Cruceru v Medical Board of Australia [2014] QCAT 353

CITATION: Cruceru v Medical Board of Australia [2014] QCAT 353 PARTIES: Nicolae Cruceru (Applicant/Appellant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR098-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 30 May 2014 HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 12 June 2014 (ex tempore) DELIVERED AT: Brisbane ORDERS MADE: 1. The decision under review is stayed until further or other order of the Tribunal 2. Dr Cruceru is to pay the Medical Board of Australia’s costs of the stay application. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the Medical Board of Australia (‘Board’) renewed the applicant’s registration an imposed a further condition on the registration – where the Board imposed a condition in almost the precise term as proposed by the applicant – where the applicant applied for a stay of the Board’s decision – where the applicant contends the condition is not necessary or desirable in the circumstances – where the applicant’s inability to practice may effect the applicant’s wife’s life expectancy - whether a stay is desirable after having regard of the interests of anyone affected by the decision, the submission of the respondent and the public interest -- 1 of 9 -- 2 HEALTH PRACTITIONER – MEDICAL PRACTITIONER – COSTS – where the applicant was successful in an application for a stay – where the decision was made on the basis that issues and facts may be arise that were not in evidence in the stay application – whether the applicant should pay the Board’s costs in the proceeding Health Practitioner Regulation National Law (Queensland), s 112(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 22(3), s 22(4) Jaravaza v Medical Board of Australia [2013] QCAT 44 Medical Board of Australia v Moodley; Medical Board of Australia v Khan [2010] QCAT 457 Nigah v Medical Board of Australia [2014] QCAT 204 Tabanas v Medical Board of Australia [2013] QCAT 522 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms SD Anderson instructed by SR Wallace & Wallace Lawyers RESPONDENT: Mr RG Fryberg instructed by McInnes Wilson Lawyers REASONS FOR DECISION [1] On 25 March 2014, the Queensland Registration Committee of the Medical Board of Australia decided to renew Dr Nicolae Cruceru’s limited registration as a medical practitioner. By operation of s 112(3)(a) of the Health Practitioners Regulation National Law (Queensland) (‘the National Law’) upon renewal Dr Cruceru’s registration was subject to the conditions to which it was subject immediately before the renewal. Section 112(3)(b) permits a national board to renew a registrant’s registration subject to any further condition which the Board considers necessary or desirable in the circumstances. [2] In renewing Dr Cruceru’s registration, the Board exercised its powers under s 112(3)(b) and imposed a further condition on his registration. That further condition was that, ‘The practitioner only may practice the profession until 30 June 2014, subject to further order of a court or the Queensland Civil and Administrative Tribunal and agreement in writing by AHPRA.’ -- 2 of 9 -- 3 [3] Dr Cruceru was informed of the renewal of his registration, subject to the former and new conditions, by notice dated 3 April 2014. On 5 May 2014, Dr Cruceru filed an application for the review of the Board’s decision to impose the further condition upon his registration. On 16 May 2014, Dr Cruceru applied to have the Board’s decision stayed, pending the determination of his review application. [4] Section 22(3) of the Queensland Civil and Administration Tribunal Act 2009 (Qld) (‘QCAT Act’) permits the Tribunal to stay a decision under review. By s 22(4) the Tribunal may make a stay order, only if it considers the order is desirable after having regard to: the interests of any person whose interest may be affected by the making or not making of the order; any submissions made by the decision maker; and the public interest. [5] In his application for review, Dr Cruceru contends that the condition is not necessary or desirable in the circumstances. From his application, it would seem that those circumstances to which he refers are that: he has the support and confidence of his colleagues and supervisors; he has an exemplary clinical record for his practice in Australia; he services an area of need and it is in the public interest for him to continue to practice in the area; he has, to the extent necessary, taken reasonable steps to progress towards general registration; and the decision failed properly to take into account the exceptional circumstances surrounding the applicant, having regard to his personal and family circumstances. [6] In order to place Dr Cruceru’s application for review of the Board’s decision to impose that condition in context, some history of Dr Cruceru’s registration as a medical practitioner in Australia should be set out. [7] Dr Cruceru obtained his medical qualifications in Romania in 1981. In 1991 he relocated to South Africa where he worked mainly in anaesthetics, progressing to the position of acting head of the Department of Anaesthetics at Grey’s Hospital in Pietermaritzburg, where he had been employed throughout his time in South Africa. [8] He was first registered in Australia in July 2003, under what was then special purpose registration, under s 135 of the Medical Practitioners Registration Act 2001 (Qld). This registration permitted him to work at the Mackay Base Hospital to meet an area of need for medical services. He has worked at the hospital as a senior medical officer in anaesthetics since that time. [9] In July 2007, standard conditions were imposed upon his registration, including requiring him to apply for general, specialist, or what was then s 138 registration, within four years. It would seem that from that time Dr Cruceru decided to embark upon a course which would see him attain general registration rather than specialist registration. Attainment of general registration requires the Multi-Choice Question Examination and the Clinical Examination, each conducted by the Australian Medical Council (‘AMC’), to be successfully completed. -- 3 of 9 -- 4 [10] Dr Cruceru failed the AMC Multi-Choice Question Examination in May 2009, but subsequently passed it in November of that year. In February 2012, he undertook, and passed, a Pre-Employment Structured Clinical Interview, conducted by the Australian College of Rural and Remote Medicine, in respect of his senior medical officer in anaesthetics position at the Mackay Base Hospital. He was recommended by the panel who conducted the interview as being suitable for the position. He was rated as satisfactory against four of the assessment criteria, judged over four clinical scenarios, and as excellent against the other four assessment criteria. [11] In September 2012, he failed the AMC Clinical Examination and was granted a resit. In November 2011 and August 2012, the Board made two decisions, effectively refusing the renewal of what was then Dr Cruceru’s limited registration for an area of need, under the National Law. Dr Cruceru had sought review of those decisions in the Tribunal. [12] On 5 December 2012, consent orders were made by the Tribunal which disposed of those review proceedings. Those orders, made by consent, included that Dr Cruceru be granted limited registration for a further period ending on 4 December 2013, and that he progress to either general or specialist registration by no later than 30 June 2014. [13] Dr Cruceru again failed the AMC Clinical Examination in February and November of 2013. [14] On 6 February 2014, the Australian Health Practitioner Regulation Agency (‘AHPRA’) wrote to Dr Cruceru, informing him that the Queensland registration committee of the Medical Board of Australia was considering renewing his limited registration, with the addition of a further condition that he may only practice in the profession until 30 June 2014. It was said that the proposed condition would enforce the order made by the Tribunal, requiring him to progress to specialist or general registration by 30 June 2014, and also address the expiry of the current area of need declaration on 30 June 2014. As it was required to do by s 111 of the National Law, AHPRA invited a submission from Dr Cruceru on the proposed condition. Dr Cruceru, through his solicitors, made a submission dated 10 March 2014. [15] Having referred to an earlier email from Dr Cruceru to AHPRA on 18 December 2013, the submission said: You will see from that email that our client is enduring some significant personal issues at the present time due to the terminal illness of his wife. We are instructed that his wife is required to undertake monthly chemotherapy treatment and is currently in the process of making quality of life decisions as to whether or not that treatment should be ongoing. If the treatment is ongoing, you will appreciate that monthly chemotherapy treatment is a significant disruption to a person’s life and the lives of their loved ones and carers, as is the position of Dr Cruceru. Alternatively, if Mrs Cruceru makes a decision to cease treatment, then the impact on Dr Cruceru will be more disruptive again. Indeed, we are instructed that if his -- 4 of 9 -- 5 wife were to make a decision to cease treatment, Dr Cruceru would likely take a sabbatical in order to spend such time with his wife as remained to them. In all the circumstances, whilst our client has endeavoured to progress to general registration, the circumstances have been such that his mind has not been fully focused on the task at hand. Our client does not oppose the proposed condition in theory. However, our client’s submission is that the proposed condition ought to be expanded so as to read, ‘The practitioner may only practice the profession until 30 June 2014, subject to further order of a court or tribunal or agreement in writing with AHPRA.’ The record reflects that Dr Cruceru is a highly skilled practitioner who enjoys the confidence of his peers at Mackay Base Hospital. It would not be in the public interest to lose such a practitioner where there are circumstances of family tragedy mitigating his failure to satisfy the condition. Whilst we understand that the Board has a public duty to ensure suitably qualified practitioners are registered, in our submission, the amended condition will properly allow the Board to carry out that duty whilst taking into account Dr Cruceru’s current personal circumstances. Once those circumstances have resolved, our client is confident that he will be in a better position to ensure progression to general registration and in our submission, ought to be given that chance, free and clear of the family tragedy in which he currently finds himself embroiled. Further, the proposed condition above would allow Dr Cruceru to reapply for his limited registration at the conclusion of the 12 month licensing period, albeit not having practised after 30 June 2014, with a similar condition attached to any subsequent registration, that is, he can be allowed to progress to general registration without practicing in the interim. [16] Having considered that submission, the Board imposed a condition in almost the precise terms as proposed on Dr Cruceru’s behalf. Given that the condition is, essentially, one which Dr Cruceru requested, the Board submits that he has poor prospects of succeeding in his substantive application for review and that this should be considered in deciding whether or not to grant a stay. It says that the prospects of success are so poor that there is no utility in staying the decision. [17] The Board identifies a number of matters which it says supports its contention about the substantive application’s prospects of success. It contends that the evidence does not suggest that Dr Cruceru has prospects of passing the AMC Clinical Examination. However, it notes that the conditions do not preclude him from sitting the examination as he will remain registered, although not practicing. [18] Whilst conceding that the circumstances of Dr Cruceru’s wife’s illness are utterly tragic, the Board contends that in terms of Dr Cruceru’s ability to pass the examination, those circumstances are not going to improve in the future. Furthermore, it says that given that the stress of these events has been significant enough to cause him substantial difficulties with his examinations, it must follow that it must be a risk factor for the public; although it concedes that it cannot be suggested that there is any risk of harm to patients. -- 5 of 9 -- 6 [19] Further, it submits that Mrs Cruceru’s illness was a matter known at the time at which Dr Cruceru consented to conditions requiring him to progress to general or specialist registration by 30 June 2014. [20] The Board submits that there is no evidence that a further area of need declaration by the Minister will be sought in respect of Dr Cruceru’s position, or that it will be granted if sought. The effect of the expiration of the current area of need declaration on 30 June 2014 is that there will be no position for which Dr Cruceru has registration to practice: Nigah v Medical Board of Australia [2014] QCAT 204. [21] It had been submitted, on Dr Cruceru’s behalf, that there was no evidence that a new area of need declaration would not be sought or granted. It was contended that, in this regard, the Tribunal should act upon the matters deposed to by Dr McClellan in November 2012, as to the hospital’s needs for services and the effect which the removal of Dr Cruceru from the staff complement may have. I do not consider that the Tribunal should act on such historical information. Dr McClellan has provided a more recent letter dated 21 March 2014, in which he makes no mention of such matters. [22] When these issues were raised in the proceedings, counsel for Dr Cruceru sought an adjournment for the purposes of calling further evidence. When asked what evidence it was that would be called, the proceedings were adjourned briefly to allow instructions to be taken. Upon resumption, it was indicated that the evidence would be from a hospital administrator who would give evidence about the present needs of Mackay Base Hospital and that there would be an application for the renewal of a declaration of an area of need. That evidence could not be called on the day. [23] Given that it was an application for a stay of the Board’s decision and that the evidence could not, if given, establish any more than that a declaration would be sought, I refused the adjournment application. The further reason for refusing the adjournment was that the evidence establishes that no matter what the needs of the Mackay Base Hospital are, it was anticipated by Dr Cruceru, as recently as March 2014, that he may withdraw his services from the hospital from 1 July 2014, for the balance of his period of registration. [24] There is no evidence to suggest that this circumstance would not have been met by the hospital. Ms Anderson, who appeared for Dr Cruceru, referred, in the context of making submissions on the effects the refusal of the stay may have on the interests of other persons and the public interest, to the costs which might be incurred and the disruption to patients. Apart from there being no evidence of those matters, given that those were circumstances which would have eventuated and would have required addressing had Dr Cruceru withdrawn his services, it diminishes that issue almost to the point of being moot. -- 6 of 9 -- 7 [25] It is not, in my view, akin to the circumstances considered by the Tribunal in the Medical Board of Australia v Moodley; Medical Board of Australia v Khan [2010] QCAT 457, upon which Ms Anderson relied, nor in my view, Jaravaza v Medical Board of Australia [2013] QCAT 44 or Tabanas v Medical Board of Australia [2013] QCAT 522. In none of those cases was it anticipated that the practitioner’s services would be voluntarily withdrawn from a declared area of interest. [26] In my view, there is considerable merit in a number of the submissions made on behalf of the Board. As a matter of first impression, it would seem a difficult task for the applicant to establish that the imposition of a condition upon his registration in terms which he himself proposed, was not the correct and preferable decision: s 20(1) of the QCAT Act. [27] To establish that the decision to impose the condition was wrong or not properly made because it is not necessary or desirable in the circumstances, would seem challenging when the necessity, viz facilitating his reapplication for limited registration at the conclusion of the current registration period, and the desirability, viz properly allowing the Board to carry out its public duty to ensure only suitably qualified practitioners are registered whilst taking into account Dr Cruceru’s personal circumstances, were identified on Dr Cruceru’s behalf, in proposing the condition. [28] There is also merit in the submission that the order gives practical efficacy to the conditions which were imposed by the Tribunal, with the consent of Dr Cruceru, in December 2012. It is to be noted that Dr Cruceru has not sought the removal of those conditions. However, in submissions, counsel for Dr Cruceru raised a number of factual issues, some of which did not feature in any evidence, which might establish that the circumstances now, and which should be considered on review, are somewhat different to those which prevailed at the time of Dr Cruceru’s submission of March 2014, in which he proposed the condition which he now challenges. [29] For example, it was said that the decision has now been taken that Mrs Cruceru will pursue further treatment. The treatment is expensive. Dr Cruceru deposes to the fact that without his employment at the hospital, he will not be able to afford the treatment. It might be observed that the proposal of the condition in March 2014, which would have seen Dr Cruceru cease practice on 30 June 2014, was made in circumstances in which Mrs Cruceru’s continued treatment remained one of the options in prospect. However, those matters must await the hearing of the substantive application. The applicant will be able to raise those matters because it is a de novo hearing on the merits: s 20(2) of the QCAT Act. [30] Mr Fryberg of counsel, who appeared for the Board, very frankly and fairly submitted that it was preferable for all parties if all the issues which might be raised be done so in Dr Cruceru’s current review application, rather than, for example, there being a further application to the Board seeking removal of the condition and, potentially, a review in the Tribunal of that -- 7 of 9 -- 8 decision. I accept that given that there is to be a de novo hearing in this matter, the avoidance of a multiplicity of proceedings is desirable. [31] Under the current terms of his registration, Dr Cruceru is able to practice until 30 June 2014, under the supervision of Dr McClellan. I do not accept that his doing so poses a risk to patients. Dr McClellan continues to speak very highly of Dr Cruceru’s professional activities and abilities. Between 2003 and 2014, Dr Cruceru has performed in excess of 9,000 procedures with no adverse event or outcome being recorded. Undoubtedly, his wife’s tragic medical condition would have proved stressful. However, there is no evidence upon which to conclude that this stress has posed, or is likely in the future to pose, a risk to patients in the performance by Dr Cruceru of his clinical duties. To the extent that there is any such risk, it is one which presently exists. It will not increase at midnight on 30 June 2014. [32] Whilst I accept that his wife’s illness was something of which Dr Cruceru was aware at the time at which he agreed to the imposition of conditions by consent in December 2012, the course which that illness would run and its day to day and week to week particular impacts, could not have been fully known. This is evident from the fact that, as Dr Cruceru deposes, her cancer went into remission for a short time, but has now returned. Whilst Dr Cruceru’s affidavit, sworn on 22 August 2012, refers to his wife’s diagnosis of cancer in April 2012, there is nothing to suggest that, at that time, it was known to be terminal. Indeed, the fluidity of such situations, including the difficult choices between potential courses, is made plain by the submission made on his behalf, on 10 March 2014. [33] That fluidity is also reflected in what might appear, on the surface, as a mere change of heart in respect to the condition offered, but which may, upon a full hearing and understanding of all the available evidence, prove to have more substance. [34] Should the area of need declaration not be renewed, the further condition will be unnecessary. Dr Cruceru will not be able to continue to practice, his registration being limited to meet that area of need. Staying the decision to impose the condition will not affect that outcome. [35] Whilst Dr Cruceru will be able to sit his examinations if he applies to do so, even though unable to practice, the stress of having to do so in circumstances in which his income has ceased and his wife was unable to be treated would, no doubt, burden his prospects of success. Dr Cruceru is a doctor who has worked within an area of need in the Queensland public health system for now some 11 years. If he is able to obtain registration, that is in the public interest. To stay the Board’s decision, which may burden his prospects is, I consider, also in the public interest in this particular case. [36] The Tribunal has stated in previous cases concerning applications for stays of registration decisions of national boards under the National Law, that the adverse personal impacts upon a registrant and his family which -- 8 of 9 -- 9 will be suffered, are not ordinarily of themselves sufficient to warrant the granting of a stay and, in any event, not to be seen as in the same order as the adverse impacts upon patients: see Jaravaza v Medical Board of Australia [2013] QCAT 44 at [28] and Tabanas v Medical Board of Australia [2013] QCAT 522 at [42] and [44]. As a general principle, that remains so. [37] However, this case has two features which place it outside the category of cases in which that general principle ought to be applied. First is the illness of Dr Cruceru’s wife. The inability of Dr Cruceru to practice beyond 30 June 2014 and a consequent inability to fund her treatment may have an immediate and profound effect upon the remainder of her life. That effect would be irremediable. [38] Secondly, it would seem that an issue for the Tribunal at the substantive review may be whether, in circumstances where a condition has been placed upon a registrant’s registration requiring him or her to proceed to general or specialist registration by a certain date, even by consent, it is appropriate to burden the registration with a condition prohibiting practice beyond that date when the registration otherwise expires, pursuant to s 112(6)(b) of the National Law, 12 months after it starts, given other action available to the Board concerning contravention of the condition, either at the time of considering a further application for renewal of registration, or some earlier time. I note in this regard, that in raising as a material fact that he, ‘has to the extent necessary, taken reasonable steps to progress towards general registration’, Dr Cruceru may be putting in issue the nature and/or extent of conditions imposed by consent in December 2012. [39] I am satisfied that this is a case in which it is desirable for the decision under review to be stayed until further or other order of the Tribunal. [40] Although the applicant has been successful on his application for a stay of the decision, as the reasons which I have just delivered reflect, there are a number of peculiar aspects to that success, in that the stay has been granted in recognition of the fact that in a de novo hearing on the merits of the substantive application, the applicant may raise issues and call evidence in respect of them, which have not been alive in these proceedings thus far. [41] The decision to grant the stay was also made in the particular context, as noted in the reasons, that the Board frankly and fairly conceded that that was the effect of the de novo hearing and that there was, in those circumstances, a desirability that those matters be ventilated in these proceedings, rather than other multiple proceedings which might have eventuated if the stay were to be refused, or indeed, if the substantive application dismissed. [42] Given that the decision has been made with a degree of anticipation as to what the proceedings might evolve to, as opposed to the basis upon which they are brought, I am persuaded that this is a matter in which the Board ought have its costs in any event and I order costs accordingly. -- 9 of 9 --