AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400

AMS v Medical Radiation Practice Board of Australia [2019] QCAT 401

Shahinper v Psychology Board of Australia [2013] QCAT 593

[1] AMS[1] ("the practitioner") has held registration with the respondent Medical Radiation Practice Board of Australia ("the Board") as a medical radiation practitioner since 2008. He has been employed by a [redacted] radiology practice ("the practice") as a nuclear medicine technologist since December 2015.

[2] On 12 April 2019 the Board made two decisions concerning the practitioner. One decision, referred to for the purpose of submissions and these reasons as the "conduct decision", was a decision to impose conditions on the practitioner's registration pursuant to s 178(1)(a)(i) of the Health Practitioner Regulation National Law (Queensland) ("National Law"). The practitioner sought a review of that decision by an application to review a decision filed in the Tribunal on 14 May 2019. That application is the subject of the decision in AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401. The other decision, referred to as the "impairment decision", was a decision to impose conditions on the practitioner's registration pursuant to s 178(1)(a)(ii) of the National Law. The conditions imposed pursuant to both decisions were in identical terms.

[3] The practitioner did not initially also seek review of the impairment decision. For reasons which it is unnecessary to detail, it was only on the morning of the hearing of the application to review the conduct decision that the practitioner sought leave to file an application to review the impairment decision. In circumstances where:

• (a) there were circumstances which explained the omission on the part of the practitioner and his legal representatives to seek review of the impairment decision at an earlier time;
• (b) success in the application to review the conduct decision would be ineffective in the absence of a review of the impairment decision;
• (c) the practitioner did not seek a belated challenge to the whole of the decision but only to certain conditions placed on his registration by the decision;
• (d) in light of that concession, the evidence and submissions filed by the parties in the application to review the conduct decision enabled a proper consideration of an application to review the impairment decision; and
• (e) the Board would suffer no unfair prejudice should leave be granted;

the Tribunal granted the practitioner leave to file an application to review the impairment decision and ordered an extension of time for the filing of that application. The Tribunal also ordered, pursuant to s 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act"), that the two applications to review be consolidated into one proceeding. Upon further consideration, the appropriate order is instead that the two applications remain separate proceedings but be heard and decided together and the Tribunal so ordered pursuant to s 55 and s 56 of the QCAT Act. These are the reasons of the Tribunal upon the application to review the impairment decision.

[4] On 26 April 2017 the Performance and Professional Standards Panel of the Board found that the practitioner had behaved in a way that constituted both unprofessional conduct and unsatisfactory professional and decided to reprimand the practitioner and impose mentoring conditions on his registration.[2]

[5] On 10 July 2017 the Board received a notification from the practitioner's legal representatives indicating that the practitioner had sought admission to a mental health unit. The practitioner was admitted to a mental health unit from 10 July 2017 to 21 July 2017 and again from 14 August 2017 to 25 August 2017.

[6] On the basis of the 10 July 2017 notification and subsequent correspondence received by the Board about the practitioner's health, the Board determined to require the practitioner to undertake an independent health assessment.

[7] In an email sent from the practitioner by his legal representatives to the Australian Health Practitioner Regulation Agency ("AHPRA") on 8 September 2017, the practitioner advised that he had sought assistance from his general practitioner and been diagnosed with depression and anxiety and had received treatment from Dr Sean Gills, psychiatrist. The practitioner advised that he had been admitted to Belmont Private Hospital for two weeks before being admitted to the Damascus Unit at Brisbane Private Hospital for a further two weeks. He advised that he had been prescribed naltrexone to assist him with abstaining from alcohol. He advised that his condition was being managed with treatment and medication, specifically sertraline, and that he intended to continue to seek treatment from two psychiatrists and a visit to the Damascus Unit regularly for maintenance programs.

[8] An email from the practitioner's legal representatives to AHPRA on 15 September 2017 advised that Dr Gills had provided the practitioner with a clearance to recommence his employment as a medical radiation practitioner. A medical certificate of Dr Gills, dated 19 July 2017, advised that the practitioner was admitted to hospital under Dr Gills' care from 10 to 21 July 2017 and that he certified the practitioner as fit to return to his normal duties from 24 July 2017. A later medical certificate from Dr Reiken, general practitioner, dated 10 August 2017, certified the practitioner as unfit to work for the period from 14 to 25 August 2017.

[9] An email from the practitioner's legal representatives on 27 September 2017 advised AHPRA that he had returned to work for the period from 24 July 2017 to 14 August 2017, but was then off work again until 28 August 2017. The email further advised that, since 28 August 2017, the practitioner had been back at work full-time with no restrictions on his duties. It further advised that the practitioner had received treatment in relation to quitting alcohol as a liver specialist had diagnosed him with autoimmune hepatitis. The practitioner advised through the email that periodic appointments would monitor his illness and it would not affect his work duties.

[10] The practitioner's records, obtained by AHPRA from the Belmont Private Hospital, as at 4 October 2017, confirmed that the practitioner was an in-patient at Belmont Private Hospital from 10 to 22 July 2017. He was diagnosed as suffering from major depressive disorder and alcohol abuse. He improved in hospital with medication and cognitive behavioural therapy and was discharged with a prescription for sertraline, 50 milligrams.

[11] In a telephone conversation between Dr Matthew Hocking, psychiatrist, and an AHPRA case officer on 11 October 2017, Dr Hocking advised that the practitioner was an in-patient at the Damascus Unit from 14 to 25 August 2017, during which time he underwent alcohol detoxification and rehabilitation. Dr Hocking had seen the practitioner twice since his discharge and the practitioner had reported that he had not used alcohol and had maintained compliance with prescribed anti-craving medication. He had also attended two relapse prevention program sessions. The practitioner's treatment plan was to continue taking the anti-craving medication, attend upon Dr Hocking and a relapse prevention program session monthly. Dr Hocking had no concerns about risk to the public regarding the practitioner's practice of his profession.

[12] Pathology test results dated 27 November 2017 and 8 December 2017 did not indicate any excessive alcohol intake or inappropriate drug use by the practitioner.

[13] An independent health assessment report of Dr Nigel Prior, psychiatrist, dated 12 December 2017, reported that the practitioner had been abstinent from alcohol since 7 July 2017, as confirmed by blood test results. Dr Prior diagnosed the practitioner as suffering from major depressive disorder in remission and substance use disorder (alcohol) in early remission. Although Dr Prior accepted that these conditions were in remission and the practitioner was safe to practise, he felt that they constituted impairments within the meaning of the National Law, given the practitioner remained in the early stages of recovery, required further treatment and was at a risk of relapse due to current stressors, including [redacted] and the previous AHPRA related matters regarding unsatisfactory professional performance. Dr Prior accordingly recommended that conditions be imposed on the practitioner's registration requiring him to attend on a psychiatrist with expertise in addiction medicine and a general practitioner for treatment.

[14] During a discussion between the practitioner, his solicitor and an AHPRA case officer on 2 March 2018, the practitioner reported that he was still attending upon Dr Hocking on a monthly basis as well as monthly attendances on the Damascus out-patient preventative relapse program. He remained on sertraline, 50 milligram, and naltrexone, 50 milligram. He had not consumed any alcohol since 7 July 2017. His health issues had arisen in the context of congenital liver issues and inordinate stressors at that time, in particular his previous AHPRA matter which was very prolonged and challenging. With the exception of the current notification regarding possible impairment, his stressors at the time of his health issues in 2015 to July 2017 had resolved. The practitioner reported he had not been the subject of any performance issues or complaints during the time he suffered from health issues and there was no evidence to suggest that his capacity to practice was or was likely to be detrimentally affected by his health.

[15] In written submissions of the practitioner, dated 11 April 2018, in response to proposed relevant action, the practitioner confirmed he had remained abstinent from alcohol use since 7 July 2017. He was continuing to attend on Dr Hocking for treatment and disagreed that he had an impairment as his conditions were in remission.

[16] On 10 May 2018 the Board determined that the practitioner had an impairment for the purposes of the National Law, namely:

• (a) major depressive disorder, in remission, and

• (b) substance use disorder (alcohol), in early remission.

[17] The Board determined to impose conditions on the practitioner's registration. These included that the practitioner must attend for treatment with a treating practitioner (general practitioner and psychiatrist) and that he nominate "a senior person" to provide periodic reports to the board. For the purposes of these conditions, the practitioner nominated Dr Matthew Hocking as his treating psychiatrist.

[18] In the meantime, the practice had, in April 2018, raised concerns with the Board as to the practitioner's professional conduct, in particular two incidents occurring on 10 and 20 April 2018 respectively. These are matters which are considered further in the reasons regarding the application to review the conduct decision[3] and do not require further recounting for the purpose of this decision.

[19] On 20 April 2018, on his way home from work, the practitioner fractured his right shoulder. He lodged a WorkCover application, which was accepted, and began immediate treatment, which involved the hospital prescribing the opioid, endone, for pain relief. The endone was ceased four days later by the practitioner's treating psychiatrist, as it was contraindicated to the naltrexone, which is an opioid antagonist.

[20] During the practitioner's subsequent physiotherapy treatment, he was then prescribed diazepam by a general practitioner, following which the practitioner's wife became concerned that he was becoming confused. The practitioner subsequently attended another general practitioner, who noted that the practitioner presented with some confusion and sought to arrange a consultation between the practitioner and Dr Hocking.

[21] On 8 June 2018, the practitioner was admitted to the Damascus Unit of Brisbane Private Hospital. Investigations determined the likely cause of the practitioner's confusion was hepatic encephalopathy subsequent to an adverse interaction with his prescribed medications. On 22 June 2018 the practitioner was discharged and Dr Hocking certified him unfit for work for a further four week period.

[22] In a report dated 22 June 2018, Dr Hocking confirmed that, after fracturing his right shoulder on 20 April 2018, the practitioner had been prescribed endone. Upon seeing the practitioner four days later, Dr Hocking ceased that medication as it was obviously contraindicated while using naltrexone. He confirmed the earlier history noted as to the subsequent prescription of valium and the practitioner's wife's concerns as to the practitioner's confusion and cognitive slowing. He went on to describe the further investigations and treatment and admission to the Damascus Unit. Dr Hocking was of the view that the practitioner had suffered an onset of hepatic encephalopathy as a result of the use of the endone and valium. He stated that it was important to note that the practitioner was unaware that the medication would have such effect and was not using the medication in a way that was unprescribed.

[23] In a report dated 10 August 2018, Dr Hocking noted that the practitioner remained compliant with his medication, had not drunk any alcohol, and had consistently attended appointments. A neuropsychologist had completed a thorough neuropsychological assessment on 10 July 2018 and found that the practitioner's performance displayed mildly reduced cognitive efficiency with only subtly reduced attention and working memory across tasks and variable processing speed. The mildly reduced cognitive efficiency was consistent with ongoing recovery from hepatic encephalopathy and would not impair his capacity to return to work in his previous role as a nuclear medicine technician. She recommended a graded return to work, the terms of which were detailed further in Dr Hocking's report. They included initial shorter working hours and less demanding tasks and supervision during an initial period of reduced duties and a further three months upon return to usual duties. Dr Hocking expressed the opinion that the practitioner's practice is safe if he followed such recommendations for graded return to work. He did not think that the practitioner's use of prescribed substances or alcohol required further monitoring.

[24] On 3 September 2018 the practitioner commenced a graduated return to work process on alternate duties at the practice. On 19 December 2018 the practice reported that the practitioner was completing those alternate duties with no issues.

[25] On 10 August 2018 the Board had directed the practitioner to undergo an independent psychiatric assessment on the basis that the Board reasonably believed that the practitioner had an impairment for the purposes of s 169 of the National Law and to investigate the practitioner under s 160 of the National Law. Such independent assessment was conducted by Dr Nigel Prior, psychiatrist. He provided a report dated 1 November 2018. Dr Prior diagnosed a major depressive disorder in sustained remission and a substance use disorder (alcohol) in sustained remission. He noted that the practitioner was undergoing a graduated return to work and that any return to clinical duties should be associated with supervision in the workplace. He considered the current conditions on the practitioner's registration as appropriate, but also recommended a condition that the practitioner receive supervision in the workplace from an experienced nuclear medicine technician, authorised to provide reports to the Board.

[26] In the meantime, in September 2018, further concerns as to the practitioner's professional performance sourced from the practice were received by the Board. Those matters are considered in the decision regarding the application to review the conduct decision[4] and need not be further considered in these reasons.

[27] On 19 November 2018 the practitioner underwent a psychiatric assessment as directed by WorkCover with Dr Curtis Gray. In a report dated 26 November 2018, Dr Gray expressed the opinion that the practitioner was fit to return to work. He did not demonstrate any difficulties with cognitive processing. He scored 30 points out of a possible 30 on the mini mental state examination and further testing of cognitive function and memory identified no deficits.

[28] On 30 November 2018 Dr Hocking provided a further report indicating that the practitioner continued to see him on a regular basis and had remained compliant with prescribed medication. Dr Hocking had no concerns with the practitioner's mental state. There was no evidence of any cognitive impairment and his supervisor at the practice had not reported any concerns regarding cognitive deficits whilst the practitioner carried out clerical work.

[29] On 12 October 2018 the Board decided to require the practitioner to undergo a health assessment. Because of a failure to provide procedural fairness prior to making such decision, as a consequence of late notification of a proposed decision, on 14 December 2018 the Board decided to repeal the decision made on 12 October 2018 and investigate matters further under s 160 of the National Law. Further correspondence passed between the practitioner's legal representatives and the Board, which need not be detailed for the purpose of this decision.

[30] The Board's decision of 12 April 2019 was notified to the practitioner by a letter dated 16 April 2019. Such letter notified that, on 12 April 2019, the Board decided to take relevant action and impose conditions on the practitioner's registration. The attached notice of conditions included conditions which can be summarised as follows:

• (a) Limitations on practice
  1. The practitioner may practice only in places of practice approved by the Board/AHPRA.
  2. The practitioner must not practice outside the hours of 6.30 am to 6 pm or undertake on-call or after-hours duties.
  3. The practitioner must provide written acknowledgement that AHPRA might seek reports from managers at each place of practice and obtain access to rosters, payslips, etc., and access information from Medicare, private health insurers and/or practice-billing data.
  4. The practitioner must provide to AHPRA acknowledgement from the senior person at each place of practice that they are aware that AHPRA would seek reports from them.
• (b) Supervised practice
  1. The practitioner must be supervised by another registered health practitioner when practising as a medical radiation practitioner.
  2. The practitioner is required to nominate supervisors.
  3. The practitioner must cease practice immediately and not resume practice unless an approved supervisor is willing or able to provide supervision.
  4. The practitioner is required to provide written acknowledgement that AHPRA might obtain information from relevant authorities, senior persons at each place of practice and obtain reports from approved supervisors.
  5. The practitioner is required to provide written acknowledgement from a senior person at each place of practice that AHPRA might seek reports from them.
• (c) Attend treating practitioners
  1. The practitioner undertake treatment with a general practitioner and psychiatrist and attend at a frequency determined by the treating practitioners.
  2. The practitioner is required to provide certain written information to AHPRA so as to facilitate it obtaining reports from the treating practitioners.
• (d) General

  1. The practitioner is required to provide contact details of a senior person at each current place of practice.

  2. All costs associated with compliance with the conditions were at the practitioner's own expense.

[31] The review period for the conditions, pursuant to s 178(3) of the National Law, was stated as being:

• (a) for clauses (2) and (5), three months from the date of imposition; and

• (b) for the remaining clauses, six months from the date of imposition.

[32] The letter dated 16 April 2019 detailed the material considered by the Board and the practitioner's response to the proposed relevant action. The Board stated:

On the basis of the report of Dr Prior and the information obtained during the monitoring of the practitioner's conditions, the Board is able to form a reasonable belief that the practitioner has, or may have, a health impairment that detrimentally affects, or is likely to detrimentally affect, his capacity to practice the profession and that it is necessary to take relevant action to address the same.

[33] The Board considered that the minimum regulatory force appropriate to manage the risk posed by the practitioner's impairment was the conditions stated in the notice of conditions.

[34] The purpose of this review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[5] The Tribunal can consider material beyond that considered by the Board and consider circumstances since the decision of the Board. The Tribunal has done so, hearing evidence from the practitioner (both affidavit and viva voce) and considering more recent medical reports. I have considered not only all the material before the Board at the time of its decision, but also the following.

[35] The practitioner has deposed and testified as to his inability to return to work because of his inability to satisfy the supervision and senior person conditions on his registration as a consequence of his inability to obtain the agreement of any appropriate person at the practice to accept such roles. The practitioner's evidence is that he voluntarily sought appropriate treatment for his health issues prior to that becoming a condition upon his registration and he continues to comply with such conditions. He remains abstinent from alcohol. His mental health remains stable with treatment.

[36] A significant piece of evidence which, necessarily, was not before the Board is the treating practitioner report of Dr Hocking dated 21 May 2019. He details the practitioner's current medication at that time as being zoloft, 100 milligram daily, and naltrexone, 50 milligram nightly. He reports that the practitioner is seeing him monthly and is compliant with treatment. He expresses the opinion that the practitioner requires further treatment, stating:

Requires monthly appointments for assessment of mental state and supportive psychotherapy while undergoing graduated return to work back to full employment & unconditional registration.

Has been undergoing closely supervised work at (the practice) from August 2018. In Dec 2018 an IME from Dr Prior stated a further 3 mths of supervision is all that would be required. These 3 months concluded in March 2019. My impression is [AMS] is now fit for full employment and unconditional registration.

[38] That opinion of Dr Hocking has not been challenged by the Board.

[39] The practitioner has not sought to challenge the Board's finding of a reasonable belief pursuant to s 178(1)(a)(ii) of the National Law that the practitioner has or may have an impairment.

[40] Section 5 of the National Law relevantly provides the following definition:

impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect... for a registered health practitioner ..., the person's capacity to practice the profession ...

[41] On all the material, the Tribunal has a reasonable belief, given the evidence as to the nature and severity of the practitioner's major depressive disorder and substance abuse disorder (alcohol), albeit both in remission, that the practitioner may have an impairment as defined in s 5 of the National Law. The crucial question is the appropriate conditions to be placed upon the practitioner's registration in light of that reasonable belief. In considering that question, I have regard to the paramount guiding principle of the health and safety of the public[6] and the guiding principle in s 3(3)(c) of the National Law that restrictions on the practice of the health profession are to be imposed only if necessary to ensure health services are provided safely and are of an appropriate quality. Whilst the protection of the public is, and must remain, the paramount consideration, the impact of conditions upon the registration of the health practitioner is a relevant consideration and conditions imposed ought to address relevant risks specifically and be the least onerous possible to properly address such risks.[7]

[42] In determining what conditions should be imposed upon the practitioner's registration to address the risks presented by his possible impairment, I have been greatly assisted by the views expressed by the assessors. Having regard to the most recent opinion of Dr Prior that both of the practitioner's disorders are in sustained remission and the most recent opinion of Dr Hocking that the practitioner is fit for unconditional registration, I am not satisfied that any conditions on the practitioner's registration are required other than the conditions requiring him to attend treating practitioners and facilitate the production of reports to AHPRA from those treating practitioners, that is, conditions 10 and 11 in the notice of conditions, and, by way of general conditions, condition 13 should remain.

[43] I am not satisfied that the conditions limiting the practitioner's practice or requiring supervised practice are necessary to address the risk presented by the practitioner's possible impairment. It seems to me that the condition number 12 requiring provision of contact details of a senior person is designed to facilitate monitoring of those conditions requiring limitations on practice and supervised practice and, therefore, likewise, is no longer required.

[44] The Board's decision provided for a six month period of review of the conditions requiring attendance on treating practitioners. That period has, of course, passed, but, given that the practitioner has, in the meantime, been unable to return to his practice of the profession, it is appropriate that I decide that the review period for the remaining conditions, pursuant to s 178(3) of the National Law, be six months from the date of this decision. Obviously, the terms of the monitoring and compliance plan which was annexed to the Board's decision will require substantial consequential amendment in light of the decision of the Tribunal.

[45] So, accordingly, the Tribunal orders:

1. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal amends the impairment decision by deleting all conditions imposed on the practitioner's registration except for those numbered 10, 11, and 13, which will be renumbered 1, 2, and 3.
2. The review period of the conditions, pursuant to s 178 (3) of the Health Practitioner Regulation National Law 2009 (Qld), is 6 months from the date of this decision.

[1] These reasons are anonymised in accordance with a non-publication order made by the Tribunal on 13 December 2019 pursuant to section 66 of the Queensland and Civil Tribunal Act 2009 (Qld), consistently with section 98 of the Health Ombudsman Act 2013 (Qld).

[2] See AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401 at [4]- [5].

[3] AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401.

[4] AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[6] Health Practitioner Regulation National Law 2009 (Qld), s 3A.

[7] Shahinper v Psychology Board of Australia [2013] QCAT 593 at [22] - [23].