Clarke v Medical Board of Australia [2014] QCAT 630

CITATION: Clarke v Medical Board of Australia [2014] QCAT 630 PARTIES: Allan Clarke (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR141-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Farr SC Assisted by: Dr Jules Black Dr Errol Maguire Dr Wayne Sanderson DELIVERED ON: 21 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Performance & Professional Standards Panel of the Medical Board of Australia made on 23 May 2014, to the extent it pertains to the conditions imposed on the applicant’s registration (paragraph 9.8 of the Panel's decision), is set aside. 2. Conditions are imposed upon the applicant's registration in the following terms: "The applicant must actively participate in a mentoring program as follows: 2.1. For a period of 2 months from the date of the stay order: 2.1.1 The applicant will prior to conducting any operative procedure review all pre- operative blood tests results and consult with a registered orthopaedic surgeon or other appropriate specialist of appropriate maturity and -- 1 of 17 -- 2 experience, approved by the Board, about the blood test results and the care and treatment (if any) required. 2.1.2 Should it be recommended to the applicant that he reviewed the pre-operative blood tests and also consult another specialist, including a haematologist, he shall do so. 2.1.3 The applicant will note in the patient record the fact that he consulted the orthopaedic surgeon, and/or any other specialist, and the recommendations that were made. 2.2 The applicant is to nominate a mentor for the approval of the Board within one month of the date of this decision. 2.3 The mentor is to be a registered orthopaedic surgeon, of appropriate maturity and experience, approved by the Board, who is not in close collegiate, social and financial relationship with the applicant, and who gives written consent to act as the applicant 's mentor. 2.4 The mentoring is to occur within a period of two months of the date of this order. 2.5 The applicant is to attend one session of mentoring with the mentor for a period of not less than two hours and address 'better practice' protocols published by the Australian Orthopaedic Association, the Royal Australasian College of Surgeons and the Arthroplasty Society of Australia. 2.6 The applicant must provide the mentor with a copy of the Panel's Decision made on 23 May 2014 to inform the mentor of the areas of concern regarding the applicant's practice identified by the Panel, including those areas identified by the Panel as requiring further education and training. 2.7 The mentoring must include addressing specific concerns raised -- 2 of 17 -- 3 by the Panel in the areas of the failure to review and note discrepancies in blood test results pre-operatively, failure to commence anti-coagulant therapy within an appropriate time frame, the need for collaboration with other specialists upon receipt of blood test information, consents, note taking/recording and time out theatre procedures. 2.8 The mentoring must be documented by both the applicant and the mentor in individual documents and the applicant must provide the Board with all documented information. 2.9 The applicant must provide a written authority for the mentor to provide a report in writing to the Board at the end of mentoring. 2.10 If the Board is not satisfied that the filed report of the mentor demonstrates to the satisfaction of the Board that the applicant has benefited satisfactory from the further education and training and the mentoring sessions, the applicant may be required to undergo further mentoring or education determined by the Board. 3. The applicant must bear all costs incurred to comply with these conditions, including the costs of the reports of the mentor. 4. The applicant must complete a further education and training program approved by the Board. The education and training program should address the following areas: 4.1 interpretation of blood test results; 4.2 anti-coagulant therapies; 4.3 thrombo-prophylaxis; 4.4 appropriate communication with an attendance on patients, properly documented in accordance with requirements of the Code; and 4.5 appropriate early, formal and on- going consultation with relevant specialists, properly documented. 5. The further education and training program must be completed within 12 months of the date of this decision, -- 3 of 17 -- 4 and the applicant must give documentary evidence to the Board upon completion of the education and training program." 6. Each party bear their own costs of the application. CATCHWORDS: REVIEW – where the applicant failed to follow up on patient’s pathology – where conditions on the applicant’s registration were imposed REVIEW – JOINT ORDERS – where both parties agreed the conditions imposed should be reviewed and proposed joint orders – where mentoring and training conditions reconsidered – where original conditions imposed were excessive in light of the circumstances – where conditions exceeded the requirement of the National Law – where appropriate that agreed joint orders be made 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 (QCAT Act). REASONS FOR DECISION [1] On 23 May 2014 the Performance and Professional Standards Panel (the Panel) found the applicant had engaged in unsatisfactory professional performance and reprimanded him and imposed conditions on his registration (the decision). [2] On 1 July 2014 the applicant filed an application pursuant to s 17 of the QCAT Act and s 199(1)(i) of the Health Practitioner Regulation National Law (the National Law) to review the decision. Background [3] The applicant: (a) Graduated with a Bachelor of Medicine, Bachelor of Surgery (MB BS) from the University of Pretoria, South Africa in 1982. (b) Obtained fellowship in orthopaedic surgery with the Royal College of Physicians and Surgeons of Canada in 1993. (c) Moved to Australia in 2001 and became registered with the (then) Medical Board of Queensland. (d) Obtained fellowship with the Royal Australasian College of Surgeons (RACS) in 2002. -- 4 of 17 -- 5 (e) Currently: (i) holds specialist registration (orthopaedic surgery) with the respondent; (ii) works in private practice on the Sunshine Coast as an orthopaedic surgeon; and (iii) is up to date with his continuing professional development requirements. [4] The following factual circumstances resulted in the complaint against the applicant and the subsequent findings of the Panel: (a) The patient, JW, was born in 1936. (b) She was referred to the applicant on 27 May 2009 for advice and management of severe osteoarthritis of the knees. (c) The applicant saw her for the first time on 11 June 2009 at which time he recommended that she undergo a left total knee arthroplasty (TKA). The same day JW signed a consent form acknowledging that she had been informed of the risks of the procedure including deep vein thrombosis (DVT). She had no previous history of clotting problems. (d) The applicant ordered pathology testing to be performed five days before surgery. JW presented for the tests on 25 September 2009. (e) The results of the tests ordered by the applicant revealed an increased platelet count; being 776 against a normal range of 150 to 450. The result meant that JW was of a higher risk of DVT and pulmonary embolisms (PE). (f) The applicant did not review the results of the tests prior to surgery. Consequently, the applicant did not discuss with JW that she was at a higher risk of DVT and PE. (g) The applicant did not note the blood tests or the risks associated with them in the post operative notes. (h) On 30 September 2009, the applicant performed a left TKA on JW without peri-operative complication. (i) There was no formal time-out procedure at the Sunshine Coast Private Hospital at the time of the surgery. The final time-out procedure was performed by the anaesthetic nurse. (j) The applicant did not consult a haematologist immediately post- operatively. (k) The applicant did not alter his post-operative thrombo-prophylaxis order in the light of the blood test results. The order was to commence thrombo-prophylaxis at 48 hours post-operatively. -- 5 of 17 -- 6 (l) JW was administered thrombo-prophylaxis (clexane) at approximately 9.00 pm on 2 October 2009, that is approximately 60 hours after the procedure. The applicant acknowledged that clexane should have been commenced earlier. (m) On 8 October 2009 JW was diagnosed with multiple pulmonary emboli. Dopler studies performed on 13 October 2009 confirmed thrombosis in the long saphenous and peroneal veins which may cause small emboli in the deep venous system. (n) On 1 March 2010, JW was diagnosed with a myeoproliferative disorder, essential thrombocythemia. (o) JW made an initial complaint to the Health Quality and Complaints Commission (HQCC) on 28 September 2010. Notification of JW’s complaint was made to the Australian Health Practitioner Registration Association (AHPRA) on 14 October 2010. [5] An investigation was conducted and the Medical Board of Australia (the respondent) referred the complaint to the Panel on 31 January 2013. Findings [6] The findings of the Panel were made on 23 May 2014 and, in essence were that the applicant failed to: (a) review and note discrepancies in the blood test results pre-operatively; (b) accurately consent the patient for the procedure; (c) recognise the need for collaboration with other specialists upon receipt of the blood test information; and (d) commence anti-coagulant therapy within an appropriate time frame. [7] The Panel found that the applicant’s conduct amounted to unsatisfactory professional performance and reprimanded the applicant. [8] The Panel imposed conditions on the applicant’s registration. Those conditions are: 1. The practitioner must actively participate in a mentoring program for three years as follows: (a) The practitioner is to nominate a mentor for the approval of the Board within 2 months of the date of this decision, being 23 May 2014. (b) The mentor is to be a registered orthopaedic surgeon, or appropriate maturity and experience, approved by the Board, who is not in a close collegiate, social or financial relationship with the practitioner, and who gives written consent to act as the practitioner’s mentor. -- 6 of 17 -- 7 (c) The initial mentoring is to occur for a period of 6 months. (d) During the initial period the mentor must sit in with the practitioner for at least 4 hours per month in consultations. The mentor must be present and scrubbed during all surgical procedures. (e) The practitioner must provide the mentor with a copy of this decision to inform the mentor of the areas of concern regarding the practitioner’s practice as identified by Panel, including those areas identified by the Panel as requiring further education and training. (f) The mentoring must include addressing the specific concerns raised by the Panel in the areas of consent, note taking/ recording and time out theatre procedures. (g) After the initial six months, the amount of time spent each month in mentoring the practitioner may be reduced for the remainder of the three years if the Board, on the recommendation of the mentor, determines it to be appropriate based on its assessment of the practitioner’s knowledge, application and progress in the following areas: (i) Appropriate time out theatre procedures; (ii) Thrombo- prophylaxis; (iii) Appropriate early formal and ongoing consultation with relevant specialists, properly documented; and (iv) Appropriate communication with and attendance on patients, properly documented. (h) The mentoring must be documented by both the practitioner and the mentor in individual documents, and the practitioner must provide the Board will all documented information; (i) The practitioner must provide a written authority for the mentor to provide a report in writing to the Board at the end of each six month period and within 28 days of the end of the three year period of the mentoring. (j) If the Board is not satisfied that the final report of the mentor demonstrated to the satisfaction of the Board that the practitioner has benefited satisfactorily from further education and training and the mentoring sessions, the practitioner may be required (sic) undergo further mentoring or education as determined by the Board. (k) The practitioner must bear all costs incurred to comply with these conditions, including the costs of the reports of the mentor; -- 7 of 17 -- 8 2. The practitioner must complete a further education and training program approved by the Board. The education and training program should address the following areas: (i) Appropriate time out theatre procedures; (ii) Thrombo- prophylaxis; (iii) Appropriate communication with and attendance on patients, properly documented in accordance with the requirement of the code; and (iv) Appropriate early formal and ongoing consultation with relevant specialists properly documented. 3. The further education and training program must be completed within 12 months of the date of this decision, and the practitioner must give documentary evidence to the Board upon completion of the education and training program. [9] The Panel ordered that the reprimand and the details of the conditions imposed on the applicant’s registration be recorded on the Medical Board of Australia’s register for the period during which the conditions were in force and that the conditions were not to be reviewed for a period of 12 months. [10] The conditions which are the subject of this application for review are: (a) The applicant submits to a period of mentoring by a registered orthopaedic surgeon for a period of three years. (b) That for an initial period of at least six months (longer if the respondent determined it appropriate) the mentor: (i) sit with the practitioner for at least four hours per month during consultations; and (ii) be present and scrubbed during all surgical procedures. (c) The mentoring must be documented and the mentor must provide a report to the respondent at the end of the initial six month period. (d) Within 12 months the applicant must undertake further education and training in: (i) appropriate time-out theatre procedures; (ii) thrombo- prophylaxis; (iii) patient communication and documentation; (iv) early formal and ongoing consultation with other specialists. (e) The applicant bear the costs of complying with the conditions. -- 8 of 17 -- 9 [11] On 8 August 2014 the operation of the conditions was stayed on the condition of undertakings being provided by the applicant to the respondent. Submissions [12] The applicant accepts the finding of unsatisfactory professional performance made by the Panel and the order of a reprimand. The parties have agreed however that the conditions imposed on the applicant should be reviewed. The review of the decision of the Panel is by way of fresh hearing on the merits.1 [13] The parties have proposed orders jointly. The orders proposed by the parties include amended conditions on the applicant’s registration. The parties have submitted that the Tribunal would be satisfied that the proposed orders are the correct and preferable decision. [14] The applicant has accepted and acknowledges that he failed to review the blood test results prior to JW’s surgery and that he ought to have done so. He also accepts that he ought to have initiated anti-coagulant therapy at an earlier time. The parties agree that the consent provided by the patient would have been appropriate had the results of the blood test been within normal range. The unchallenged evidence of the applicant is that had he reviewed the test results prior to surgery he would not have performed the procedure. There is no reason to doubt him in that regard. [15] Furthermore, whilst the making of sub-standard clinical notes was not an allegation referred to the Panel, the applicant nevertheless acknowledges that his documentation in that regard in the days following the surgery was inadequate. [16] Both parties agree that in the circumstances it is appropriate for the applicant to undergo a period of mentoring and further education and training. The parties however submit that the conditions should: (a) target more precisely the aspects of the applicant’s conduct which gave rise to the Panel’s findings; and (b) take into account the steps the applicant has already taken in the five year period since the incident occurred to improve his practice and minimise the risk of recurrence of similar events. [17] The parties have correctly submitted that the jurisdiction of the Tribunal is protective not punitive. The role of the Tribunal, as has been repeatedly stated in case authorities, is to protect the public and maintain the standards of the profession.2 1 Queensland Civil and Administrative Tribunal Act 2009 s 20. 2 See for example New South Wales Bar Association v Evatt (1968) 11 CLR 17; Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630; Medical Practitioners Board of Victoria v Naik (Occupational and Business Regulation) [2009] VCAT 755 at [60]. -- 9 of 17 -- 10 [18] The essential elements or factors relevant for the Tribunal’s consideration are: (a) public safety; (b) deterrence of the practitioner from repetition of the conduct; (c) deterrence of other practitioners from the conduct; and (d) signalling to the public and the profession the serious nature of the practitioner’s departure from professional standards.3 [19] The applicant has acknowledged that the deficiencies in his pre and post- operative care of JW were serious and potentially had significant implications for public safety. In the circumstances it is appropriate that conditions were imposed. [20] The parties have submitted that the redrafted conditions address the statutory requirement of the National Law, in particular as provided in s 3(3)(c) of the National Law, namely: Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. Mentoring [21] The parties have submitted that the conditions imposed by the Panel with respect to mentoring of the applicant are primarily directed towards the applicant’s performance of surgery. It is submitted that the requirement that, for a period of at least six months, the mentor be scrubbed and present for all the applicant’s surgical procedures presupposes a deficiency in the applicant’s skill not only in the performance of TKA procedures but all orthopaedic procedures. The parties agree that the evidence does not support this conclusion. I agree. In fact, no aspect of the complaint related to the quality of the applicant’s surgical performance. The evidence before the Tribunal is that JW’s TKA was performed by the applicant in a competent manner. Additionally, evidence has been provided from doctors Tamba- Lebbie, Whitburn, Frank and Ho together with that of RN Wallace which uniformly asserts that the applicant is a careful and technically skilled practitioner.4 I found the evidence of these practitioners particularly persuasive given that they have all worked frequently and closely with the applicant over recent years. 3 Traill v Medical Practitioners Board (Occupational and Business Regulation) [2006] VCAT 1920 at [117]. See also Craig v The Medical Board of South Australia (2001) 79 SASR 545; Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]; Medical Practitioners Board of Victoria v Naik (Occupational and Business Regulation) [2009] VCAT 755 at [60]. 4 Affidavit of Dr Tamba-Lebbie Exhibit BTL-1; affidavit of Dr Ho Exhibit TKH-1; affidavit of Dr Whitburn Exhibit RW-1; affidavit of Dr Frank Exhibit PF-1; affidavit of RN Wallace Exhibit EW-1. -- 10 of 17 -- 11 [22] More importantly, I note that since JW’s case, the applicant has undertaken significant changes to his practice5 to avoid a repeat of the circumstances that arose in that matter and consequently he now has a thromboembolic complication rate well within the Australian Council of Healthcare Standards benchmark. [23] Those changes are directly relevant to the issues which form the basis of the findings against the applicant, namely his failure to review the blood results prior to surgery, his failure to implement anti-coagulant treatment at an appropriate time and his failure to consult other specialists. Briefly the changes are: (a) a “time-out” procedure in accordance with RACS guidelines has been adopted; (b) a pro forma document regarding risk factors for DVT and PE for patients undergoing major surgery has been instituted; (c) his operating schedule has been changed so that major cases are performed on a Monday so that monitoring can then occur during the following week; (d) he has resigned from public practice to focus on private patients; (e) patients now see the anaesthetist prior to rather than on the day of surgery to create a secondary check of pre-operative test results; and (f) an improved system of recording risk factors for thromboembolic conditions has been instituted. [24] The applicant’s implementation of and adherence to these new procedures has been confirmed by the evidence of RN Wallace6, Dr Whitburn7, and Dr Frank.8 Furthermore and significantly, Doctors Tamba-Lebbie, Whitburn and Frank all attest to the applicant’s strong commitment to continuing his professional education and continually improving his technical skills and standard of practice.9 [25] There is no evidence before the Tribunal that in the five years since the circumstances that gave rise to the Panel referral, the applicant has made the same or similar errors as those which formed the basis for the complaint. [26] The conditions imposed by the Panel require any person agreeing to mentor the applicant to take substantial time away from his or her own practice. I note that there is a general public interest however in expensively trained and highly skilled practitioners being able to conduct their own practice.10 The parties submit therefore that the public interest is best served by not only 5 Affidavit of Dr Clark at [19]. 6 Affidavit of RN Wallace Exhibit EW-1 at p 1. 7 Affidavit of Dr Whitburn Exhibit RW-1 at p 1. 8 Affidavit of Dr Frank Exhibit PF-1 at [2] to [4] inclusive. 9 Affidavit of Dr Tamba-Lebbie Exhibit BTL-1 at [4]; affidavit of Dr Whitburn Exhibit RW-1 and affidavit of Dr Frank Exhibit PF-1 at [6]. 10 Buttsworth v Walton [1991] NSWCA 40. -- 11 of 17 -- 12 the applicant but also the applicant’s mentor being able to continue to practice surgery without unwarranted restrictions. [27] Accordingly, the parties agree that the conditions for mentoring should be focused on remediating the matters which gave rise to the Panel’s findings rather than being directed in a rather indiscriminative way at the whole of the applicant’s surgical practice. In summary, the conditions proposed by the parties are that: (a) For a period of two months: (i) the applicant will review all blood test results with another appropriately qualified and approved consultant prior to performing surgery; (ii) if recommended to do so, will consult with other specialists including a haematologist; (iii) will note in the patient records that he has reviewed the results in consultation with others; and (iv) the applicant will attend a minimum of a two hour session with the mentor to review the “better practice” protocols of the Australian Orthopaedic Association, the RACS and the Arthroplasty Society of Australia. [28] I note, that as a condition of the stay granted on 8 August 2014 the applicant has already provided undertakings consistent with the mentoring conditions proposed by the parties.11 The respondent has agreed that if the Tribunal makes the orders proposed by the parties (or for some other period), the period of time for which the applicant is required to be mentored will commence from the date the undertaking was given, that is 8 August 2014. [29] The parties jointly submit that the proposed conditions are sufficient to protect the public against the likelihood of further error while ensuring that public access to appropriately qualified surgeons is not impeded unnecessarily. Further education [30] One of the requirements of further education in the conditions imposed by the Panel relates to surgical “time-out” procedures. [31] The unchallenged evidence is that the applicant has already adopted and routinely employs the surgical “time-out” procedures recommended by the RACS. Moreover, the mentoring session proposed by the parties is intended to cover these protocols. The evidence before the Tribunal is that the applicant is committed to his professional development and has complied with all his professional development requirements. The parties submit therefore, that there is little to be gained by the applicant undertaking 11 Attachment to the orders of the Deputy President 8 August 2014. -- 12 of 17 -- 13 extensive further training and specifically training with respect to the surgical “time-out” protocols. [32] Notwithstanding this, the parties propose that the applicant should undertake further training in interpretation of blood test results and in anti-coagulant therapies rather than surgical “time-out”. The parties submit that these areas of further study are intended to address directly the deficiencies in the applicant’s practice found by the Panel and conceded by the applicant. Such a proposal appears to me to be both sensible and evidentiary based and in my opinion would achieve its intended aims. [33] The balance of the areas of further study imposed in the conditions by the Panel are to remain unchanged as do the requirements for the recording and reporting of compliance with the conditions. Comparative cases [34] The Tribunal’s attention has been drawn to the following comparative cases that are said to be of some assistance to the Tribunal: (a) Medical Board of Australia v Sykes [2012] QCAT 293 In this matter the applicant prescribed pseudoephedrine to a patient with a drug dependency. His clinical reasons for prescribing the medication were unsupported by the clinical evidence. The applicant sought a psychiatrist’s opinion on the patient’s treatment regime but misinterpreted the psychiatrist’s opinion. The applicant also failed to take other adequate steps to manage the patient’s illness in light of drug dependency. The tribunal found the applicant guilty of unprofessional conduct and reprimanded the applicant but did not otherwise impose a sanction. (b) Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286 The applicant in this matter applied for a review of conditions placed on his registration after immediate action was taken by the Board. The applicant diagnosed and treated several patients with Lyme disease including by administration of antibiotics via a PICC line. On some occasions the diagnosis of Lyme disease was made in contradiction to clinical testing. On other occasions the clinical testing ordered by the applicant was not undertaken by an accredited laboratory. The Tribunal confirmed the respondent’s decision to impose conditions on the applicant but modified the conditions to address directly the issue of diagnosis and treatment of Lyme disease. (c) Medical Board of Australia v Lockie [2012] QCAT 34 An elderly patient was referred for investigation of a lesion found on a CT scan. During the performance of a sigmoidoscopy, the applicant noted a large pedunculated polyp. The applicant did not have the -- 13 of 17 -- 14 equipment to remove it, so he terminated the procedure and arranged for the patient to return a few days later. During a second procedure, the applicant performed a polypectomy, which was complicated by equipment difficulties. After discharge, the patient became unwell and died from post-operative complications. The applicant admitted he should not have proceeded with the second procedure and was reprimanded by the Tribunal. (d) Medical Board of Australia v Fitzgerald [2014] QCAT 425 The applicant in this matter admitted that he made a clinical error in failing to return a patient to theatre who had well-established peritonitis. Consequently, his post-operative management and patient care was inadequate and the patient suffered an adverse outcome. The applicant admitted he had engaged in unsatisfactory professional conduct. He was reprimanded, and conditions on his registration requiring a mentor and further education were imposed. Conclusion [35] I note that the applicant conceded his errors from the outset.12 He has indicated his deep regret for his conduct and the impact that it has had on JW. I accept that his expressions of regret and remorse are genuine. More importantly however, he has already undertaken changes to his practice with a view to minimising the risk of any future similar occurrence. [36] The parties have submitted that the conditions proposed are sufficiently onerous to impress upon the applicant and others the gravity of this conduct. I accept that the evidence before the Tribunal demonstrates that the applicant is fully cognisant of that gravity and of the need to avoid recurrence. His conduct since the incident in taking positive steps to change his practice procedures demonstrates his understanding. [37] In my view the incident which brought this matter before the Panel involved quite discrete and distinct failings on the part of the applicant, none of which related to his surgical competence. The conditions imposed by the Panel however extended beyond that which was reasonably necessary and failed to comply with the statutory requirement of the National Law as provided in s 3(3)(c), that is that some of the conditions which were imposed were not necessary to ensure that health services were provided safely and of an appropriate quality. [38] Furthermore, whilst it is acknowledged that each case must depend upon its own individual circumstances, the authorities to which the Tribunal has been referred suggest that the conditions imposed in this matter were disproportionately onerous in the circumstances and further demonstrate that the conditions imposed by the Panel failed to comply with the provisions of s 3(3)(c) of the National Law. 12 Submissions on behalf of Dr Clark to the panel dated 5 December 2013 at [29] p 87 of agreed bundle. -- 14 of 17 -- 15 [39] It is not without relevance of course that the respondent joins in the applicant’s submissions, and the respondent’s position in that regard is a relevant consideration. Whilst not directly on point but nevertheless of some relevance, I note that in Medical Board of Australia v Martin13 Deputy President Horneman-Wren SC DCJ noted that the Tribunal ought not depart from an agreed sanction provided it is within a permissible range in all the circumstances of the case.14 That approach would seem to have equal application in a review such as this. [40] In determining this matter I have also had the considerable advantage of receiving the opinions and advice of the assessors, all of whom are of the view that this is an appropriate matter for the Tribunal to intervene and to impose the orders that the parties jointly seek. Orders 1. The decision of the Performance & Professional Standards Panel of the Medical Board of Australia made on 23 May 2014, to the extent it pertains to the conditions imposed on the applicant’s registration (paragraph 9.8 of the Panel's decision), is set aside. 2. Conditions are imposed upon the applicant's registration in the following terms: "The applicant must actively participate in a mentoring program as follows: 2.1 For a period of 2 months from the date of the stay order: 2.1.1 The applicant will prior to conducting any operative procedure review all pre-operative blood tests results and consult with a registered orthopaedic surgeon or other appropriate specialist of appropriate maturity and experience, approved by the Board, about the blood test results and the care and treatment (if any) required. 2.1.2 Should it be recommended to the applicant that he reviewed the pre-operative blood tests and also consult another specialist, including a haematologist, he shall do so. 2.1.3 The applicant will note in the patient record the fact that he consulted the orthopaedic surgeon, and/or any other specialist, and the recommendations that were made. 2.2 The applicant is to nominate a mentor for the approval of the Board within one month of the date of this decision. 2.3 The mentor is to be a registered orthopaedic surgeon, of appropriate maturity and experience, approved by the Board, who is not in close collegiate, social and financial relationship with the applicant, and who gives written consent to act as the applicant's mentor. 13 [2013] QCAT 376. 14 Ibid at [91]-[93]. -- 15 of 17 -- 16 2.4 The mentoring is to occur within a period of two months of the date of this order. 2.5 The applicant is to attend one session of mentoring with the mentor for a period of not less than two hours and address 'better practice' protocols published by the Australian Orthopaedic Association, the Royal Australasian College of Surgeons and the Arthroplasty Society of Australia. 2.6 The applicant must provide the mentor with a copy of the Panel's Decision made on 23 May 2014 to inform the mentor of the areas of concern regarding the applicant's practice identified by the Panel, including those areas identified by the Panel as requiring further education and training. 2.7 The mentoring must include addressing specific concerns raised by the Panel in the areas of the failure to review and note discrepancies in blood test results pre-operatively, failure to commence anti-coagulant therapy within an appropriate time frame, the need for collaboration with other specialists upon receipt of blood test information, consents, note taking/recording and time out theatre procedures. 2.8 The mentoring must be documented by both the applicant and the mentor in individual documents and the applicant must provide the Board with all documented information. 2.9 The applicant must provide a written authority for the mentor to provide a report in writing to the Board at the end of mentoring. 2.10 If the Board is not satisfied that the filed report of the mentor demonstrates to the satisfaction of the Board that the applicant has benefited satisfactory from the further education and training and the mentoring sessions, the applicant may be required to undergo further mentoring or education determined by the Board. 3. The applicant must bear all costs incurred to comply with these conditions, including the costs of the reports of the mentor. 4. The applicant must complete a further education and training program approved by the Board. The education and training program should address the following areas: 4.1 interpretation of blood test results; 4.2 anti-coagulant therapies; 4.3 thrombo-prophylaxis; 4.4 appropriate communication with an attendance on patients, properly documented in accordance with requirements of the Code; and 4.5 appropriate early, formal and on-going consultation with relevant specialists, properly documented. -- 16 of 17 -- 17 5. The further education and training program must be completed within 12 months of the date of this decision, and the applicant must give documentary evidence to the Board upon completion of the education and training program." 6. Each party bear their own costs of the application. -- 17 of 17 --