Alroe v Medical Board of Australia [2015] QCAT 482

CITATION: Alroe v Medical Board of Australia [2015] QCAT 482 PARTIES: Christopher Alroe (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR197-14 MATTER TYPE: Occupational Regulation Matter HEARING DATE: 1 September 2015 HEARD AT: Brisbane DECISION OF: Justice Carmody Assisted by: Dr David Rosengren Dr Heather Parker Ms Andrea Hall-Brown DELIVERED ON: 23 November 2015 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. the respondent must register the applicant as a Specialist General Practitioner without conditions. 2. the respondent must pay the applicant the costs of and incidental to the proceedings in an amount to be assessed. CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – PROFESSIONAL COMPETENCE AND DILIGENCE –where the applicant was a general practitioner – where the applicant possessed significant and relevant adverse historical disciplinary findings – where the adverse historical disciplinary findings related to boundary violations and the improper prescription of controlled substances – where -- 1 of 12 -- 2 the applicant filed an application for registration as a specialist general practitioner – where the Medical Board of Australia refused to issue the specialist registration without supplementary mentoring conditions at the cost of the applicant – where the applicant had previously been subject to rigorous conditions requiring extensive mentoring at the applicant’s costs – where the time period within which to make a decision lapsed and the application was deemed to be refused – where the applicant filed an application to appeal with the Queensland Civil and Administrative Tribunal – where the applicant claimed that he was a fit and proper person without the conditional registration – where the applicant asserted that the conditions were neither necessary nor desirable – whether the conditions were required to make the applicant a fit and proper person for specialist registration – whether the conditions were necessary or desirable – whether the applicant should be granted unconditional specialist registration. Health Practitioner National Regulation Law Act 2009 (Qld) Health Practitioner National Regulation Law Filippini v Fair Trading [2009] 1 QdR 230 Kozanoglu v Pharmacy Board of Australia [2012] VCA 295 Medical Board of Australia v Alroe [2014] QCAT 677 Medical Board of Queensland v Alroe (2510/06, Health Practitioners Tribunal, 19 September 2007) Medical Board of Queensland v Alroe [2003] QHPT 010 Medical Board of Queensland v Alroe [2005] QHPT 004 Newcomb v Medical Board of Australia [2013] SAHPT 2 Pearse v Medical Board of Australia [2013] QCAT 392 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 Shahinper v Psychology Board of Australia [2013] QCAT 593 Tavelli v Johnston (Supreme Court of Western Australia, 25 November 1996, unreported, per -- 2 of 12 -- 3 Wheeler J) Varnavides v Dental Board of Qestern Australia [2009] WAST 184 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 APPEARANCES and REPRESENTATION: APPLICANT: P Davis QC and C Hartigan, instructed by Russells RESPONDENT: K McMillan QC, instructed by Landers & Rogers REASONS FOR DECISION [1] In this case a medical practitioner is seeking to set aside a deemed refusal by the Medical Board of Australia (the Board) to register him as a specialist general practitioner. [2] The applicant filed for registration in March 2014. Despite two extensions of time no final decision had been made by the Board as at 28 August 2015. The role of the Board [3] The Board primarily protects the general community and patients by ensuring that only medical practitioners who are suitably trained and qualified to practice in a competent and ethical way are registered. [4] It is supported by the Australian Health Practitioner Regulating Agency (AHPRA) and Registration Committees in each State and Territory in administrating the national registration scheme. The Board identifies, estimates and manage relevant risks and exercises its regulatory power to uphold professional standards and maintain public confidence in the health professions.1 [5] Specialist registration is governed by Division 2 of Part 7 of the National Law2 and related registration standards. Applications are reviewed and assessed, in this case, by the Queensland Registration Committee (the Committee) which makes recommendations to the Board about registration decisions. [6] Under the National Law an applicant for specialist (and general) registration must meet the eligibility criteria in section 57 of the National Law which requires formal qualifications and practical assessment as well as overall suitability. 1 Media release on regulatory principles from 1 July 2014. 2 Health Practitioners Regulation National Law Act 2009. -- 3 of 12 -- 4 [7] Approved qualifications for specialist registration are fellowships of accredited specialist colleges. [8] The applicant’s approved qualification for specialist registration is based on Australian College of Rural and Remote Medicine (ACRRM) fellowship in 2014. [9] Admission entitles him as a specialist registered general practitioner to practice unsupervised Australia wide and to a higher Medicare (A1 rebate) health insurance rate. [10] The Committee was satisfied the applicant met the formal requirements of specialist registration but believed in all the circumstances – “which were somewhat unique” – that to be considered a suitable person for registration he would benefit, from obtaining mentorship from a senior colleague for a discrete period of time to meet public health and safety and proper professional standards.3 [11] The factors influencing the Committee’s recommendation seem to be:  Specialist registration calls for a higher standard or expectation from both the public and registrant’s peers.  Despite his current general registration and the fact that he has an extensive discipline and registration history including breaching prescribing conditions during the currency of a disciplinary proceeding in 2014 after he had “successfully” completed a 24 month mentorship in 2011.  A partial consideration of the applicant’s 640 page submission on the steps he had taken to address his disciplinary history which went a considerable way to demonstrating his response by undertaking courses, a two year mentorship and not prescribing S8 medications but the application for registration was deemed refused because of the lapse of time … before the Board was able to consider that extensive submission.  The professional misconduct proceedings before the Tribunal in 2013-14.  Most significantly, the failure to ‘demonstrate any remorse for his actions or understanding of the seriousness of his conduct that was the subject of various proceedings’.4 [12] AHPRA accepted the Committee’s recommendation and offered the applicant specialist registration on conditions relevantly including (a) 3 Board’s response to application filed 6 January 2015 [10]. 4 Board’s response to application filed 6 January 2015 [7]-[9]. -- 4 of 12 -- 5 further mentoring (at the applicant’s cost) (b) review after six months and (c) mandatory reporting requirements. [13] The practitioner refused AHPRA’s offer and contends that the Committee’s recommendation is based on irrelevant and vague considerations, unsupported by sufficient evidence and overly subjective.5 The Tribunal’s function [14] In exercising its review jurisdiction6 under s 199 of the National Law the Tribunal has to make the “correct and preferable decision” after a full rehearing of the case on its merits. [15] A condition rendering a qualified but unsuitable person eligible for specialist registration under the Act may be imposed if the Tribunal considers it necessary or desirable in the circumstances. [16] The Board does not suggest that the applicant is not qualified for specialist registration but proposes the imposition of a reviewable counselling condition under s 83 of the National Law7 aimed at “… exploring the applicant’s thinking and attitudes towards good practice and personal boundaries”. [17] Thus, the issue is not whether the Tribunal should decide to register the applicant as a specialist general practitioner but whether the correct and preferable decision is to make registration subject to necessary and desirable conditions. Any restriction on registration should of course be fit for the purpose of specifically addressing relevant risks and otherwise be the least onerous available option.8 Fitness for registration [18] An individual is not regarded as a suitable person to hold general (or specialist) registration in a health profession if in the Board’s opinion he or she is not fit and proper or unable to practice competently and safely.9 [19] The phrase “a fit and proper person” is a commonly used one but incapable of precise definition. It has been held to mean that an applicant must show not only that he or she has the theoretical knowledge and practical proficiency to practice competently and safely but also has the professionalism – that is, moral integrity and character – to keep proper standards and meet public expectations in discharging professional duties and responsibilities. 5 Reply filed by the applicant on 13 January 2015 [6]-[7]. 6 See the analysis in Pearse v Medical Board of Australia [2013] QCAT 392 at [24]-[37] per Deputy President Hornerman-Wren DCJ; cf Kozanoglu v Pharmacy Board of Australia [2012] VCA 295 at [119]. 7 Health Practitioners Regulation National Law Act 2009 8 Shahinper v Psychology Board of Australia [2013] QCAT 593 at [23]. 9 See ss 55, 60 of the National Law. -- 5 of 12 -- 6 [20] In other words the concept is both character and competence based. A person can meet the character and fitness requirement notwithstanding previous bad behaviour if he or she can demonstrate genuine rehabilitation or reformation. Remorse may be indicative of either but only where it is sincere and manifest rather than merely professed.10 A true understanding and acknowledgement of past misdeeds and its consequences is usually more trustworthy and persuasive that expressed regret. As the Tribunal pointed out in Varnavides v Dental Board of Western Australia11 attempts to downplay, minimise or deflect responsibility can “single-handedly” deny readmission. [21] However, a fair assessment of fitness to belong to an honourable profession such as medicine has to be made at the time of the application. It may be informed by historical facts but is really a prediction about the likely future. The question to be asked and considered by this Tribunal is whether the applicant can now meet the professional standards expected of him despite his past deviations from the norm and can reasonably be trusted to keep those standards as a registered specialist general practitioner from now on.12 [22] No doubt an applicant can be denied registration where what he or she has done in the past indicates “probable permanent unfitness” or that insight into previous misconduct is lacking and unlikely to ever emerge even with professional help. [23] In Newcomb v Medical Board of Australia13 an applicant for general registration had been deregistered in 2007 for boundary violations with a patient over a 15 year period. When he applied for reregistration in 2010 the Board’s refusal to register him on the grounds of unfitness because he was ambivalent in his insight, deflected responsibility, demonstrated insufficient understand and inadequate rehabilitation. [24] Assuming that specialist registration does call for a higher standard of expectation from both the public and a registrant’s peers the Tribunal is not satisfied that the proposed or any other condition is necessary or desirable to ensure the applicant practices competent and safely in the future as a specialist general practitioner. Relevant professional standards [25] A code of conduct14 describes what is expected of all doctors registered to practice medicine in Australia. It sets out the principles and the standards of ethical and professional conduct expected of doctors by their professional peers and the public. 10 Tavelli v Johnston (Supreme Court of Western Australia, 25 November 1996, unreported, per Wheeler J). 11 [2009] WAST 184 at [52]-[53]. 12 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82. 13 [2013] SAHPT 2. 14 Good Medical Practice 2014. -- 6 of 12 -- 7 [26] A significant deviation may require cause to be shown or have immediate registration consequences. [27] The professional values on which all doctors should base their practice include giving paramount care and consideration to patients and practicing medicine safely and effectively in an ethical and trustworthy way.15 [28] Good patient care encompasses considering the balance of benefit and harm in all clinical-management decisions and ensuring that personal views, needs or desires do not have an adverse impact on patient care.16 [29] Good medical practice means using insight and professional judgment to try and practice in a way that would meet the standards expected. It also relevantly implies self-awareness and self-reflection. Doctors are expected to regularly reflect on the way they practice, on what is happening in their relationships with patients and colleagues and on their own health and well-being. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgment as they gain experience and contribute to the profession. [30] Trust and objectivity are foundational incidents of a good doctor/patient relationship. [31] It is, of course, always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient even a consensual one. This applies to former patients where the trust placed in the doctor is breached. [32] Obviously doctors (especially those upgrading their registration) need to be able to demonstrate a full understanding of the range of inappropriate professional behaviours comprising sexual misconduct and stay within the ethical and professional boundaries of the inherently unequal doctor/patient relationship. [33] Of most relevance to this case is the recognition that a good doctor/patient relationship is imbalanced and that doctors should not exploit the advantage they have over patients physically, emotionally, sexually or financially17 and that teaching, supervising and mentoring more junior doctors and medical students is an important part of good medical practice and maintaining the highest standards of medical practice. The applicant’s disciplinary and registration history [34] The applicant practiced principally as a psychiatrist from 1979 without incident. He has been subject to three disciplinary proceedings relating to his practice since then. 15 [1.4] of the Code. 16 [2.2.1] and [2.2.12] of the code. 17 [3.2.6] of the code. -- 7 of 12 -- 8 [35] The applicant’s patchy professional antecedents are dealt with in detail in his response to AHPRA dated 18 August 2014 at [11]-[29] and attachments. [36] An overview of his past record is at [25]-[26] of the submissions filed on his behalf on 21 August 2015. [37] Briefly stated:  The applicant’s registration was cancelled from 21 January 2011 for four years because of an unsatisfactory professional conduct finding based on a sixteen month sexual relationship with a former patient;  Before the 2001 complaint was finalised at the end of 2003, the applicant continued to practice and prescribed Physeptone to a drug addict which a coroner found contributed to a death by overdose resulting in the second referral to the Health Practitioners Board in 2006.18  On 19 September 2007 the applicant’s reregistration date was deferred for an extra year and made subject to a two year mentorship and training condition for unprofessional conduct in prescribing methadone to a suicidal drug addicted noncompliant patient who had been diagnosed with major psychiatric illness and had other comorbidities who overdosed on the prescribed medication in combination with other intoxicants.19  He was reregistered in 2009.  On 11 July 2014 immediate action was taken against the applicant for professional misconduct arising out of three breaches of a condition of reregistration restricting prescription of scheduled drugs without prior authority. The applicant’s submissions [38] The applicant relies on the extensive training and mentorship he has done in the past at his own cost as the reason why he should be granted unconditional specialist registration and claims that remorse (or the lack of it) for dated misconduct is an irrelevant consideration especially when he has consistently denied it. [39] He points to the agreed conditions imposed by the Tribunal in 201420 that did not include a mentoring condition or other restriction on his current registration and argues that, logically, the counselling condition could only 18 See Medical Board of Queensland v Alroe [2003] QHPT 010 and Medical Board of Queensland v Alroe [2005] QHPT 004. 19 See Medical Board of Queensland v Alroe, (2510/06, Health Practitioners Tribunal, 19 September 2007). 20 Medical Board of Australia v Alroe [2014] QCAT 677. -- 8 of 12 -- 9 be necessary or desirable for registration as a specialist general practitioner if circumstances had since changed (there is no evidence of any) or that practice as a specialist general practitioner differed significantly from general practice justifying an uplift in expected performance which the applicant cannot meet without conditional specialist registration. [40] Factors for unconditional registration a) The applicant has been subjected to an extended period of de- registration; b) The applicant’s re-registration was subject to onerous mentorship and training conditions. Those conditions appear to have been properly discharged by the applicant; c) The applicant’s two former findings of unsatisfactory professional conduct are dated. The applicant was subject to appropriate sanctions for those findings. d) The applicant does not appear to be a present substantial risk to the community, provided the applicant continues to avoid prescribing Schedule 8 controlled substances; e) The issue of general and special deterrence does not appear as significant in review proceedings relating to registration as a specialist General Practitioner. [41] Factors favouring conditional registration a) The applicant has a relatively extensive and complex disciplinary history; b) The applicant’s disciplinary history does suggest that he may present a substantial risk to the community if permitted to prescribe Schedule 8 controlled substances; c) The applicant’s disciplinary history and inability to prescribe Schedule 8 controlled substances might appear inconsistent with his registration as a “specialist” General Practitioner; d) The applicant appears to display a lack of insight into the gravity of his past disciplinary breaches; e) The conditions requested by the respondent (weekly mentorship meetings, amounting to four hours per calendar month, subject to a review period of six months) do not appear onerous or unreasonable. The balance -- 9 of 12 -- 10 [42] The factors for and against the rival positions of the applicant and respondent are evenly balanced. The Tribunal might just as reasonably decide in favour of either. However, there is real doubt about the need or efficacy of any future mentorship programmes, having regard to the applicant’s previous involvement, and the permissible objectives which might be secured from them in at this or any later point in time. [43] Demonstrated contrition, genuine change and evidence of lessons learned are indicia of fitness in a professional context. They are not preconditions. [44] The decisive question of whether the applicant is only eligible by condition very much depends on his likely future behaviour. His past conduct is relevant to the extent that it is a predictor of ongoing performance. Likewise, burdening professional registration with a condition that is neither necessary nor apparently desirable should be discouraged. [45] Conditions are not shields for risk averse regulatory bodies to push or pull for purposes of self-protection from potential (fair or unfair) criticism. They are not designed for the benefit of public agencies but to manage and minimise otherwise unacceptable health and safety risks, for example, by registering a general or specialist practitioner who may be qualified but is not eligible or suitable for modern practice without them as a safeguard. [46] A regulatory encroachment is only warranted if it makes clinical practice safer or more effective and entrenches the habit of self-criticism and ensures public confidence. However, care must be taken to ensure that intensifying consumerism does not result in extreme regulation of doctors in the futile hope of meeting unrealistic patient and public (often media- driven) expectations. [47] The justification and utility of a registration condition depends on what doctors are, what they have done or not done in the past and the magnitude of risk they pose to the health and safety of patients and the standing of the profession in the future. [48] Registration conditions are intended to be precautions against what might possibly or probably, happen in the future. Though preventive not punitive they nonetheless unavoidably intrude on an area of personal and professional freedom within which State intervention must be justified to be legitimate.21 This is especially so when the condition involves time or financial costs and unduly confines the right of self-determination. [49] In this case it is hard to see why the proposed or any alternatively ordered registration condition is really needed to close a gap between unfit and fit enough. Especially when the applicant is eligible for specialist registration “per force” of the imposed condition and the failure by the applicant to comply with its terms does not constitute an offence against the national 21 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; cf Filippini v Fair Trading [2009] 1 QdR 230. -- 10 of 12 -- 11 law or have the immediate effect of revoking registration. It merely constitutes behaviour for which disciplinary action may be taken.22 [50] In the Tribunal’s view the applicant very well knows and is perfectly able to reflect on the practical content of the concept of medical professionalism (codifies the idea that a doctor’s responsibilities goes beyond a mere contract of employment23) and ensure that it given practical expression in his daily practice by continuously assessing his values, behaviours and relationships against the code and take personal responsibility for ensuing that the aspirational standard is met and maintained at all times. He, like all other doctors, should incorporate professional values as a key component of his professional performance and development. [51] These are things that he clearly already knows and does not need to relearn but does need to put them into practice every day. Neither the content nor the duration of the proposed condition is likely to improve the applicant’s capacity or commitment to meeting professional standards in practice. [52] The applicant’s responses in his affidavit adequately address the boundary issues and demonstrate a change in and acknowledgment of his past behaviour insofar as it relevant as a predictor of future risk. [53] The Tribunal is, therefore, reasonably satisfied (without being totally convinced) that he has discharged the onus on him to demonstrate that he is a fit and proper person for unconditional registration.24 The admitted safety risks of unconditional registration are reasonably acceptable and not of such a magnitude that they should not be taken in the circumstances. [54] Accordingly, the Tribunal finds the applicant to be eligible for specialist registration without necessity or desirability of a s83 condition. [55] As the applicant has been fully successful in his application, the respondent must pay the applicant’s costs of and incidental to the proceedings. ORDER [56] It is the decision of the Tribunal that: 1. the respondent must register the applicant as a Specialist General Practitioner without conditions. 22 See notes to s 83 of the National Law. 23 R Tallis, ‘Doctors in Society: Medical professionalism in the changing world’, 2006 Clinical Medicine, 7, 8. 24 Newcomb v Medical Board of Australia [2013] SAHPT 2; Varnavides v Dental Board of Western Australia [2009] WAST 184. -- 11 of 12 -- 12 2. the respondent must pay the applicant the costs of and incidental to the proceedings in an amount to be assessed. -- 12 of 12 --