Bhamjee v Medical Board of Australia [2011] QCAT 123

CITATION: Bhamjee v Medical Board of Australia [2011] QCAT 123 PARTIES: Dr Yusuf Bhamjee (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR027-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 6 April 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Dr Bhamjee’s application to stay the operation of the decision of the Medical Board of Australia of 2 February 2011 is refused. 2. Both parties have leave to be legally represented. CATCHWORDS: PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – SUSPENSION OF REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where Applicant voluntarily surrendered endorsement to prescribe controlled drugs – where Applicant prescribed controlled drugs on 3 occasions after surrendering endorsement – where board suspended registration – where Applicant sought to review the decision and to stay it pending review – whether investigator’s report into other allegations should be considered – whether stay should be granted OCCUPATIONAL REGULATION – REVIEW – LEGAL REPRESENTATION – where Applicant will be subject to disciplinary proceedings – where Review likely to involve consideration of strength of allegations -- 1 of 5 -- 2 Health Practitioner Regulation National Law, ss 156(1), 199 Health Practitioner Regulation National Law Act 2009, s 9 Queensland Civil and Administrative Tribunal Act 2009, ss 20, 43 (1)-(2)(b)(ii) REASONS FOR DECISION [1] Dr Bhamjee was educated in South Africa, where he practiced as a medical practitioner for 10 years before coming to Australia in December 2006. In August 2010, the Drugs of Dependence Unit of Queensland Health informed Dr Bhamjee of concerns arising from a review of his practices in prescribing controlled drugs.1 In October 2010, after meeting with an investigator, Dr Bhamjee surrendered his endorsement to prescribe all controlled drugs. [2] That month the Medical Board of Australia asked Dr Bhamjee to show cause why his registration should not be subject to conditions which gave effect to the surrender of his endorsement to prescribe controlled drugs. The Board also gave Dr Bhamjee notice it was investigating a range of allegations about his prescribing and consulting practices and about professional boundary breaches. [3] After surrendering his endorsement, Dr Bhamjee prescribed a controlled drug, flunitrazepan, on three occasions. When the Board became aware of this, it asked Dr Bhamjee to show cause why his registration should not be suspended. On 2 February 2011, after considering submissions made on Dr Bhamjee’s behalf, the Board notified Dr Bhamjee of its decision to suspend his registration. [4] The Board has power to take immediate action in relation to a registered health practitioner if it reasonably believes that: a) Because of the practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and b) It is necessary to take immediate action to protect public health or safety.2 [5] Dr Bhamjee has applied to review the Board’s decision to suspend his registration.3 In the meantime, he has applied for a stay of the decision 1 Specified in Schedule 8 to the Health (Drugs and Poisons) Regulation 1996. 2 Health Practitioner Regulation National Law, s 156(1). 3 The right to have the decision reconsidered is conferred by the Health Practitioner Regulation National Law, s 199 which provides for an appeal against certain types of decisions. The National Law applies in Queensland pursuant to the Health Practitioner Regulation National Law Act 2009, to which the National Law is a schedule. Section 9 of the National Law Act states that a reference in the National Law to an appeal is taken to be a reference to a review of the decision, as provided under the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 5 -- 3 until his application to review the decision is determined. The stay application has been determined without an oral hearing on the basis of written submissions from the parties. [6] QCAT has the power to order a stay if it considers it is desirable having regard to: a) The interests of any person whose interests may be affected by QCAT making or not making the order; b) Any submission made to QCAT by the Board; c) The public interest. [7] If Dr Bhamjee were successful in his stay application, the suspension would be lifted pending the outcome of the review application. For reasons which follow, the Tribunal has declined Dr Bhamjee’s application. The effect of a stay being granted or being refused [8] Dr Bhamjee’s interests will be affected if the stay is not granted. He is currently unable to work. This has caused considerable financial stress for him and his family. That is a relevant factor to take into account. However, he was not working when the suspension took effect. [9] Dr Bhamjee’s most recent position was with the Ayr Family Practice, located in an area of need. He commenced working there on 6 December 2010 and quickly fell into conflict with other employees, including the wife of the practice owner. On 7 January 2011, after an altercation with an employee, Dr Bhamjee left the practice and had not returned to work before the Board made its decision to suspend his registration. If the people of Ayr are deprived of Dr Bhamjee’s services it is not due to the actions of the Board. [10] Given the nature of his work as a medical practitioner his personal circumstances must be given considerably less weight than the impact of granting or refusing a stay on others. There is evidence that any other person’s interests are adversely affected if the Board’s decision is not stayed. The submissions made by the Board [11] In response to Dr Bhamjee’s stay application, the Board has provided the Tribunal with the investigator’s report regarding allegations made to the Board about Dr Bhamjee. That report (dated 21 February 2011) was not available to the Board when it made its decision to suspend Dr Bhamjee’s registration. [12] In giving notice, the Board stated it had made the decision to suspend Dr Bhamjee’s registration because he had prescribed a controlled drug on three occasions after he had surrendered his endorsement to do so. Dr Bhamjee objects to the Board now relying on material upon which it did not base its decision. -- 3 of 5 -- 4 [13] That objection must be considered in light of the nature of these proceedings and the Tribunal’s function. [14] Dr Bhamjee has applied to review the Board’s decision. The nature of the proceedings is not a judicial review, in which the applicant must point to some error by the Board. The purpose of the review is for the Tribunal to reconsider the matter and make the correct and preferable decision. The Tribunal must proceed by way of a fresh hearing on the merits.4 [15] The Tribunal is not confined by the evidence before the Board when it made its decision or by the reason the Board gave for taking action. Both parties are able to rely on further evidence. Both are entitled to make their submissions on the current circumstances. The Tribunal’s function is to look at the matter anew; taking into account the evidence put before it and on the basis of the circumstances that apply at the time it makes its decision. [16] It is not relevant to the review application (or the stay application) that the Board did not have the investigator’s report and did not refer to those allegations when it made its decision to suspend Dr Bhamjee’s registration. The public interest [17] If Dr Bhamjee knew flunitrazepan was a controlled drug when he prescribed it, he demonstrated flagrant contempt for the restriction he agreed to and, for that reason, presents a risk to patient safety. [18] Dr Bhamjee says he did not understand that he required the endorsement he had surrendered in order to prescribe that particular drug. Accepting for the purposes of this stay that this is true, Dr Bhamjee has, nevertheless, demonstrated a recklessness that gives rise to a legitimate concern about patient safety. [19] In their correspondence with Dr Bhamjee, the Drugs of Dependence Unit and the Board used the term controlled drug. The Unit provided Dr Bhamjee with extracts from the Health (Drugs and Poisons) Regulation 1996. If that information was insufficient to identify with precision what drugs were encompassed by the term controlled drug, it was an easy matter to obtain that information. It was Dr Bhamjee’s responsibility to do so. He is an educated man, a medical practitioner and he was left in no doubt by the terms of the correspondence with him and by the Unit’s investigation that this was a significant matter. [20] His failure to inquire, if that is what occurred, suggests a disregard for the importance of the restriction he was then subject to. This impression is reinforced by the statement from his former employer at the Ayr Family Practice that Dr Bhamjee did not inform him the endorsement was 4 Queensland Civil and Administrative Tribunal Act 2009, s 20. -- 4 of 5 -- 5 surrendered. Nor did Dr Bhamjee inform him that he was subject to a show cause process instigated by the Board. [21] Dr Bhamjee’s attitude is amply illustrated by his conduct. His recklessness in prescribing medication without satisfying himself he had authority to do this reveals his lack of respect for a system of regulation intended to ensure patient safety. This must give rise to a legitimate concern about the safety of his potential patients. [22] There is now the further evidence from the investigator which details the evidence she gathered about serious allegations derived from his practices in Ayr, Nerang, Southport and Springfield. Without descending to the detail of the allegations, they relate to: his prescribing practices, particularly of narcotic drugs and anabolic steroids; his skill and competence, particularly in diagnosing and treating certain conditions; his degree of servicing of patients; his observation of professional boundaries; and his behaviour towards colleagues and employees. The Board has now considered the report and decided to commence disciplinary proceedings in QCAT. [23] On an interim basis, there is sufficient evidence in the report to persuade the Tribunal that it is not in the public interest to stay the Board’s decision to suspend Dr Bhamjee’s registration. [24] Dr Bhamjee’s application for a stay is refused. The further conduct of the proceedings will be considered at the directions hearing scheduled for 15 April 2011. Legal Representation [25] The parties are not entitled to be legally represented in these proceedings without the leave of the Tribunal.5 Both have applied for leave and have supported the other’s application. [26] It is likely these proceedings will proceed in concert with the disciplinary proceedings the Board has resolved to commence. In disciplinary proceedings, the parties are entitled to legal representation without leave.6 Even if the review application is determined earlier, it is likely to involve the Tribunal having to make findings about the strength of allegations about Dr Bhamjee’s professional conduct. It is appropriate that both parties have leave to be legally represented in the review proceedings. 5 Queensland Civil and Administrative Tribunal Act 2009, s 43(1). 6 Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(ii). -- 5 of 5 --