Asinas v Medical Board of Australia [2020] QCAT 490

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Asinas v Medical Board of Australia [2020] QCAT 490 PARTIES: ADRIAN CRUZ ASINAS (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) APPLICATION NO/S: OCR383-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 18 December 2020 (Ex Tempore) HEARING DATE: 18 December 2020 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: The Medical Board of Australia is substituted as the respondent. The Tribunal stays the decision of the respondent of 15 December 2020 to refuse to renew the registration of the applicant, until the hearing and determination of the applicant’s application to review that decision. (Directions also given for filing materials.) CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APLIATIONS FOR ORDER DIRECTING REGISTRATION – Appeal from refusal to renew registration – whether to stay decision not to renew – renewal refused on ground practitioner not a fit and proper person for registration – criminal convictions also subject to a disciplinary referral to Tribunal – scheme of legislation – adverse consequences to third parties – decision stayed pending hearing of appeal with disciplinary referral Health Ombudsman Act 2013 (Qld) s 10. Health Practitioner Regulation National Law (Queensland) s 108, s 111, s 112. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22. Jones v Psychology Board of Australia [2019] QCAT 162. Re Wingate [2007] NSWMT 2. -- 1 of 7 -- 2 APPEARANCES & REPRESENTATION: Applicant: B J Peters, solicitor with Australian Criminal Lawyers. Respondent: M J Lucey, solicitor with Clayton Utz. REASONS FOR DECISION [1] This is an application to stay a decision of the Medical Board of Australia pending the hearing of an application to review that decision by the Tribunal. On 15 December 2020, the Board decided not to renew the registration of the respondent. That decision was based on the conclusion that the applicant is not a fit and proper person to be registered as a medical practitioner. [2] The conclusion of unfitness arose out of the conviction of the applicant of offences of using a carriage service to access child pornography and being in possession of child exploitation material. The applicant pleaded guilty to these charges before the District Court on 11 February 2020 and was sentenced, in respect of the Commonwealth offence, to imprisonment for 15 months with an order that he be released forthwith on giving security by reconnaissance in the sum of $2,000 to be of good behaviour for a period of two years. In respect of the State offence, he was sentenced to imprisonment for 15 months, suspended forthwith for an operational period of two years. There was evidently no presentence custody to declare. [3] The charges arose out of an examination which was made by the police of the computer which they seized when they raided the applicant’s residence on 26 September 2018. When they examined the computer, they discovered 17 files which were in category 4, I assume of the Oliver scale. In respect of child exploitation material, these were video files and some of the material was quite disturbing, according to the sentencing judge. [4] The police were alerted to this by virtue of having detected earlier that month that the applicant was downloading two video files of child pornography, hence the Commonwealth charge. Those files were identified, and as I say, there were others found on the computer. The sentencing judge noted that the applicant was 43 years of age, 41 at the time of the offending, and that he had no previous convictions. [5] The applicant was a registered medical practitioner, and as apparently is usual these days, also had specialist registration as a general practitioner. The Health Ombudsman has referred to the Tribunal a disciplinary application based on the conviction for the offences which came before the Deputy President of the Tribunal earlier this month. His Honour gave directions for the filing of material and listed the matter for a half day hearing on a date to be advised not before 2 March in 2021. That referral is, therefore, in the system. The matter has proceeded relatively efficiently and expeditiously through the processes of the Health Ombudsman. [6] Nevertheless, the applicant’s registration has to be renewed on an annual basis. No doubt, in the ordinary course of events, he applied for renewal of his registration. On 21 October 2020, the respondent gave notice of a proposal to refuse the renewal of the registration, on the basis that the applicant was not a suitable person to hold registration in the light of his criminal history (because it was not in the public interest for him to practice the medical profession) and on the basis that he was not a fit and -- 2 of 7 -- 3 proper person to hold registration in the profession. This, as was made clear by the reasons, was based on his conviction of the offences, the basis of the disciplinary referral from the Office of the Health Ombudsman. [7] It has been submitted that the function of the respondent in dealing with an application to renew registration is distinct from the process by which a matter by way of disciplinary referral from the Office of the Health Ombudsman is dealt with by the Tribunal. It is certainly the case that they are dealt with under separate provisions of the legislation and, to a large extent, under separate Acts, though the Acts contain a number of statutory indications that they are intended to work together as a coherent scheme. There is a mechanism by which the Health Ombudsman can refer complaints to the National Board and vice versa. [8] In addition, the legislation provides, in several places, for example in the Health Ombudsman Act 2013 (Qld) (the Act), s 10, that they are to work together. Broadly speaking, the scheme of the Acts is that disciplinary referrals are dealt with by the Office of the Health Ombudsman, whilst impairment matters are usually dealt with by the National Boards. Whether this is a practical approach to dividing responsibility of the medical profession is a matter for the legislature. That is the choice that has been made in Queensland, though I gather not in other states. However, be that as it may, that is the way the Queensland legislation operates. [9] Inevitably, if the investigation of the Health Ombudsman into a disciplinary matter, and the process of the Tribunal in dealing with a disciplinary referral, take together longer than 12 months, then the practitioner will have applied for and obtained, ordinarily, the renewal of registration during the pendency of the investigation or the proceeding. That is not always the case. It is not all that uncommon for practitioners no longer to be registered by the time the matter reaches the Tribunal but, in many cases, perhaps most, the practitioners remain registered and it follows that their registration must have been renewed in the interim. [10] The representative of the Board was not able to refer me to a case like the present where a decision of the Board had, in effect, intercepted a disciplinary proceeding before the Tribunal and imposed the ultimate sanction, the equivalent of cancellation of registration, by refusing to renew the registration, on the particular ground the subject matter of the disciplinary referral. It must have been a situation which has frequently occurred in the past, in circumstances where the matter ultimately, when it came before the Tribunal, led to a decision by the Tribunal that the practitioner was not a fit and proper person to be registered, and an order for cancellation of registration. [11] Under the provisions in the Tribunal, a decision to cancel registration depends on the finding that a person is not a fit and proper person to hold registration, which is the same test applied by the Board in its decision. [12] It seems to me that the current structure of the legislation assumes that if there is a disciplinary referral by the Health Ombudsman to the Tribunal, the determination of the issue raised by that referral is a matter for the Tribunal. It seems to me, frankly, that the action that the Board has adopted, of abrogating to itself a decision as to whether the applicant is a fit and proper person to be registered, in circumstances where a matter where potentially that would be the outcome of a decision by the Tribunal has already been commenced, involves a step which cuts across the scheme -- 3 of 7 -- 4 of the legislation, committing responsibility for the determination of disciplinary referrals to the Tribunal. [13] If the Board is really concerned that it ought not to be renewing registration on the basis that this involved some sort of implied finding that the person is a fit and proper person to be registered, then it could refrain from deciding the application for registration, a process which, under the Health Practitioner Regulation National Law (Queensland) (National Law), would leave the current registration in operation. As I say, I was not referred to any precedent for such an approach by the Board, and I consider it inappropriate in the Queensland context, and inconsistent with the scheme of the Queensland legislation. Ultimately, it should be a matter for the Tribunal to decide on the disciplinary referral whether or not the applicant in this proceeding is a fit and proper person to be registered, and if it decides that he is not, to make the appropriate order. [14] The effect of the Board’s decision, if it stands, is essentially to deprive the Tribunal of the option to decide what is the appropriate sanction and indeed to decide whether the applicant is, in this proceeding, a fit and proper person because there would be no point in its deciding that. The practitioner would no longer be registered. [15] I have been referred to a number of cases where broadly similar offending has resulted in orders for the imposition of preclusion periods in the case of practitioners who are no longer registered. There are differences in detail in the offending which suggest that those cases, generally speaking, involved more serious offending, but in any event, since all of those practitioners were no longer registered, strictly speaking it was unnecessary for the Tribunal to consider whether they remained fit and proper persons to be registered. [16] I am aware that in other cases of offending of a sexual nature, such as, for example, cases of sexual assault, there are examples of decisions of the Tribunal which have not resulted in cancellation of registration. These are matters which, in my view, are appropriately determined on the basis of a consideration of all the relevant factors at a proper hearing before the Tribunal. There are all sorts of considerations which can be relevant, and that is a matter which ought to be determined at that time, and on all of the material that the parties decide they want the Tribunal to consider. It is, I think, inherently unsatisfactory for that process to be intercepted in this way and, indeed, I think it is inconsistent with the scheme of the legislation. [17] That, in itself, suggests that the appropriate course, in a situation such as this, is that the decision of the Board should not stand, at least pending the outcome of the disciplinary referral. Indeed, I do not consider it is part of the function of the Board to prejudge the outcome of the disciplinary referral and to implement what it considers ought to be the outcome of that referral by way of a decision to refuse to renew registration. The applicant is entitled to appeal, or to apply for the review of that decision by the Tribunal, and that application has been filed. [18] I should mention as well, the applicant has drawn to my attention a decision of the equivalent New South Wales Medical Tribunal in the matter of Re Wingate [2007] NSWMT 2, where an order falling short of cancellation of registration was made in the case of a medical practitioner found guilty of possession of child pornography. There are some factors in the analysis in that decision which did not necessarily make it directly comparable with the Queensland legislation but, as I say, there are also Queensland cases where sexual offending has not led to cancellation of registration. -- 4 of 7 -- 5 [19] The present application before me is an application for a stay which can be made under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 22. Subsection (4) of that section provides that the Tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to three specified matters. The first is the interest of any person whose interests may be affected by the making of the order or the order not being made. [20] The most obvious person affected by the making or not making an order will be the applicant, who will be unable to practice medicine, presumably unable to earn an income in the ordinary way. But the applicant is currently employed in a position where he is providing general practitioner services on a full-time basis to a number of aged care homes. This is consistent with earlier action by the respondent in imposing conditions on the applicant’s registration, including a condition that he not treat patients under the age of 18. If there is any risk in the applicant potentially having a sexual interest in underage people, that is unlikely to be a relevant issue in relation to his ability to practice safely in caring for people in aged care homes. This is not a case where there is any particular reason to be concerned, bearing that restriction in mind and bearing in mind the nature of the work that he is doing, with the safety of the public in allowing him to continue to practice. The issue is solely whether the fact of the conviction has such a consequence in terms of his moral integrity and character that he is unfit for registration. [21] There is evidence that the employer has been seeking a replacement general practitioner and has been unable to obtain one to do the work the applicant is doing, which involves caring for some 300 aged care patients. It is, I think, notorious that it is difficult to get general practitioners to work in aged care and it does not surprise me in the least that the employer has had that difficulty. The practical effect is that it is suggested that these patients would be left without medical care (indeed that is the situation at the moment) if the applicant does not get the order refusing to renew his registration stayed. [22] The respondent has taken issue with the steps that have been taken to obtain a replacement but, essentially, the respondent’s position has been one of scepticism about the applicant’s position and evidence rather than a situation where the respondent is able to show positively that alternative medical care would, in a practical sense, be available. That, in my view, is not a very helpful approach, particularly bearing in mind that we are about to come to the Christmas period when the availability of alternative medical care is likely to be particularly difficult anyway. I find it entirely unsurprising that the employer would have great difficulty in securing alternative replacement general practitioners in these circumstances. It is, indeed, probably an assumption that I would make in the absence of any material. [23] In those circumstances, it seems to me that it is also relevant to bear in mind the interests of the patients who are likely to be left without the convenient medical care of having a general practitioner attending to their interests as required if the decision of the Board stands pending the review. [24] I have been provided with both oral and written submissions by the respondent and taken them into account, though, as I say, I found them unconvincing. The respondent’s case is essentially that the employer should have been taking, and the applicant should have taken, further steps at an earlier stage to obtain replacements, which is not much comfort to patients who are, in fact, left without a general practitioner over Christmas, and that the Board’s decision was one that was open to it -- 5 of 7 -- 6 and was not so clearly wrong as to justify a stay pending the determination of this proceeding. [25] Reference was made to the comment of the Deputy President of the Tribunal, Allen DCJ, in the matter of Jones v Psychology Board of Australia [2019] QCAT 162 at [28], that the decision of the Board, in that case, was not so clearly wrong and the applicant’s prospect of success in his application not so clearly good as to weigh in favour of the stay. That comment, of course, was made in the context of the circumstances of that case where the Psychology Board had imposed conditions on the applicant’s registration in circumstances where it had been concerned with the adequacy of his professional performance, a matter which particularly involves the expertise of the Psychology Board. That was an issue of the quality, so to speak, of the psychological treatment the applicant had delivered or provided to a particular patient. In those circumstances, one would expect the Tribunal to be particularly concerned to be cautious about disagreeing with a judgment of an expert Board. [26] The position, in my view, is quite different here. There is no particular expertise involved in deciding whether it is in the public interest for the applicant to be registered as a medical practitioner. In terms of the public interest, it has been submitted that it is not in the public interest for a person who has been convicted of such offences to be registered as a medical practitioner, but it seems to me that that is a matter which is properly decided, not by reference to generalisations, but reference to the particular circumstances of this case, and decided at the hearing of the disciplinary referral. On the other hand, it is not in the public interest for a large number of patients in aged care homes to be left, potentially, without the care of a general practitioner over the holidays. [27] This is not a situation, as I say, where there is any concern on the part of the Board about the quality of the care being provided by the applicant, so this is not a situation where considerations of public safety might give rise to doubts as to whether it could really be in the interest of those patients for their care to be in the hands of someone like the applicant. That is not the situation here. There is no reason to doubt the applicant would be an appropriate person to be concerned for the caring of these people in a medical sense at the relevant time. [28] I do not read s 22 as precluding consideration of any other factors in determining whether an order for a stay is desirable. Ordinarily, courts decide whether decisions are to be stayed by reference to the considerations such as the prospects of success and the balance of convenience. In my view, the balance of convenience is relevant, and squarely favours the decision being stayed until the disciplinary referral has been determined. [29] In terms of the prospects of success, the situation is not so much that I feel any particular confidence that, when the matter comes to a determination by the Tribunal, the Tribunal will decide that the particular criminal offending here is not such as to render the applicant not a fit and proper person to be registered as a medical practitioner. My view is more that that matter is a matter properly decided on the disciplinary referral. It ought to be decided in that way and at that time, and I regard that as a matter which is relevant in deciding whether an order for a stay is desirable under s 22 of the QCAT Act. -- 6 of 7 -- 7 [30] In effect, I do not think that the respondent should be encouraged to intercept disciplinary referrals to the Tribunal in this way, which is really tantamount to usurping the function of the Tribunal. [31] For those reasons, I propose to stay the decision of the respondent on 15 December 2020 to refuse to renew the application of the applicant, for the stay to be granted until the hearing and determination of the applicant’s application to review that decision, and I have in mind that that should be heard together with the disciplinary referral. In those circumstances, I think the appropriate direction, then, is that it be heard as a separate proceeding but together with the disciplinary referral, and that there be directions for material. [32] In these circumstances, the Tribunal orders that: 1. The Medical Board of Australia is substituted as the respondent. 2. The Tribunal stays the decision of the respondent of 15 December 2020 to refuse to renew the registration of the applicant, until the hearing and determination of the applicant’s application to review that decision. (Directions also given for filing materials.) -- 7 of 7 --