Chaudhry v Medical Board of Australia (No. 2) [2014] QCAT 288

CITATION: Chaudhry v Medical Board of Australia (No. 2) [2014] QCAT 288 PARTIES: Dr Muhammad Tahir Bashir Chaudhry (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR116-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 5 May 2014, 6 May 2014 HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Sandra Congdon Ms Alison Christou DELIVERED ON: 7 May 2014 (ex tempore) DELIVERED AT: Brisbane ORDERS MADE: 1. The application is allowed and the decision under review is set aside. 2. The conditions imposed on the registration of Dr Chaudhry be removed with immediate effect. CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where registrant allegedly failed to check and action approximately 1,350 pathology reports – where such failure would place the registrant’s patients in danger - where there are multiple methods available to check pathology reports – where the registrant contends he used these methods to check pathology reports – whether the registrant poses a serious risk to the public Health Practitioner Regulation National Law (Queensland), s 140, s 141, s 160 -- 1 of 8 -- 2 WD v Medical Board of Australia [2013] QCAT 614 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms JE Farr instructed by Minter Ellison RESPONDENT: Mr BP Wright instructed by McInnes Wilson REASONS FOR DECISION [1] On 15 April 2013, the Medical Board of Australia took immediate action in relation to Dr Muhammad Tahir Bashir Chaudhry pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). The immediate action taken was the imposition of conditions on Dr Chaudhry’s registration. Dr Chaudhry is a registered medical practitioner and a specialist immunologist and allergist. He seeks a review of the Board’s decision to take immediate action [2] The Board took immediate action following the receipt by the Australian Health Practitioner Regulation agency of a notification from Dr Kathryn Heyworth. Dr Heyworth is a general practitioner who, at the time, was the business manager for the Compass Immunology Clinic which trades as Compass Immunology, a business which was conducted from rooms at the Greenslopes Private Hospital in Brisbane. In essence, the notification was that an examination of a holding file located on the computer in the Compass Immunology Clinic indicated that there were approximately 1,350 pathology reports which had been received over the previous 12 months which Dr Chaudhry had failed to check and which thus placed the patients in danger. [3] Compass Immunology was said by Dr Heyworth to be owned and operated by her husband, Dr David Heyworth-Smith, and herself. Dr Heyworth-Smith is an immunologist. Whether or not Compass Immunology is in fact owned by Dr Heyworth and Dr Heyworth-Smith is unclear on the evidence before me. From a draft services agreement, which was offered to Dr Chaudhry in January 2013, it would appear that the business of a specialist medical clinic providing immunology services under the business name of Compass Immunology from the rooms at the Greenslopes Private Hospital was, in fact, a business conducted by Sabletoll Pty Ltd as trustee for the Heyworth Medical Services trust. I do not know what legal arrangements have been entered into by Sabletoll Pty Ltd and Drs Heyworth and Heyworth-Smith. [4] Dr Chaudhry conducted his practice as an immunologist and allergist from several locations, of which one was the rooms of Compass Immunology at the Greenslopes Private Hospital. In her notification to AHPRA, Dr Heyworth described the relationship between Compass Immunology and Dr Chaudhry in the following terms: -- 2 of 8 -- 3 Dr M. Tahir Chaudhry has worked at our practice, the Compass Immunology Clinic (‘the clinic’) for approximately two years. The practice is owned by myself and my husband, Dr David Heyworth-Smith. Dr Chaudhry’s relationship to the clinic is as an independent contractor and he operated his immunology practice within the administrative and nursing support services we provide. He also has established rooms at the Westley and Mater hospitals. He had full clinical independence as a consultant physician and he alone is responsible for the checking and response for pathology investigations that he has requested. [5] The description of Dr Chaudhry operating his immunology practice with administrative and nursing support provided by Compass Immunology seems accurate. So too does the description of his having full clinical independence and sole responsibility for checking and responding to pathology investigations. [6] However, the description of Dr Chaudhry as an independent contractor, insofar as it is intended to convey the impression that Dr Chaudhry in some way provided services to Compass Immunology, is inaccurate. Whilst the proposed draft services agreement offered by Compass Immunology in January 2013 was never accepted by Dr Chaudhry, Dr Heyworth confirmed in her evidence that the services to be provided by Compass Immunology under that agreement replicated the services which had always been provided. Those services were: Dr Chaudhry’s right to use the premises for the purpose of his immunology practice; the right to use equipment in the operation of his immunology practice; the provision of materials required by him in the operation of his immunology practice; the right to use the Compass Immunology business name in connection with his immunology practice; and the provision of administration and support staff to assist with the operation of an immunology practice from the premises. [7] Dr Chaudhry, on the evidence before me, was not ever obliged to, nor did he, supply any services to any immunology practice operated by Dr Heyworth-Smith or Sabletoll Pty Ltd. To consider him as an independent contractor to that practice is to fundamentally misconceive the nature of the legal relationship between the parties. This misconception of the relationship has led Dr Heyworth – and one infers Dr Heyworth-Smith – to assume that patients who saw Dr Chaudhry at the rooms at Greenslopes Hospital were patients, not only of Dr Chaudhry, but also of the Compass Immunology practice. They were not. [8] This misunderstanding appears to have led Dr Heyworth – and one infers Dr Heyworth-Smith – to believe that the patient records held on the computer provided by Compass Immunology and accessed by computer software provided by Compass Immunology, as part of the services which it provided, were records of the practice. It would seem to me that they were not. Had Dr Chaudhry entered into the agreement which was offered to him in January 2013, that may have been so; clause 7 provided to that effect. But Dr Heyworth confirmed that no such agreement was ever entered into by Dr Chaudhry in respect of records of patients seen by him at the Compass Immunology premises. -- 3 of 8 -- 4 [9] This misunderstanding also appears to have led Dr Heyworth – and one infers Dr Heyworth-Smith – to believe that accessing those records, ascertaining personal information concerning patients including medical conditions from which they suffered and results of pathology tests requested by Dr Chaudhry, was not an encroachment on patient confidentiality. In my view it was. Other doctors who practice from Compass Immunology, including Dr Heyworth-Smith and Dr Heyworth, had no greater right to access the patient records of Dr Chaudhry without his and his patient’s consent than any other doctor with whom the patient had no treating relationship. [10] During her evidence, Dr Heyworth stated on several occasions that she – or they – were instructed by AHPRA to contact the patients. I was invited by counsel for Dr Chaudhry to find that this was, in effect, recent invention of dishonest evidence. I am not prepared to do so. I do not consider that Dr Heyworth was a dishonest witness. I believe that she gave her evidence conscientiously to the best of her ability. I accept that she may have been instructed by AHPRA to contact the patients at some time, however, it is clear that all the patient contacts were not as a consequence of such an instruction or direction from AHPRA. In her notification, which was dated 3 March 2013, she stated to AHPRA that the practice had already contacted patients and was continuing to do so. [11] From the time of making his initial response to AHPRA when notified of the intention to take immediate action against him through until the hearing of the matter before the Tribunal, Dr Chaudhry has made much of the souring of the business relationship between himself and Dr Heyworth and Dr Heyworth-Smith. He contends that it is in the context of this deteriorating relationship that Dr Heyworth made her notification and that should be understood in that light. Indeed, it is said that Dr Heyworth knowingly made a false complaint in the notification because whilst the holding file may have contained approximately 1,350 pathology results, the correct figure appears to be 1,319. [12] Dr Heyworth concedes that she knew that some of those patients were seen at practices other than Greenslopes. It is said that she could not have known whether the results for those patients had been accessed or not, so her complaint was clearly false. I accept that Dr Heyworth’s notification may have contained exaggeration. For example, it refers to numerous complaints having been received from patients of Dr Chaudhry over the past year; a review of which had caused those in the Compass Immunology practice to note that Dr Chaudhry had not been clearing the holding file. This, it was said, had resulted in him being asked by staff to rectify the situation on at least 10 occasions. [13] Dr Heyworth’s affidavit does not make that out. In respect of the complaints which she lists, she stated the information concerning them was gathered as a consequence of requests to do so, made after the complaint to AHPRA. The evidence concerning those matters does not reveal that they were taken up with Dr Chaudhry as complaints; much less that they resulted in requests for him to clear the holding file. In her -- 4 of 8 -- 5 affidavit, Dr Heyworth states that it was only on 18 February 2013 that the holding file was first reviewed. She identifies the following day, 19 February, as the date upon which she first raised the matter with him. She identifies three subsequent dates; 20 February 2013, 26 February 2013 and 2 March 2013 as being subsequent occasions on which the issue was raised with Dr Chaudhry. That evidence does not support the statement in her notification that he had been asked on 10 occasions to rectify the situation, let alone 10 prior occasions; although, she does state that on 19 February 2013, Dr Chaudhry acknowledged that there had been several previous requests. [14] Dr Chaudhry and Dr Heyworth give very different versions of the conversation which occurred on 19 February 2013. On Dr Heyworth’s version, it was from what Dr Chaudhry said on that occasion, effectively that he admitted the failure to attend to the holding file was through his own laziness, that he didn’t know whether he had results to review, and that he had only looked at results when patients returned for a review appointment, that she concluded that he had not reviewed or checked the results. On Dr Chaudhry’s version, he told Dr Heyworth that he had already reviewed all of the results and that he would clear the holding file in a few weeks. He says that he explained that he no longer relied upon the holding file to check results, but checked them through online portals of the pathology companies. He says that Dr Heyworth raised the matter with him because the uncleared results in the holding file were ‘clogging up the system.’ He said that this conversation occurred in the context of Dr Heyworth demanding a response to the new proposed fee arrangements within two weeks. Dr Heyworth denies any business context to the conversation. Dr Chaudhry states that he also raised Dr Heyworth’s professional activity of consulting patients who were referred to a specialist. She denies this part of the conversation also. [15] I do not need to resolve this factual dispute because I do not consider that Dr Heyworth acted with the mala fides which Dr Chaudhry invites me to find. The obligation imposed upon medical practitioners by s 141 of the National Law to report ‘notifiable conduct’ as defined by s 140, is an onerous one. It requires notification in any circumstance in which a registered practitioner forms the reasonable belief that, amongst other things, another practitioner has behaved in a way that constitutes a significant departure from acceptable professional standards. I accept that Dr Heyworth held that belief at the time of making her notification. On the information available to her, at the time, the belief was reasonable. I accept that she acted in accordance with her understanding of her obligation under s 141 of the National Law. Whether she was correct in her belief is not to the point, insofar as it relates to her notification. [16] The primary issue for the Tribunal is whether, on the evidence before it, the Tribunal believes that Dr Chaudhry, because of his conduct or performance, poses a serious risk to persons. In WD v Medical Board of Australia [2013] QCAT 614 at [8], the Tribunal summarised the approach to be taken in determining the issues which arise in an immediate action -- 5 of 8 -- 6 matter. That summary must be considered and applied in any particular matter, according to its own circumstances. [17] In a matter such as this, where over a year has passed since the immediate action was taken and the review was heard, the observations made in earlier cases as to the evidentiary quality of material upon which an order might be made are much less relevant than in circumstances in which a board or the Tribunal is being called upon to decide whether immediate action should be taken on short notice, or on an urgent basis. [18] The Board has powers of investigation under s 160 of the National Law. It notified Dr Chaudhry when informing him of the taking of immediate action against him that those powers would be exercised. The Tribunal is entitled to proceed, and in my view should proceed, on the basis that the Board has had the opportunity to put its best case forward for establishing that a reasonable belief should be formed that the registrant poses a serious risk. [19] Central to Dr Heyworth’s belief and concern, and thus the Board’s case, is that an examination of the holding file and an audit of the Medical Director system reveals that certain pathology results, indeed a great number, were first checked by Dr Chaudhry on or about 22 March 2013, in the process of clearing out the holding file. [20] In my view, although genuinely held, that belief and those concerns of Dr Heyworth are incorrect. In my view, the evidence establishes that Dr Chaudhry should be accepted on his contention that he accessed and actioned pathology results appropriately. [21] Six particular cases have been identified. It should be acknowledged at the outset, that Dr Heyworth frankly conceded that Dr Chaudhry, as both a specialist and the patients’ treating doctor, is better placed than she is to comment upon their medical care and treatment and the interpretation of their pathology results. [22] Dr Heyworth also frankly conceded that there are means of accessing and checking pathology results other than through the Medical Director system. Particularly, they can be accessed through portals supplied by the pathology companies and may be available as written records; although the latter were not used in Compass Pathology in recent years. [23] The spreadsheet report prepared from the investigation conducted by the producers of the Medical Director software into the interactions of Dr Chaudhry with results received in the holding file, show a vast number of cases in which the interaction only occurred on 22 March 2013 or 23 March 2013. The earliest of the receipt dates for results, accessed on those dates were 1 and 2 March 2012. It is fair to say that this report would support the understanding formed by Dr Heyworth. However, the evidence clearly demonstrates that this understanding, as apparently supported by the Medical Director records, is incorrect. -- 6 of 8 -- 7 [24] It is most evident in respect of the patient MB. The Medical Director records disclose the test results received on 23 May 2012, were first checked on 22 March 2013. Dr Heyworth is highly critical of this. The results were reported as abnormal. She identifies that the reported results showing low free testosterone would be a contributor to the patient’s fatigue syndrome. She says that there is no record of Dr Chaudhry having contacted the patient or his GP. She says there appears to be no documented comment by Dr Chaudhry that he knew of the contributor, or the results of the pathology at all. However, other evidence clearly establishes that Dr Chaudhry accessed the pathology results, at the latest, on 14 June 2012. He wrote to the referring GP on 12 July 2012, referring particularly to the low testosterone and proposing potential treatment. [25] Another of Dr Heyworth’s concerns was that it was not Dr Chaudhry’s practice to request that referring GPs be provided with a copy of pathology results by the pathology laboratory, thus precluding the potential of the results becoming known to the GP through means other than Dr Chaudhry. An examination of the pathology reports does not support this concern. On many occasions, although not universally, Dr Chaudhry has requested copies be provided to the GP or other specialists. This was so, for example, in respect of a patient WN, who was one of the six specific cases relied upon. The Medical Director records show results received on 15 November 2012 and 29 November 2012 only being checked on 22 March 2013. However, the reports themselves establish that the referring GP was provided copies on the dates on which they would have been provided to Dr Chaudhry as well. Dr Chaudhry has provided a detailed analysis of the patient’s treatment. [26] Dr Heyworth is also critical of Dr Chaudhry’s treatment of the patient BP. She concludes the pathology results received on 25 May 2012 were first checked on 22 March 2013. The Medical Director records accord with that. She says the results show iron deficiency and that Dr Chaudhry has not mentioned that in communications with the GP, presumably to demonstrate that Dr Chaudhry was unaware of the result. She says that other parts of the medical records demonstrate a lack of insight on Dr Chaudhry’s part of iron deficient anaemia. [27] Again, Dr Chaudhry explains his treatment. He explains that the iron deficiency anaemia was known; it was not the patient’s presenting complaint though. But it did cause him to prescribe a medication other than that of his usual drug of choice for that presenting condition. [28] I do not propose to rehearse each of the other cases, suffice to say that Dr Chaudhry has provided an explanation of his treatment of each, some of whom remain patients. Those explanations, as Dr Heyworth herself accepts, should be accepted as authoritative. [29] There are other reasons to accept that Dr Chaudhry accessed and actioned results on a timely and appropriate basis. It is apparent from the Medical Director records themselves that Dr Chaudhry was accessing some records through that means on a regular basis. It does not stand to -- 7 of 8 -- 8 reason that he would regularly access the records of some patients, but routinely ignore those of others, for perhaps up to a year. [30] One explanation might be that he only accessed those who did have follow up appointments. Dr Chaudhry said he used such occasions to move results to patient files. But if that was so, and some patients were left for months on end with no communication of results to either them or their doctor and no follow up, one might expect to see a high level of serious complaint. One might expect that referring GPs would fulfil their mandatory reporting obligations under s 141 of the National Law, as Dr Heyworth conscientiously did, having formed a reasonable belief. That has not occurred. [31] The Medical Director records establish the date upon which the results are accessed by that means, but no more. Of course, if they were accessed by other means, then there was no need to check them through Medical Director. [32] It is perhaps regrettable that the misunderstanding and limitations of the Medical Director records, and the misunderstanding of the nature of the relationship between the Compass Immunology practice and Dr Chaudhry, has led to a circumstance whereby Dr Heyworth has contacted numerous patients of Dr Chaudhry, having accessed their personal records, and perhaps caused concern for those persons. I accept however, that this was done, not maliciously, but under a fundamental misapprehension as to the nature of that relationship. [33] On all the material before the Tribunal, I do not believe that Dr Chaudhry, because of his performance or conduct, poses a serious risk to persons. I allow the application, I set aside the decision under review, I order that the conditions imposed on the registration of Dr Chaudhry be removed with immediate effect. -- 8 of 8 --