Erathnage v Medical Board of Australia [2016] QCAT 418

CITATION: Erathnage v Medical Board of Australia [2016] QCAT 418 PARTIES: Nandana Erathnage (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR188-16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Suzanne Sheridan, Deputy President DELIVERED ON: 16 November 2016 DELIVERED AT: Brisbane ORDERS MADE: Until further order of the tribunal, the decision of the Medical Board of Australia made on 23 September 2016 to impose conditions on the registration of Dr Erathnage is stayed. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – OTHER MATTERS – where the Medical Board of Australia imposed conditions on the registration of the registrant – where registrant seeks review of the conditions imposed – where the registrant seeks a stay of the Medical Board of Australia’s decision – whether the stay should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 22(4) Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, not followed Jaravaza v Medical Board of Australia [2013] QCAT 44, applied King v Queensland Law Society Incorporated [2012] QCAT 489, not followed -- 1 of 6 -- 2 REPRESENTATIVES: APPLICANT: RESPONDENT: Lee v Medical Board of Australia [2016] QCAT 23, not followed YXN v Medical Board of Australia [2014] QCAT 706, applied Ashurst Australia for the applicant Dr Nandana Erathnage Moray & Agnew for the respondent Medical Board of Australia 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 [1] On 21 September 2016, the Medical Board of Australia (Board) decided to impose conditions on the registration of the applicant, Dr Nandana Erathnage, because the Board had formed a reasonable belief that the way in which Dr Erathnage had practiced the profession is or may be unsatisfactory. The Australian Health Practitioner Regulation Agency notified Dr Erathnage of the Board’s decision by letter dated 23 September 2016. [2] In summary, the conditions imposed by the Board require Dr Erathnage: a) To practice only in a Board approved position; b) To practice under supervision and must consult with the supervisor who is always physically present; and c) To undertake specified education. [3] On 20 October 2016, Dr Erathnage filed in the Queensland Civil and Administrative Tribunal (tribunal) an application seeking a review of the Board’s decision. In that application, Dr Erathnage has challenged the decision to impose the conditions on grounds including: a) That no grounds existed for the Board to form a reasonable belief that because of the complaint the way the applicant practices the health profession and the applicant’s conduct is or may be unsatisfactory; and b) A denial of natural justice in failing to have proper regard to an expert report and the applicant’s submissions. -- 2 of 6 -- 3 [4] On the same date, Dr Erathnage filed an application for a stay of the Board’s decision. The application provided that, if a stay is not granted, the following interests will be effected: a) The applicant’s patients, who have been deprived of the use of his professional services; and b) The applicant’s own interests, in that his income, livelihood and reputation will be affected. [5] In making the application, it was said that the action taken by the Board was unjust, excessive and unreasonable, and that there was insufficient evidence for the Board to take the action proposed. [6] Dr Erathnage did not file any material in support of his application for a stay. There was no evidence of his current working arrangements. [7] The Board indicated to the tribunal by email dated 2 November 2016 that it did not oppose the application, but stated that if the tribunal considers a stay is appropriate, then it is appropriate to only stay the Board’s ability to enforce its decision and asks the tribunal to preserve the Board’s ability to review the conditions. [8] The tribunal made directions requiring Dr Erathnage to file material in support of his application and for the Board to clarify its position. [9] Dr Erathnage has now filed an affidavit in support of his application. In his affidavit, Dr Erathnage deposes to the fact that since the imposition of the conditions he has not worked, as his employer has been unable to provide him with a supervisor who is senior to him and available at the same time. As he was unable to work, his employer had flown a locum to the Derby Regional Hospital to provide the services usually provided by Dr Erathnage; however, that locum could only stay for one week. [10] The affidavit of Dr Erathnage attaches as an exhibit a copy of a letter from the Acting Regional Medical Director of the Western Australia Country Health Services dated 7 October 2016, where it is stated that the health service cannot provide the level of supervision that the conditions on his registration require. The letter refers to the fact that the doctor will not be able to return to his contracted position unless the conditions are modified or lifted. [11] The letter required Dr Erathnage to respond by 5 November 2016. It is unclear whether or not a response was provided, but the letter was only brought to the tribunal’s attention upon the filing of the affidavit dated 10 November 2016. [12] It is also apparent from the letters forming part of Exhibit F to the affidavit that Dr Erathnage has been employed pursuant to a long term contract at Derby Regional Hospital since August 2015, having initially worked as a locum at the hospital in April 2015. -- 3 of 6 -- 4 [13] By reference to the affidavit of Dr Erathnage, Derby Regional Hospital is a small hospital serving a regional rural area of Western Australia, largely serviced by general practitioners. Dr Erathnage deposes to the fact that the hospital requires 10 full time doctors but currently has only six permanent doctors, including Dr Erathnage. The obstetrics unit where Dr Erathnage is based requires three full time doctors but currently only has one as Dr Erathnage is currently unable to work. Dr Erathnage also works in the emergency department at the hospital, which is currently being run by locums as the hospital has struggled to find any permanent physicians. [14] Dr Erathnage deposes to the fact that the imposition of the conditions is adversely impacting Derby and the surrounding community. [15] It is clear from the application for review that the conduct giving rise to the decision of the Board related to conduct of Dr Erathnage while working at Charleville Hospital in the period between October 2012 and December 2014. Dr Erathnage deposes to the fact that he has had no complaints by either colleagues or patients in relation to his conduct and/or performance since leaving Charleville Hospital in December 2014. [16] According to Dr Erathnage’s employment history, forming part of Exhibit D to his affidavit, Dr Erathnage has worked continuously in rural and remote areas general practice since leaving Charleville Hospital. [17] In considering an application for a stay, relevantly, s 22(4) of the QCAT Act provides that: The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following – (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. [18] In its response, the Board states that it does not oppose the application for a stay. It stated that provided the applicant establishes that a stay is desirable in accordance with the statutory test, then such an order would be appropriate. [19] The Board states that if a stay is granted, the tribunal should only stay the Board’s ability to enforce its decision and preserve its ability to review the conditions. [20] In making its submissions, the Board referred to the decision in Lee v Medical Board of Australia.1 There, like in some previous decisions of the 1 [2016] QCAT 23. -- 4 of 6 -- 5 tribunal,2 the approach of the tribunal was that s 22(4) of the QCAT Act did not lay down the only relevant considerations for a stay, and certainly did not exclude other considerations. In Deputy Commissioner Stewart v Kennedy,3 the tribunal said: … the effect of section 22(4) is to add a requirement to the ordinary principles that apply to the granting of stays. It simply ensures that the tribunal considers those factors before ordering a stay, and prohibits the grant of a stay unless it considers such an order desirable after having regard to those factors.4 [21] In the case of Deputy Commissioner Stewart v Kennedy, the ordinary principles were said to include the fundamental questions of whether the applicant has an arguable case and whether the balance of convenience favours the grant of the stay. [22] In contrast, the approach taken by the former Deputy President Judge Horneman-Wren SC has been to focus on the requirements of s 22(4). In my view, that approach is the correct one. Section 22(3) gives the tribunal power to stay the operation of a decision if a proceeding for a review of the decision has started under the Act. Section 22(4) makes it clear that the tribunal may only grant a stay under s 22(3) if it considers the order is desirable having regard to the three matters referred to in s 22(4). [23] The words of the subsection give to the tribunal a broad discretion, taking into account those matters therein referred to. These are the matters to which any application for a stay should address. It may be that in addressing those matters, questions of the utility of any application and whether there is an arguable case must also be considered. They are matters which one would expect to be encompassed by the requirement that the tribunal consider the submissions made by the decision-maker for the reviewable decision and the public interest. [24] The first factor under s 22(4) is the interest of any person who may be affected by the making of the order or the order not being made. It is clear that the effect of the conditions imposed upon Dr Erathnage’s registration is that he is not able to work. On its own, inability to work has been recognised as being insufficient to warrant the granting of a stay.5 The effect of the decision on the community serviced by Dr Erathnage must also be considered. That the impact upon patients is a relevant consideration is a matter which has been referred to by the former Deputy President.6 [25] Here, unless the imposition of the conditions are stayed, Derby Regional Hospital and surrounding communities will not have the benefit of the 2 3 4 5 6 See, for example, Deputy Commissioner Ian Stuart v Kennedy [2011] QCATA 254 and King v Queensland Law Society Incorporated [2012] QCAT 489. [2011] QCATA 254. Deputy Commissioner Ian Stuart v Kennedy [2011] QCATA 254, [22]. Jaravaza v Medical Board of Australia [2013] QCAT 44; YXN v Medical Board of Australia [2014] QCAT 706. Ibid. -- 5 of 6 -- 6 services of Dr Erathnage, in circumstances where the hospital is operating with fewer doctors than required for the provision of its services. It is clear there is a difficulty in attracting doctors to this remote area. [26] The second factor is any submission made by the decision-maker. In this case, the Board has not made any submissions against the grant of a stay. There are no submissions that the applicant does not have a sufficiently arguable case. It would seem that there is a significant dispute between the parties as to whether the facts amount to misconduct with both the applicant and the Board relying upon competing expert evidence on the subject. [27] The third factor is the public interest. One aspect of the public interest has already been dealt with; namely the interest of remote communities being properly serviced by medical practitioners. The other aspect of the public interest is that of ensuring that all communities are not exposed to the risks associated with practitioners whose professional conduct is less than satisfactory. [28] In the present case, the conditions imposed upon Dr Erathnage arise from the provision of services by him whilst working at the Charleville Hospital in the period between October 2012 and December 2014. In summary, it is alleged that some of his diagnoses, his responsiveness to requests for his medical attention, his clinical notes and his dealings with staff resulted in the Board, through the Queensland Notification Committee, forming a reasonable belief that the way Dr Erathnage practices his profession is or may be unsatisfactory. [29] Since that time, Dr Erathnage has continued to provide services in rural and remote general practice without incident and in the absence of any further complaints. In fact, there are a number of references attached to his affidavit as part of Exhibit F, which speak in glowing terms of the work undertaken by Dr Erathnage. [30] In all the circumstances, I consider that the public interest is best served by allowing Dr Erathnage to continue to practice. [31] For these reasons, I am of the view that it is desirable that the stay be granted, until the hearing and determination of the substantive review application. I grant the stay of the imposition of the conditions until further order of the tribunal. -- 6 of 6 --