Hale v Medical Board of Australia (No 1)
[2023] QCAT 27
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- Unreported Judgment
- Hale v Medical Board of Australia (No 1)[2023] QCAT 27
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Hale v Medical Board of Australia (No 1)[2023] QCAT 27
Hale v Medical Board of Australia (No 1)[2023] QCAT 27
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hale v Medical Board of Australia (No 1) [2023] QCAT 27 |
PARTIES: | GEORGINA HALE (applicant) v medical board of australia (respondent) |
APPLICATION NO/S: | OCR307-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 3 February 2022 |
HEARING DATE: | 30 January 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member R Jones |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – REVIEW OF MEDICAL BOARD’S DECISION – APPLICATION FOR A STAY OF THE BOARD’S DECISION – where the respondent Board made a decision to caution and impose conditions on the applicant’s registration as a medical practitioner – where the applicant has applied for a review of those decisions – where the applicant has applied for a stay of the Board’s decision pending the outcome of the review – where the applicant contends that the Board’s decision is impacting her earning potential and reputation – whether the applicant is entitled to a stay of the respondent’s decision Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58 Hendren v Psychology Board of Australia [2022] QCAT 353 Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 Magill v Queensland Law Society Inc [2019] QCAT 392 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This matter is concerned with a stay application brought by the applicant to stay the decision of the respondent to caution and impose conditions on the applicant's registration as a health practitioner. For the reasons given, the application is dismissed.
- [2]It is noted that this matter is listed for directions hearing on 10 February 2023.
Background summary
- [3]The applicant is a highly accredited and experienced doctor in the field of infectious diseases. The applicant has been in practice for some 35 years and up until the current situation, has practiced without substantive complaint, let alone being the subject of any disciplinary action.
- [4]Put shortly, the conduct of the applicant that brought about the action of the respondent involved her treatment and management of a patient who fell victim to COVID-19. And, in particular, the prescribing of the drug Ivermectin. It would appear that Ivermectin had been prescribed, not to prevent infection, but as a treatment of COVID-19 infection in its early stages.
- [5]Despite written submissions made on behalf of the applicant; on 27 October 2022, the respondent notified the applicant of its decision to issue a caution and impose conditions. The reasons for doing so were said to be:
“The notifications both related to the same patient and raise concerns regarding Dr Hale's treatment and management of the patient for COVID-19, in particular the prescribing of Ivermectin for this purpose"
- [6]I would note at this stage that the submissions made opposing the making of the decision did not deny that the applicant had prescribed Ivermectin. The submissions were more in the form of reasons or excuses for prescribing it. By way of some examples: the prescription of the drug was within the Therapeutic Goods Administration (TGA) guidelines at the relevant time; there was considerable ambiguity about the status of the drug at the relevant time; and at no time was there any information in the public arena concerning the appropriateness or otherwise of prescribing that particular drug. In that regard, it was asserted that:
“Neither the TGA or Ahpra nor the board have ever stated in writing or otherwise in any manner discoverable or brought to the attention of Dr Hale that she is not permitted to prescribe Ivermectin for the treatment of COVID-19”
- [7]In the written submissions filed on behalf of the applicant, the applicant's position is summarized as follows:[1]
“In summary, the Applicant submits that the purpose of the review would be defeated in the absence of the stay of the conditions pending the determination of the review. Absent the stay, the review would be rendered nugatory because the conditions imposed on the Applicant's registration are available to the public to view and the public researching the Applicant who is an infectious disease specialist will assume the conditions imposed are due to dangerous conduct by the Applicant and that the conditions are to protect the public and as a consequence:
- (a)Would reduce the likelihood of a general practitioner to refer a patient to the Applicant.
- (b)Would reduce the likelihood of a patient to seek the Applicant's advice.
- (c)Would reduce income through the Applicant's clinic.
- (d)Would damage the Applicant's reputation as a leading infectious disease specialist who has been practising for over 35 years and who has never previously had any cautions or conditions placed on her registration and is an Adjunct Clinical Associate at the Sunshine Coast University.
- (e)Would damage the Applicant's reputation as an author who is about to launch a book that she has written on women's health.
In addition to the above the Applicant's strength of the merits of her Application for Review as are set out below is a factor for a stay.
In all of the circumstances, and after balancing the interests of the parties, the interests of justice would favour the stay upon terms as proposed below, or otherwise determined by the Tribunal.
General principles
- [8]The general principles applicable to the granting of a stay are largely uncontroversial.
- [9]The fundamental question to be asked and answered is: what outcome do the interests of justice require? In this regard, section 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that this Tribunal may make interim orders “it considers appropriate in the interests of justice…"
- [10]It is of course a relevant consideration that the subject proceedings involve not just the interests of those who have a direct or specific interest in the outcome of litigation. Matters such as this involve matters of public interest and, in particular, the potential risk to the health and welfare of the public. In Hendren v Psychology Board of Australia,[2] citing with approval Magill v Queensland Law Society Inc,[3] it was said that the applicant must satisfy the Tribunal that there is a “cogent reason for the stay". It was also observed in Hendren that:[4] “In the occupational regulation jurisdiction, the Tribunal also assigns special significance to any public interest in granting or refusing a stay of the operation of the original decision." Here the public interest involves the potential risk to the health of the public.
Consideration and determination
- [11]Before proceeding further, I would observe that the ability to fully test the respective strengths and weaknesses of the positions of the parties was limited somewhat as the application was to be determined “on the papers".
- [12]As I understand it, the first three matters addressed in the above-mentioned summary are concerned with the potential impact on the applicant's income-earning potential. It can be accepted that the respondent's decision, being in the public arena, has the potential to negatively impact on the applicant's earning capacity. That said, nowhere in the submissions filed on behalf of the applicant was any attempt made to identify to what extent might the applicant's earning capacity be put in jeopardy. Even allowing for Christmas, given that the subject decision was made on 25 October 2022, had there been any material impact on the applicant's income, one might have expected to have been provided with some evidence of that. At the very least, one might have expected some attempt to explain how, and to what extent income might be impacted. No such attempt was made.
- [13]As things presently stand, any attempt to identify whether the decision would have any material impact on the applicant's earning capacity would require nothing more than speculation. Accordingly, I find that the matters identified in paragraphs (a), (b), and (c) of the applicant's summary of position lack any persuasive value.
- [14]Turning to the assertions made in respect of the applicant's reputation. Again, it can be accepted that a risk to the applicant's reputation exists as a consequence of the decision made. One way damaged reputation might be revealed would be through the impact on the applicant's practice. That matter has already been disposed of against the applicant.
- [15]Another way impact on reputation might be assessed is through a comparison of the applicant's standing with her peers. The submissions filed on behalf of the applicant made no meaningful attempts to address the issue of reputation. As has been identified above, it is for the applicant to provide cogent reasons in support of the granting of a stay.[5] In the absence of any probative evidence addressing the nature and extent of the risk to reputation, the submissions made concerning that topic are unpersuasive.
- [16]Having addressed the matters raised in paragraph 3 of the applicant’s submissions made in respect of the stay application, it is necessary to address the issues raised in paragraphs 4 and one other matter.
- [17]The matters raised in paragraph 4 and expanded on throughout the submissions really go to the strength and merits of the case of the respondent. One example of this is that at the relevant time the applicant, being an infectious disease specialist, was exempt from the prohibitions prescribed in the TGA guidelines.[6]
- [18]Whether or not the applicant was in fact an exempt person at the time will undoubtedly require the hearing of evidence and, in all likelihood, legal argument all of which goes well beyond the material presently before the Tribunal.
- [19]It is my respectful opinion, unnecessary to identify and deal with the balance of the “merits" points raised on behalf of the applicant. On the material before me, I am far from persuaded that the case for the respondent is so weak or otherwise lacking in merit to warrant the granting of the relief sought.
- [20]There does however remain one further matter that needs to be addressed. It is submitted that if the stay were not granted “the appeal would otherwise be rendered nugatory".[7]
- [21]I find the thrust of this submission difficult to follow. If the “parlous position" of the applicant is a reference to her earning capacity and/or her reputation, those matters have already been determined in favour of the respondent.
- [22]Otherwise, I do not understand how the applicant would not be able to take the benefit of any findings and orders if she were to be successful at the substantive hearing. Equally, I am unconvinced that the failure to grant a stay would render the substantive proceedings futile.
- [23]For the reasons given the orders of the Tribunal are:
- (1)The application for a stay is dismissed.
- (2)If required, the Tribunal will hear the parties in respect of any consequential orders including costs.
Footnotes
[1] Applicant’s submissions [2]-[4].
[2] [2022] QCAT 353 [11].
[3] [2019] QCAT 392 [12].
[4] Hendren n 2 [10].
[5] See also Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 [28]; Magill n 3.
[6] Applicant’s submissions n 1 [22], [46]-[47].
[7] Applicant’s submissions n 1 [37]-[39].