CITATION:	The Medical Board of Australia v Shah (No 2) [2017] QCAT 221	

PARTIES:	THE MEDICAL BOARD OF AUSTRALIA (Applicant/Appellant)	
	v	
	TAHIR SHAH
(Respondent)
	
APPLICATION NUMBER:	OCR150-15	

MATTER TYPE:	Occupational regulation matters	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice Carmody

Assisted by:
Ms Alison Kate Christou
Professor Emeritus Errol John Maguire AM, RFD, FRACS
Dr Debra Wardle
	
DELIVERED ON:	13 April 2017	

DELIVERED AT:	Brisbane 	

ORDERS MADE:

	THE TRIBUNAL ORDERS THAT ITS ORDERS DATED 22 MARCH 2016 BE AMENDED AS FOLLOWS:
1.	Dr Shah is liable to sanction for professional misconduct.
2.	Dr Shah’s registration is suspended for a period of 6 months from the date of these orders.
3.	Dr Shah’s registration will be subject to the following conditions:
a.	Dr Shah must undertake a course of ethical decision making in patient confidentiality to be completed within six months of the Tribunal’s decision.
b.	Within 28 days of the imposition of the condition, Dr Shah must nominate to the Board for approval, in writing, a course of education addressing ethical decision making in patient confidentiality to be undertaken by him.
c.	Dr Shah must provide with the nomination to the Board, a copy of the course curriculum.
d.	Dr Shah is to complete the course to a satisfactory standard within six months of receiving the written approval of the Board.
e.	Within three months of completing the course, Dr Shah must provide written evidence to the Board of the satisfactory completion of the course.
f.	All costs and expenses in relation to this condition are to be at the respondent’s expense.
4.	Dr Shah may not seek a review of the conditions under Order 3 for a period of three months after the Tribunal’s decision.
5.	For the purpose of s 196(3) of the Health Practitioner Regulation National Law (Queensland) the review period is three months from 22 March 2016.
6.	Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions imposed by the tribunal.
7.	Dr Shah is to pay the Board’s costs of and incidental to the proceedings, as agreed, or otherwise as assessed.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a general practitioner – where the respondent breached the Code of Conduct for Doctors in Australia and Queensland Health’s information policy without reasonable justification – where the respondent accessed medical information without the patient’s authority – where the respondent knowingly made and failed to correct a series of related false statements in submissions to the Australian Health Practitioner Regulatory Authority intending to tending to mislead – whether professional misconduct – whether proceedings should be renewed to amend orders so they can be implemented – whether time for making the joint application should be extended

Health Practitioner Regulation National Law (Queensland) 2009, s 125(2)(b), s 127(3)(b), s 196(1)(b), s 196(2)(b), s 196(2)(d), s 196(3)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 127(1), s 133, s 134(2)(b)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 89

Psychology Board of Australia v Wakelin (No 2) [2014] QCAT 553
	
APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT	Mr C Wilson instructed by Lander & Roger
RESPONDENT	Ms D Callaghan instructed by Avant Law

REASONS FOR DECISION

[1]	Orders were made in this matter on 22 March last year.
[2]	A joint application has been made by the parties to renew the decision under s 133 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and extend time to correct the terms of the orders by adding a review period of three months from the date of the orders.
[3]	Similar applications have recently been made in other cases to modify orders so that they meet the requirements of s 196(3) Health Practitioners Regulation National Law 2009 (Qld) (National Law) to avoid the necessity for the tribunal to reconvene to consider removing the condition from the practitioner’s registration when they have been satisfied.
[4]	Dr Shah completed the approved course of education on 30 June 2016 and the Queensland Notification Committee of the Medical Board of Australia found that the cl 3 of the conditions had been satisfied but could not remove the condition because it had not been delegated the powers under ss 125(2)(b) and 127(3)(b).
[5]	The tribunal should have stated in the orders that Subdivison 2, Div 11, Pt 7 of the National law for the Board to be able to remove the education condition in cl 3.
[6]	Otherwise, removal can only be made by the tribunal itself on application.
[7]	Rule 89 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), (QCAT Rules) requires a renewal application to be made within 28 days of the 22 March 2016.
[8]	The application was filed 1 March 2017.
[9]	Being satisfied that there are problems with implementing the tribunals final orders it is appropriate to make the order that should have been made in the first place under s 134(2)(b) QCAT Act so that the renewed decision effective from the date of these renewed orders (s 127(1) QCAT Act) becomes the final decision in the proceeding in place of those made on 22 March 2016.
[10]	Accordingly, leave is granted to extend the time limit stated in the rules for making the application for renewal.  Otherwise, orders in terms of the joint draft.
Orders
1.	Pursuant to s 196(1)(b) of the National Law, the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct.
2.	Pursuant to s 196(2)(d) of the National Law the respondent’s registration is suspended for a period of six months.
3.	Pursuant to s 196(2)(b) of the National Law, a condition is imposed upon the respondent’s registration in the following terms:
a)	The respondent must undertake a course of ethical decision making and patient confidentiality to be completed within six months of the Tribunal’s decision.
b)	Within 28 days of the imposition of the condition, the respondent must nominate to the Board for approval, in writing, a course of education addressing ethical decision making in patient confidentiality to be undertaken by him.
c)	The respondent must provide with the nomination to the Board, a copy of the course curriculum.
d)	The respondent is to complete the course to a satisfactory standard within six months of receiving the written approval of the Board.
e)	Within three months of completing the course, the respondent must provide written evidence to the Board of the satisfactory completion of the course.
f)	All costs and expenses in relation to this condition are to be at the respondent’s expense.
4.	Pursuant to s 196(3) of the National Law, the respondent may not seek a review of the condition for a period of three (3) months.
5.	For the purpose of s 196(3) of the Health Practitioner Regulation National Law (Queensland) the review period is three months from 22 March 2016. 
6.	Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions imposed by the tribunal. 
7.	The respondent is to pay the applicant’s (Board’s) costs of and incidental to the proceedings, as agreed, or otherwise as assessed.