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Reece v Medical Board of Australia[2023] QCAT 77

Reece v Medical Board of Australia[2023] QCAT 77

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reece v Medical Board of Australia [2023] QCAT 77

PARTIES:

ALBERT STUART REECE

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR 020-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 March 2023

HEARING DATE:

22 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. Until further order of the tribunal, the decision of the Medical Board of Australia made on 21 December 2022 to impose conditions on the registration of Dr Albert Stuart Reece is stayed.

CATCHWORDS:

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – REVIEW PROCEEDINGS – APPLICATION TO STAY ACTION BY NATIONAL BOARD –  INTERESTS OF ANY PERSON – PUBLIC INTEREST – ARGUABLE CASE – BALANCE OF CONVENIENCE – where the respondent has imposed conditions on the registration of the applicant – where the applicant says the conditions are impracticable to comply with and has ceased practice – where the applicant says the conditions are not in the public interest – where the applicant seeks a stay of the action taken by the national board – whether the stay should be granted – whether the stay should be granted in part or in whole

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

Queensland Civil and Administrative Tribunal Act 2009 s 22

Asinas v Medical Board of Australia [2020] QCAT 490

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

Erathnage v Medical Board of Australia [2016] QCAT 418

Jaravaza v Medical Board of Australia [2013] QCAT 44

Lee v Medical Board of Australia [2016] QCAT 23

Magill v Queensland Law Society Inc [2019] QCAT 392

Pluta v Medical Board of Australia [2021] QCAT 212

APPEARANCE AND REPRESENTATION IF ANY:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

What the applicant seeks

  1. [1]
    Dr Reece, a general practitioner, seeks a stay of conditions imposed on his registration by the Medical Board of Australia (the Board). This is pending the determination of his application to review the Board’s decision to impose conditions on his registration pursuant to s 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (National Law).
  2. [2]
    On 21 December 2022 the Board determined to impose conditions on Dr Reece’s registration, because it had formed a reasonable belief that the way Dr Reese practices the profession is unsatisfactory[1] (Decision). In summary the conditions impose:
    1. (a)
      limitations on practice (a maximum of 4 patients to be seen per hour);
    2. (b)
      supervised practice requirements (where the supervisor is required to be always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the practitioner when necessary and otherwise at weekly intervals. In the absence of such a supervisor, the conditions state practice must cease; and
    3. (c)
      audits every three months to focus on appropriate medical record keeping.
  3. [3]
    All conditions have a 12-month review period. They appear on the register.
  4. [4]
    The Board acted as it did consequent upon the outcome of a performance assessment of Dr Reece. The Board required the performance assessment as a result of notifications from four patients or former patients over a 9-month period, together with one anonymous notification. At the time of the performance assessment, investigations into the notification were not complete.
  5. [5]
    The performance assessment was undertaken by two general practitioners.
  6. [6]
    The Decision records that the assessors concluded in summary that Dr Reece:
    1. (a)
      became dogmatic and combative when questioned and when his opinions were contradicted;
    2. (b)
      became defensive when questioned about his clinical reasoning and/or deficiencies in his clinical work and records;
    3. (c)
      in his practice is substantially below the standard expected of a competent Australian GP. He demonstrated no insight into the deficiencies in his records and into his patient assessment, with heavy reliance on extensive use of investigations;
    4. (d)
      has good rapport as demonstrated by the observed consultation and is a kind and caring doctor. He does not hesitate to do shared care by direct phone contact with specialists also treating the patient;
    5. (e)
      does not comprehensively explore the patient history, completes very little physical examination and relies on extensive use of investigations without pre-test counselling and with no clear clinical reasoning to justify the tests.   Dr Reece has an extremely high workload and describes a very challenging patient demographic.
  7. [7]
    The assessors recommended Dr Reece be subject to level 2 supervision, whereby the supervisor is predominately physically present in the workplace and otherwise available by telephone and video link with the supervisor and Dr Reece sharing responsibility for each individual patient, and regular supervisor reports and workplace assessments.  The assessors also recommended that the supervisor should be an experienced GP with knowledge of addiction medicine, that Dr Reece be subject to limitation on his practice with his workload restricted to 4 patients per hour, and that Dr Reece be required to convert to electronic medical record keeping and he be subject to regular auditing. 
  8. [8]
    The Board accepted the outcome of the performance assessment, stated it relied on the assessors’ conclusions and considered that Dr Reece’s performance is unsatisfactory. It noted his written submissions in response to the performance assessment and information concerning his regulatory history.  It also noted his response in December 2022 to its proposed conditions.  It then determined to impose the conditions in the Decision.
  9. [9]
    It stated it did not hold the reasonable belief that the matter needed to be referred to the Panel, the Health Ombudsman or the Tribunal.

What are the relevant factual circumstances?

  1. [10]
    Dr Reece is a 64-year-old general practitioner who practices from premises he owns in Highgate Hill. He has practiced there for 30 years and is the only registered health practitioner on the site [2].
  2. [11]
    Approximately 50 per cent of his work involves treating drug addicted patients, particularly those who are addicted to heroin, other opiates, or amphetamine-type drugs such as methylamphetamine (otherwise known as ice). He treats them both for their addiction issues and for other medical needs. He describes the remaining part of his practice as a ‘traditional’ family general practice[3].
  3. [12]
    Dr Reece has been a registered prescriber on the Queensland Opioid Treatment Programme (QOTP) since 2003[4]. He swears he does not treat addiction patient with methadone or similar opiate maintenance therapy drugs, but rather with a combination of pharmacotherapy and counselling with the aim of detoxifying them from opiates or other drugs and encouraging them to break the life habits which contribute to maintaining their addiction[5].  He provides treatment for addiction using buprenorphine and naloxone; the brand name for a medication which contains both of these drugs is suboxone[6]. Dr Reece swears that buprenorphine is a partial opioid agonist, which acts on the patient’s brain reducing their cravings for their drug of addiction whilst naloxone temporarily blocks the effect of opioid drugs[7].
  4. [13]
    Dr Reece has not practised since the conditions were imposed on 21 December 2022, because, despite attempts to do so, he has been unable to find anyone with the necessary experience and knowledge who would consider being nominated to be his supervisor.  The consequence, he deposes, is that he is prohibited from practising medicine[8].  As noted above, that condition is mandated by condition 7 of the conditions.
  5. [14]
    He swears that whilst he will continue to attempt to find a supervisor, the supervision conditions[9]:
    1. (a)
      cannot be met via a co-location process, where either he removes his practice to his supervisor’s location or the supervisor moves to his location; and
    2. (b)
      by reason of the level of supervision required, are impractical.  Effectively, they require him to pay another practitioner experienced and knowledgeable in treating addiction to supervise him the entire time he is working, which is financially impossible even if he could find such a person.
  6. [15]
    Dr Reece has caused, through his solicitors, inquiries to be made of five medical practitioners as to their capacity to act as his supervisor, after the conditions were imposed.  Three of them (including Dr Hayllar) responded that they could not provide the supervision required by the conditions.   Two practitioners did not respond to the inquiry[10].
  7. [16]
    Dr Reece has also deposed at some length to the impact on his drug addicted patients of him not practising[11].  In summary he swears:
    1. (a)
      In a drug treatment programme of the type he undertakes, patients are given a slowly reducing dose of suboxone, to manage and reduce craving for drugs over time. Exactly how that is done depends on negotiation and professional judgment in the circumstances of the particular patient;
    2. (b)
      Subject to the stability of their addiction treatment, patients must be seen frequently to assess the needs for adjustment of dosage, and to continue prescriptions;
    3. (c)
      He cannot even write prescriptions for his patients for their current suboxone dosage, let alone provide titration of dosages, counselling or support;
    4. (d)
      The effect of the supervision condition is that his approximately 800 addiction patients need to urgently find a new doctor to continue their treatment or their buprenorphine treatment will abruptly end when their current prescription runs out (or in many cases will have already run out);
    5. (e)
      The danger to patients in suddenly ceasing to take suboxone is that their craving for opiates or other drugs will no longer be supressed and patients who precipitously stop suboxone will be at much increased risk of using illicit drugs and of overdosing when they do;
    6. (f)
      Addiction treatments including with buprenorphine/suboxone or methadone are administered only under the auspices of the QOTP, which requires prescribing doctors to be trained in opiate treatment and approved to provide that treatment. Patients must be registered with a particular QOTP provider to receive prescriptions of buprenorphine or other opiate ‘substitute’ treatments. The Queensland Health managed opiate treatment clinics, such as Biala, are overfull;
    7. (g)
      Approximately 14 per cent of all addiction patients registered on the QOTP (approximately 800 patients) receive treatment at his practice. Whilst he is not privy to the data held by the QOTP concerning the practices of other QOTP Prescribers, in his years of operating his addiction practice in Brisbane, he has not met or heard of another private prescriber in Australia with an addiction practice comparable to his in size. There is insufficient capacity within the treatment system for his 800 patients to be accommodated in the practices of other prescribers or the public clinics;
    8. (h)
      Even before he ceased practice on 21 December 2022 patients were being turned away from opioid treatment clinics;
    9. (i)
      Whilst some of his patients will find alternative prescribers and he is certain Queensland Health Clinics are doing all they can to manage the crisis caused by his cessation of practice, the practical effect of the supervision condition is that many of his patients will be unable to find any suitable alternative treatment source and will end their treatment, return to illicit drug use and some of those patients may die as a result;
    10. (j)
      The risk to the public as a consequence of his practice ceasing is a matter of some notoriety, as is evident by an article published for the ABC News which he saw on 28 February 2023.
  8. [17]
    Dr Reece has deposed that his ‘non-addict’ practice includes patients who have consulted him for many years, with long term therapeutic relationships which can be important for the management of chronic diseases[12].
  9. [18]
    In his affidavit, Dr Reece states he has not resisted the audit conditions (being conditions 9 – 12) imposed by the Board[13].
  10. [19]
    Dr Reece, in addition to his medical practice, is involved in collaborative academic research into addiction and is a clinical professor of medicine at the University of Western Australia and a full adjunct professor of medicine at Edith Cowan University, as well as the co-publisher of scientific papers reporting his research on the long-term health effects of drug use, including cannabis and opiates[14].
  11. [20]
    Attached to Dr Reece’s affidavit is an ABC News article dated 28 February 2023. It refers to a leaked Queensland Health report which “has outlined the devastating potential fall out for patients struggling with opioid addiction and the wider community” after Dr Reece closed his practice. The article attributes the following to the report:
    1. (a)
      More than 1000 opioid dependent patients are at risk of overdose, death and criminality if they are unable to continue treatment;
    2. (b)
      State opioid substitution treatment teams have been operating at or over capacity for many years;
    3. (c)
      An emergent situation has now arisen with the displacement of approximately 1,100 clients seeking assistance from public OST clinics to urgently continue their medication due to practice restrictions currently in place on an inner-city OST prescriber; and
    4. (d)
      Waiting lists at public addiction clinics are exponentially increasing daily.
  12. [21]
    The Tribunal has issued notices for production of the report, but Dr Reece sought to have the matter brought on for consideration of whether the Tribunal would make an interim order granting a stay pending the determination of the review[15].
  13. [22]
    Doctor Jeremy Hayllar, a registered medical practitioner and specialist physician with expertise in addiction medicine, has provided an affidavit dated 1 February 2023. He deposes in respect of his background:
    1. (a)
      He has been an opioid treatment prescriber since 1994;
    2. (b)
      Since 2004 he has held the position of Queensland Health Clinical Director of the Alcohol and Drug Service, Metro North, Mental Health, where his duties include the management of people with substance abuse disorders;
    3. (c)
      He currently works across three opioid clinics where around 1050 patients with opioid use disorder are registered in treatment. Additionally, he supervises training registrars working in the clinics and he has taught regularly in the training programme for medical and nurse practitioners in Queensland seeking to become prescribers on the Opioid Treatment Programme;
    4. (d)
      Immediately before the conditions were imposed on Dr Reece, his service at Metro North and the other services offering addiction treatment under the QOTP in South East Queensland were already at capacity.
  14. [23]
    Dr Hayllar further swears that since 21 December 2022 he has observed a number of things which in his opinion are caused by or related to the absence of Dr Reece’s services. They are:
    1. (a)
      his service has received many telephone calls from Dr Reece’s patients, distressed at the absence of his services and their consequential inability to access addiction treatment services. In one week, the Alcohol and Drug Information Service received 400 calls more than would normally be expected;
    2. (b)
      202 of Dr Reece’s patients have been placed on a wait list for ongoing treatment;
    3. (c)
      80 others seeking opioid treatment have been placed on waitlists and have been unable to access treatment because of current demands;
    4. (d)
      53 of Dr Reece’s patients had been registered with public opioid clinics over the preceding month;
    5. (e)
      His service has continued treatment of 33 patients on long-acting monthly injections without proper registration and a further 9 have not presented and have missed their monthly dose and he is concerned for their ongoing stability and wellbeing;
    6. (f)
      Metro South Hospital and Health Service has continued 28 patients on long-acting injections without proper registration and, from his communications with them, he is aware that area faces a demand crisis;
    7. (g)
      He is unable to comment on Dr Reece’s patients from outlying areas including the Gold Coast, Sunshine Coast and Toowoomba Health Services.
  15. [24]
    As to the treatment approach, Dr Hayllyar’s evidence is that buprenorphine treatment is used to manage opioid use disorder, a mental health condition which leads to loss of control over opioid use. Patients require a regular dose of buprenorphine medication to manage cravings and prevent withdrawals. The consequence of a patient being unable to receive their medication because their doctor can no longer prescribe it for them may be very serious, particularly in those with other co-occurring health problems. It may lead them to present to hospital for treatment. However, emergency departments have no capacity to address the needs for ongoing treatment. Some patients may resort to illicit drug use, with risks of overdose and death, blood born virus transmission and other injection related harms. The increasingly desperate nature of phone calls to their service highlights the negative consequences of being unable to continue treatment, which represents a public health crisis which current public clinics are not equipped to manage.
  16. [25]
    Dr Reece seeks a stay of the Decision for the following reasons[16]:
    1. (a)
      He has a strong case to show the findings of the performance assessment report were unsustainable;
    2. (b)
      The conditions were not warranted by the findings in the assessment report;
    3. (c)
      The balance of convenience favours a stay;
    4. (d)
      The public interest is in granting the stay to enable the continuity of medical services to Dr Reece’s patients, particularly the approximately 800 patients on the Opioid Treatment Programme.
  17. [26]
    Dr Reece submits that the decisive consideration is that of the public interest, in favour of his practice continuing and therefore the staying of conditions 1 to 8 (being those related to supervision and limitation on practice, pending the resolution of the application to review the decision[17].
  18. [27]
    In reply submissions, it is clear that Dr Reece seeks a stay of all of the conditions on his registration[18]. 

What is the Tribunal’s power to stay?

  1. [28]
    Section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers a power to stay the operation of all or part of a reviewable decision which is the subject of a review application. There is no dispute between the parties about the applicable principles[19].
  2. [29]
    The Tribunal’s discretionary power is to be exercised only if the Tribunal considers it desirable to make such an order after it has had regard to:[20]
    1. (a)
      the interests of any person whose interests may be affected by the making of the order or the order not being made;
    2. (b)
      any submission made to the Tribunal by the decision-maker for the reviewable decision; and
    3. (c)
      the public interest.
  3. [30]
    Section 22(4) of the QCAT Act thereby sets out that these are threshold factors which must be satisfied before the Tribunal’s discretion to grant a stay is enlivened. Depending on the facts and circumstances of a particular case, it may also be necessary for the Tribunal to have regard to the prospects of success on the underlying application and to the balance of convenience[21] or other discretionary factors, such as those set out in Lee v Medical Board of Australia[22].
  4. [31]
    Relevantly, in these applications, the Tribunal makes at most a preliminary view of the merits of the matter on the limited material before it[23].
  5. [32]
    In the occupational regulation jurisdiction, the Tribunal assigns special significance to any public interest in granting or refusing a stay of the operation of the original decision.  The starting point is that the original decision must not be treated as a provisional determination subject to intercession in review proceedings.  The respondent is entitled to the outcome of its exercise of statutory jurisdiction, until varied or set aside in review proceedings[24].
  6. [33]
    The applicant must satisfy the Tribunal that there is a “cogent reason for the stay”.[25] 

What are the interests of any person who may be affected by the decision to make or not make a stay?

  1. [34]
    It is clear from Dr Reece’s affidavit that the practical effect of the conditions is prohibiting Dr Reece from working, which has personal consequences for him in financial terms and as to his reputation. On its own, his inability to work, and any consequent financial burden, is insufficient to warrant the Tribunal granting a stay[26]. 
  2. [35]
    Dr Reece also deposes to employing nine staff, some five of whom he has continued to employ, but where he cannot do so indefinitely[27].  In so far as these employees have an interest in the continuation of their employment, their interests can be said to be affected by whether or not a stay is granted. This must be a factor in many such cases and whilst a relevant interest, the Tribunal is satisfied it is not an overwhelming interest.
  3. [36]
    More significantly, the Tribunal is satisfied, from the evidence of Dr Reece and Dr Hayllar set out above, that the practical outcome of the conditions on Dr Reece’s registration, particularly the supervision condition which he has been unable to meet, is likely having a significant effect on Dr Reece’s patients, who are registered to him in the QOTP. As the uncontested evidence sets out, these patients are a cohort of people with particular vulnerabilities if they cannot continue treatments.
  4. [37]
    Whilst the Board’s submission urge caution based on Dr Reece’s evidence and the reference to the ABC media article, they do not address or analyse Dr Hayllar’s evidence as to the numbers of Dr Reece’s patients who are on wait lists, unable to access treatment and at risk of harm.
  5. [38]
    On Dr Hayllar’s uncontested evidence presently before the Tribunal, it seems most likely that many of Dr Reece’s patients will be struggling (at best) to find an alternative service provider and, in the absence of an alternative provider, their treatment in the QOTP cannot continue. They are, therefore, persons whose interests may be affected by a stay being granted or not being granted[28]. There is, further, the evidence of the strain on public health services such as telephone lines and emergency departments consequent upon the displacement of treatment options for Dr Reece’s patients. 
  6. [39]
    The Tribunal is satisfied that this factor weighs for the grant of a stay.

What does the Board submit?

  1. [40]
    The Board filed written submissions but no written material in response to the stay application.
  2. [41]
    The Board neither consents to nor opposes the grant of a stay, submitting it is content for a stay to be granted if the Tribunal is satisfied that the legal prerequisites in the QCAT Act are made out[29].  It refers the Tribunal to this course being adopted in Erathnage v Medical Board of Australia.[30] The Tribunal pauses to observe that it apprehends from a review of Erathnage, that the reference to s 22(6) in the Board’s submission should be a reference to s 22(4). The Tribunal has proceeded on that basis.
  3. [42]
    The Board submits it is “… is in the Tribunal’s hands as to whether a stay ought be granted in the circumstances”[31].
  4. [43]
    The Board’s attitude does not militate against the grant of a stay in the factual circumstances of this case, particularly where it has not addressed Dr Hayllar’s evidence in the assessment of the relevant considerations.

Where does the public interest lie?

  1. [44]
    The public interest is a broad term, generally importing a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject mater and the scope and purpose of the statutory enactment provides.
  2. [45]
    In exercising powers under s 178 of the National Law the Board is to have regard to:
    1. (a)
      the object of protecting the public. That is reflected in the main guiding principle for administering the National Law, which is that the protection of the public and public confidence in the safety of services provided by registered health practitioners are paramount;[32]
    2. (b)
      other guiding principles including 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 of an appropriate quality[33].
  3. [46]
    In this case the balancing of the public interest involves:
    1. (a)
      The importance to the patients registered with Dr Reece to access medications through QOTP. This is a serious public interest consideration where there is uncontested evidence that these services were overstretched before Dr Reece ceased practice and where the potential consequence of inability to access such services has been identified in the evidence as including likely resort to illicit drugs, the risks of attendant illness, potential for criminality and potential for overdose, including fatal overdose. There is a significant element of public protection in these vulnerable people being able to continue to access services to address their addiction. The evidence presently before the Tribunal is that this cannot occur as long as Dr Reece is unable to practice. There is also a public interest in already strained public health services not being further overwhelmed by these displaced people;
    2. (b)
      There is no suggestion in the Decision that any patient has been harmed by Dr Reece. Dr Hayllar, who has historically reported other doctors practicing in the addiction space to the Board, has expressly stated that he does not have any concerns from interactions with Dr Reece that his prescribing skills or clinical judgment are unsatisfactory[34];
    3. (c)
      Weighing against that, that the Board, notwithstanding being apprised of, amongst other things, the likely shortfall in services to this cohort group, has determined, as the professional regulatory body to impose the conditions now appealed from on the basis it is “necessary and appropriate”. 
  4. [47]
    It is uncontested on the evidence before the Tribunal, that Dr Reece has tried to obtain a suitably knowledgeable and experienced supervisor to meet the supervision condition requirements, but has been unable to do so. He contends it is practically impossible to find another such doctor. The Board has not contested that on this application. 
  5. [48]
    The Tribunal is satisfied that the public interest operates in favour of a stay in the particular circumstances of this case.

Does the applicant have an arguable case?

  1. [49]
    The Decision arises as a consequence of the outcome of the performance assessment required by the Board, rather than any determination adverse to Dr Reece on the outcome of any one or more of the notifications.  Dr Reece alleges on the review that the conclusions in the performance assessment report are affected by error[35].  In submissions, Dr Reece’s representatives submit that Dr Reece will be relying on an independent expert report and a substantial number of references from fellow doctors and applied health professionals to rebut the findings in the performance assessment report[36].  The s 21(2)(b) documents provided to the Tribunal include the submissions made by Dr Reece to the performance assessment report. They include numerous letters from doctors, patients and allied health workers (such as pharmacists) which speak glowingly of Dr Reece in respect of issues raised in the performance assessment report.  This material, and the specific views expressed by Dr Hayllar, suggest, at a basal level, that there are different views by professionally qualified people about the matters dealt with in the performance assessment report. The further submissions by Avant Law dated 6 December 2022 are noted in the index to the bundle but have not been provided to the Tribunal[37]. The notation indicates “including expert reports”.
  2. [50]
    The Board accepts that there are substantive merits issues to be explored at trial[38].
  3. [51]
    The Tribunal is satisfied that Dr Reece has demonstrated an arguable case on the review application.

Does the balance of convenience favour the grant of a stay?

  1. [52]
    The authorities articulate that a stay of the operation of a decision made under laws designed to protect the public is in a different class from cases involving the suspension of the operation of orders affecting private litigants only.[39] It is necessary to consider the balance of convenience through the prism of a decision which has been made to protect both the public and the reputation of the relevant profession.[40]
  2. [53]
    The aspects of this application that incline the Tribunal to the view that the balance of convenience favours the grant of a stay are the same aspects as are relevant to public interest considerations addressed above.   
  3. [54]
    For the reasons already explored there, the Tribunal is satisfied the applicant has discharged his onus to demonstrate how the balance of convenience favours the grant of a stay in the particular circumstances of this case.

The extent of a stay

  1. [55]
    The Board has submitted that, should a stay be granted, the Tribunal should assess whether the stay be granted in part, for the conditions dealing with limitation on practice and supervision. The Board submits that here is no prima facie reason why the audit conditions could not remain in place and that information obtained a part of such an audit could well be relevant to the merits review[41].
  2. [56]
    Dr Reece opposes that submission, for the following reasons[42]:
    1. (a)
      Condition 9, which requires audits every three months, provides that those audits are to commence on the commencement of practice under supervision. With the grant of a stay, the condition, as presently expressed, will not commence;
    2. (b)
      Condition 10 (to nominate an auditor), has been satisfied;
    3. (c)
      Preparation of an audit plan (condition 11), which is a significant undertaking, is unnecessary where the audit cannot take place;
    4. (d)
      Condition 12, (to nominate a substitute auditor), is unnecessary;
    5. (e)
      Conditions 13 and 14 require, respectively, Dr Reece to give AHPRA acknowledgement from the senior person at each place of practice that AHPRA may seek reports from them and forms with the contact details of the senior person at each place of practice, so AHPRA can give them copies of the conditions or check that Dr Reece has done so. Dr Reece submits that condition 13 has been satisfied in that AHPRA has been provided with the required form, but because Dr Reece is a sole practitioner, the condition is of limited value and where substantive conditions are stayed or of no effect, this condition has no purpose. Dr Reece submits Clause 14 is also unnecessary because of Dr Reece’s operation in sole practice;
    6. (f)
      Condition 15, which requires Dr Reece to bear the costs associated with the conditions of registration, is unnecessary where the substantive conditions are stayed or ineffective.
  3. [57]
    Where the audit conditions which the Board has imposed are predicated on Dr Reece practicing under supervision (and with limitations on the numbers of patients being seen), and the Tribunal proposes to stay those conditions, the Tribunal is satisfied that the conditions relating to auditing should form part of the stay.

Orders

  1. [58]
    The application for a stay pending the hearing and determination of the applicant’s application for review is granted.
  2. [59]
    The orders are:
    1. Until further order of the tribunal, the decision of the Medical Board of Australia made on 21 December 2022 to impose conditions on the registration of Dr Albert Stuart Reece is stayed

Footnotes

[1]  Letter AHPRA to Avant Law 21 December 2022 p 5 in the paragraph immediately under the heading Regulatory Action

[2]  Application for a stay dated 1 March 2023 Part B paragraph 4, affidavit of Albert Stuart Reece dated 1 March 2023 (Reece Affidavit) [2]

[3]  Application for a stay dated 1 March 2023 Part B paragraphs 5 – 6, Reece Affidavit [6] and [7]

[4]  Reece Affidavit at [4]

[5]  Reece Affidavit at [7]

[6]  Reece Affidavit at [8]

[7]  Reece Affidavit at [8]

[8]  Reece Affidavit at [31] – [32]

[9]  Reece Affidavit at [33] – [41]

[10]  Affidavit of Justin Ernest Le Goullon filed 1 March 2023

[11]  Reece Affidavit at [44] – [62]

[12]  Reece Affidavit at [63] – [64]

[13]  Reece Affidavit at [65] – [69]

[14]  Reece Affidavit at [9] – [11]

[15]  Email from Avant to the Tribunal, copied to the Board’s solicitors, dated 7 March 2023 

[16]  Application for a stay dated 1 March 2023 Part B paragraph 2; Applicant’s submissions at [5]

[17]  Applicant’s stay submissions at [35]

[18]  Applicant’s reply submissions at [8] – [15]

[19]  Applicant’s reply submissions at [2]

[20]  Section 22(4) QCAT Act.

[21] Asinas v Medical Board of Australia [2020] QCAT 490 at [28]; Pluta v Medical Board of Australia [2021] QCAT 212 at [22].

[22]  [2016] QCAT 23 at [17] – [18].

[23] Lee v Medical Board of Australia op cit at [21]

[24] Lee v Medical Board of Australia op cit at [17] – [18] per Carmody J

[25] Magill v Queensland Law Society Inc [2019] QCAT 392 at [12].

[26] Jaravaza v Medical Board of Australia [2013] QCAT 44 at [28]

[27]  Reece Affidavit at [43]

[28]  See eg Asinas v Medical Board of Australia [2020] QCAT 490 at [23] where the interests of patients who were likely to be left without medical care was a relevant consideration on the grant of a stay

[29]  Board’s submissions dated 15 March 2023 at [6] - [7]. In reply, Dr Reece submits it is telling that the Board have not made submissions that Dr Reece’s continued practice, in the event of a stay, would present risks to patients or the standards of medicine: Reply submissions at [17]. 

[30]  [2016] QCAT 418

[31]  Board’s written submissions at [26]

[32]  Section 3A(1) National Law.

[33]  Section 3A(2)(c) National Law

[34]  JH1 to the Hayllar Affidavit 

[35]  Application for review at [2]

[36]  Applicant’s submissions at [31]

[37]  The notation is [not for inclusion – for noting only as WP save as to costs]

[38]  Board’s submissions at [13]

[39] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [28]. 

[40] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [28].

[41]  Board’s submissions at [21] – [25]

[42]  Reply submissions [6] – [15]

Close

Editorial Notes

  • Published Case Name:

    Reece v Medical Board of Australia

  • Shortened Case Name:

    Reece v Medical Board of Australia

  • MNC:

    [2023] QCAT 77

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    22 Mar 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

Case NameFull CitationFrequency
Asinas v Medical Board of Australia [2020] QCAT 490
3 citations
Jump To
Cite 1 - [2020] QCAT 490
Cite 2 - [2020] QCAT 490
Cite 3 - [2020] QCAT 490
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
3 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Cite 3 - [2011] QCATA 254
Erathnage v Medical Board of Australia [2016] QCAT 418
2 citations
Jump To
Cite 1 - [2016] QCAT 418
Cite 2 - [2016] QCAT 418
Jaravaza v Medical Board of Australia [2013] QCAT 44
2 citations
Jump To
Cite 1 - [2013] QCAT 44
Cite 2 - [2013] QCAT 44
Lee v Medical Board of Australia [2016] QCAT 23
2 citations
Jump To
Cite 1 - [2016] QCAT 23
Cite 2 - [2016] QCAT 23
Magill v Queensland Law Society Inc [2019] QCAT 392
2 citations
Jump To
Cite 1 - [2019] QCAT 392
Cite 2 - [2019] QCAT 392
Pluta v Medical Board of Australia [2021] QCAT 212
2 citations
Jump To
Cite 1 - [2021] QCAT 212
Cite 2 - [2021] QCAT 212

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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