Aziz v Medical Board of Australia [2015] QCAT 99

CITATION: Aziz v Medical Board of Australia [2015] QCAT 99 PARTIES: Maged Adly Aziz (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR277-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 9 February 2015 HEARD AT: Brisbane DECISION OF: Judge Horneman-Wren SC, Deputy President DELIVERED ON: 9 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made by the Medical Board of Australia on 26 November 2014, finding the Registrant’s professional performance of carotid endarterectomy and stenting procedure on 4 July 2013 was unsatisfactory, and imposing conditions, is set aside. 2. Each party is to bear their own costs. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – APPEALS – where practitioner a registered vascular surgeon – where practitioner conducted a complex procedure – where practitioner accepted error had occurred – whether the finding of unsatisfactory professional performance by the Medical Board of Australia should be appealed – whether the conditions imposed on the registration of the practitioner by the Medical Board of Australia should be appealed – where parties jointly submit the correct and preferable decision the Tribunal ought to impose -- 1 of 4 -- 2 Health Practitioner Regulation National Law (Queensland), s 178, s 199 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Andersen [2014] QCAT 374 Medical Board of Australia v Fitzgerald [2014] QCAT 425 Medical Board of Australia v Ciriello [2014] QCAT 459 Medical Board of Australia v Doolabh [2014] QCAT 582 Psychologist Board of Australia v Golus [2015] QCAT 012 Pharmacy Board of Australia v McAllan [2015] QCAT 020 Chiropractic Board of Australia v Brubaker [2015] QCAT 030 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr O’Gorman SC instructed by Dibbs Barker Lawyers RESPONDENT: Mr A Forbes of Lander & Rogers Lawyers REASONS FOR DECISION [1] On 26 November 2014, a committee of the Medical Board of Australia, acting pursuant to section 178 of the Health Practitioner Regulation National Law (Queensland) (National Law), decided to impose conditions on the registration of Maged Aziz, a registered specialist vascular surgeon. The decision of the Board related to a procedure conducted by Dr Aziz on 4 July 2013. The procedure was a complex procedure. Dr Aziz, immediately following the procedure, readily accepted that an error had occurred during his performance. [2] He referred the matter to a multidisciplinary meeting four days later, on 8 July 2013, which was in fact the next working day after the operation had been performed. Subsequently, his privileges at the hospital at which the procedure was performed were restricted, and he made certain undertakings. [3] The conditions which the Board imposed and which were notified to Dr Aziz on 8 December 2014 required him to enter into supervised practice, and would have required him to consult with his supervisor prior to undertaking elective endovascular procedures which were considered -- 2 of 4 -- 3 complex, high-risk, before they could be performed by him. Each of those expressions was given meaning. [4] Dr Aziz appealed to the Tribunal against the decision of the committee of the Board to impose the conditions. The decision of the committee was an appellable decision within the meaning of section 199 of the National Law. The parties jointly propose orders whereby a finding of unsatisfactory professional performance against Dr Aziz and the conditions imposed upon his registration would be set aside. [5] Dr Aziz has practiced surgery for the past 17 years. He originally trained and practiced in New Zealand for 10 years, prior to his arrival in Australia in 2008. He presently practices as a vascular surgeon in private practice at St Andrews Toowoomba Hospital and St Andrews War Memorial Hospital in Brisbane. In material which has been filed in support of his application, a number of senior medical practitioners have spoken highly of Dr Aziz’s capacities, and have expressed the view that he is a safe surgeon. [6] In jointly proposing a draft order resolving this matter, Mr Forbes, on behalf of the Board, acknowledges that the decision related to one particular complex operation. It would seem that Dr Aziz has otherwise not been the subject of review or complaint. It is also accepted that Dr Aziz’s overall complication rate is within acceptable limits, and indeed, on behalf of Dr Aziz it is submitted that it is very low. [7] It is apparent that the position jointly proposed by the parties has been reached after considerable negotiation both within the tribunal’s processes for alternative dispute resolution and between the parties themselves. For reasons which the Tribunal has expressed in other matters, there are good public policy reasons why the Tribunal should not depart from orders agreed between the parties in disciplinary proceedings where what is proposed falls within the range of appropriate orders which might be made.1 [8] The parties jointly submit that the correct and preferable decision that the Tribunal ought make in this matter is in accordance with the draft order proposed. It appears to the Tribunal that that is an appropriate course, and the Tribunal will order that the decision made by the Medical Board of Australia on 26 November 2014, finding the Registrant’s professional performance of carotid endarterectomy and stenting procedure on 4 July 2013 was unsatisfactory, and imposing conditions, is set aside. 1 Medical Board of Australia v Martin [2013] QCAT 376 at [91]; Medical Board of Australia v Andersen [2014] QCAT 374; Medical Board of Australia v Fitzgerald [2014] QCAT 425; Medical Board of Australia v Ciriello [2014] QCAT 459; Medical Board of Australia v Doolabh [2014] QCAT 582; Psychologist Board of Australia v Golus [2015] QCAT 012; Pharmacy Board of Australia v McAllan [2015] QCAT 020; Chiropractic Board of Australia v Brubaker [2015] QCAT 030. -- 3 of 4 -- 4 [9] There is agreement between the parties that each party should bear their own costs, and that will be the order of the Tribunal. I will make an order in terms of the draft, which I will initial and place with the papers. -- 4 of 4 --