Dey v Medical Board of Australia [2011] QCAT 227

CITATION: Dey v Medical Board of Australia [2011] QCAT 227 PARTIES: Rabindra Nath Dey (Applicant/Appellant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR326-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 24 May 2011 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 24 May 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the operation of the decision of the Medical Board of Australia dated 9 November 2010 is refused. CATCHWORDS: PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where applicant is an overseas trained doctor – where registered as medical practitioner in Australia pursuant to limited registration in an area of need – where complaints about the applicant’s performance made by patients – where applicant failed aspects of the RACGP examinations on repeated occasions – where the Board refused to renew the applicant’s registration as medical practitioner – where the applicant seeks to review that decision – where the applicant seeks a stay of the Board’s decision pending review – whether stay should be granted Queensland Civil and Administrative Tribunal Act 2009, s 22(4) -- 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] Doctor Dey was born and educated in Bangladesh. In 1985 he attained the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Chittagong. He worked in Bangladesh until 1991, during which time he trained as a rural surgical specialist. He then worked in Zambia and South Africa before coming to Australia in 2000. Since 2000 he has practiced in Queensland under limited registration in an area of need and under supervision. [2] In 2010 he applied to renew his limited registration. His application related to his position in the group general practice at the Greenslopes Day Surgery and the Cedars Medical Centre, a bulk billing general practice which he purchased in 2005. The Board refused his application on 9 November 2010. [3] On 20 December 2010 Dr Dey applied to review that decision. On 5 April 2011 he applied for a stay pending the review. The effect of the Board’s decision is that Dr Dey is unable to practice pending the outcome of the review. [4] The Tribunal may stay a decision subject to review if it considers it is desirable having regard to: a) The interest 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. c) The public interest.1 [5] The reasons given by the Board for refusing Dr Dey’s application raise matters of competence and safe practice. Particularly, the Board relied on Dr Dey’s repeated failure of certain aspects of the Royal Australian College of General Practitioners examinations. There was subsequent correspondence between the Board and Dr Dey about one aspect of the RACGP exam which, the Board accepted, Dr Dey did pass: The Key Features Problems component. [6] On 21 December 2010 the Board advised Dr Dey it would not reconsider its decision to refuse his application even though he had passed the Key Features Problems component of the exam. It stated Dr Dey’s failure to pass the Applied Knowledge Test component of the exam on 12 separate occasions, which resulted in his inability to progress to the Objective Structured Clinical Examination component, raised concerns about his competence and ability to practice safely. Passing the Key Features Problems component did not assuage the Board’s concerns. 1 Queensland Civil and Administrative Act 2009, s 22(4). -- 2 of 4 -- 3 [7] Dr Dey argued the Board placed too much reliance on the failures to complete components of the RACGP exams. The examinations set a bench mark for minimum competence to practice in an unsupervised capacity. Dr Dey was not seeking registration to practice without supervision. Throughout his practice in Australia, he has been subject to supervision by a number of practitioners. Dr Dey has received positive assessments or testimonials from each of those supervisors. He argued the Board failed to place sufficient weight on those assessments and testimonials in assessing his competence for limited registration. [8] However, the Board has provided evidence of two patient complaints under active investigation by the Australian Health Practitioner Regulation Agency (AHPRA). Those complaints relate to two patients treated by Dr Dey in March and April of 2010. One complaint relates to Dr Dey’s performance of a circumcision procedure and the post operative care of that patient. The other alleges a failure to identify and properly manage hyper-tension and abnormal renal function which culminated in kidney failure. [9] The Tribunal cannot second guess the likely outcome of those investigations. They raise questions of professional competence that must be taken into account in determining whether to exercise discretion in Dr Dey’s favour. [10] The Tribunal must also consider the interests of those who may be affected by the Tribunal’s decision to stay or not stay the decision. If the Tribunal decides not to stay the decision, undoubtedly Dr Dey’s interests and those of his family will be adversely affected. Dr Dey’s delay in applying for a stay is not explained and is a relevant factor in assessing the impact of the Board’s decision on him. [11] The evidence before the Tribunal raises questions about Dr Dey’s competence to practice safely. The interests of potential patients of Dr Dey and the public generally must be considered. Dr Dey has not sought the opportunity to offer evidence about the two separate complaints currently under investigation. [12] The Tribunal must take into account submissions made by the Board on the application to stay its decision. The Board’s primary submission relates to questions of Dr Dey’s competence. [13] The Tribunal does not consider it is desirable to stay the decision of the Board on the evidence currently before it. Dr Dey has repeatedly failed components of the RACGP examinations. Although he has positive assessments and testimonials they do not directly address this failure to pass these tests. [14] Recently, Dr Dey filed a further affidavit which states he has now passed the Applied Knowledge Test. He is now in a position to proceed to the final module, the Objective Structured Clinical Examination. It seems Dr Dey will have already attempted that module. The result is not known to the Tribunal. This further information is relevant to Dr Dey’s review application and may raise an arguable case for reconsideration. -- 3 of 4 -- 4 [15] In any case the success in a recent test does not address the specific complaints now under investigation. The balance of convenience does not support a stay being granted. [16] The application to stay the Board’s decision is refused. -- 4 of 4 --