Medical Board of Australia v Mirza
[2025] QCAT 244
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- Unreported Judgment
- Medical Board of Australia v Mirza[2025] QCAT 244
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Medical Board of Australia v Mirza[2025] QCAT 244
Medical Board of Australia v Mirza[2025] QCAT 244
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Mirza [2025] QCAT 244 |
PARTIES: | Medical Board of australia (applicant) v fahd mirza (respondent) |
APPLICATION NO/S: | OCR284-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 21 July 2025 (ex tempore) |
HEARING DATE: | 21 July 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Reid Assisted by: Ms J Searle Dr F Walden Ms D Blonde |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
|
APPEARANCES & REPRESENTATION: | |
Applicant: | D Freeburn instructed by MinterEllison |
Respondent: | L Henry instructed by Donnelly Law Group |
REASONS FOR DECISION
- [1]This matter involves admitted professional misconduct by a registered medical practitioner in failing to maintain professional indemnity insurance over a period from the beginning of 2020 until May 2021, despite continuing to work as a general practitioner (‘GP’) during this period. Additionally, he admits that:
- in September 2019 and September 2020, he made declarations, which were incorrect, about holding professional indemnity insurance; and
- he failed to notify the Australian Health Practitioner Regulation Agency (‘Ahpra’) or the Medical Board of Australia (‘Board’) as required when he knew he did not have the requisite professional indemnity insurance.
- [2]Dr Mirza was born in November 1980 and has been a registered medical practitioner in Australia since 2011. He commenced work in general practice in 2013 and has worked in that area of practice since that time. A transcript of the phone call he had with a representative of Avant on 28 January 2020 reveals that he said he had not undertaken training to obtain a specialist GP fellowship but was working in a ‘deputising service’, which he described as an alternative experience-based pathway to allow him to sit for his fellowship exams without entering a GP training program. He said in evidence before me that he had in fact undertaken such examinations in June 2025 and there are further examinations in January 2026.
- [3]This background is of limited importance in understanding the respondent’s attitude to the renewal of his professional indemnity insurance policy with Avant at the end of 2020.
- [4]It appears from the transcripts of conversations with Avant that he held professional indemnity insurance with Avant from 2010 when he had a student policy. Until 2019, he had a policy which appears to have been based on his expected billings of less than $400,000 annually. The premium was, it seems, about $8,500 per annum payable monthly.
- [5]On 22 November 2019, Avant contacted Dr Mirza by phone. A transcript of this conversation is set out at pages 113 and following of the Hearing Bundle, which was tendered as Exhibit 1 during the hearing. I think it is fair to observe that Dr Mirza told the employee of Avant who had rung him that he probably wanted to change his insurer to a cheaper insurer. Dr Mirza was advised to contact Avant ‘when his renewal comes out’ so that they could ‘go over it’ and ‘cancel it, if that’s the case’.
- [6]That renewal notice was issued on 23 November 2019. On 2 December 2019, Avant emailed Dr Mirza advising:
- his current membership and professional indemnity insurance would expire on 31 December 2019;
- to renew his cover, Dr Mirza needed to:
- (i)log into his Avant account;
- (ii)read and, if necessary, update his documentation; and
- (iii)pay his premium.
- (i)
- [7]Avant also advised Dr Mirza that his ‘confirmation certificate will be emailed to you once payment has been confirmed’. He was in fact provided with a confirmation certificate for 2020 year in anticipation of his renewing his insurance.[1]
- [8]Dr Mirza rang Avant on 22 January 2020 concerning his professional indemnity insurance. The transcript of this conversation is at pages 120 and following of Exhibit 1. He said he was calling ‘because I think I cancelled [my professional indemnity insurance] last year’ and ‘didn’t want to go ahead this year’. He then said, somewhat curiously, ‘I think it might have activated by itself’.
- [9]Later, at page 123, he said ‘I want to cancel it now. How do I go about that?’ Then a little later, he said ‘I’m just going to do it now’.
- [10]Because the person at Avant to whom he initially spoke was not a specialist in the cancellation of professional indemnity insurance policies, the Avant representative arranged for another Avant employee to ring Dr Mirza. This was done on 28 January 2020.[2] Dr Mirza said in that conversation that he had not got quotes from other insurers. He explained the nature of his employment and expected gross billings. It emerged from that conversation that the invoice he had received for some $8,500 was the premium for his professional indemnity insurance which was based on expected billings of less than $400,000 from his work as a general practitioner. Dr Mirza told the Avant representative that, in fact, he expected to generate private income as a GP of only about $120,000. He was told that a ‘billing bracket’ of between $100 and $150,000 per annum was available and would result in a reduced premium of only about $6,500 annually.
- [11]In response, Dr Mirza said that he still needed to check other providers and said ‘I’ll get back to you’. There was then a conversation about whether the circumstances were such that the cooling off period for cancellation of the policy would apply or had passed. Having initially indicated it had passed, the Avant representative recanted and said that they would probably not charge a cancellation fee.
- [12]Ultimately, Dr Mirza said he would appreciate there being no cancellation fee and asked if Avant would send a quote that Dr Mirza described as ‘the new one’, which was clearly a reference to the suggested $6,500 premium based on estimated billings of $120,000. He then said ‘I’ll get back to you guys if I think you guys are giving me a better value’.
- [13]The Avant representative said he had already sent the new quote. He reminded Dr Mirza that he needed to ensure he had an active policy in place and asked Dr Mirza to look at other providers and let Avant know if he decided to go elsewhere and ‘then we can cancel [the policy] at that time’. Dr Mirza was told that if he did not go to another provider, he would ‘still have an active policy’ and that ‘based on [his] Ahpra registration, [he has] to have an active policy in place to practise medicine in Australia’.
- [14]The Avant employee said he would open a ‘retention ... or cessation activity’ which would ‘pause any future monthly instalments; so no future instalments will come out of the account on file until you’ve made up your decision’.
- [15]Dr Mirza said he ‘just needed a couple of days’. In my assessment, this conversation clearly should have made Dr Mirza aware:
- that he should act quickly to investigate alternative sources of insurance; and
- whilst he would be covered in the short term, no payments would be drawn from his account until Dr Mirza decided what to do.
- [16]From this conversation, it must have been known, or should have been known, to Dr Mirza that inaction on his part would mean he did not have the required professional indemnity insurance.
- [17]Dr Mirza in fact did nothing either to effect other insurance with another insurer or to notify Avant that he wanted to continue with them.
- [18]It is common ground that after January 2020 and until 16 May 2021, Dr Mirza did not in fact have any professional indemnity insurance. It is also common ground that Dr Mirza, when renewing his registration on 30 September 2021, declared that he would not practise medicine unless he had appropriate professional indemnity insurance and ‘even more tellingly, on 22 September 2020, declared he had in fact practised in accordance with the requisite registration standard’, meaning that he was in fact declaring that he had professional indemnity insurance.
- [19]In practising after January 2020, and up till 21 May 2021, Dr Mirza was, in my view, recklessly indifferent as to whether he had such insurance. In my assessment, the conversations I have earlier outlined, and especially those of 28 January 2020, support such a finding.
- [20]I am conscious that I am unable to find that Dr Mirza from January 2020 in fact absolutely knew that he did not have insurance, but was rather recklessly indifferent to the question of whether he had such insurance.
- [21]Apart from what I say was the meaning of the conversation, especially that of 28 January 2020 that he had with Avant and to which I have referred, I am also influenced by a note of a conversation between Avant and Dr Mirza of 29 January 2021.[3]
- [22]Unfortunately, I do not have a transcript of this conversation, merely a short note of it in the Avant call logs. That note indicates that on that date, Dr Mirza rang Avant requesting a confirmation certificate for 2021. This is noted as 21C, which I was told logically means the 2021 calendar year. The note of the call confirms ‘member status’ is resigned. It then notes, ‘confirmed member last held policy with us in 20C and confirmed outstanding debt had been paid.’
- [23]The conversation is not, in my mind, absolutely clear from that note, but appears strongly to suggest:
- that Dr Mirza may have thought he still had professional indemnity insurance, for otherwise why would he have asked for a confirmation certificate; but
- Dr Mirza was told he had no professional indemnity insurance with Avant since at least 2020.
- [24]Despite this, Dr Mirza took no decisive steps which would have revealed he then had no professional indemnity insurance and had in fact not had that since January 2020.
- [25]In my assessment, the whole of the circumstances leaves open the possibility that Dr Mirza was somewhat confused as to whether he had professional indemnity insurance and from when, but very clearly indicates that he was at least recklessly indifferent to that issue. Necessarily, that also means he was similarly indifferent when making the declarations in September 2019 and September 2020.
- [26]By no later than 7 May 2021, Dr Mirza knew unequivocally that he did not have the requisite professional indemnity insurance. On that day, he rang Avant and asked for the certificate of currency.
- [27]I interpose that to do so is, in my view, consistent with the finding I have earlier made that Dr Mirza was somewhat confused but reckless, rather than deliberately dishonest, about his lacking professional indemnity insurance. It would be indeed strange if, knowing he did not have such insurance, he rang Avant asking for a certificate of currency.
- [28]Whilst that is of some help to Dr Mirza, in my view, it remains true that his level of transgression of his professional obligation was nevertheless significant indeed. The conversations I have referred to make clear, in my view, that Avant, from 28 January 2020, would not draw any further premium payments until Dr Mirza had decided whether to go to another insurer or not. In that regard, Dr Mirza was to make inquiries and come to a decision about that issue over the next couple of days.
- [29]His failure to make any such inquiries, his failure to again contact Avant at least until January 2021, his failure to notice that no insurance premiums have been withdrawn from his account, his false declaration of September 2020 about practising with professional indemnity insurance, and his failure to then ascertain whether he had such insurance are all redolent of high-handed disregard for his professional obligations.
- [30]His explanation to me when giving evidence that he was simply too tired and after work he lay on a couch to rest confirms my assessment that he was recklessly indifferent.
- [31]I find that each of the first three grounds, namely, the failure to maintain a professional indemnity insurance policy and the failures with respect to the declarations of September 2019 and September 2020 constitute professional misconduct. I find his failure to notify Ahpra or the Board of such failure until 1 July 2021 in circumstances where he knew at least from 7 May 2021 that he did not have such insurance, constitutes unprofessional conduct. In so finding, I note that he in fact effected the insurance on about 12 May and did not practise from 7 May until 12 May, during this short period until such insurance was arranged.
- [32]The parties are in agreement that it is appropriate that Dr Mirza be reprimanded pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) and that a condition be imposed requiring him to provide a certificate of currency of professional indemnity insurance to the Board and/or Aphra annually for a period of five years.
- [33]The main dispute concerns what further penalty, if any, ought to be imposed. In written submissions, the Board sought a suspension for two months; this was opposed by the respondent. Neither party suggested any further or other penalty. I indicated, at the start of proceedings, my inclination to at least consider the imposition of a fine pursuant to section 196(2)(c) of the National Law.
- [34]When Dr Mirza gave evidence, my view about a suspension not being appropriate was strengthened. He gave evidence that he currently works three days per week for an Aboriginal and Torres Strait Islander medical service in Warwick, and four other days doing out-of-service home care. He gave evidence that if suspended the medical service in Warwick would not open, at least on those days, during any period of suspension.
- [35]Whilst I am not able to make a reasonable conclusion about the accuracy of that viewpoint, it illustrates why I had concerns about the suspension for a short period in a case such as this. Inevitably, clients of a doctor, staff and perhaps others are likely to be significantly impacted from any such short suspension.
- [36]In my view, issues of personal and general deterrence can rather be addressed by the imposition of a fine. I note that in the case of Chiropractic Board of Australia v Ronan [2024] QCAT 463 (‘Ronan’), Judicial Member Murphy SC imposed a fine on a chiropractor who had failed to maintain professional indemnity insurance for a period of about ten and a half months. In that case, ‘he plainly knew he did not have cover’ and made false declarations to the Chiropractic Board of Australia that ‘had no purpose other than to mislead…’. Judicial Member Murphy SC said Mr Ronan showed no insight or appreciation of his dishonesty.
- [37]I had initially felt a fine, as in Ronan, of $30,000 would be appropriate, but ultimately, I have determined to fine Dr Mirza a lesser sum of $17,500, and to allow him six months to pay. The orders of the Tribunal are therefore as follows:
- Pursuant to s 196(1)(b)(iii) of the National Law, in respect of grounds 1, 2 and 3, the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(1)(b)(ii) of the National Law, in respect of ground 4, the respondent has behaved in a way that constitutes unprofessional conduct.
- Pursuant to s 196(2)(b) of the National Law, the respondent is reprimanded.
- Pursuant to s 196(2)(b)(iii) of the National Law, conditions in the form of Annexure A to this decision are imposed on the respondent’s registration.
- Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions imposed by this decision.
- Pursuant to 196(3) of the National Law, the review period of these conditions is five (5) years.
- Pursuant to s 196(2)(c), the respondent is required to pay a fine of $17,500 to the Medical Board of Australia on or before 20 January 2026.
- The parties have liberty to apply for costs.