Dey v Medical Board of Australia (No 2) [2011] QCAT 737

CITATION: Dey v Medical Board of Australia (No 2) [2011] QCAT 737 PARTIES: Rabindra Nath Dey (Applicant/Appellant) V Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR326-10 MATTER TYPE: Occupational regulation matters HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 8 September 2011 DELIVERED AT: Brisbane ORDERS MADE: a) Upon Dr Dey’s providing the Tribunal with a signed undertaking in the form set out in the Appendix to this order, the decision of the Medical Board of Australia dated 9 November 2010 to refuse Dr Dey’s application to renew his registration is stayed pending the determination of these proceedings. CATCHWORDS: PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where applicant formerly held limited registration in an area of need - where stay application previously refused, in part because the applicant had failed RACGP examinations – where applicant has now passed them – where patient complaints under investigation – whether stay should be granted. Health Practitioner Regulation National Law Act 2009 ss 57, 156 Queensland Civil and Administrative Tribunal Act 2009 ss 22(4), 138 Meddings v Council of City of Gold Coast [1988] 1 Qd R 528 applied -- 1 of 4 -- 2 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] In May this year, the Tribunal refused an application to stay the Board’s decision to refuse his application to renew his limited registration to practise in an area of need and under supervision. [2] Dr Dey has made a second request for a stay by way of an application to reopen the proceedings.1 It seems the Tribunal would not receive a second application for a stay, the more appropriate procedure in these circumstances. [3] The proceedings have not closed. The stay is an interim order until the proceedings have been determined. There is no impediment to a party making a second application for a stay if the circumstances have changed.2 Dr Dey’s circumstances have changed. The Tribunal will treat his application as if it is a new application to stay the proceedings. [4] The Tribunal may stay a decision subject to review if it considers it is desirable having regard to: a) The interests of those who may be affected by the Tribunal’s decision to stay or not stay the decision; b) Any submission made by the decision maker; and c) The public interest.3 [5] In refusing to renew Dr Dey’s registration, the Board relied on his failure to progress in the RACGP exams. In the first application for a stay, the Tribunal noted that Dr Dey appeared to have sat the Objective Structured Clinical Examination offered by the Royal Australian College of General Practitioners. There was then no evidence about the results. Since then, the RACGP advised him that he passed that test. Having achieved that, Dr Dey would appear to qualify for specialist general registration.4 His successful completion of the RACGP exams answers concerns the Tribunal had, in a general sense, about Dr Dey’s competence. [6] By the time these proceedings commenced the Board was investigating patient complaints that may result in disciplinary proceedings. The Tribunal considered that as an additional factor in declining Dr Dey’s first application for a stay. [7] The Tribunal is no better informed about the complaints than it was when it refused the stay. Disciplinary proceedings have not yet commenced. The Board has not received the report from its investigator which it expects to 1 Queensland Civil and Administrative Act 2009 s 138. 2 Meddings v Council of City of Gold Coast [1988] 1 Qd R 528 3 Queensland Civil and Administrative Act 2009 s 22(4). 4 Health Practitioner Regulation National Law Act 2009 s 57. -- 2 of 4 -- 3 receive within the next fortnight. Many practitioners continue to practise while a complaint is under investigation. The effect of the Tribunal granting a stay is that Dr Dey will be in the position of a practitioner continuing to practise whilst under investigation. [8] Dr Dey now offers undertakings, intended to address the perceived risks arising from the complaints. The Board does not accept they are adequate but has not demonstrated how they are inadequate and what more might be required. It merely said a more detailed and intensive set of conditions upon practice was likely required. On the information now before the Tribunal, I am satisfied they are adequate to protect the public, particularly patients. [9] The Board does have the power to take immediate action to suspend a practitioner or to impose a condition on their registration, if the Board reasonably believes they pose a serious risk and it is necessary to take immediate action to protect public health or safety.5 A stay of the decision not to renew Dr Dey’s application does not affect the Board’s power to suspend him if it possesses information (now or later) that warrants that sort of action. [10] Given Dr Dey’s change of circumstances, the Tribunal will grant a stay of the decision pending the outcome of these proceedings. [11] The Board has raised a further issue about the utility of the review proceedings. It says he is no longer eligible for limited registration because he has passed the RACGP exams. The implication for these proceedings of Dr Dey passing those exams should not be determined in a preliminary way. The issue raises questions about the Tribunal’s function and the scope of its power where there has been a material change of circumstances since the application commenced. The issue is best dealt with by full argument at the hearing. 5 Health Practitioner Regulation National Law Act 2009 s 156. -- 3 of 4 -- 4 Appendix UNDERTAKING While the stay remains in force Dr Dey: a) Will not perform any circumcisions; b) Will report all abnormal pathology findings to his supervisor and discuss appropriate action and follow up with his supervisor on the day of receipt of those findings. -- 4 of 4 --