De Villiers v Medical Board of Australia [2020] QCAT 269

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: ORDERS: CATCHWORDS: De Villiers v Medical Board of Australia [2020] QCAT 269 ROBERT ARTHUR D’HOTMAN DE VILLIERS (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) OCR347-19 Occupational regulation matters 28 April 2020 (ex tempore) 28 April 2020 Brisbane Judge Allen QC, Deputy President Assisted by: Dr Jennifer Cavanagh Dr Eleanor Chew OAM Mr Michael Halliday The decision of the respondent of 26 September 2019 is amended so as to substitute for the conditions then imposed on the applicant’s registration, conditions in terms of the annexed Schedule of Conditions PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where the Board decided to take immediate action and impose conditions on the applicant’s registration – where the applicant sought a review of the Board’s decision to impose conditions on his registration – whether the Tribunal should vary the conditions Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 155, s 156, s 159 Shahinper v Psychology Board of Australia [2013] QCAT 593 APPEARANCES & REPRESENTATION: -- 1 of 10 -- 2 Applicant: G W Diehm QC, instructed by Avant Law Respondent: M Lucey, of Clayton Utz REASONS FOR DECISION This is an application by the applicant for a review of the decision of the respondent, the Medical Board of Australia (“the Board”), to take immediate action, pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (“National Law”) and impose conditions on his registration. The applicant is an experienced health practitioner, registered as a general practitioner, and having practised medicine for some 40 years. Between September and November 2017, the applicant provided medical treatment to Patient A, including Dupuytren’s contracture release of his fingers. Patient A suffered complications in the form of nerve damage, requiring remedial operative treatment by an orthopaedic surgeon. Between August 2018 and February 2019, the applicant provided medical treatment to Patient B. As part of that medical treatment, the applicant performed a revision cheek and neck lift on the patient under twilight sedation. Patient B suffered a complication in the form of a right-sided haematoma, requiring her admission to a hospital for operative treatment. On 18 February 2019, Patient B made a complaint to the Office of the Health Ombudsman (“OHO”), and on 22 February 2019, the OHO referred the complaint to the Australian Health Practitioner Regulation Agency (“AHPRA”). On 8 May 2019, Patient A made a complaint to the OHO, and on 14 May 2019, OHO referred that complaint to AHPRA. On 13 June 2019, the Board determined to investigate Patient A’s complaint. On 6 September 2019, the Board determined to investigate Patient B’s complaint. The applicant provided responses to the complaints. On 19 September 2019, the Board proposed to take immediate action in relation to the applicant’s registration under section 156 of the National Law and, specifically, proposed to impose conditions on the applicant’s registration that he not undertake any surgical procedures, defined as procedures that require incision of the skin. On 24 September 2019, the applicant’s solicitors provided a submission to AHPRA on the applicant’s behalf, including a detailed written response from the applicant himself. The applicant offered to enter into an undertaking with the respondent that he not undertake specific prohibited surgical procedures. The decision the subject of the application for review was communicated to the applicant by a letter dated 26 September 2019. The decision of the Board was on the same date. The Board decided that it reasonably believed that, because of the applicant’s performance, he posed a serious risk to persons, and it was necessary to take immediate action to protect public health or safety. Based on the information before it, the Board formed a reasonable belief that, because of the applicant’s performance, he posed a serious risk to persons because there were objective circumstances to support a reasonable belief that he had: (a) performed surgical procedures beyond his competence, training skills and experience; (b) demonstrated significant deficiencies as they related to surgical intervention in the form of: -- 2 of 10 -- 3 (i) poor clinical decision making; (ii) deficient performance of surgeries; (iii) failing to identify complications either during or following surgery; (iv) failing to ensure adequate infection control; (v) failing to provide appropriate aftercare; (vi) failing to obtain informed consent from Patients A or B prior to providing surgical treatment; and (vii) administering procedural sedation and/or analgesia whilst not in compliance with the ANZCA guidelines on sedation. Given the way that the proceedings have been conducted, it is not necessary to further detail the reasons of the Board for forming such reasonable belief, but they have been fully considered by the Tribunal. In light of that reasonable belief, the Board decided to take immediate action by imposing a condition on the applicant’s registration that he must not undertake any surgical procedures, with surgical procedures being defined as procedures that require incision of the skin. The Tribunal is required to stand in the shoes of the Board and make the correct and preferable decision by way of a new hearing on the material before the Board and such further evidence that the parties might place before the Tribunal. That further evidence in this case has been decisive of the issues in dispute. The applicant does not seek, in this application, to contest the finding by the Board of a reasonable belief pursuant to section 156 of the National Law as a precondition for taking immediate action. That concession is made in light of the nature of these proceedings, which are necessarily preliminary in nature and do not require any positive finding by the Board, or indeed the Tribunal upon this review, of unsatisfactory professional performance. What is required, pursuant to the terms of section 156(1)(a) of the National Law, is a reasonable belief that because of the applicant’s performance, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety. As earlier mentioned, the applicant has not sought to contest that first aspect of a precondition to take immediate action. Having considered all the material that was before the Board and the further evidence that has been placed before the Tribunal, the Tribunal concludes that it reasonably believes that, because of the applicant’s performance, the applicant poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety. That part of the decision of the Board is not interfered with. Pursuant to section 155 of the National Law, immediate action includes the imposition of conditions on a health practitioner’s registration, and the real issue in these proceedings has been what conditions should be imposed on the applicant’s registration in light of the finding that immediate action should be taken. In considering that question, the Tribunal must have regard to the paramount guiding principle of the health and safety of the public (section 3A of the National Law) and the guiding principle of section 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. -- 3 of 10 -- 4 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 In that regard, the Board no longer contends that an absolute prohibition upon surgical practice by the applicant is necessary or appropriate. The major issue in contention in these proceedings has been the terms of conditions limiting the scope of surgical practice of the applicant. The applicant sought an opinion from an experienced general practitioner and the applicant’s legal representatives briefed that expert with proposed conditions, framed in terms which confined the scope of practice of the practitioner to performance of surgical procedures not requiring major regional nerve blocks and/or twilight or general anaesthesia, prohibited specified procedures, and permitted specific procedures. The expert briefed by the applicant expressed an opinion that the terms of such draft conditions were appropriate. Another experienced general practitioner briefed by the legal representatives for the Board apparently concurred with such opinion when asked to consider the draft conditions that had been composed by the legal representatives for the applicant. The situation became less clear, however, once such expert was further briefed by the legal representatives for the respondent to comment upon a draft schedule of conditions that had been prepared by the Board. It was in terms that prohibited administration of procedural sedation and/or analgesia, except for local anaesthesia, regional nerve blocks, and non-opioid and non-benzodiazepine procedural analgesia, and prohibited surgical procedures other than a list of specified procedures. The expert briefed by the respondent then expressed an opinion as to the appropriateness of those draft conditions, further restricting the permitted procedures. At first glance, such opinion was not necessarily consistent with such expert’s opinion when directed towards the conditions earlier drafted by the applicant’s legal representatives. The lack of clarity as to the respective opinions of the experts was further exemplified by the terms of written submissions filed on behalf of both parties. Seeking further clarity as to that issue, the Tribunal directed that there be a conclave of both experts to produce a joint report directed towards the opinions of the experts as to appropriate conditions restricting the surgical practice of the applicant. That joint report is exhibit 2, and exhibit 3 is a draft schedule of conditions, which is based upon the schedule of conditions originally prepared by the Board for consideration by their expert, noted up to reflect the opinions from the joint experts’ report. Exhibit 3 has been the subject of submissions by both parties today. The Board contends that the Tribunal would order conditions upon the applicant’s registration in the terms of exhibit 3 as accurately reflecting the joint opinions of the experts. The applicant has made submissions as to changes that should be made to such draft schedule. In considering the competing submissions as to appropriate conditions on the applicant’s registration, I have been greatly assisted by the views expressed to me by the assessors. It is obvious, and it is no longer a matter of contention between the parties, that the current condition restricting all surgery by the applicant is unnecessarily wide. It goes 1 Shahinper v Psychology Board of Australia [2013] QCAT 593 at [22] - [23]. -- 4 of 10 -- 5 well beyond conditions required to address the relevant risks raised by the material before the Board. The Board does not now contend otherwise. Neither of the parties has contended that the opinions expressed in the joint experts’ report should not be accepted. All the submissions made were in terms that accepted the correctness of those opinions. There is no reason why the Tribunal would not accept the opinions expressed by those experts. Nevertheless, although exhibit 3 accurately reflects the terms of those opinions, there is still room for legitimate argument as to whether any further amendment of those draft conditions in exhibit 3 are appropriate. An issue arose because of an opinion expressed by one of the experts in the joint report as to whether the word “parenteral” should be inserted before the word “procedural” in condition 1(a) of exhibit 3. Neither of the parties opposed such amendment, but upon further reflection and discussion with the assessors, it would seem that such addition is unnecessary, given the terms of condition 2(a) of exhibit 3. The applicant submits that condition 1(b) should be amended to add “…other than if assisting a consultant surgeon.” Condition 1(b) of exhibit 3 prohibits the applicant from assisting with any surgical procedures on a patient who has been procedurally sedated by another registered health practitioner. The applicant submits that a situation might arise where the applicant could assist a consultant surgeon undertaking surgery in an appropriately accredited hospital facility and that, in those circumstances, such participation would present no risk to a patient. The respondent opposed such amendment on the basis of such mere possibility but acknowledged that the relevant risk would be mitigated if the applicant was supervised by a consultant surgeon. The respondent queried whether the terms of such an amendment should make it clear that the applicant would need to be supervised by a consultant surgeon. The Tribunal concludes that it is readily apparent from the terms of the proposed amendment. It is also readily apparent that if such assistance was to occur, it would be in an appropriately accredited surgical facility. In those circumstances, the terms of condition 1(b) of exhibit 3 will be amended to add, after “registered health practitioner”, “…other than if assisting a consultant surgeon.” The other noted-up amendments to conditions 2 and 3 of exhibit 3 are not in dispute. The applicant seeks that a condition 3(f) be added to exhibit 3 in the following terms; “Other minor surgical procedures, not including circumcision, frenuloplasty, or tarsal cyst (extirpation chalazion), not prohibited by condition 1 or 2 herein.” The applicant submits that such condition is appropriate because otherwise the applicant would be prohibited from undertaking minor surgical cases that might properly present to a general practitioner and be undertaken by a general practitioner, for example, management of an ingrown toenail, avulsion of a fingernail or toenail, incision and drainage of an abscess, or treatment of warts. The respondent opposes such amendment on the basis that it would introduce uncertainty as to the scope of the applicant’s surgical practice, and the efficacy of regulation of compliance with the conditions on his practice. The respondent further submits that the applicant should not, in any event, be able to be permitted to undertake any major procedure with respect to ingrown toenails. This issue has caused the Tribunal the most difficulty in settling on appropriate conditions. The Tribunal is concerned that a condition in the terms proposed by the applicant would possibly raise definitional issues as to the scope of the limitation. -- 5 of 10 -- 6 That is of concern in circumstances where the conditions are at least partly to address the willingness of the applicant to undertake procedures outside the proper scope of practice of a general practitioner in his circumstances of practice. The Tribunal is concerned that any limitations on the scope of the applicant’s surgical practice need to be clearly defined. In those circumstances, the Tribunal will instead adopt an approach of specifying additional surgical procedures which may be undertaken by the applicant. The Tribunal is mindful that that may result in unfortunate restrictions upon the applicant’s practice in as yet unforeseen circumstances. The conditions that are imposed may well prohibit some unforeseen minor surgical procedure which would be appropriately performed by the applicant. On the other hand, the conditions are addressed towards public health and safety, and the alternative approach is one which, in the Tribunal’s view, carries with it a risk that the applicant might undertake a surgical procedure not specifically prohibited by the conditions in circumstances where he should not do so. It is for that reason that the Tribunal has taken the more conservative approach of listing further additional minor surgical procedures that may be undertaken by the applicant. Insofar as the example of treatment of warts, that would seem to be already permitted by condition 3(a) of exhibit 3. The examples of the avulsion of a fingernail or toenail and incision and drainage of an abscess will be included as examples of procedures in a wider condition replacing condition 3(e) in exhibit 3. Condition 3(e) will be amended to read as follows: Emergency procedures with respect to acute conditions, such as: (i) repair of traumatic skin lacerations; (ii) incision and drainage of abscesses; (iii) exploration and/or removal of foreign body; (iv) avulsion of a fingernail or toenail; It will be seen from the terms of such condition that it is more prescriptive than that submitted for by the applicant, but it is wide enough to include minor emergency procedures with respect to acute conditions in addition to, but of the nature of, those examples given. It does, for that reason, produce some possible definitional uncertainty, but certainly not to the degree that would be the case with the condition that was proposed by the applicant. A further condition 3(f) will be added in the following terms: Management of ingrown toenails. Conditions 4 and 5 of exhibit 3 provide for AHPRA to be able to obtain information as to the applicant’s practice from various sources. The applicant submits that, given those conditions, conditions 6 through 9, requiring auditing of the applicant’s practice, are unnecessary. The Tribunal does not agree. Conditions 6 through 9 supplement conditions 4 and 5. They are appropriate conditions in light of the matters giving rise to the reasonable belief pursuant to section 156 of the National Law, particularly in light of the fact that the condition 3(f) does provide some definitional uncertainty as to particular minor surgical procedures that might be appropriately undertaken by the applicant. In those circumstances, the Tribunal considers that it would be appropriate that there be in place a process of auditing. The frequency and quantity of auditing of -- 6 of 10 -- 7 files does, however, seem to be excessive in all the circumstances. Condition 6 of exhibit 3 will be amended to provide for auditing on a three-monthly rather than monthly basis, and in light of the reduction of frequency, an increase of the minimum of patient files from 10 to 20. The applicant did submit that, in light of the circumstances of the matter, there should be a time limit placed upon the conditions directed towards auditing of the applicant’s practice. The applicant submitted that a period of 12 months would provide ample opportunity for AHPRA to complete its investigations and take any further action seen to be necessary after such investigation. The specification of an arbitrary time limit upon the operation of the conditions would be inconsistent with the operation otherwise of section 159(2)(b) of the National Law. That provision is predicated on the basis that conditions imposed by way of immediate action should continue to have effect until a decision is set aside on appeal or the conditions are removed by the Board. The Tribunal is not satisfied that the conditions imposed on the applicant’s registration should have any different operative effect and declines to set a time limit for the conditions. If it has not been made clear already, the Tribunal is concerned with a decision to take immediate action based upon a formation of a reasonable belief. Neither the Board nor the Tribunal were required to, or did, make any positive findings as to any unsatisfactory professional performance by the applicant. Those matters, if they are to be considered, will be considered after further investigation by and consideration by the Board. In those circumstances, it is preferable that the conditions imposed on the applicant’s registration continue until such time as that process is concluded. Conditions 10 and 11 are not contentious. With respect to the definitions, given the amendments to the original proposed conditions, it would seem that the definition of “non-opioid procedural analgesia” is now redundant and need not be included. The Tribunal orders that: The decision of the respondent of 26 September 2019 is amended so as to substitute for the conditions then imposed on the applicant’s registration, conditions in terms of the annexed Schedule of Conditions -- 7 of 10 -- Dr Robert Arthur D’Hotman De Villiers Page 1 of 3 Limitations on Practice SCHEDULE OF CONDITIONS Medical Board of Australia Dr Robert Arthur D’Hotman De Villiers Registration Number: MED0001407762 1. The Practitioner must not: a. administer any procedural sedation and/or procedural analgesia, or b. perform or assist with any surgical procedures on a patient who has been procedurally sedated by another registered health practitioner, other than if assisting a consultant surgeon. 2. Notwithstanding condition 1, the Practitioner is permitted to administer: a. local anaesthesia; and/or b. regional nerve blocks confined to performing ring blocks for a digit. 3. The Practitioner is not to perform surgical procedures, other than the following: a. Skin lesion surgery (including removal of skin tags), limited to: i. skin biopsy (Medicare item number: 30071); ii. mucous membrane biopsy (Medicare item number: 30072); iii. excision of tumour, cyst, ulcer or scar (Medicare item numbers: 31206 to 31225); iv. excision of non-malignant skin lesion (Medicare item numbers: 31357 / 31360 / 31362 / 31364 / 31366 / 31368 / 31370); v. excision of malignant skin lesion (Medicare item numbers: 31356 / 31358 / 31359 / 31361 / 31363 / 31365 / 31367 / 31369); vi. excision of malignant melanoma (Medicare item numbers: 31371 to 31376 inclusive); vii. removal of malignant neoplasm (Medicare item numbers: 30196 / 30202) viii. treatment of pre-malignant skin lesions (including solar keratoses) by ablative technique (10 or more lesions) (Medicare item number: 30192) ix. small skin flaps (but not muscle or myocutaneous flaps) (Medicare item numbers: 45200 to 45202 inclusive / 45204 – 45208 inclusive / 45237 to 45239 inclusive); x. removal of: 1. seborrheic keratoses (No Medicare item number); 2. viral verrucae (common wart) (No Medicare item number); 3. solar keratoses (less than 10) (No Medicare item number); 4. molluscum contagiosum (No Medicare item number) -- 8 of 10 -- Dr Robert Arthur D’Hotman De Villiers Page 2 of 3 b. Lipoma and Cyst excisions (Medicare item numbers: 31345 / 31350 / 31355 / 52036 / 52039 / 52042 / 52045); c. Vasectomy under local anesthetic only (Medicare item number: 37623); d. Removal of anal skin tags (Medicare item numbers: 32142 / 32145); e. Emergency procedures with respect to acute conditions, such as: i. repair of traumatic skin lacerations; ii. incision and drainage of abscesses; iii. exploration and/or removal of foreign body; iv. avulsion of a fingernail or toenail; f. Management of ingrown toenails. 4. Within seven (7) days of the notice of the imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: a. Seek reports from the Senior Practice Manager, Owner, Proprietor or equivalent (the senior person) at each place of practice on at least a monthly basis or as otherwise required. b. Request and access from the senior person at each place of practice copies of rosters, pay slips, patient booking schedule, surgical lists, patient records or the equivalent. c. Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data. 5. Within seven (7) days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware AHPRA will seek reports from them. Audit of practice 6. The Practitioner must submit to an audit of their practice (the audit), including any supporting records, within one (1) month of the notice of the imposition of these conditions and thereafter on a three-monthly basis, by permitting an auditor (the auditor) approved by the Medical Board of Australia or AHPRA to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the Practitioner’s compliance with the limitations on practice conditions (conditions 1 – 3), and must include at a minimum, a review of 20 patient files selected at random. 7. Within seven (7) days of the notice of the imposition of these conditions, the Practitioner must provide to AHPRA: a. nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Board or AHPRA; b. acknowledgement, on the approved form (HPN12), that AHPRA will seek reports from the approved auditor at the conclusion of each audit; and c. acknowledgement, on the approved form (HPNA12), from the nominated auditor. 8. Within seven (7) days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the area of concerns for the Board will be addressed. The audit(s) will take the form determined by the auditor. -- 9 of 10 -- 9. In the event an approved auditor is no longer willing or able to provide the audit required, the Practitioner must notify AHPRA within fourteen (14) days of becoming aware of this and provide a new nomination of a proposed auditor(s) to the Board or AHPRA in the same terms as the previous nomination of auditor(s). Other matters 10. Within seven (7) days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and the Practitioner will be required to provide the same form: a. within seven (7) days of the commencement of practice at each and every subsequent place of practice, and b. within seven (7) days of each and every notice of any subsequent alteration of these conditions. 11. All costs associated with compliance with the conditions are at the Practitioner’s own expense. Definitions For the purposes of these conditions and each of the approved forms referred to in these conditions: • 'procedural sedation’ is as defined in Section 1.1 of the Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures - PS09 / 2014 issued by the Australian and New Zealand College of Anaesthetists (ANZCA). • ‘surgical procedures’ are defined as procedures that require any incision of the skin or mucous membrane whatsoever. • ‘local anaesthesia’ is as defined in Section 3 of the Guidelines for Health Practitioners Administering Local Anaesthesia - PS37 issued by ANZCA, namely: o the reduction or elimination of pain perception by drugs, which act locally to interfere with nerve conduction. Local anaesthetic drugs may be administered topically and/or by injection, either as field infiltration or peripheral nerve block (such as digital nerve block). • 'procedural analgesia’ is as defined in Section 1.1 of the Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures - PS09 / 2014 issued by ANZCA. • it is not intended that a ‘medical emergency’ (as referred to in approved form HP7) include circumstances where the Practitioner makes a decision to administer IV sedation or IV analgesia part way through a permitted surgical procedure (see condition 3) to address a patient’s pain or discomfort. Text on public register As above Dr Robert Arthur D’Hotman De Villiers Page 3 of 3 -- 10 of 10 --