CITATION:	Medical Board of Australia v Kapadia [2015] QCAT 401	

PARTIES:	Medical Board of Australia
(Applicant/Appellant)	
	v	
	Chitrakanti Raja Kapadia
(Respondent)	

APPLICATION NUMBER:	OCR192-14	

MATTER TYPE:	Occupational regulation matters 	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Hon J B Thomas (Judicial Member)
Assisted by:
Dr E J Maguire
Dr H Moudgil
Dr W Sanderson	

DELIVERED ON:	12 October 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The Tribunal finds that Dr Kapadia's conduct in relation to applications for renewal of registration on 1 February 2013 and 24 July 2013 amounted to unprofessional conduct;
2.	Dr Kapadia is reprimanded;
3.	Dr Kapadia is ordered to pay the board's costs of and incidental to these proceedings on a standard basis on the District Court scale of fees.	

CATCHWORDS:     	Professions and trades – health care professionals – medical practitioners – disciplinary proceedings – professional misconduct or unprofessional conduct – misleading statements in application for renewal of registration – reprimand and costs                          	

APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
[1]	This is a referral under s 193 of the Health Practitioner Regulation National Law Act 2009 (“the adopted National Law”).
[2]	It concerns allegedly misleading conduct by the practitioner in the course of his application for renewal of limited registration as a specialist at Mt Isa Hospital and other centres in North West Queensland.
[3]	The essential allegations are that Dr Kapadia was guilty of professional misconduct in that he made applications, on or about 1 February 2013 when applying for renewal of his limited registration, and on or about 24 July 2013 when applying for renewal of his specialist registration, that were false or misleading in a material particular.
Relevant facts
[4]	Dr Kapadia practised for some time in England as a consultant colorectal surgeon at Airedale NHS Foundation Trust.  In December 2010 he left to take up a position as director of surgery at the Mt Isa Hospital in Queensland.
[5]	He obtained registration which allowed him to fill an area of need in a specialist position as director of surgery at that hospital and at many other designated hospitals in a widespread area of north west Queensland.
[6]	Subsequently, on 19 January 2012 he received a letter from the General Medical Council in the UK advising that it was investigating a complaint from the Airedale NHS Foundation Trust.  The complaint related to his treatment of a patient in April 2010 who subsequently died.
[7]	In due course he needed to apply to AHPRA for renewal of his Australian limited registration. When he did so on 1 February 2013. He failed to disclose the pending UK complaint.  He answered “yes” to a question in the application form – 
“Have you previously disclosed to AHPRA all known complaints made about you to: a registration authority, or another entity having functions relating to professional services provided by health practitioners or the Regulation of health practitioners (in Australia or elsewhere)?”
[8]	He again made no mention of the complaint on 20 March 2013 when lodging his application for specialist registration, or on 24 July 2013 when making an online application seeking renewal of his specialist registration.
[9]	Dr Kapadia accepts that his initial answer on the first mentioned application was false, and that his subsequent answer in the online application was misleading.
[10]	It is accepted however that he was under the impression, from contact with the English GMC following notification of the complaint, that it would inform AHPRA about the complaint.  This is confirmed to some extent by his intimation to Dr Coffey of that understanding.  When he became clearly aware of his duty to notify AHPRA of the complaint he promptly did so.
[11]	The outcome of the Airedale complaint was that the case examiners were of the view that there had been some errors in his treatment in the subject case, but their greatest concern was in relation to his “very poor record keeping”. They considered that he had "successfully remediated since these sad events" and noted that there appeared to be no concerns about his fitness to practice.
[12]	They concluded that there was no realistic prospect of establishing that Dr Kapadia’s fitness to practice was impaired.  They were of the view that it would be "disproportionate" to issue him with a warning, concluding in the following terms:
“..we do believe that Mr Kapadia should be reminded of the fundamental need for all doctors to make clear, accurate, legible and contemporaneous medical records and management plants.  In that regard we determined to close this case with advice”.
Discussion
[13]	The essential point in the present matter concerns Dr Kapadia's misleading responses to the disclosure required by the application forms and the nature of the application.  It is obviously relevant for a Board to know about any unresolved complaints concerning a practitioner’s professional conduct, and the responses were untrue.  That said, the Board has accepted that Dr Kapadia did not intend to deliberately mislead AHPRA, and sees his conduct as careless responses to the questions. His assumption that the English authority would notify the Australian authority seems rather facile, but I am prepared to adopt the same approach as the Board, and to conclude that his conduct fell short of deliberate concealment of the existence of a complaint.
Appropriate order
[14]	Although the Board initially referred the matter to QCAT in the belief that the conduct constituted professional misconduct the Board did not persist with that allegation.  Dr Kapadia has admitted that it amounts to unprofessional conduct, and I am of the view that this characterisation is the more appropriate one.
[15]	The level of misconduct in this instance is not comparable with deliberate or covert concealment of facts in order to obtain registration, such as Medical Board of Australia v Putha [2014] QCAT 159.
[16]	In this matter the parties made joint submission proposing that orders be made as follows:
a)	Dr Kapadia be reprimanded.
b)	Dr Kapadia pay the Board’s costs of and incidental to these proceedings on a standard basis on the District Court scale of fees.
[17]	The Board has taken the view that Dr Kapadia has shown appropriate insight and remorse. His service is in an area of need, and would seem to have been of appreciable value to the community.  Neither the payment of costs, nor the order for reprimand are minor burdens.  It is noted that under s 225(j) of the adopted National Law the reprimand must be included in the National Register.
[18]	With the benefit of advice from the assessors, I consider that a course proposed by the parties is a reasonable one and am prepared to make orders in the terms set out above.