De Lacy v Medical Board of Australia [2017] QCAT 87

CITATION: De Lacy v Medical Board of Australia [2017] QCAT 87 PARTIES: GEOFFREY DE LACY (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) APPLICATION NUMBER: OCR191-15 MATTER TYPE: Occupational Regulation Matters HEARING DATE: 28 February 2017 HEARD AT: Brisbane DECISION OF: Judge Suzanne Sheridan, Deputy President Assisted: Dr G Powell Dr H Mudgil Mr M Halliday DELIVERED ON: 3 April 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The conditions imposed on the applicant’s registration by the order of the Tribunal on 18 March 2016 be set aside and in lieu thereof, the conditions set out in the schedule attached be imposed. 2. Part 7, division 11, subdivision 2 of the Health Practitioner Regulation National Law Act 2009 (Qld) applies to these conditions. 3. The “Application to review a decision” in OCR049-17 filed 27 February 2017 will proceed as an “Application for miscellaneous matters” in OCR191-15.1 1 Decision amended pursuant to s 135(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 7 -- 2 4. There be no order as to costs in the application for miscellaneous matters filed 27 February 2017.2 CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where pursuant to s 196(2)(b)(ii) of the Health Practitioner Regulation National Law Act 2009 (Qld) the Tribunal by a decision delivered on 18 March 2016 imposed a set of conditions on the registration of the applicant practitioner following a review of the respondent Board’s decision to refuse to remove previous conditions on the registration of the applicant practitioner – where the applicant practitioner has made an application to modify the conditions imposed on his registration by the Tribunal – where the Board does not oppose the application – whether the Tribunal’s orders of 18 March 2016 should be varied Health Practitioner Regulation National Law 2009 (Qld), s 3 De Lacy v Medical Board of Australia [2016] QCAT 53 APPEARANCES and REPRESENTATION: APPLICANT: Mr G Diehm QC of counsel, instructed by Ashurst RESPONDENT: Mr R Devlin QC of counsel, instructed by Lander & Rogers REASONS FOR DECISION Background [1] By decision delivered on 18 March 2016, the Queensland Civil and Administrative Tribunal (Tribunal) determined an application filed by Dr De Lacy on 20 October 2015 seeking to review the decision of the Medical Board of Australia (Board) made on 15 September 2015. The Board in making that decision had refused the removal of the conditions which the 2 Decision amended pursuant to s 135(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 2 of 7 -- 3 Tribunal by consent had placed on the registration of Dr De Lacy on 20 March 2014. The proceedings before the Tribunal arose out of the immediate action decision of the Board. [2] By its decision on 18 March 2016, the Tribunal removed the current immediate action conditions which had been imposed on the registration of Dr De Lacy but still required his registration to be subject to certain conditions; being those set out in the schedule attached to its decision. The need for the imposition of any conditions at that time is fully explained in the reasons for that decision.3 The conditions related to the performance by Dr De Lacy of colorectal, bariatric and/or complex intra-abdominal surgery. The order made by the Tribunal gave liberty to the parties to make an application in those proceedings for further orders. Current Application [3] Dr De Lacy now makes an application to modify the conditions which had been imposed on his registration by the Tribunal (the current application). The current application is made on the basis that the conditions regarding bariatric and complex intra-abdominal procedures have been satisfied. [4] In making the current application, reliance was placed on the affidavits of Dr Andrew Russell, the supervisor appointed by the Board pursuant to the conditions, and Dr De Lacy. Both Dr Russell and Dr De Lacy attest to the compliance by Dr De Lacy with the conditions imposed by the Tribunal including compliance with the supervision regime. [5] In his final supervisor’s report dated 16 December 2016, attached to his affidavit, Dr Russell stated: I am confident that Dr De Lacy can work as a consultant surgeon and I do not believe that there is any need to have any further supervision. I have the confidence that he will provide a good service to his local community practicing General Surgery. I do not believe that there are any issues of note and I absolutely endorse the lifting of all conditions and believe that he should be free to practice as a consultant General Surgeon. [6] During the period of supervision by Dr Russell, however, Dr Russell had not observed the performance by Dr De Lacy of colorectal procedures. Given the terms of the conditions previously imposed by the Tribunal, despite the opinion expressed by Dr Russell, Dr De Lacy accepted that the conditions needed to remain in place in relation to that procedure. [7] The proposed terms of the modified conditions were set out in the draft amended conditions tendered at the hearing before the Tribunal. 3 De Lacy v Medical Board of Australia [2016] QCAT 53. -- 3 of 7 -- 4 [8] The Board’s position in relation to the application was that it did not oppose the application. Mr Devlin QC, as counsel for the Board, stated that the Board accepts the position as set out in the affidavit of Dr Russell. [9] Having read the affidavits of Dr Russell and Dr De Lacy, and given the position appropriately taken by the Board, it is the Tribunal’s view that the conditions should be modified in the terms of the amended draft proposed, which terms are contained in the schedule attached. [10] In the opinion of the Tribunal, public health and safety are protected by the imposition of the modified conditions, and the objects of the National Law are satisfied.4 [11] The Tribunal will make the necessary consequential orders to give effect to the imposition of these modified conditions and so as to allow any further review of the conditions to be performed by the Board. [12] In accordance with the agreement of the parties, there shall be no order as to costs. 4 Health Practitioner Regulation National Law 2009 (Qld), s 3. -- 4 of 7 -- 5 SCHEDULE OF CONDITIONS 1. The practitioner is to nominate one or more supervisors for the purposes of these conditions to the Board for its approval (the supervisor), should an alternative supervisor be required. 2. Any supervisor for the purposes of these conditions, including for the purposes of paragraph 5 below, must be a registered General Surgeon of more than 10 years standing and whose curriculum vitae must accompany the nomination. 3. The Board must approve or reject any nominated supervisor, including for the purposes of paragraph 5 below, within 14 days of the nomination. 4. The practitioner is not to perform colorectal procedures other than in compliance with these conditions until he has performed a period of 6 months of supervised practice, which period shall commence on the date of approval of the supervisor in accordance with paragraph 3 above (Commencement Date) which supervision is to be performed by: (a) in person supervision, with the supervisor present and scrubbed, of the colorectal procedures, the first time a colorectal procedure is performed by the practitioner after the Commencement Date; (b) the performance of each colorectal procedure must be the subject of the weekly telephone discussions with the supervisor pursuant to paragraph 8 below and must be approved by the supervisor before being agreed to be performed; (c) the supervisor in sub-paragraph (a) attending for the whole list of the practitioner for the particular day on which the first colorectal procedure is to be performed after the Commencement Date; (d) the supervisor attending additional in person supervision of subsequent lists containing a colorectal procedure, if the supervisor determines such attendance is necessary; (e) each of the colorectal procedures being video and audio recorded and submitted to the supervisor, except where (i) there is an open procedure and: A. in the opinion of the supervisor provided to the practitioner in writing prior to the procedure, having regard to the nature of the procedures and the progression of the practitioner during the supervision, it is not necessary to record the particular procedure; or B. the supervisor is physically present during the procedure; or -- 5 of 7 -- 6 (ii) it becomes necessary during a laparoscopic procedure to convert to an open procedure; (f) the supervisor reviewing such video and audio recordings, to the extent the supervisor considers it appropriate and necessary to do so; and (g) the supervisor providing the reports required by these conditions to the Board. 5. In the alternative to paragraphs 4(a) to (d) above, the practitioner may attend 3 weeks intensive training with a General Surgeon or General Surgeons in the Brisbane Metropolitan area, as approved by the Board on the practitioner's nomination, which training must include performing and/or assisting in colorectal procedures. The practitioner must provide a report to the Board of the procedure observed, containing the details listed in paragraph 7(a) below. The General Surgeon or Surgeons must provide a report to the Board, containing the details listed in paragraph 6(c)(i) below. 6. The practitioner must: (a) provide a written report to the Board within 7 days of the end of each calendar month which chronologically details in respect of each colorectal procedure performed in that month ('the monthly report)': (i) the date of the procedure; (ii) the name of the patient and the patient's identification number; (iii) the hospital at which the procedure was performed; (iv) the presenting condition of the patient; (v) the type of procedure performed; (vi) the name of the supervisor under these conditions for the procedure; (vii) the outcome of the procedure, including any complications (particularly post-operative returns to theatre, infection rates and unplanned readmissions); (viii) the date and outcome of each post-operative consultation with the patients for a period of 6 months from the date of the procedure; (b) for 6 months from the Commencement Date, provide a copy of the monthly reports to the supervisor at the same time as the report is provided to the Board; and (c) provide a written authority and direction to the supervisor, within 7 days of the supervisor being approved by the Board, to: -- 6 of 7 -- 7 (i) prepare a written report each month for 6 months which details, in respect of each colorectal procedure for which the supervisor was consulted: A. the date of the procedure; B. the name of the patient and the patient's identification number; C. the hospital at which the procedure was performed; D. the presenting condition of the patient; E. the type of procedure performed; F. the outcome of the procedure, including any complications; (ii) within 7 days of the end of each calendar month, provide a copy of the report to the Board; (iii) immediately notify the Board if the supervisor holds a concern regarding the practitioner's competency or fitness to practice the profession in any respect, including competency or fitness to perform colorectal procedures; and (iv) include in the final monthly report an opinion as to whether it is necessary for supervision in accordance with these conditions to be extended and the reasons for same. 7. If the supervisor opines pursuant to 6(c)(iv) herein that supervision should be extended, the conditions set out in paragraphs 4, 6, 8 and 9 herein shall continue to apply and be read as if the period of time for supervision was such extended period as recommended by the supervisor, to a maximum of a further 3 months. 8. During any period of supervision under paragraph 4 above, the practitioner is to confer weekly by telephone or in person with the supervisor for a period of 6 months from the Commencement Date about any matters pertaining to his practice of colorectal procedures as the supervisor shall determine including discussion about prospective patients, the indications for the colorectal procedure and the occurrence of and the management of patients post- procedure. 9. The practitioner is to otherwise confer with the supervisor about colorectal procedures by telephone or in person whenever is reasonably necessary including during the performance of the procedure. -- 7 of 7 --