Dr Choo-Tian Lee v Medical Board of Australia [2016] QCAT 23

CITATION: Dr Choo-Tian Lee v Medical Board of Australia [2016] QCAT 23 PARTIES: Dr Choo-Tian Lee (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR196-15, OCR197-15 MATTER TYPE: Occupational Regulation Matter HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 21 January 2016 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. The application to stay the decision of AHPRA on 2 September 2015 is refused. 2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of: a. The contents of a document or other thing produced to the Tribunal; and b. Evidence given before the Tribunal; is prohibited to the extent that it could identify the patient referred to in the Referral Notice (referred to as Patient A) or any member of Patient A’s family, save as is necessary for the parties to engage in and progress these proceedings. 3. The parties must file in the Tribunal a redacted version of any material they file and/or have filed in the proceedings which removes any material which may not be published pursuant to the non- publication order made by the Tribunal; and -- 1 of 10 -- 2 4. The original version of the material filed in the Tribunal will be sealed and noted ‘Not to be copied or inspected without order of the Tribunal’. CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – BOUNDARY VIOLATIONS – CHANGE OF CONDITIONS – STAY OF OPERATION OF AMENDMENT – where the applicant was the general practitioner of the complainant between 2003 and 2013 – where the general practitioner is alleged to have engaged in a course of improper conduct in respect of the complainant between 2005 and 2013 – where the improper conduct involved grave and disturbing boundary violations – where the applicant was subject to adverse findings and immediate action by AHPRA – where the conditions imposed on the applicant’s registration as a medical practitioner required young male patients to be accompanied by an adult chaperone – where it was subsequently discovered that several chaperones were not aware that they were accompanying the male patients in the capacity of chaperone – where AHPRA claimed this amounted to a violation of an implied requirement of the applicant’s conditions of registration – where AHPRA issued an amended notice of conditions imposing more onerous notification requirements – where the applicant filed an application for a review of the decision of AHPRA to impose the original and amended conditions – where the applicant filed an interlocutory application to stay the operation of the amended decision – where the applicant claimed the amended decision should be stayed because the amendments amounted to the imposition of a new condition rather than changing an existing condition, which is asserted to be ultra vires under s 126 of the National Law – where the applicant alternatively claimed that s 126 of the National Law does not permit amendments of conditions imposed under s 156 of the National Law – where the applicant claimed that delay in bringing the investigation contemplated in the original decision should warrant the grant of a stay – -- 2 of 10 -- 3 whether a stay should be granted. PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – BOUNDARY VIOLATIONS – CHANGE OF CONDITIONS – STAY OF OPERATION OF AMENDMENT – where the patient is alleged to have been a minor during at least part of the boundary violations – where the patient is vulnerable – where the disclosure of certain information the subject of the proceedings may be calculated to embarrass the patient or cause psychiatric injury or distress – whether a non- publication order protecting the patient should be granted. Health Practitioner Regulation National Law Act 2009 (Qld), s 9, sch 1 Health Practitioner Regulation National Law, ss 126, 156, 199 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, 32, 66 Cutbush v Team Maree Property Service (No 3) [2010] QCAT 89 La Macchia v Department of Housing and Public Works [2015] QCATA 143 YXN v Medical Board of Australia [2014] QCAT 706 APPEARANCES and REPRESENTATION: Applications were 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] The applicant has filed an application to stay the operation of a decision of the respondent on 2 September 2015 to change Condition 3 of the conditions imposed on the applicant’s registration as a medical practitioner. [2] The respondent has filed an application for a non-publication order prohibiting the communication, disclosure or publication of any information of the complainant or his family which might identify the complainant. -- 3 of 10 -- 4 [3] The applications arise in two extant appeals under Schedule 1, s 199 of the Health Practitioner Regulation National Law Act 2009 (Qld) (the ‘National Law’):1 1. OCR196-15: An appeal against the decision of AHPRA on 2 September 2015 to amend Condition 3 of the conditions imposed on the applicant’s registration as a medical practitioner; 2. OCR197-15: An appeal against the decision of AHPRA on 19 July 2015 to take immediate action against the applicant by imposing conditions on the applicant’s registration as a medical practitioner. [4] As the appeals are consolidated, it is convenient to simultaneously dispose of both applications. Background [5] On 2 July 2013 the AHPRA received a complaint from a general practitioner of the complainant about the applicant. [6] The applicant was the former general practitioner of the complainant between 2003 and 2013. It was alleged that for the time interval between 2005 and 2013 the applicant had engaged in a course of inappropriate conduct in respect of the complainant. [7] The inappropriate conduct comprised of, inter alia, manual stimulation of the complainant’s genitals, performance of fellatio on the complainant, and invitations for the applicant to engage in anal intercourse. The complainant claimed that he had not complained of the boundary violations of the applicant earlier because the applicant did not charge the complainant for medical treatment and would provide the complainant with priority scheduling. [8] After receiving submissions from the applicant, AHPRA resolved on 19 July 2013 to take immediate action against the applicant and impose conditions on his registration (the ‘Original Decision’). [9] Condition 1 of the Notice of Conditions required the applicant to ensure that any male patients aged under 18 were to be accompanied by an adult chaperone during any medical assessment, consultation, examination or treatment. Other conditions required the applicant to maintain a register of chaperones for inspection by the respondent. [10] AHPRA received information that several persons who accompanied male patients in accordance with Condition 1 of the Notice of Conditions were not aware that they were acting in the capacity of a chaperone. AHPRA believed this was inconsistent with an implied requirement of Condition 5 of the Notice of Conditions. 1 Health Practitioner Regulation National Law Act 2009 (Qld), s 9 provides that a reference to an appeal under the National Law is construed as a review under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 4 of 10 -- 5 [11] On 2 September 2015 AHPRA exercised its power under s 126 of the National Law to change Condition 3 of the Notice of Conditions requiring the applicant to use a specific form of chaperone register approved by the respondent (the ‘Amended Decision’). [12] On 3 November 2015 the applicant filed an application to review the Original Decision and Amended Decision of AHPRA. [13] On 4 December 2015 the applicant filed an application to stay the operation of the Amended Decision of AHPRA. Principles Governing Applications to Stay the Operation of a Decision [14] Section 22(4) of the QCAT Act provides that the Tribunal must consider the following factors in determining whether it is desirable to grant a stay of the operation of a decision: 1. the interests of any person whose interests may be affected by the making of the order or the order not being made; 2. any submission made to the Tribunal by the decision-maker for the reviewable decision; and 3. the public interest. [15] Section 22(4) is not an exhaustive explication of the principles governing the granting of a stay of original decisions in review proceedings. The Tribunal must also draw on the principles at general law for granting a stay of the operation of the original decision. [16] The familiar principles governing the stay of the operation of a decision were comprehensively described by the Appeal Tribunal in La Macchia v Department of Housing and Public Works2 where it was held that the Tribunal should consider: 1. the substantive merits of the proceedings; 2. any loss, detriment, harm or injury which might be caused to the applicant as a result of refusing the application to stay the original decision, especially where it is not remediable by a costs order, monetary award or compensation; 3. any loss, detriment, harm or injury which might be caused by the respondent by granting a stay of the original decision, especially where it is not remediably by a costs order, monetary award or compensation; 4. whether a refusal of the application to stay the operation of the original decision would render the application for review futile, nugatory or redundant; and 5. in an appropriate case, whether the applicant has offered an undertaking as to security for costs or compensation if the application 2 [2015] QCATA 143, [11]. -- 5 of 10 -- 6 to stay the operation of the original decision is granted but the review is ultimately dismissed. [17] In occupational regulation and guardianship jurisdictions, the Tribunal should also assign special significance to any public interest in granting or refusing a stay of the operation of the original decision. [18] The starting point, however, is the original decision must not be treated as a provisional determination subject to intercession in review or appellate proceedings. The respondent and AHPRA are entitled to the outcome of their exercise of statutory jurisdiction, until varied or set aside in review proceedings. Determination of the Stay Application [19] As the application to stay only relates to the Amended Decision, the Tribunal should only consider the merits of the applicant’s application for a review of the Amended Decision. [20] The applicant’s primary arguments are: 1. the purported amendment effected to Condition 3 was, in substance, the imposition of a new condition, as opposed to a change of that condition, which is outside the scope of AHPRA’s authority under s 126 of the National Law; and/or 2. to the extent that the purported amendment constituted a change to Condition 3, it was outside the scope of AHPRA’s authority because s 126 of the National Law does not empower AHPRA to amend any conditions imposed under s 156. [21] In stay proceedings, the Tribunal is only required to conduct a preliminary examination of the substantive merits of the review proceedings. It is not necessary or appropriate for the Tribunal to engage in a fulsome examination of the substantive merits of the proceedings. The Tribunal must be cautious to avoid any reasonable apprehension of prejudgment or bias which might emerge from a consideration of the parties’ arguments. [22] Having considered the arguments of the applicant and respondent, the Tribunal finds that the applicant’s arguments are somewhat reasonably arguable. This, to a limited extent, militates in favour of the grant of the stay. The Tribunal hastens to add, however, that this preliminary assessment has no bearing on the relative merits of the applicant and respondent’s arguments following a proper ventilation of the submissions and evidence in a comprehensive hearing. [23] The applicant claims that he will suffer irreparable reputational damage as a result of compliance with Condition 3 of the Amended Decision. The applicant submits that it will draw to the chaperone’s attention that the applicant has been found to have engaged in improper conduct. -- 6 of 10 -- 7 [24] A corollary of the principle of non-provisionality is that any loss, harm, detriment or injury which is a natural and direct consequence of the operation of the original orders is not ordinarily sufficient, without more, to warrant a grant of a stay. An exception to this principle is where the loss, harm, detriment or injury is substantial, unusual and irreversible. [25] The parties contested the meaning and significance of YXN v Medical Board of Australia3 in their submissions. The Tribunal construes YXN as establishing nothing more than the proposition that reputational or familial damage, which is a natural consequence of the original decision, although a relevant factor, is not usually sufficient, when taken on its own, to justify the grant of a stay. This does little to assist the respondent in these proceedings. [26] In these circumstances, the loss, harm, detriment or injury is not substantial or unusual. To the extent that it is irreversible, it is transient and of limited compass. Reputational damage, if it transpires, will be limited to those individuals required to execute the amended register. [27] There is nothing in the circumstances suggesting that such a stay will be required to avoid rendering the review nugatory, futile or redundant. [28] The public interest, however, militates strongly in favour of a refusal of the stay. The applicant has been the subject of grave and disturbing findings by the AHPRA. AHPRA, as a regulatory authority, is enjoined to exercise its functions to protect the community from errant medical practitioners. This function is amplified and reified where the subject matter of the alleged offending relates to the exploitation of a position of superiority relative to a vulnerable segment of the community. [29] The applicant contends, however, that the grant of a stay of the Amended Decision would not adversely affect the public interest in protecting the community, because the Original Decision would remain in effect, requiring the applicant to comply with prescribed chaperone conditions. The applicant submits that the Amended Decision goes no further to protect the public interest than the Original Decision, but merely inflicts greater prejudice and reputational injury on the applicant. [30] To an extent, this would depend on a construction of the Original Decision. It is the position of the respondent that a good faith interpretation of the Original Decision required the respondent to ensure that accompanying persons understood that they were discharging the function of a chaperone. The applicant contends that this is an unreasonable construction of the Original Decision. [31] The Tribunal observes that if the respondent is correct, then a continued failure to notify accompanying persons of their role as chaperone may also constitute a persistent breach of the conditions prescribed under that decision. Although there is no guarantee that the construction urged by 3 YXN v Medical Board of Australia [2014] QCAT 706, [18]-[19]. -- 7 of 10 -- 8 the respondent is ultimately correct, it would be a significant risk for the applicant to continue with his current practices without a binding interpretation of the conditions. [32] This is not an appropriate forum for the Tribunal to interpret the Original Decision, as it is an issue in dispute in the substantive review proceedings. Fortunately, it is not necessary to conduct such an interpretation here. The applicant’s argument is predicated on the assumption that informed chaperones are as effective in protecting the welfare of minors as uninformed chaperones. [33] Informed chaperones are more vigilant and diligent in protecting the interests of minors. They may refuse certain medical procedures which may expose the minor to a risk of abuse. They are less likely to engage in behaviours which cause minors to be, even temporarily, left in the custody of the applicant. They will be less prone to distraction and more observant of the applicant’s conduct. Further, it will permit concerned chaperones to make informed decisions regarding whether to allow the applicant to administer medical treatment to minors in their care and custody. [34] The Tribunal concludes that an accompanying person, unaware of their role and function as chaperone, is less effective in protecting the welfare of minors than accompanying persons who are aware of their role and function of chaperone. [35] The Tribunal is of the view that the conditions prescribed in the Amended Decision, therefore, more effectively protect the public interest than the conditions in the Original Decision, interpreted in accordance with the position of the applicant. [36] Examining the broader interests of justice, the applicant has raised the issue of delay in the investigatory process. The application to stay the operation of the decision only applies to the Amended Decision, not the Original Decision. Although the delay remains a relevant factor, it does not infect the Amended Decision. It has limited relevance to, and weight in, the present proceedings. [37] The applicant has also expressly repudiated the respondent’s reference to extant criminal investigations regarding the behaviour of the applicant. The applicant contends that any parallel investigations are not relevant to the existing application to stay the operation of the Amended Decision, because they cannot be used as a basis for drawing adverse inferences regarding the conduct of the applicant. [38] The Tribunal did not understand the respondent to be submitting that the Tribunal should draw any adverse factual inferences from the existence of the investigation. Even if it was, the Tribunal would decline to draw any such inferences; the mere existence of an investigation does not establish the truth of the facts subject to investigation, nor the complaint which -- 8 of 10 -- 9 formed the foundation of the investigation. The existence of the investigation is not a relevant factor in these proceedings. [39] Although the matter is finely balanced, the Tribunal is of the view any minor and transient, but irreversible, reputational damage caused to the applicant as a result of a refusal of the stay is outweighed by the public interest in ensuring the community is protected from the alleged transgressions of the applicant. [40] Accordingly, the application to stay the Amended Decision should be refused. Non-Publication Order [41] The respondent has filed an application for a non-publication order. The Tribunal observes that its statutory jurisdiction to grant a non-publication order is outlined in s 66 of the QCAT Act. [42] There is a public interest in promoting open justice to ensure that justice is not only done, but manifestly seen to be done by the community. Judicial transparency is critical to facilitating public and informed debate on juridical affairs, and scrutiny of the Tribunal’s performance and functions. These processes contribute to public confidence in the judiciary by encouraging understanding of, and engagement with, the administration of justice, and maintaining judicial accountability. This requires fair, accurate, and comprehensive reporting on judicial decision-making. [43] Open justice also contributes to the preservation of the institutional independence and integrity of the judiciary.4 Accessible records and archives of decisions and case files minimises the risk and incidence of clandestine and subtle interference by the executive with the judicial function. Although such invidious practices are rare within sophisticated democracies like the State of Queensland, the application of appropriate safeguards protects against regression or incremental erosion. [44] The Tribunal should not lightly dispense with such systemic and enduring public policy considerations in favour of individual and transitory conveniences. Thus, non-publication orders must be more than mere convenient mechanisms to protect private interests; they must be necessary to preserve clearly identified interests. Such interests, although ostensibly private when examined in solus, will often have a sui generis public dimension when extrapolated on a population basis. [45] Even where an applicant or respondent establishes that a non-publication order is necessary to protect a panoply of specific public and private interests, the Tribunal should only then grant a non-publication order to the extent required to protect such interests. Thus, the principle of 4 See, for example: Cutbush v Team Maree Property Service (No 3) [2010] QCAT 89, [5]-[10], per Wilson J. -- 9 of 10 -- 10 necessity is a threshold criterion qualifying both the right to, and scope of, a non-publication order. [46] The Tribunal observes the special sensitivity attached to the present proceedings, having regard to the quality of the boundary violations, the intimate nature of evidence given by the complainant and the notifying general practitioner, and that the disclosure of the complainant’s identity may be calculated to embarrass the complainant or prejudice ongoing investigations by law enforcement agencies. [47] The private interests are allied with concomitant public interests. There is a manifest public interest in protecting alleged victims from further mental and emotional trauma and distress, preserving the right to privacy where disclosure of otherwise confidential information is not necessary to achieve an appropriate countervailing public objective, and avoiding any impediment to the administration of justice through the detection and investigation of criminal offending by law enforcement agencies. [48] The Tribunal is of the view that the public and private interests militate in favour of a limited non-publication order to prevent the identification of the complainant. [49] The Tribunal should issue a non-publication order preventing the publication of any identifying information about the complainant or his family in the terms prescribed in Annexure 1. ORDERS [50] It is the decision of the Tribunal that: 1. The application to stay the decision of AHPRA on 2 September 2015 is refused; 2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of: (a) The contents of a document or other thing produced to the Tribunal; and (b) Evidence given before the Tribunal; is prohibited to the extent that it could identify the patient referred to in the Referral Notice (referred to as Patient A) or any member of Patient A’s family, save as is necessary for the parties to engage in and progress these proceedings. 3. The parties must file in the Tribunal a redacted version of any material they file and/or have filed in the proceedings which removes any material which may not be published pursuant to the non- publication order made by the Tribunal; and 4. The original version of the material filed in the Tribunal will be sealed and noted “Not to be copied or inspected without order of the Tribunal”. -- 10 of 10 --