Medical Board decision overturned on Review
In the recent decision of the South Australia Civil Administrative Tribunal (the Tribunal) in Waleed Alkhazrajy v Medical Board of Australia an anaesthetist was successful in his application for review of a decision of the Medical Board of Australia that relevantly required him to undertake a course of education, following his administration of anaesthesia to his daughter for a minor surgical procedure.
Dr Alkhazrajy is a specialist anaesthetist and, in early 2019, he referred his daughter to a colleague, for consideration of surgery to treat a “trigger finger”. The surgeon performed the surgery and Dr Alkhazrajy administered the anaesthetic. The surgery was clinically uneventful.
The Australian Health Practitioner Regulation Agency received a notification regarding Dr Alkhazrajy’s conduct, and considered that his actions in administering anaesthetic to a family member “is or may be” unsatisfactory conduct pursuant to section 178(2)(c) of the Health Practitioner Regulation National Law (South Australia) Act 2010. The Board was of the view that Dr Alkhazrajy ought to have arranged for a different anaesthetist to perform the services in the circumstances.
Dr Alkhazrajy received a letter from the Board, which stated that it proposed to impose a condition on his registration requiring him undertake six hours of training in relation to professionalism and boundaries in medical care, and sought his response within a certain time frame (show cause period).
Prior to providing a response to the Board, Dr Alkhazrajy pre-emptively and proactively completed a course of education with Dr Joyner, general practitioner, who had extensive experience sitting as the chair on various medical education boards and providing training and mentoring for tertiary medical students in ethics.
Notwithstanding this, the Board concluded that Dr Alkhazrajy should undertake an approved program of education with a peer specialist in his field and submit a further reflective practice report.
As to the reflective report, the Board stated that Dr Alkhazrajy’s reflections were limited and failed to address the major issues of anaesthetic risks, the relationship between the anaesthetist and the surgeon, risks to the patient and the other practitioners involved.
Dr Alkhazrajy sought a review of the Board’s decision by the Tribunal.
The Tribunal’s Decision
Dr Alkhazrajy submitted that the Tribunal should consider his proactive training, which was completed during the show cause period, in its decision as to whether they imposed education conditions on his registration.
The Board submitted that the education should be undertaken with a practitioner who was of greater experience and seniority than Dr Alkhazrajy, and who was a specialist in the same field. The Board were also critical of Dr Alkhazarjy’s reflective papers and submitted that the reflections lacked identification of the associated risks with performing anaesthesia on close family members.
The Tribunal held that Dr Joyner was an appropriate and suitable practitioner to provide the training to Dr Alkhazrajy, noting that the issue in question was not related to his technical competency as an anaesthetist, but the maintenance of ethical conduct in practice.
The Tribunal was satisfied that Dr Alkhazrajy adequately understood the ramifications of his conduct and the inappropriate nature of administering anaesthetic to a close family member, and ultimately allowed the review, set aside the original decision of the Board and substituted it with a decision that no further action be taken.
The Tribunal also noted that the question for determination was not whether the education was approved or identical to that sought by the Board in its show cause letter, but whether the Board’s decision to take that action was the “correct or preferable decision”.
Having regard to the objective of the national registration and accreditation scheme and the objective directed at the protection of the public, which ensures that medical practitioners are suitably trained and qualified to practise in a competent and ethical manner, the Tribunal concluded that no further action was the correct or preferable decision.
The Tribunal noted that, although the Board’s conditions were appropriate, they were unnecessary as Dr Alkhazrajy had proactively and pre-emptively completed the required education, thus mitigating the risk of similar future conduct, which was what the Board’s proposed conditions were seeking to address.
Practitioners are often motivated to try to meet conditions requiring education during the show cause period in order to address the Board’s concerns proactively, so that there is then no need for the Board to formally impose the conditions on the public register. This decision provides support for practitioners proactively completing education and not necessarily waiting for the Board to approve the education through its processes. The benefit to the practitioner, apart from an earlier resolution, is that they may avoid conditions appearing against their name on the public register. The benefit to the public is that the concern to be addressed through education is addressed earlier and the practitioner is now practising safely.