AMS v Medical Radiation Practice Board of Australia

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

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Solomon v Australian Health Practitioners Regulation Agency [2015] WASC 203

Da Horta v Podiatry Board of Australia (No 2) [2017] WASC 264

Coppa v Medical Board of Australia [2014] NTSC 48

Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701

[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 "impairment decision", was a decision to impose conditions on the practitioner's registration pursuant to s 178(1)(a)(ii) of the Health Practitioner Regulation National Law (Queensland) ("National Law"). The practitioner's application to review that decision is the subject of the decision in AMS v The Medical Radiation Practice Board of Australia [2019] QCAT 400. The other decision, referred to as the "conduct decision", was a decision to impose conditions pursuant to s 178(1)(a)(i) of the National Law. The conditions imposed pursuant to both decisions were in identical terms.

[3] The practitioner's applications to review both decisions were heard and decided together pursuant to s 55 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act"). These are the reasons of the Tribunal upon the application to review the conduct 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 performance because he had:

• (a) incorrectly administered a radiopharmaceutical dose prescribed for one patient to another patient;

• (b) knowingly administered the radiopharmaceutical dose prescribed for one patient to another patient;

• (c) changed the recorded radiopharmaceutical dose times in an attempt to cover up his incorrect administration of the radiopharmaceutical dose prescribed for one patient to the other patient; and

• (d) recorded incorrect times of administration of the radiopharmaceutical doses in the patients' charts and the record book for diagnostic radiopharmaceutical administration within the nuclear medicine department.

[5] The panel decided to reprimand the practitioner and impose mentoring conditions on his registration.

[6] The practitioner subsequently experienced health issues before a graduated return to work, as detailed in the decision of AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 at [5] - [17].

[7] The Board was provided with a "senior person report" dated 24 April 2018 from one of the practitioner's supervisors at the practice. The senior person raised the following concerns:

• (a) That on 10 April 2018 the practitioner incorrectly reconstituted a "TC ATC" kit by failing to add the antimony colloid before placing the kit on the boil. This resulted in a "near miss". Specific instructions were available to the practitioner about such process; and

• (b) That on 20 April 2018 the practitioner failed to adhere to the protocol for a dacrocystogram study by terminating the procedure after five minutes, when the practice's protocol required the procedure to be terminated after 30 minutes.

[8] The same senior person provided a number of other reports to the Board about the practitioner's performance which need not be detailed further, for reasons which will become apparent when considering the terms of the Board's decision. Likewise, further notifications by way of email dated 17 April 2018 from persons at the practice need not be further detailed, for the same reason. Likewise, the terms of a notification from the practice to the Health Ombudsman, which was referred to the Board on 3 September 2018, need not be further detailed, for the same reason.

[9] The Board sought submissions from the practitioner regarding the matters the subject of such notifications and sought further information from the practice about such matters.

[10] On 14 December 2018 the Board decided to investigate those matters pursuant to s 160 of the National Law.

[11] In the meantime, the practitioner suffered an injury on 20 April 2018 and subsequent health problems that resulted in further time off work and further medical treatment and assessment before a graduated return to work as detailed in the decision of AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 at [19] - [28].

[12] Following its investigation, on 12 April 2019 the Board:

• (a) formed a reasonable belief that the practitioner's performance in regard to his adherence to standard protocols and procedures, including preparing and conducting investigations and processing, collation and dissemination of images, is unsatisfactory for the purposes of s 178(1) of the National Law; and

• (b) decided to impose conditions on the practitioner's registration in accordance with s 178(2) of the National Law (the "conduct decision").

[13] The decision of the Board was communicated to the practitioner by a letter directed to his legal representatives dated 16 April 2019. In such letter, the Board detailed the various notifications received by it, all of which can be sourced to persons employed by the practice, and the other material considered by it, including medical reports, including reports from the practitioner's treating psychiatrist, Dr Matthew Hocking. The contents of those reports have been detailed in the decision of AMS v The Medical Radiation Practice Board of Australia [2019] QCAT 400 at [22]- [23] and need not be repeated in detail in these reasons. Suffice it to say that the Board recognised that, between 20 April 2018 and 7 June 2018, any deficits in the practitioner's professional performance were likely to have been impacted by the interaction of contraindicated medication and consequent hepatic encephalopathy. The Board stated:

In reviewing the issues raised in the notification, the Board notes that several of the allegations of poor performance were over the period 23 April to 7 June 2018, in which [AMS] worked but was likely impacted by the medication interaction and hepatic encephalopathy. This condition was noted to have progressed over time, until it became fully apparent to [AMS]'s wife, employer and treating practitioners, and [AMS] ceased work on 7 June 2018. The Board therefore considers these reported performance issues can be explained by [AMS]'s health at the time and further investigation is not required.

[14] I think that was an entirely reasonable approach to be taken by the Board and, likewise, I have not placed any weight upon alleged failures in professional performance during the period 23 April to 7 June 2018.

[15] The Board went on, then, to consider various allegations contained in notifications referred to earlier but not detailed. The reason why I have not bothered to detail them is apparent from the Board's approach to them, as follows:

Requests were made to [the practice] for specific dates and particulars about the issues alleged in the notification, particularly those reported in the email from [redacted] on which much of the notification was based. Several could not be supported with factual material and one was an aged matter from late 2016. The Board further noted that issues in relation to attendance and punctuality should be managed through workplace human relations procedures and, therefore, did not investigate these matters. This left three remaining performance issues that the Board decided required investigation ...

[16] I have considered the terms of the notifications and entirely agree with the approach the Board took to them. They consist of unparticularised and vague allegations, often based upon hearsay or relating only to workplace matters which have no relevance to the question to be decided by the Board or by this Tribunal. The Board correctly identified the three issues to be determined, as follows:

On 10 April 2018, it is alleged [AMS] incorrectly reconstituted an TC ATC kit (produces an injectable radiopharmaceutical) by failing to add the Antimony Colloid before placing the kit on the boil resulting in a near miss, despite specific instructions being available on the process. The issue was identified by another technician who was checking the boiling time left on the ATC and noticed the Antimony Colloid sitting on the bench. In submissions of 15 October 2018 and 8 February 2019, [AMS] concedes he made an error but notes no patients were impacted as no dose was administered. In his submission of 8 February 2019 he notes a discrepancy in [the practice] management of this event and the management of other staff who have had near misses or actual maladministration events.

On 20 April 2018, it was alleged that [AMS] failed to adhere to the protocol for a Dacrocystogram study (a nuclear medicine technique for imaging the lacrimal apparatus. It is used to identify obstructions, for example, in the lacrimal duct, nasal cavity or nasolacrimal duct), terminating the procedure after five minutes, as opposed to the 30 minutes required by (the practice) Protocol. The patient was recalled and [AMS] continued the imaging. In his submissions [AMS] concedes he did not continue to take images past five minutes but submits that protocols for the timeframes for images differ across services and provides examples. He asserts that in his experience in other services in Australia and the United States, once the tracer is on the tear duct, the study can be terminated because the task is complete as the query as to any obstruction has been proven.

It is alleged in the notification that [AMS]'s eyesight is insufficient to prepare a PSMA kit. An email from [redacted] dated 5 November 2018 notes that, following difficulties [AMS] had completed training for PSMA synthesis, a verbal agreement was made with [AMS] in 2016 that he would not be the only Nuclear Medicine Technologist on site when PSMA synthesis is being conducted. The notification reflects that some colleagues may be dissatisfied with the impact this has on rostering. In his submission of 8 February 2019, [AMS] advises that he was diagnosed with Central Serous Retinopathy in 2013 for which he attends an ophthalmologist and has had laser surgery. However his left eye function remains at 80% hampering depth perception and causing headaches when dealing with small images such as the QC pipette used in the PSMA synthesis. He has an arrangement with [redacted] to not be rostered on the 6.30am shift (as he would be the sole technician until 8.30am). This also means he must work later than his colleagues who are rostered on the early shift.

Given the above considerations, the Board notes that while several of the allegations are explained by [AMS]'s health following his right shoulder fracture on 20 April 2018 and subsequent diagnosis of hepatic encephalopathy and related medication interactions, there are events prior to 20 April 2018 for which evidence and [AMS]'s admissions substantiate a failure on his part to adhere to standard protocols and procedures, including preparing and conducting investigations. In an email of 17 April 2018 prior to [AMS]'s health events, [redacted] also expresses concern with [AMS]'s lack of attention to detail and lack of task focus and an instance of oversight in the processing, collation and dissemination of images. The Board therefore forms a reasonable belief that [AMS]'s performance in regard to his adherence to standard protocols and procedures, including preparing and conducting investigations and processing, collation and dissemination of images, is unsatisfactory.

[17] A few things should be noted about that passage of the reasons for the Board's decision. After initially identifying that only three matters required investigation and detailing them as the 10 April 2018 incident, the 20 April 2018 incident, and the concern about the practitioner's eyesight, the Board then went on to place some weight upon an email notification on 17 April 2018 from the practice. The notifications in that email were not the subject of satisfactory evidence before the Board. The Board should have adhered to its earlier inclination to identify only three specific matters as requiring investigation. It seems inconsistent with that earlier indication that the Board would then seek to place any reliance upon the contents of the email of 17 April 2018. I have considered the contents of that email, in the context of all the material before the Tribunal, and I am not inclined to place any weight upon it in considering the matters in issue.

[18] The three specific matters identified by the Board may potentially have based a reasonable belief that the practitioner's performance in regard to adherence to standard protocols and procedures, including preparing and conducting investigations, was unsatisfactory. It would seem that only the unproven and general allegations in the email of 17 April 2018 could base the further conclusion that the practitioner's practice with regard to "processing, collation and dissemination of images" was unsatisfactory.

[19] It is not necessary for the purposes of this review to identify any error in the Board's decision but I am concerned that the Board seems to have placed weight upon those allegations contained in the email of 17 April 2018 in reaching its ultimate conclusion as to a reasonable belief as to the unsatisfactory nature of the practitioner's practice and professional conduct.

[20] After having formed the reasonable belief, pursuant to s 178(1)(a)(i) of the National Law, that the way the practitioner practices the health profession or the practitioner's professional conduct was or might be unsatisfactory, the Board went on to place conditions upon the registration of the practitioner. As noted earlier, those conditions were in identical terms to the conditions placed upon his registration as a result of the impairment decision, which is the subject of the decision of AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400. The notice of conditions included conditions which can be summarised as follows:

• (a) Limitations on practice
  1. The practitioner may practise only in places of practice approved by the Board/AHPRA.
  2. The practitioner must not practise 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, etcetera, 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 them 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 are at the practitioner's own expense.

[21] 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.[2] 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 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.

[22] The Tribunal has had the benefit of evidence from the practitioner, both by way of affidavit and viva voce. The practitioner's evidence assisted in placing in a proper context the events of 10 April 2018 and 20 April 2018 and the issue concerning his eyesight.

[23] As regards the 10 April 2018 incident, the practitioner frankly admits that he mistakenly failed to add the Antimony Colloid to the TC ATC kit and that this mistake was recognised by another technologist. A new kit was then prepared, administered and images were acquired, as had been originally scheduled. No patients were administered with the incorrectly prepared kit and no images were incorrectly acquired and there was no harm to any patient. The practitioner testified before the Tribunal that the patient had their studies on time. He testified that, since 10 April 2018, he had prepared more than twenty such kits without incident. The Tribunal concludes that the mistake was one which was easily detected and remedied as one would expect, given the normal checks and balances that would exist in such a practice to maximise patient care and safety. It is one which would be unlikely to be repeated by the practitioner. It does not indicate a lack of professional knowledge or any wilful failure to adhere to professional standards or the practice protocols.

[24] With respect to the 20 April 2018 incident, the practitioner deposes that he performed the procedure properly but concluded the imaging after five minutes in an understanding that the terms of the protocol permitted imaging to continue for any time between five and 30 minutes. He referred to the terms of the practice protocol, which is in evidence before the Tribunal. He deposed that he concluded the imaging early because, based on his experience in other services in Australia and the United States, once the tracer had travelled through the tear duct into the canal, the study can be terminated because the task is complete, as the query of any obstruction has been proven. He deposed that after concluding the imaging, he sought confirmation from the reporting physician who confirmed that the patient could be sent home. He testified that he had shown the physician the imaging, before obtaining his agreement to send the patient home. That contention is contradicted by accounts of other staff involved in the procedure, contained in email correspondence before the Tribunal but not confirmed by any sworn evidence from such persons.

[25] Notwithstanding the practitioner's contentions as to his interpretation of the protocol, I find that the practitioner did fail to properly follow the practice protocol. The practitioner's refusal to acknowledge his failure in that regard is a matter of concern and tends to support the ultimate decision of the Board. It is something I have considered in reaching my own decision. On the other hand, the error was readily identified and rectified. It caused some inconvenience but no actual harm to the patient.

[26] I am required to determine whether, pursuant to s 178(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner's professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount[3] and that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[4]

[27] With respect to the terms of s 178(1)(a) of the National Law, I note that "belief" is the inclination of the mind towards assenting to rather than rejecting a proposition.[5] The condition for the exercise of the power pursuant to s 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.[6]

[28] The words "is or may be" must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner's practice or his conduct is unsatisfactory - it is sufficient if I reasonably believe it may be. The words "or may be" clearly indicate that reasonable belief as to the possibility that the practitioner's practice or professional conduct is unsatisfactory is sufficient.[7]

[29] In Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701, Horneman-Wren DCJ, Deputy President, stated as follows at [20], in the context of immediate action:

I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

[30] Whether or not one would have a reasonable belief, on all the evidence, that the way that the practitioner practises his health profession or the practitioner's professional conduct is or may be unsatisfactory is a question on which minds might differ. I have been greatly assisted by the views expressed by the assessors when considering such question.

[31] I have had regard to all the material before the Board at the time of its decision, as well as the findings of the Performance and Professional Standards Panel of 26 April 2017, and the evidence of the practitioner.

[32] I have had particular regard to the nature of the failures of professional performance on 10 April 2018 and on 20 April 2018. I consider the error of the practitioner on 10 April 2018 to be one unlikely to be repeated. Whilst concerned as to the departure from the applicable protocol by the practitioner on 20 April 2018, I was left, ultimately, with the impression from his evidence that he would be careful, so as to avoid the consequences he has found himself in, to more strictly adhere to applicable protocols in future. I note that no patient suffered harm as a result of either failure of professional performance.

[33] With respect to the issue of eyesight, I do not consider that it is properly to be regarded as a matter of professional performance which would inform a decision pursuant to s 178(1)(a)(i) of the National Law. Rather, it is a question of a health issue, for which it seems the practice has made appropriate adjustments. It is not something which I find supports the finding of a reasonable belief pursuant to s 178(1)(a)(i) of the National Law.

[34] When I consider, then, the circumstances of the incidents of 10 and 20 April 2018 and, in particular, the degree of departure by the practitioner from professional standards and the consequent risk to patient care and safety, I do not reasonably believe that the way the practitioner practises his profession or his professional conduct is, or may be, unsatisfactory.

[35] Accordingly, pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Board is set aside.

[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).

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

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

[4] Health Practitioner Regulation National Law 2009 (Qld), s 3(3)(c).

[5] George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[6] Solomon v Australian Health Practitioners Regulation Agency [2015] WASC 203; Da Horta v Podiatry Board of Australia (No 2) [2017] WASC 264 at [56].

[7] Coppa v Medical Board of Australia [2014] NTSC 48 at [51]; Da Horta v Podiatry Board of Australia (No 2) [2017] WASC 264 at [56].