Reimers v Medical Board of Australia [2023] NSWCATOD 192 (Link to Caselaw).
Dr Reimers, a former anaesthetist, has a long history of conduct decisions dating back to 2003 when he was found guilty of professional misconduct and his name was removed from the Register of Medical Practitioners. The Tribunal also ordered that any application for review of its orders could not be filed or dealt with for a period of 10 years.
Following an application in 2018 he was found to be a fit and proper person to be registered as a medical practitioner, subject to conditions but as noted below he had not been able to obtain any engagement as a medical practitioner.
The present matter arose as an appeal from the Medical Board’s refusal of his application for specialist registration as a specialist anaesthetist. Although the Practitioner filed extensive submissions and other documents, including Tribunal and Court decisions, he did not file or rely upon evidence given by himself or any witness in his case.
The Board relied upon the decision in Hanna at [80] in which it was said that the Tribunal “must be confident that the Applicant is a fit and proper person to practise”. As was made clear in the passage from Bond Media Case, at [65], the issue is whether a person is fit and proper “to undertake the activities in question”, which in this case are those of a specialist anaesthetist.
The Board submitted, that since the decision of the Tribunal in 2018 that the Practitioner was suitable for general registration, he had not been able to obtain any engagement as a medical practitioner and that, as a result, “it has not been possible to assess his suitability for specialist registration by reference to a period of general practice in a junior position”.
The Board submitted that the Practitioner had not advanced evidence about his “plan for professional development and re-entry to specialist practice in the event that specialist registration was granted”, or his future employment prospects, including whether there is any realistic prospect of his obtaining a position which depends on specialist registration in the field of anaesthesia. At [68] it was noted:
The Board relied upon the effect of the Practitioner’s conduct in 2003 on the Practitioner’s reputation and standing. It was submitted that “It would undermine the public’s confidence in the medical profession, and in particular in the specialty of anaesthesia, if the (Practitioner) was to be granted specialist registration”. In our view, there would be considerable public disquiet if, after more than 20 years absence from the practise of anaesthesia, with no evidence of study, training or experience in that specialist field in the interim, the Practitioner were to be granted specialist registration enabling him to do so. Granting the Practitioner’s appeal would be difficult to reconcile with the need to maintain public confidence in the medical profession and its regulation. It is unnecessary to rely upon the Practitioner’s offending conduct prior to 2003 in order to support these concerns- they have a foundation not directly related to that conduct.
The Tribunal held at [95] – [96]:
The Tribunal is not satisfied the Practitioner is a “suitable person” and is not a “fit and proper” person to be registered as a specialist in anaesthesia and his appeal must be rejected. Even if the Tribunal did not make those findings, it would be comfortably satisfied to reject the Practitioner’s appeal on the basis that he is unable to practise the profession of anaesthesia competently and safely.
The authorities recognise the importance of upholding public confidence in the medical profession. In the Tribunal’s view, to uphold the Practitioner’s appeal would be contrary to the principles and objectives of the National Law and involve an unacceptable risk to the health and safety of the public. To permit the Practitioner to practise anaesthesia, or hold himself out as being registered to do so, would, on the findings we have made, constitute an unacceptable risk to public health and safety. It is now more than two decades since the Practitioner practised anaesthesia, and five years since the Tribunal granted the Practitioner re-registration as a medical practitioner, and clearly set out the conditions pursuant to which he could seek to regain specialist registration. There is a complete absence of evidence of the Practitioner having attempted, much less achieved any of the objectives referred to in the conditions imposed in 2018 and subsequently varied. Allowing the Practitioner’s appeal would send a most unsatisfactory “message” to medical practitioners and to the public, both with respect to the standards of the medical profession and the vigilance with which the Tribunal maintains those standards.
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