BE v Medical Board of Australia [2011] QCAT 96

CITATION: BE v Medical Board of Australia [2011] QCAT 96 PARTIES: BE (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR007-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 7 March 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the decision of the Medical Board of Australia made on 14 December 2010 is refused. CATCHWORDS: PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – STAY APPLICATION – where Board decided practitioner is impaired – where Board imposed conditions – where registrant disputes impairment – whether assessment of impairment and imposition of conditions should be stayed pending review Health Practitioners (Professional Standards) Act 1999, s 6(a), Sch Queensland Civil and Administrative Act 2009, s 22(4) REASONS FOR DECISION [1] On 14 December 2010, the Board decided Dr BE is impaired, as that term is used in the Health Practitioners (Professional Standards) Act 1999 (Professional Standards Act). Impairment is defined to mean the practitioner has a physical or mental impairment, disability, condition or disorder that detrimentally affects, or is likely to detrimentally affect, their -- 1 of 3 -- physical or mental capacity to perform their profession and includes substance abuse or dependence.1 [2] Having made that determination, the Board imposed conditions on Dr BE’s registration and provided that she could not seek a further health assessment for 18 months. [3] Dr BE disputes the assessment of impairment and opposes the conditions imposed and the time fixed before which there might be another assessment. She has applied to QCAT to review the decision. Pending the outcome of the review, she has applied to stay the decision. [4] The Tribunal may stay a decision subject to review if it considers that is desirable having regard to the following factors: (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.2 [5] The impact of the Board’s decision on Dr BE is considerable. While she may continue working under close supervision, the assessment and restrictions are likely to cause her embarrassment, regardless of the steps taken to protect her privacy. She is a young doctor, in the early stages of her career. It must be accepted that some prejudice might flow from the decision, if not now, then in the future. [6] Dr BE mounts a well articulated case for scrutinising the Board’s decision that she is impaired. It seems the Board was content for her to practice without conditions for almost a year after receiving the complaint that led to the investigation of her health status. Dr BE argues this demonstrates the Board does not consider she poses a serious risk to the public. Dr BE’s performance reviews are strongly positive. [7] Nevertheless, the conditions imposed by the Board are based on the advice of an appropriately qualified and experienced practitioner after consideration by a Health Assessment Committee convened under the Professional Standards Act. [8] One of the objects of the Professional Standards Act is to protect the public by ensuring health care is delivered in a professional, safe and competent way.3 The provisions dealing with health assessments and impairment appear to promote that objective, while at the same time requiring fair treatment of a practitioner. [9] Dr BE had the opportunity to make submissions to the Committee and did so. It might be expected that the arguments made on this stay application were made to the Committee as well. The definition of impairment goes to 1 Health Practitioners (Professional Standards) Act 1999 Sch. 2 Queensland Administrative Tribunal Act 2009, s 22(4). 3 Health Practitioners (Professional Standards) Act 1999, s 6(a). -- 2 of 3 -- a practitioner’s capacity to perform their profession. Where a finding of impairment is made, considerations of public safety loom large, even where there is an arguable case to challenge the finding. [10] The evidence presented to the Committee and its recommendation to the Board give rise to a legitimate concern about the safety of patients if the conditions are not in place. Whilst intrusive they do not prevent Dr BE from working and are not unduly onerous. In this case, the factors that must be considered in deciding whether to grant a stay count against one being ordered. [11] The matter is listed for an early directions hearing on 25 March 2011. The parties are encouraged to seek to agree beforehand about directions to bring the matter to a timely hearing. Specifically, the parties are invited to consider how and at what stage to involve the evidence of experts. -- 3 of 3 --