De Lacy v Medical Board of Australia (No 2) [2017] QCAT 430

CITATION: De Lacy v Medical Board of Australia (No 2) [2017] QCAT 430 PARTIES: Geoffrey De Lacy (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR191-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge S Sheridan, Deputy President DELIVERED ON: 8 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Medical Board of Australia pay Dr De Lacy’s costs of the proceedings limited to the period up to and including 10 March 2016, and to the costs thrown away by reason of the adjournment on 16 March 2016. 2. The costs shall be as agreed and in default of agreement as assessed on a standard basis on the District Court scale. 3. The costs shall be assessed by an assessor to be agreed by the parties and in default of agreement appointed by the Tribunal. 4. The Medical Board of Australia shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where -- 1 of 8 -- 2 the practitioner applied to the Board for the removal of conditions previously imposed upon his registration by the Tribunal by consent – where the Board refused to remove the conditions – where the practitioner applied for a review of that decision – where the Tribunal removed the conditions upon the practitioner’s registration and imposed a separate set of conditions – where the parties were subsequently requested to make submissions on costs – whether the interests of justice require the Tribunal to make an order as to costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 Medical Board of Australia v Wong [2017] QCA 42, cited Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT 412, cited Health Ombudsman v Antley [2016] QCAT 472, cited Lee v Medical Board of Australia (No 2) [2016] QCAT 321, cited REPRESENTATIVES: APPLICANT: G W Diehm QC of counsel, instructed by Ashurst RESPONDENT: Lander & Rogers APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION: BACKGROUND [1] The Tribunal gave its decision in the application on 18 March 2016. The application was an application for appeal against the Board’s decision to refuse to grant Dr De Lacy’s application for removal of the conditions on his -- 2 of 8 -- 3 registration imposed pursuant to a consent order made by the Tribunal on 20 March 2014. [2] At the time of giving its decision in March 2016, the Tribunal requested the parties to make written submissions on the question of costs. On behalf of Dr De Lacy, it was submitted that the Board should be ordered to pay his costs of the proceedings. On behalf of the Board, it was submitted that there should be no order as to costs. APPLICABLE LAW [3] With the introduction the Health Ombudsman Act 2013 (Qld) (HO Act) in 2013, there were extensive changes to the law applicable to health practitioners, including many amendments to the Health Practitioner Regulation National Law (Queensland) (National Law). The unfettered power of the Tribunal to award costs under the National Law was removed. The effect of this was to leave the issue as to costs to be decided under the provisions of the QCAT Act; which have been in existence from its inception. [4] The starting point in s 100 of the QCAT Act is that each party bears its own costs unless “the interest of justice require the making of a costs order”.1 [5] The discretion has been relevantly described as: “[W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interest of justice’ point so compelling to a costs award that they overcome the strong contra-indication against costs orders in s 100.”2 [6] The Court of Appeal in Medical Board of Australia v Wong3 described it as a basis for departing from the default position. [7] Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in determining whether it is in the interests of justice, including the nature and complexity of the dispute, the relative strengths of the claim made by each of the parties, whether the applicant in a review proceeding genuinely attempted to enable and help the decision- maker, the financial circumstances of the parties and anything else the Tribunal considers relevant. [8] Under the QCAT Act, the Board does not have any favoured status in relation to costs. It has been accepted that the position of the Board, because it is largely funded by practitioners, may be a factor to be considered in the exercise of the Tribunal’s discretion as to costs.4 The fact that the Board is a statutory body will be relevant in referral proceedings 1 QCAT Act, s 102(1). 2 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29]. 3 [2017] QCA 42. 4 Health Ombudsman v Antley [2016] QCAT 472; Lee v Medical Board of Australia (No 2) [2016] QCAT 321. -- 3 of 8 -- 4 given the obligations of the Board to bring proceedings in the event it forms a certain belief.5 CIRCUMSTANCES OF THIS CASE [9] It was submitted on behalf of Dr De Lacy that this is a clear case where the interests of justice means that there ought to be an order for costs against the Board in Dr De Lacy’s favour. In particular, reference was made to the history of the matter, the relative strength of Dr De Lacy’s initial claim for the removal of the conditions, the unfortunate adjournment to a second day of hearing and the fact that this litigation was unnecessary. [10] On behalf of the Board, it was submitted that the appropriate order was that there be no order as to costs. Reference was made to the delay caused by Dr De Lacy, the agreed position of the experts as to the need for supervision conditions and the unique position of the Board as a statutory body. [11] A review of the facts reveals a long history of interaction between Dr De Lacy and the Board. It is not disputed that Dr De Lacy had been the subject of numerous notifications with respect to his treatment and post- operative care of various patients. Those complaints had resulted in the Board in November 2013 imposing conditions on his registration pursuant to its power under s 156 of the National Law to take immediate action. [12] It was the review of that immediate action which had resulted in the Tribunal imposing conditions by consent on 20 March 2014. Those conditions, amongst other things, restricted the practitioner’s scope of practice by requiring him to perform certain procedures only under supervision of a Board approved supervisor. [13] Dr De Lacy practiced subject to those conditions without complaint. Supervisor reports were provided as required by the conditions. Dr Anderson as supervisor continued to provide his reports until his retirement due to ill health in December 2014. [14] It is clear from correspondence that by early 2015 the Board had begun to question the interpretation being given to the conditions imposed by the Tribunal by consent on 20 March 2014. It was suggested by the Board that Dr De Lacy may have been in breach of the conditions, both in terms of the level of supervision being provided and the performance of certain procedures absent a supervisor. [15] On 24 July 2015, Dr De Lacy made application to the Board pursuant to s 125(1) of the National Law for the removal of the conditions previously imposed by the Tribunal by consent. In support of the application, Dr De Lacy provided a letter from his supervisor, Dr Anderson together with a letter from an independent expert he had engaged, Professor Padbury. 5 Medical Board of Australia v Wong [2017] QCA 42, [13], [32]. -- 4 of 8 -- 5 In the letter, Dr Anderson referred to having supervised Dr De Lacy since December 2013 and commented that he had formed the view that “Dr De Lacy is a very competent surgeon.” Dr Anderson stated, Given the fact that very few complications have arisen during the time I have supervised him, I am supportive of Dr De Lacy’s submission that he no longer requires supervision of the kind I have provided. [16] The letter confirmed that Dr Anderson had ceased acting as supervisor due to ill health. [17] Professor Padbury, as the independent expert, referred to having reviewed the audit of patients provided by Dr De Lacy for the period from October 2013 to March 2015 and having investigated a number of cases done by Dr De Lacy. Professor Padbury concluded, I did not consider that there were any major issues with Dr De Lacy’s performance of surgery and given the very favourable report from Dr Anderson and the results of the audits supplied by Dr De Lacy I would recommend the removal of his practice restrictions. I have no reservation in making this recommendation. [18] In the application, Dr De Lacy confirmed that he had been unable to find a replacement supervisor. [19] The application for the removal of conditions was brought before the Committee of the Board at its meeting on 15 September 2015. [20] Dr De Lacy was notified of the Committee’s decision by letter dated 21 September 2015. The letter identified four issues which the Committee had considered: a possible application by the Board to change the conditions, Dr De Lacy’s application for removal of the conditions, a possible breach of the conditions and Dr De Lacy’s request for the appointment of Dr Hopkins as his mentor as required by the terms of his undertaking with the Board. [21] In the letter, in considering the issue of the removal of conditions, the Committee referred to its earlier decision made on 10 December 2014, after considering an investigation report, that there was a reasonable belief that Dr De Lacy had engaged in professional misconduct. It was noted that on 21 January 2015, the Board had affirmed the Committee’s reasonable belief that the practitioner had engaged in professional misconduct and decided to refer the matter to QCAT. [22] In referring to the possible breach of conditions, it was stated that the Committee had decided to investigate the practitioner’s compliance with the conditions. It was stated in the letter, The outcome of the investigation regarding the practitioner’s compliance with the conditions will be pertinent to the Tribunal proceedings on foot and inform the Board’s decision regarding any sanction. -- 5 of 8 -- 6 [23] At the time of the letter the Tribunal proceedings were not “on foot” and in fact those proceedings were not actually commenced until March 2016, some six months after the meeting in September 2015 and some 14 months after the meeting in January 2015 that determined such proceedings should be commenced. In the submissions on behalf of Dr De Lacy, it was said that fact, …speaks volumes of the lack of any need for immediate action. If there was such a pressing urgency, one should have thought that the Respondent would have been ensuring that it pursued the substantive matters expeditiously. [24] It was the decision of the Committee to refuse to remove the conditions, as notified by the letter of 21 September 2015, which became the subject of the review proceedings. [25] From that history, as submitted on behalf of Dr De Lacy, it is said that by 24 July 2015, the Board had the data and reports required by the conditions to be supplied to it and it was at that time provided with the further reports confirming that the practice restrictions were no longer necessary. [26] In the Tribunal’s decision given on 18 March 2016, the Tribunal had noted that both experts had agreed in oral evidence that, ….concerns as to case selection and patient rescue were historical concerns and since the imposition of the conditions in March 2014 there were no longer continuing concerns in that regard.6 [27] The Tribunal had also noted that it was accepted at the time the original conditions were imposed, “Dr De Lacy’s technical skills were not in question.” [28] As submitted on behalf of Dr De Lacy, it is clear that at its meeting on 15 September 2015 the Committee did not address the material that had been put before it by Dr De Lacy. In the submissions it was said, None of it addressed the question as to whether there was any need to maintain conditions by virtue of the considerations provided for in section 156. [29] The Tribunal accepts, as was submitted on behalf of Dr De Lacy, that the Board did not consider the continuing need to maintain the conditions. The material before them was quite compelling in that regard. [30] Rather, the focus of the Committee was on Dr De Lacy’s compliance with the conditions previously imposed and the earlier decision of the Board that it had formed a reasonable belief that Dr De Lacy had engaged in professional misconduct by virtue of the matters the subject of the original complaints; that is the complaints which gave rise to the conditions. 6 De Lacy v Medical Board of Australia [2016] QCAT 53, [11]. -- 6 of 8 -- 7 [31] It does seem, as was submitted on behalf of Dr De Lacy, that the Committee “misconceived entirely the task that faced” it and as a consequence Dr De Lacy had to bring these proceedings. On behalf of Dr De Lacy, it was submitted that this fact demonstrated a strong basis for a costs order in his favour. [32] By the time the application came on for hearing, the Board accepted that the conditions imposed in 2014 were no longer necessary. At the hearing, both experts confirmed that the issues which originally led to the imposition of the conditions were now historical. A new issue, however, had emerged. [33] Unfortunately, the expert conclave report dated 10 March 2016 and the oral evidence offered at the hearing in March 2016 both on behalf of Dr De Lacy and the Board, showed that as a consequence of Dr De Lacy not performing certain types of surgery since December 2014, he had potentially become de-skilled. It was accepted that if he wished to return to the performance of that surgery he would require some supervision. The debate was as to the extent, if any, of deterioration and the accepted rate of re-skilling. It was agreed that it depended on a number of factors. [34] The Board proposed a set of conditions which, amongst other things, required Dr De Lacy to work for a three month period of direct supervision in a metropolitan hospital. This approach appears to be an extension of the agreement of the experts at the conclave that, amongst other things, Dr De Lacy should be subject to direct supervision and supervision once every fortnight for the first three months and once every month for a further three months. That proposition was rejected by Dr De Lacy and the expert called on his behalf, Professor Padbury, and was ultimately not accepted by the Tribunal. [35] Influencing the Tribunal was the fact that the expert called by the Board in his oral evidence conceded that it would be acceptable, amongst other things, if Dr De Lacy were directly supervised for any one or two lists. Unfortunately, the Board was not in a position to deal with that evidence that day and the hearing was adjourned to enable counsel to obtain instructions from the Board. [36] Things often change during the course of a hearing; as the Board should be well aware. The Board has ample power to delegate, and, it would seem, to give instructions to a ‘sponsor’ appointed by it for particular matters which could cover a range of eventualities; such as accepting the reasonable consequences of oral evidence of experts called by it. It would seem the Board was not prepared for the possibility that there could be a change in evidence in this case and the possible necessity to give instructions following that evidence. ANALYSIS [37] The considerations of these facts make it clear that there is a good argument for Dr De Lacy that the initial filing of the application in October 2015 to review the decision of the Board to refuse the removal of the -- 7 of 8 -- 8 conditions was unnecessary, and hence that the Board should pay his costs relating to that fact. [38] Unfortunately, by March 2016 when the matter came on for hearing before the Tribunal, there was a new issue. Expert reports on both sides made it clear that there were concerns in relation to whether Dr De Lacy had become de-skilled. The appropriate response to that issue was only resolved at the hearing. [39] The de-skilling issue had arisen because of the time taken between December 2014 and March 2016 to have Dr De Lacy’s status resolved. There is no evidence before the Tribunal as to precisely at what point in time issues of de-skilling would have arisen. On the other hand, there is no suggestion by Dr Padbury or Dr Anderson of any issues of de-skilling by the time of the making of the application for removal of the conditions in July 2015. The Committee, in considering the matter in September 2015, certainly did not seek any clarification on that issue. [40] Admittedly, the application was not dealt with promptly by the Tribunal upon its filing, but neither was it prosecuted with any diligence by Dr De Lacy. By the time the proceedings were enlivened in March 2016, the only issue was de-skilling and that became the issue by a contribution of factors. It was an issue that required oral evidence and a hearing. [41] There are therefore no compelling reasons why there should be an order for costs once de-skilling became the issue and up until the end of the first day of hearing. CONCLUSION [42] In all the circumstances, there are sufficient countervailing factors for the making of an order for costs in favour of Dr De Lacy but limited to the period up to the expert conclave on 10 March 2016, and to the costs thrown away by reason of the adjournment on 16 March 2016. -- 8 of 8 --