Chiappalone v Medical Board of Australia [2015] QCAT 201

CITATION: Chiappalone v Medical Board of Australia [2015] QCAT 201 PARTIES: Dr Joseph Chiappalone (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR064-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 2 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Medical Board of Australia is to pay Dr Chiappalone’s costs of and incidental to the application, excluding any costs of the stay application, on the standard basis for matters in the District Court as agreed or assessed. CATCHWORDS: HEALTH PRACTITIONER –MEDICAL PRACTITIONER –COSTS –where the Board took immediate action and imposed conditions on the registrant’s registration –where registrant sought review of Board’s decision –where Tribunal made an order setting aside decision of the Board to take immediate action –whether Registrant should be awarded costs APPEARANCES and REPRESENTATION (if any): 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). -- 1 of 5 -- 2 REASONS FOR DECISION [1] On 24 February 2012 Dr Joseph Chiappalone filed an application for a review of the Medical Board of Australia’s decision of 14 February 2012, to take immediate action in relation to him and impose conditions on his registration. Those conditions included a condition that Dr Chiappalone must not consult, assess, examine or treat any female person aged 14 years or over without a chaperone present. [2] Dr Chiappalone was notified of the Board’s decision by a letter from the Australian Health practitioner Regulation Agency to his solicitor, dated 17 February 2012. In that letter the Board conveyed it’s reason for decision as; …[the Board] reasonably believed that because of Dr Chiappalone’s conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety. The Board particularly noted that the proposed conditions requiring a chaperone be present when Dr Chiappalone is consulting female patients will act as a protective, temporary measure in force until the investigation is complete and/or evidence is tested at a hearing. [3] The conduct which was said to give rise to the belief was a relationship between Dr Chiappalone and former patient and an alleged assault of that former patient. [4] Dr Chiappalone sought a stay of the Board’s decision. On 5 April 2012 the Tribunal granted a stay of the Board’s decision. [5] On 31 October 2012 the Tribunal determined the application for review on the papers. The Tribunal found that clinical relationship was very limited and on the evidence before it, it was unable to find that there was power imbalance or vulnerability such that Tribunal could be satisfied the alleged relationship gave rise to a belief of a serious risk.1 The Tribunal also considered that even if the Complainant’s assault allegations were taken at their highest, in the context of the relationship, Dr Chiappalone did not pose a serious risk to female patients.2 The Tribunal concluded it was unable to find on the evidence that it was reasonable to conclude that there was a serious risk to female patients such that it was necessary to impose the chaperone conditions. An order was made setting aside the decision of the Board to take immediate action. [6] Dr Chiappalone filed an application seeking the Board pay his costs of and incidental to the proceedings, or in alternative, the Board pay Dr Chiappalone’s costs from 23 April 2012 when Dr Chiappalone’s solicitors made a ‘without prejudice save as to costs’ offer. Dr Chiappalone also seeks an order that the Board pay the costs of the stay application. 1 Chiappalone v Medical Board of Australia [2012] QCAT 568, [37] – [43]. 2 Ibid, [48]. -- 2 of 5 -- 3 [7] The Board seeks orders that Dr Chiappalone’s application for costs be dismissed and each party bear their own costs or, in the alternative, there be no order as to costs. [8] This matter proceeded as a review under s 199 of the Health Practitioner Regulation National Law (Queensland). Under s 201 of that act the Tribunal may make any order about costs it considers appropriate for the proceeding. The costs of the review application [9] Dr Chiappalone submits that the an order the Board pay the costs of the review application is appropriate as the Board exercised its power to take immediate action despite a comprehensive response to the allegations of the Complainant being provided by himself and lack of evidence of a serious risk, and the review application was ultimately successful. [10] It is further submitted that if the Tribunal is inclined to make an order as to costs for the whole proceeding, an order that costs be awarded on an indemnity basis from 23 April 2012 would be appropriate. [11] Dr Chiappalone submits an order the Board pay the costs of the proceeding is appropriate as:  The application to review the Board’s decision was successful  Dr Chiapplone from the outset submitted that the Board had not identified, pursuant to s 156 of the National Law, how he was, by his conduct, a risk to public health and safety  The Board ignored Dr Chiappalone’s submission and unreasonably maintained the conditions were necessary and did not proffer any further evidence as to how he posed a risk to female patients  Dr Chiappalone was forced to continue with the review proceeding after the stay was granted.3 [12] The Board received the notification from the complainant on 23 November 2011 and first considered the notification on 10 January 2012. Dr Chiappalone submits that the seven week delay demonstrates that there was not an immediate need to impose chaperone conditions.4 The Board disputes this submission and identifies that it followed its normal procedure and appropriately had the matter tabled at the next meeting, which was in January 2012.5 The Board further submits that this 3 Submissions on costs on behalf of the applicant, filed 11 January 2013 (“Applicant’s submissions”), [22]. 4 Ibid, [15]. 5 Submissions on costs on behalf of the respondent Medical Board of Australia, filed 25 January 2013 (“Board’s submissions”), [13] and [18]. -- 3 of 5 -- 4 submission was not advanced in the application for review and is outside of the subject matter of the evidence and findings in the proceeding.6 [13] Dr Chiappalone further submits that the Board failed to properly exercise its power to take immediate action having regard to the appropriate statutory test under s 156 of the National Law and the objectives and guiding principles of that law, particularly s 3(3)(c). Dr Chiappalone, in support of this submission, points to the Tribunal’s finding that; … even if the allegations of the Complainant are accepted in their entirety, when put in the context of all the circumstances and the nature of the relationship Dr Chiappalone does not pose a serious risk to female patients.7 [14] The Board submits its position was maintained as it genuinely held the opinion that the decision to take immediate action was in accordance with s 156 of the National Law; the principles of the National Law and the Board’s primary objective of protecting the public; and the Board’s policy on chaperone conditions.8 It maintains that its position was supported by the evidence gathered and filed in support of the proceeding. [15] The Board contends that despite the Tribunal not finding that there was a serious risk, the Tribunal did not criticise the Board for forming or maintaining its position, or that its position had no merit or it’s argument was without substance and “[o]ne can assume that the case, and the supporting evidence advanced by the Board, warranted being ventilated and tested at hearing”.9 This, it is submitted, supports the Board’s position that it acted in good faith. The Board submits that in contrast the Tribunal made a number of adverse comments concerning Dr Chiappalone and his downplay of the sexual nature of text messages that were in evidence and denial of physical contact between himself and the Complainant. [16] The Board funds its regulatory functions through registration fees levied from registrants. It submits that where it has conducted itself in good faith; has not acted unreasonably; or delayed or lengthened proceedings in a way that was likely to increase costs, an order of the kind sought by Dr Chiappalone is not appropriate. [17] The Tribunal having found that even if the patient’s allegations were accepted in their entirety, Dr Chiappalone still did not pose a risk to female patients, it seems to me that this is an appropriate matter in which to order the Board to pay Dr Chiappalone’s costs. The conditions imposed were onerous. They would no doubt have impacted significantly upon his capacity to practice. The circumstances in which the conduct was alleged to have occurred though, did not establish a risk of the kind to which the conditions were directed. 6 Ibid [19] – [20]. 7 Chiappalone v Medical Board of Australia [2012] QCAT 568, [48], cited in Applicant’s submissions, at [21]. 8 Ibid, [22]. 9 [31] – [33] -- 4 of 5 -- 5 Dr Chiappalone’s offer to the Board [18] On 23 April 2012 Dr Chiappalone’s solicitors advanced an offer to the Board, the terms of the offer were that the Board remove the conditions and pay Dr Chiappalone’s costs on a standard basis and Dr Chiappalone would withdraw his application for review. [19] In the letter of offer it was asserted that it would be “… difficult for [the Board] to maintain Dr Chiappalone ‘poses a serious risk to persons’ requiring ‘immediate action to protect public health and safety’ in light of His Honour’s decision [on the stay application].10 [20] No reasons for the stay decision were sought by the parties, or provided by the Tribunal. [21] The Board submits that the Tribunal’s decision to grant the stay does not necessarily correlate to a basis for the substantive review to be considered lacking in merit.11 [22] Dr Chiappalone submits that as he was successful in the stay application an order the Board pay the costs of the application is appropriate.12 [23] The Board submits that the very nature of the decision meant that it could only oppose the stay application on public policy grounds and as such did not act unreasonably in opposing the stay.13 [24] Since the decision to grant the stay was made the Tribunal has, in other proceedings, identified that s398ZC of the Health Practitioners (Disciplinary Proceedings) Act 1999,14 prohibits the granting15 of a stay of immediate action decisions.16 Both parties proceeded on the basis that the Tribunal had jurisdiction to grant a stay. In the circumstances neither party should have their costs associated with the stay application. Order [25] The Medical Board of Australia is to pay Dr Chiappalone’s costs of an incidental to the application, excluding any costs of the stay application, on the standard basis for matters in the District Court as agreed or assessed. 10 Affidavit of Nicola Mary Louise Ellis, filed 11 January 2013, exhibit NME-1. 11 Board’s submissions, [39]. 12 Applicant’s submission, [30] – [31]. 13 Board’s submissions, [36] – [37]. 14 Formerly the Health Practitioners (Professional Standards) Act 1999 (Qld). 15 Reasons amended to correct typographical error. 16 Chaudry v Australian Health Practitioners Regulation Agency [2013] QCAT 305. -- 5 of 5 --