[6] The decision of the Panel was a reviewable decision under s 199(i) and (k) of the Health Practitioner Regulation National Law (Queensland) (National Law).[1] The review then proceeded pursuant to s 20 of the QCAT Act.

[7] Therefore, the review is heard by way of hearing de novo with the purpose of producing the correct and preferable decision on the law and facts as at the date of hearing.[2]

[8] In reviewing the Panel's decision the Tribunal must consider the conduct of the applicant that, he now admits, amounted to unsatisfactory professional performance. The allegations before the Panel were:

1. Dr Radovic treated PB for three years from 21 May 2008 to 21 February 2011, and failed to diagnose PB with a psychotic-spectrum disorder when he presented, acutely mentally unwell, on 15 and 21 February 2011, despite the condition of his mental health being:

1.1 readily assessed by his general practitioner on 14 and 15 February 2011;

1.2 provisionally diagnosed by another psychiatrist Dr Clive Fraser on 21 February 2011 as "underlying paranoid illness"; and

1.3 diagnosed by another psychiatrist Dr Bob Anderson on 28 February 2011 as a "schizophrenic illness".

1. Dr Radovic did not commence PB on anti-psychotic medication, on 15 or 21 February 2011 although he had previously commenced PB on Zyprexa with good effect on at least two previous occasions (29 May 2008 and 12 June 2008) when he had been suffering from similar signs and symptoms.
2. Although Dr Radovic submitted to the Board that he had formed the belief that PB had developed a psychotic illness on 15 and 21 February 2011, there is no record or documentation in Dr Radovic's medical or clinical notes to support his submissions that he:

3.1 considered PB might be suffering from a psychotic illness; or

1. Dr Radovic's clinical notes did not meet the requirements set out [in] s 8.4 of the Board's Good Medical Practice: Code of Conduct for Doctors in Australia (GMPCCDA) approved under s 29 of the National Law, and admissible as evidence of what constitutes appropriate professional conduct or practice for medical practitioners under s 41 of the National Law. Dr Radovic's clinical notes did not record relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management.

[9] The Panel found that all of the allegations had been made out and found that in relation to Allegation 2 that when PB relapsed with similar symptoms in 2009 he was treated with Zyprexa by his general practitioner.

[10] The applicant has accepted the findings of the Panel in relation to all four allegations.

[11] The parties submit, in their joint submission, that a number of factors should be noted in relation to the allegations. The first is that Allegation 1 does not purport to criticise the applicant's treatment of PB before February 2011. The second is that Allegation 2, whilst amounting to an allegation in and of itself, arose as a direct and unavoidable consequence of the applicant's behaviour outlined in Allegation 1. Finally, the parties note that the applicant's failure to make proper notes of clinical assessments is in itself a concerning matter and justifies the submission that the applicant be reprimanded.

[12] The parties have jointly submitted that the correct and preferable decision is that the order made by the Panel be set aside and the former registrant be reprimanded.

[13] The basis for the joint submission is that the Panel did not have the power to impose any conditions on the applicant's future registration for the reasons outlined in Nursing and Midwifery Board of Australia v Fankhauser.[3]

[14] In Fankhauser, the Tribunal held that after finding that a former registrant had behaved in a way that constituted professional misconduct, it could not impose conditions on any future registration. Relevantly the Deputy President, Horneman-Wren SC DCJ, noted that the:

Power to impose conditions applies to a registrant's existing or continuing registration, not some further registration attained in the future. Whilst conditions could be imposed upon a suspended registration because the registration itself continues, once the registration is cancelled, the ability to impose conditions upon that registration is lost.

That opinion is supported by s 196(3) which provides that if the Tribunal decides to impose a condition on a practitioner's registration, it must also decide a review period for the condition.[4]

[15] Upon finding that a practitioner has behaved in a way that constitutes unsatisfactory professional performance a Panel may impose conditions on the practitioner's registration or caution or reprimand the practitioner.[5] This mirrors s 196 of the National Law which provided the Tribunal's powers in Fankhauser. In such circumstances, s 196(3) requires the Panel if it decides to impose a condition on a practitioner's registration to also decide a review period for the condition. I note this requirement is also mirrored in s 191(4) of the National Law.

[16] In my view the joint submission is correct and the Panel did not have the power to impose any conditions on the applicant's future registration. For that reason the application must succeed.

[17] The parties submit that the Tribunal only has power to caution or reprimand the applicant[6] and it is contended that a reprimand in the circumstances would be an appropriate sanction.

[18] In Medical Board of Australia v Martin[7] Deputy President Horneman-Wren SC DCJ noted that the Tribunal ought not depart from an agreed sanction provided it is within a permissible range in all the circumstances of the case.[8]

[19] Adopting that very sensible approach I am of the view that the agreed sanction in this matter falls within the permissible range in all the circumstances of this case. I have also been assisted by the opinions of the assessors in that regard.

1. The decision of the Performance and Professional Standards Panel of the Medical Board of Australia dated 13 February 2014 to impose conditions on the applicant's future registration is set aside.
2. The applicant is reprimanded.
3. There is no order as to costs.

[1] Section 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) notes that an appealable decision in the national law is a reference to a review of the decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). See Pearse v Medical Board of Australia [2013] QCAT 392 ("Pearse").

[2] See QCAT Act s 20(2); Pearse at [30] - [37]; and Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [40] - [41], [99] - [101].

[3] [2013] QCAT 395 ("Fankhauser").

[6] Pursuant to s 191(3)(c) of the National Law.

[7] [2013] QCAT 376.