what he thought was the real issue, although he accepts, he never established a cause.
  3. [124]
    In response to some questions from Professor Baker,[158] the applicant (again in a very discursive answer)[159], appears to say that he did ask about ingestion of seafood but accepts that that is not in the notes. Dr Teague describes his physical examination of the patient as “perfunctory” which the applicant does not accept. His notes “exposed her (sic) chest. The rash is itchy and diffuse. Trunk, face, legs, hands, scalp, musculo maculopapular itchy rash” suggest he conducted some examination.
  4. [125]
    Drs Teague and Jacobs are also critical of him for using jargon such as “urticaria” and “maculopapula” in talking with the patient. He denies any difficulty in communicating with the patient, but his evidence in the Tribunal – bearing in mind that it is an obviously stressful situation for him – does suggest a tendency to obfuscate and confuse particularly in his responses to Mr Templeton. Again, I think Dr Teague’s criticism of him about being disorganised and confusing and confused in his communication style, and poor record keeping are borne out in his evidence about this case, but I do not think the severe criticisms of his clinical competency is justified or that in this case he took a very doctor-centred approach and did not listen.

Patient 5

  1. [126]
    This patient, Mr VM gave evidence and was cross-examined at the hearing. He was an existing patient of the practice, and this was the first time he had seen the applicant. His case was the subject of trenchant criticism from the assessors both in Dr Teague’s notes during the consultation,[160] and in the SCP.[161] The criticisms from this consultation were again that he was distracted by the patient’s high blood pressure, and did not concentrate on the presenting complaint, namely acute abdominal pain. He was said to misunderstand the patient’s complaint, made no diagnosis, no clear reason for ordered tests and (in the SCP) refused to accept any criticisms. His examination of the patient’s abdomen is described as “cursory” and “hurriedly and inadequately assessed”.
  2. [127]
    Mr VM provided the statutory declaration on behalf of the applicant,[162] after being interviewed by the applicant.[163]
  3. [128]
    In its supplementary submission filed on 7 March 2023 (i.e., in relation to the Reviewable Decision), the Board submits that Mr VM’s evidence “is of almost no utility … (because) he does not have any expertise to comment on the clinical appropriateness of the consultation”. Mr VM’s evidence in cross-examination confirms that indeed he and the applicant had a discussion about his blood pressure, and after that “we talked about abdominal pain”. He agreed that while he was talking, the applicant was facing his computer and typing notes.
  4. [129]
    Contrary to the assessors’ criticisms, Mr VM does not suggest any problem in communication. He was not asked if he had to repeat answers (as the assessors suggest), nor was he asked about his body language which the assessors describe as “very defensive”. Nor was he asked how it was that he recalled this particular consultation after almost two years.
  5. [130]
    The notes,[164] start with a reference to “3/7 epigastric pain”, which suggests the applicant was concentrating on the presenting complaint. His concern about the BP (166/95), was justified given he was told by the patient that he had stopped taking blood pressure medication over the previous six months, and had been taking Nurofen. Mr VM agreed that the examination of his abdomen came at the end of the consultation. After the consultation the applicant arranged for an ECG to be taken which he records in his notes as being normal.
  6. [131]
    Dr Teague and Dr Jacobs are critical of the applicant for not first establishing the existence or otherwise of cardiovascular symptoms, but his notes suggest that he established that there was “no chest tightness or angina like pain”. I do not understand Drs Teague and Jacobs to be critical of the applicant’s prescribing of 40 mg Valsantan to be taken at night. This was to address his hypertension. Mr VM saw the applicant on a few more occasions (prior to the applicant’s suspension) and it is clear from those notes,[165] that his blood pressure was being controlled. In his evidence, Mr VM recalled that on 13 August, the applicant arranged for him to have a gastroscopy; but it appears that this occurred on 26 August 2021. Mr VM regarded the applicant as being very thorough and made no complaint about his communication. In answer to some questions from Professor Baker,[166] Mr VM described what sounded like a reasonably thorough examination of his abdomen towards the end of the consultation. As I have noted, Dr Teague’s criticism of the applicant’s actions e.g., not paying attention, conducting a cursory examination, asking him to repeat answers, that he was defensive, were not put to the applicant in cross-examination. In my view in relation to this case Dr Teague’s criticisms of the applicant’s decision-making are not justified.

Discussion

  1. [132]
    In summary, the Tribunal’s conclusions and findings set out above lead to the conclusion (one reached by other doctors who have supervised or mentored him), that the applicant is capable of practising competently but strongly resists any form of advice from colleagues that contradict his own inflated opinion of his clinical competence. The evidence before the Tribunal does establish some concerning aspects about his clinical decision-making in the cases observed by Drs Teague and Jacobs but not to the extent asserted by them in their performance assessment report.
  2. [133]
    The conclusions reached by Drs Teague and Jacobs about the applicant’s clinical competence have to be read down in light of the failure of the Board and Ahpra to follow-up with the College assessors, Dr Fergusson, and Dr Heaney. Their conclusions appear in some respects to contradict the Board assessors’ views for example in relation to patients 1 and 3.
  3. [134]
    The applicant has difficulties in notetaking, as he conceded on a number of occasions. It is axiomatic that accurate clinical notes are essential as an aspect of public health and safety, particularly in a large clinic where patients may not be seen regularly by one doctor. The main concern arising from the hearing relates to the applicant’s conduct, demonstrated by his inability to take advice, his overinflated opinion of his own clinical competency, his inability to appreciate the ethical implications of arranging consultations with patients with no clinical reason, and his tendency (at times) to respond to criticisms with aggression.
  4. [135]
    The evidence relating to the five patients observed by Drs Teague on 13 August 2021 – given the failure to follow up Dr Fergusson and Dr Heaney, and the evidence of patient 5, does not lead me to conclude that the applicant has a concerning “doctor-centred” approach to clinical practice. It does establish that he still has areas of his clinical practice and decision-making that are unsatisfactory, albeit not to the catastrophic extent recorded by the Board assessors. His conduct issues can be adequately addressed by the education and monitoring conditions in Exhibit 2, and his clinical decision-making and patient communication deficiencies as set out above can be appropriately addressed by the supervision and monitoring conditions set out in Exhibit 2.
  5. [136]
    To be clear, and for the reasons set out in detail above, the Tribunal reasonably believes that the way in which the applicant practises his profession, and his professional conduct may be unsatisfactory, and that appropriate conditions to be imposed on his registration, having regard to the paramount principles[167] are those contained in Exhibit 2.

Final orders

  1. [137]
    The orders and findings of the Tribunal are as follows:
  1. The decision of the Board made on 1 February 2023 is set aside;
  2. The Tribunal decides pursuant to s 178(1)(a)(i) of the National Law that it reasonably believes that the way in which the applicant practises the health profession, and his professional conduct may be unsatisfactory;
  3. The Tribunal decides to take action pursuant to s 178(2)(c) of the National Law to impose conditions on the applicant’s registration in the terms set out in Exhibit 2; and
  4. The parties are given liberty to apply within 14 days.

Footnotes

[1] My reference to the HB includes a reference to both hearing briefs that were filed in this matter. A three-volume hearing brief was filed on 4 October 2022 (the ’OHB’). A smaller one-volume supplementary hearing brief was filed on 9 March 2023 (the ‘SHB’). 

[2] Pages 12–16, SHB.

[3] See respondent’s submissions, dated 29 July 2022 and filed 1 August 2022 (the ‘Respondent’s submissions’) at page 2060, OHB (commencing at page 2058).

[4] Ibid.

[5] See letter from the MCNSW to the Office of the Health Ombudsman dated 29 August 2019 at page 104, OHB (commencing at page 103).

[6] See letter from the MCNSW to the Office of the Health Ombudsman dated 29 August 2019 at page 103, OHB.

[7] Ibid. Note: the complaint was made to the Health Ombudsman because the breach of the conditions was alleged to have occurred in Queensland where the Health Ombudsman has the jurisdiction to deal with complaints about registered health practitioners in Queensland.

[8] Ibid.

[9] See letter from the MCNSW to the Office of the Health Ombudsman dated 29 August 2019 at page 104, OHB (commencing at page 103).

[10] See letter from the applicant, dated 18 June 2021 at page 132, OHB (commencing at page 131).

[11] See letter from the Ahpra to the applicant, dated 16 June 2020 at page 125, OHB. On 7 May 2020, the Board decided to investigate the notification.

[12] See letter from the MCNSW, dated 23 June 2020 at page 106, OHB.

[13] Ibid.

[14] See Board’s decision dated 4 February 2022 at page 97, OHB.

[15] See Board’s decision dated 4 February 2022 at page 98, OHB (commencing at page 97). See also supplementary bundle filed 20 June 2022 (the ‘Supplementary Bundle’) at pages 610-611.

[16] See Board’s letter to the applicant, dated 27 August 2020 at page 194, OHB (commencing at page 188).

[17] See Board’s letter to the applicant, dated 27 August 2020 at page 188.

[18] See Board’s letter to the applicant, dated 27 August 2020 at page 193, OHB (commencing at page 188).

[19] See the applicant’s response to the Board at page 709, Supplementary Bundle.

[20] See Board’s decision, dated 10 September 2020 at page 112, OHB.

[21] See schedule of conditions enclosed with Board’s decision dated 10 September 2020 at pages 122-124, OHB.

[22] See Board’s letter to the applicant and enclosures dated 23 November 2020 at pages 138-141, OHB. 

[23] Ibid.

[24] See the applicant’s response to the Board at page 142, OHB.

[25] See the Respondent’s submissions at page 2062, OHB (commencing at page 2058).

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] See letter from Dr Martin to the Board dated 6 January 2021 at page 713, OHB (commencing at 712).

[30] Ibid.

[31] See letter from Dr Martin to the Board dated 6 January 2021 at page 712, OHB.

[32] See file note of telephone call between the Board and Dr Martin dated 30 March 2021 at pages 714-715, OHB.

[33] See file note of telephone call between the Board and Dr Martin dated 7 April 2021 at page 716, OHB.

[34] See file note of telephone call between the Board and Dr Martin dated 30 March 2021 at page 714, OHB.

[35] Ibid.

[36] See file note of telephone call between the Board and Dr Martin dated 30 March 2021 at page 715, OHB (commencing at page 714).

[37] Ibid.

[38] See file note of telephone call between the Board and Dr Martin dated 7 April 2021 at page 716, OHB.

[39] Ibid.

[40] Ibid. 

[41] See supervisor report dated 13 November 2020 at page 718, OHB (commencing at page 717).

[42] See the Respondent’s submissions at page 2062, OHB (commencing at page 2058). See also supervisor reports dated 27 November 2020 and 30 December 2020 at pages 719-722, OHB.

[43] See supervisor report dated 6 April 2021 at page 726, OHB (commencing at page 725). 

[44] Ibid.

[45] See schedule of conditions enclosed with Board’s decision dated 10 September 2020 at pages 122-124, OHB. See also, schedule of conditions enclosed with Board’s decision dated 6 February 2023 at pages 12-16, SHB).

[46] See the Respondent’s submissions at page 2064, OHB (commencing at page 2058).

[47] Ibid.

[48] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at pages 1150-1157, OHB.

[49] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at pages 1152-1153, OHB (commencing at page 1150).

[50] See letter from the Board to the applicant dated 13 September 2021 at page 148, OHB.

[51] See applicant’s response dated 27 September 2021 at pages 156-163, OHB.

[52] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at page 1155, OHB (commencing at page 1150).

[53] See the Respondent’s submissions at pages 2064-2065, OHB (commencing at page 2058).

[54] Ibid.

[55] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at page 1153, OHB (commencing at page 1150).

[56] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at page 1154, OHB (commencing at page 1150).

[57] Ibid.

[58] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at page 1155, OHB (commencing at page 1150).

[59] See mentor’s report of Dr Nicholls for 11 June 2021 to 31 August 2021 at page 1156, OHB (commencing at page 1150).

[60] See supervisor report dated 31 August 2021 at pages 1161-1162, OHB and see supervisor report dated 22 September 2021 at pages 1280-1281, OHB. 

[61] See supervisor report dated 31 August 2021 at page 1162, OHB (commencing at page 1161).

[62] See supervisor report dated 22 September 2021 at page 1280, OHB. 

[63] Ibid.

[64] See supervisor report dated 22 September 2021 at page 1281, OHB (commencing at page 1280). 

[65] Ibid.

[66] Ibid.

[67] QCAT Act, s 19(c).

[68] QCAT Act, s 20(1).

[69] QCAT Act, s 20(2).

[70] AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 at para [34].

[71] See the Respondent’s submissions at page 2059, OHB (commencing at page 2058).

[72] Cormack v Queensland Police Service - Weapons Licensing Unit [2015] QCATA 115 at para [34].

[73] See the Board’s decision at page 210, OHB.

[74] See the Board’s decision at page 97, OHB.

[75] See the Board’s decision at page 158, OHB.

[76] See the Board’s decision at page 159, OHB (commencing at page 158).

[77] See the Board’s decision at page 1, SHB.

[78] See Medical Performance Assessment Report at page 216, OHB.

[79] See Medical Performance Assessment Report at page 217, OHB (commencing at page 216).

[80] See Medical Performance Assessment Report at page 227, OHB (commencing at page 216).

[81] See the applicant’s written closing submissions at page 3.

[82] See Medical Performance Assessment Report at page 219, OHB (commencing at page 216).

[83] See Appendix 2 to the Medical Performance Assessment Report from page 249, OHB.

[84] See Appendix 1 to the Medical Performance Assessment Report from page 228, OHB.

[85] See Medical Performance Assessment Report at page 221, OHB (commencing at page 216).

[86] Ibid.

[87] See Medical Performance Assessment Report at pages 223-225, OHB (commencing at page 216).

[88] See Medical Performance Assessment Report at page 222, OHB (commencing at page 216).

[89] Ibid.

[90] See Medical Performance Assessment Report at page 225, OHB (commencing at page 216).

[91] See Appendix 2 to the Medical Performance Assessment Report from page 249, OHB.

[92] See Medical Performance Assessment Report at page 219, OHB (commencing at page 216).

[93] See Medical Performance Assessment Report at page 220, OHB (commencing at page 216).

[94] Ibid.

[95] See Medical Performance Assessment Report at page 121, OHB (commencing at page 216).

[96] See Medical Performance Assessment Report at page 221, OHB (commencing at page 216).

[97] Ibid.

[98] See Medical Performance Assessment Report at page 222, OHB (commencing at page 216).

[99] Ibid.

[100] Ibid.

[101] Ibid.

[102] Ibid.

[103] Ibid. This refers to both clinical consultation observations and case presentations conducted on behalf of the College by two experienced general practitioners for which reference will be made later.

[104] See Medical Performance Assessment Report at page 218, OHB (commencing at page 216).

[105] Ibid.

[106] Ibid.

[107] See Medical Performance Assessment Report at pages 223-224, OHB (commencing at page 216).

[108] See Medical Performance Assessment Report at page 225, OHB (commencing at page 216).

[109] See Medical Performance Assessment Report at page 226, OHB (commencing at page 216).

[110] See Medical Performance Assessment Report at page 227, OHB (commencing at page 216).

[111] Ibid.

[112] Ibid.

[113] See Medical Performance Assessment Report at page 218, OHB (commencing at page 216).

[114] Ibid.

[115] Ibid.

[116] See emails and attachments from the applicant dated 11 October 2021 at pages 260, 279, OHB. 

[117] See RACGP PEP Clinical case analysis – Assessor Notes & Rating at page 264, OHB.

[118] See RACGP PEP Clinical case analysis – Assessor Notes & Rating at pages 261-278, OHB.

[119] See emails from the applicant dated 11 October 2021 at page 260, OHB.

[120] See RACGP PEP Clinical case analysis – Assessor Notes & Rating at pages 264-268, OHB.

[121] Ibid.

[122] Ibid.

[123] See USB stick attached to supplementary hearing brief.

[124] Ibid.

[125] Ibid.

[126] See RACGP PEP Clinical case analysis – Assessor Notes & Rating at pages 261-272, OHB.

[127] Ibid.

[128] Ibid.

[129] See, for example, consultation notes at page 484, OHB.

[130] See page 471, OHB.

[131] See consultation notes at pages 469-478, OHB.

[132] See consultation notes at page 484, OHB.

[133] See Board’s decision at page 212, OHB (commencing at page 210).

[134] See board’s decision at pages 7 and 8, SHB (commencing at page 1).

[135] See Appendix 2 to the Medical Performance Assessment Report at pages 249-252, OHB.

[136] See discussion on page 249, OHB.

[137] See response to performance assessment report at pages 1964-1967, OHB.

[138] See Appendix 2 to the Medical Performance Assessment Report at page 249, OHB.

[139] See Appendix 2 to the Medical Performance Assessment Report at page 250, OHB (commencing at page 249).

[140] See consultation notes at page 475, OHB.

[141] See Medical Performance Assessment Report at pages 223-224, OHB (commencing at page 216).

[142] See Appendix 2 to the Medical Performance Assessment Report at page 252, OHB (commencing at page 249).

[143] See consultation notes at page 499, OHB.

[144] See consultation notes at page 475, OHB.

[145] Transcript 1-108 – 1-109.

[146] Transcript 1-109, ll 15-34.

[147] See consultation notes at page , page 475, OHB.

[148] See Medical Performance Assessment Report at pages 223-224, OHB (commencing at page 216).

[149] See consultation notes at page 488, OHB.

[150] See consultation notes at page 484, OHB.

[151] See consultation notes at page 486, OHB.

[152] Transcript 2-12, ll 5-25.

[153] Transcript 2-22, l 34.

[154] Transcript 2-23.

[155] Transcript 2-23, ll 9-36.

[156] Transcript 2-26.

[157] Transcript 2-30, l 36.

[158] Transcript 2-36.

[159] Transcript 2-36, ll 7-27.

[160] See Appendix 2 to the Medical Performance Assessment Report at page 252, OHB (commencing at page 249).

[161] See the Medical Performance Assessment Report at page 244, OHB (commencing at page 216).

[162] See affidavit of patient 5 sworn 25 July 2022 at pages 1932-1933, OHB.

[163] See transcript of video of consultation with patient 5 at pages 1929-1931, OHB.

[164] See consultation notes at page 491, OHB.

[165] See consultation notes at pages 495-496, HB.

[166] Transcript 1-14, l 31.

[167] Section 3A(1), National Law.

Close

Editorial Notes

  • Published Case Name:

    Pawape v Medical Board of Australia

  • Shortened Case Name:

    Pawape v Medical Board of Australia

  • MNC:

    [2023] QCAT 262

  • Court:

    QCAT

  • Judge(s):

    J Robertson

  • Date:

    14 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

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AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401
2 citations
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Cite 2 - [2019] QCAT 401
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Cite 2 - [2017] QCAT 107
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
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Cite 1 - [2015] QCATA 115
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2 citations
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Cases Citing

Case NameFull CitationFrequency
Heath v Medical Board of Australia [2024] QCAT 1632 citations
Medical Board of Australia v Pawape [2023] QCAT 3112 citations
Medical Board of Australia v Pawape (No. 2) [2024] QCAT 1412 citations
YBCG v Health Ombudsman [2024] QCAT 5163 citations
1

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