health law insider - spring 2015
TRANSCRIPT
Health Law Insider SPRING 2015
* Pharmacist’s Appeal a
“cause for real concern”
* Procedural Fairness in
Investigations - 3
* Precision Is The Key To
Permissible Health
Assessments - 5
* Lifting and Twisting:
Not Always a Real Risk
of Injury - 6
* The Abolition of WCRA
Thresholds - 7
* Meet our Team
by Hamish Broadbent, Partner
& Jennifer Davis, Solicitor
Pharmacist’s Appeal a
“cause for real concern”
In 2013 pharmacist Jonathan Fryar was prosecuted by the Health Care Complaints Commission and
found guilty of unsatisfactory professional conduct and professional misconduct. His registration was
cancelled. Recently, the New South Wales Civil and Administrative Tribunal – Occupational Division
(“NCAT”) considered Mr Fryar’s application for review of the Order made by the Pharmacy Tribunal in
the matter of Fryar v Health Care Complaints Commission [2015] NSWCATOD 117.
The Complaints and De-registration
The Pharmacy Tribunal considered two sources of complaint in considering the professional conduct
of Mr Fryar.
The first complaint related to the supply of prescribed restricted substances in 2005 and 2006. Mr
Fryar supplied Dr Kelvin Wong, who has since been struck off the Register of Medical Practitioners,
with self-prescribed benzodiazepines, HCG, anabolic steroids, and other restricted substances “...in
quantities and for purposes which did not accord with recognised therapeutic standards...”.
The basis for the second complaint was conduct in 2010 whereby Mr Fryar dispensed restricted
substances to Mr Samual Cohen, operator of the Institute of Hair Regrowth and Beauty. Specifically,
Mr Fryar supplied large quantities of preparations which contained an unknown substance (supplied
by Mr Cohen) which Mr Cohen then on-sold to his institute clients.
The New South Wales Civil and Administrative Tribunal – Occupational Division recently
dismissed an appeal by a Pharmacist to set aside an earlier Order to cancel his registration in
light of findings of professional misconduct and unprofessional conduct.
www.kadenboriss.com
In this issue:
UPCOMING
EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
www.medico-legal.com.au
Health Care Insider
Mr Fryar was found by the Tribunal to be guilty of unsatisfactory professional conduct and professional
misconduct. As a result of these findings, the Pharmacy Tribunal made an Order to cancel My Fryar’s
registration and he was precluded from applying for a review for a period of 18 months.
The Appeal
On 11 November 2014 the non-review period ordered by the Pharmacy Tribunal expired and on 27
January 2015, Mr Fryar filed an Application for Review in NCAT pursuant to the Health Practitioner
Regulation National Law (NSW) (“the Act”). The Act allows for the right of review of an Order made
against the person who applies for review. In these circumstances, NCAT, as the appropriate review
body, conducted an inquiry into the Application and it was open to them to dismiss the Application or
make a reinstatement Order. The inquiry into a review Application is to determine the appropriateness,
at the time of the review, of the subject Order. It is not a review of the decision to make the Order in
the first instance, nor the correctness of any findings of the Tribunal that made the Order.
Mr Fryer, who was self-represented, had the burden to prove that on the balance of probabilities, the
previous Order no longer remained appropriate. Mr Fryar made submissions on five (5) grounds in
support of his application for reinstatement, as follows:
Good Character – Mr Fryar submitted that “in all aspects of my life I am an honest and giving person of
good character”, citing his volunteer work and alleged ethical practice in the two years between the
second complaint in 2010 and his deregistration in 2012.
Skills and Continuing Education – Despite drawing attention to the
academic record of his Masters Degree, Mr Fryar did not undertake any
continuing pharmacy education since his deregistration, conceding that
he “should have thought to do more pharmacy education…I missed that
one”.
Mental Health – Mr Fryar sought to rely on the report of an
independent psychiatrist, Dr Kathryn Lovrick, which was obtained for
the initial Pharmacy Tribunal hearing. Dr Lovrick diagnosed My Fryar as
suffering from Generalised Anxiety Disorder and opined that Mr Fryar
was fit to practice as a pharmacist. Further, Mr Fryar submitted that he
followed the advice of his treating psychiatrist and general practitioner
in terms of medication and consultations.
Insight/Remorse – Mr Fryar supplied references who attested to his
remorse and his attempts to re-educate himself.
Undertakings – Mr Fryar indicated his willingness to undergo a period of supervised education and
submit to an independent psychiatric assessment to give assurance of fitness to practice.
Findings
NCAT considered the submissions made by Mr Fryar in support of his Application. NCAT, however,
found Mr Fryar to be an unreliable witness with a lack of insight and complete frankness, which NCAT
described as a “cause for real concern”. The fact that Mr Fryar had not been proactive in undertaking
continuing education that would allow him to be prepared for re-registration was not viewed
favourably by NCAT. This inability to take proactive steps towards re-registration was also considered
evident in the lack of expert opinion regarding his competency and mental health issue.
Ultimately, NCAT considered that Mr Fryar’s application was largely directed towards the adverse
impact of his deregistration of his family as opposed to the reasons why he was now suitable for
reinstatement of his registration. NCAT was not relevantly satisfied that Mr Fryar was a fit and proper
person to be re-registered as a pharmacist.
Pharmacist’s Appeal a “cause for real concern”... cont.
Upcoming Events
Medico-Legal Society
of Queensland
2015 AGM &
Christmas Dinner
2 December 2015
medico-legal.com.au
The Application was dismissed with Mr Fryar ordered to pay the costs of
the Health Care Complaints Commission.
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Health Law Insider
The recent Supreme Court decision in Vega Vega v Hoyle & Ors [2015] QSC 111 emphasises the
requirement that a staff member who is the subject of an investigation be afforded natural justice and
procedural fairness.
The Facts
On 22 January 2014 Dr Vega Vega, a specialist urologist, performed a left nephrectomy (removal of a
kidney) on a patient with a complex anatomy as a consequence of spina bifida. Unfortunately following a
difficulty surgery with complications, the wrong kidney (which was also compromised) was removed. On
29 April 2014, following the discovery that the wrong kidney had been removed, Dr Vega Vega’s
employment was suspended.
Solicitors were engaged by Queensland Health to
coordinate and assist with three concurrent
investigations; a Root Cause Analysis (“RCA”), a Clinical
Review (“CR”) and a Health Service Investigation
(“HIS”). These investigations are administered under
the Hospital and Health Boards Act 2011 (Qld) (“the
Boards Act”).
Separate to these investigations, on 9 May 2014 the
Medical Board of Australia (“MBA”) suspended Dr Vega
Vega’s registration. On 27 June 2014, following
proceedings in QCAT, this decision was set aside and it
was held that Dr Vega Vega did not pose a serious risk
to persons and there should be no suspensions or
conditions placed on his registration.
The three parallel Queensland Health investigations continued. The HSI Report which included the CR
Report was delivered on 5 September 2014. On 12 September 2014 Dr Vega Vega filed application for a
statutory order of review contending that there was a breach of the rules of natural justice (procedural
fairness) in relation to the HSI Report.
The principles of natural justice require decision makers to make their decisions and conduct
investigations without a reasonable apprehension of bias and to afford the person a fair hearing. Dr Vega
Vega argued that the reports were invalid as they had been written in contrast to natural justice, and that
the investigators had denied him access to information and documents relied upon, thereby preventing
him from being able to properly respond. Justice Lyons agreed and found there had been a breach of
natural justice.
Bias
One lawyer was engaged to give advice in relation to the initiation of the investigation but within weeks
was appointed as an investigator of that very review. The Court considered that a reasonable observer
may have concerns about the closeness of that association. However, the Court determined that a
reasonable apprehension of bias could not be sustained. This was on the basis that the lawyer was
involved at an early point in time and it did not follow that the lawyer had formed a view in relation to the
doctor’s actions.
Procedural Fairness in Investigations
by Julien Fraccaro, Senior Associate
& Andre Wyman, Solicitor “Dr Vega Vega
argued that the
reports were invalid
as they had been
written in contrast to
natural justice, and
that the investigators
had denied him
access to information
and documents relied
upon ..."
Case Study: Where doctor subject of investigation - Court emphasised need for natural
justice/procedural fairness – Hospital found to have fallen short of disclosure requirements.
- 3 -
UPCOMING
EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
www.medico-legal.com.au
Health Care Insider
Sufficient Information
The Court found that there was a consistent failure to supply the interview notes and investigation
information of one of the Investigators, Dr Philip Hoyle, to Dr Vega Vega. This was despite repeated
requests made by Dr Vega Vega for those documents on the basis that the information was considered
significant. The requests were rejected on the basis that it was not considered necessary to provide access
to the materials collected during the investigation in order to respond to the issues and questions.
The respondents submitted that sufficient disclosure had been made and that interview notes were not
included on the grounds of confidentiality. However, in considering the view formed by Dr Hoyle about the
failure to communicate, the Court determined that it was critical to know what evidence Dr Hoyle was
relying on and the source of that information. Further, the Court found that providing extracts of interview
statements rather than the entire content of the interviews was insufficient disclosure. For these failures
the Court was satisfied there had been a breach of the rules of natural justice.
Additionally, it was determined that the delivery of the final HSI Report in the face of repeated requests for
information and requests for time to consider that information was a breach of the rules of natural justice.
The Court emphasised that the rules of natural justice mean a doctor, or indeed any staff member, who is
subject to investigation must be afforded access to full witness statements, not mere summaries, which
also include the identity of the witness. It was determined that Dr Vega Vega was also entitled to receive
the draft report before it was finalised to assess whether the investigator had used the evidence fairly.
The Court reaffirmed that in circumstances where a person’s rights might be affected due to being assigned
blame for an adverse outcome, that person must be provided with disclosure of all information, including
that which is both positive and negative. A person must have the opportunity to see the source
documents, statements, and assessments, in order to rigorously scrutinise then properly respond to and, if
necessary, contest the conclusions drawn.
Conclusion
Workplace investigations require
consideration to be given to what is
considered fair and proper procedure. It
must be ensured that the person who is
subject to the investigation is not subject to
pre-determined outcomes or disadvantaged
by information being withheld, particularly
when their careers and livelihood are at
risk. At the commencement of any
investigations, employers should always
consider whether the process that is
adopted will be upheld by courts.
A copy of the full decision can be found
on the website of the Supreme Court Library Queensland at: http://www.sclqld.org.au/caselaw/
QSC/2015/111
Procedural Fairness in Investigations... cont.
Kaden Boriss is able to assist you in conducting workplace investigations,
including those within the health sphere.
Contact Jamie McPherson, Partner, or Hamish Broadbent, Partner,
to discuss your specific needs.
“The Court reaffirmed
that in circumstances
where a person’s
rights might be
affected due to being
assigned blame for an
adverse outcome,
that person must be
provided with
disclosure of all
information, including
that which is both
positive and
negative.“
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Health Law Insider
The Fair Work Commission recently held in Transport Workers' Union of Australia v Cement Australia
Pty Ltd [2015] FWC 158 that the mere fact of increased risk in a particular working environment does
not give employers the ability to direct employees to have medical assessments as of right.
It had earlier been held by the Fair Work Commission that it is a lawful and reasonable direction to
send a specific employee to a company appointed physician for the purposes of assessing whether or
not they are capable of performing the inherent requirements of their position. This was distinguished
in the circumstances of this new decision, where the assessments were to be made across a whole
sector of the workforce as a preventative measure to address high rates of injury in a particular role.
The distinction ultimately related to the purpose of the tests. It is a matter of settled law that
employees need to be able to perform the inherent requirements of their position safely, however,
the test in this case was not whether or not they could perform their duties, but as to whether or not
they bore more significant risks in those duties due to their general health and lifestyle. It was
communicated to the employees, and was true as a matter of fact from the tests, that the results of
those tests would not be used to assess task capability, but just the health of employees to assist them
in self-managing their health in the hope of reducing instances of injury.
The Commission considered the fact that an existing compulsory assessment scheme existed under
relevant safety legislation, and that the assessments themselves were non-specific. Because of the
lessened need to obtain these assessments, and the general nature of the data obtained, the
Commission considered the perceived need for the assessments insufficient to counterbalance the
employees’ right to privacy. The direction by the employer to participate in the assessments was held
to be beyond the scope of a lawful and reasonable direction.
For employers, this does not mean the end of health assessments, but it does provide a number of
guidelines as to how to structure the obtaining of health information:
Health assessments should be structured to provide information on the performance of the
inherent requirements of a position;
If a health assessment is to be arranged for more than a single employee it should be clearly linked
to a concrete element of their shared duties;
Consideration should be given as to whether or not there are less invasive ways to obtain the health
information;
Assessments should seek to obtain detailed, highly specific information rather than a general
assessment of fitness or wellbeing;
If an existing regulatory scheme exists, consideration should be given to whether or not a further
assessment is required, particularly when considering what the inherent requirements of a position
are;
Finally, it is critical that a genuine need to obtain the information exists, not merely a preference or
a “fishing expedition” as to possible health issues, even if this is motivated by the desire to protect
employees.
Precision Is The Key To Permissible Health Assessments By Andrew Bautovich, Senior Associate
“Because of the
lessened need to
obtain these
assessments, and the
general nature of the
data obtained, the
Commission
considered the
perceived need for
the assessments
insufficient to
counterbalance the
employees’ right to
privacy."
Recent developments in the area of medical assessments should serve as a warning to all
employers about how they approach health assessments to manage employment risks.
Kaden Boriss has a significant degree of experience in helping to draft and review
assessment protocols relating to the inherent requirements of a position or positions. If you
are considering implementing assessments, or need to review your existing assessment
arrangements in light of this decision, please feel free to contact us if you require advice.
- 5 -
UPCOMING
EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
www.medico-legal.com.au
Health Law Insider
The case of Hawkins v Ross Human Directions Ltd [2015] NSWCA 265 (“Hawkins”) involved a claim brought
by Ms Hawkins against her employer, Ross Human Directions Ltd. Ms Hawkins sustained a significant
injury to her back as a result of lifting two archive boxes and twisting around to carry them to secure
storage. The primary judge found that the weight lifted by Ms Hawkins on the occasion was no more than
7kg. The judge held the view that Ms Hawkins had not shown that the Employer should have been aware
of a risk of injury, when she lifted a 7 kg box and twisted. Accordingly the Judge found there was no breach
of duty by the Employer.
Ms Hawkins then appealed this decision of the primary judge and it came before the
NSW Court of Appeal. While some error was found in the primary judge’s decision,
the Court of Appeal provided that in order for the appeal to succeed, Ms Hawkins
needed to show there was a real risk of injury in her lifting boxes (that potentially
weighed up to 9.8 kg) such that the Employer was obliged to take precautions in
respect of that risk. The Court of Appeal found that Ms Hawkins failed to establish
this and the appeal was dismissed.
Saliently Justice Beech-Jones remarked that if the employer had a responsibility to
mitigate risks of injury,
"the only system that could have prevented [the worker's] accident from
happening was one in which she was precluded from lifting any box... It is
difficult to accept that an office environment could function if employees in [the
worker's] position were precluded from lifting any box of documents."
The decision is quite different from the approach taken in Queensland in Tabcorp Holdings Ltd v Dank
[2011] QCA 253 (“Tabcorp”). In this case, the worker sustained a back injury at work when she lifted a box
of photocopy paper (12.7 kg) from the floor to her desk. The trial judge found the employer had breached
their duty of care as:
The worker had received no instructions in how to appropriately lift the box; and
The risk could have been obviated by ensuring that employees placed the boxes on her desk or the
employer could have had in place a system for storing such boxes at knuckle height; and
There was a clearly foreseeable risk of injury.
Tabcorp appealed the decision but the Court of Appeal affirmed the trial judge’s finding that the risk of
injury was foreseeable.
A key difference between the two cases is that in the Tabcorp decision the evidence was that the worker
did not know how to properly and safely lift a box and this, inter alia, was the cause of the injury. Whereas
in Hawkins the allegations were more general, that manual lifting created a foreseeable risk of injury.
by Damian Hegarty, Senior Associate
Lifting and Twisting: Not Always a Real Risk of Injury
A recent NSW Court of Appeal decision has eschewed the proposition that a system of work
involving lifting and twisting creates a foregone risk of injury. The NSW decision is a sensible
determination and contradicts recent Queensland authorities.
“It is difficult to
accept that an office
environment could
function if employees
in [the worker's]
position were
precluded from lifting
any box of
documents."
Justice Beech-Jones
While the Hawkins v Ross Human Directions Ltd decision is not binding in Queensland
Courts, it is useful obiter and cause for some optimism in future similar cases.
- 6 -
Health Law Insider
The Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 passed
Parliament on 17 September 2015, the effect of this legislation being:
There is no applicable threshold now applying, and common law rights are restored to all
injured workers retrospectively from 31 January 2015.
This change means that there is now a limited threshold regime- there is no threshold
applicable for all injuries sustained before 15 October 2013, that is, before the introduction of
the previous legislation.
From 15 October 2013 to 31 January 2015 a common law threshold of greater than 5%
permanent impairment is applicable for all injuries that occurred in that 15 month period.
As well as removing the threshold, the legislation allows workers who are injured between 15
October 2013 and 31 January 2015 and who did not otherwise overcome the 5% threshold to
be awarded additional lump sum compensation pursuant to relevant Regulations. This short
term arrangement only applies for injuries which occurred between 15 October 2013 and 31
January 2015.
Although injured workers who did not overcome the threshold are not entitled to a full
restoration of common law rights, this lump sum arrangement is intended to provide some
additional compensation to workers who were otherwise disadvantaged by the threshold
regime.
The relevant lump sump entitlement is approximately twice as much as the lump sum already
for injuries in the statutory claims process.
It is intended that a streamlined process will be put in place for the assessment of this
additional lump sum entitlement. An insurer is required to determine whether a worker who
otherwise did not overcome the threshold is eligible to the additional lump sum. If it is
considered by the insurer that the worker is not eligible, the worker is then issued with reasons
for the insurer’s decision and will be able to have the decision administratively reviewed by an
independent panel of legal experts.
As previously flagged there are also amendments to sections providing presumptive
compensation to firefighters who contract one of twelve types of cancer, that is, it is presumed
that the cancers are effectively employment-related.
An employer can no longer request the WorkCover claims history of a prospective employee
from the Regulator in the pre-employment process. Nonetheless, employers can still ask
detailed questions of a worker relevant to job capacity and otherwise direct prospective
employees to undertake a pre-employment medical examination aimed at assessing work
capacity.
It will be interesting to see whether there will now be a significant (and some say, predicted) increase
in common law claims following this legislative change.
The Abolition of WCRA Thresholds
by Damien van Brunschot, Partner
“There is no
applicable threshold
now applying, and
common law rights
are restored to all
injured workers
retrospectively from
31 January 2015.“
As always, please feel free to contact our office should you wish to
discuss these legislative changes, or any other matters.
On 17 September 2015 Queensland State Parliament passed an Act which sees the abolition of
common law thresholds—changes made retrospectively and applying to all injuries which
occurred after 31 January 2015.
- 7 -
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www.kadenboriss.com
Meet our Team
Hamish Broadbent
Partner T 07 3013 2708
Damien Van Brunschot
Partner T 07 3013 2702
Insurance & Health, Workplace Health & Safety, and Employment.
Health Law Insider
Andre Wyman
Solicitor T 07 3013 2749
Julien Fraccaro
Senior Associate T 07 3013 2707
Jennifer Davis
Solicitor T 07 3013 2738
Mark Curran
Partner T 07 3013 2751
Jamie McPherson
Partner T 07 3013 2701
Andrew Bautovich
Senior Associate T 07 3013 2704
Damian Hegarty
Senior Associate T 07 3013 2731