Medical Board of Australia v Shah  QCAT 158 (Delivered on 22 March 2016)23 September 2016 | Health Sector
(Allegations of professional misconduct. Consideration of appropriate sanction for breaches of the Code of Conduct for Doctors in Australia and Queensland Health Information Policy without reasonable justification)
This decision involved consideration of whether the respondent, Dr Shah, was liable for professional misconduct because of:
(a) Inappropriately sending an email to the oncologist treating his now deceased former wife (the wife) without her authority and seeking information about, or to involve himself in, her treatment regime again without authority;
(b) Accessing the wife’s online medical records without approval in breach of the Code of Conduct for Doctors in Australia and Queensland Health’s Information Policy of 2005 without reasonable justification; and
(c) Knowingly making and failing to correct a series of related false statements and submissions to AHPRA intended and tending to mislead.
Dr Shah conceded that he incorrectly sent the email to the wife’s oncologist and that his access to her medical records was inappropriate. Despite those admissions he denied professional misconduct and unprofessional conduct on the grounds that:
- The email to the oncologist was sent in desperation and confusion;
- He reviewed the medical records online acting in the role of concerned husband with a deep sense of responsibility for his wife’s overall wellbeing; and
- He refutes the allegation of making false or misleading statements to AHRPA.
The Board led evidence about the state of Dr Shah’s marital relationship and found that the parties had separated prior to Dr Shah sending the email to the oncologist and accessing the wife’s online medical records.
The Tribunal found that Dr Shah:
- Did not impress as a witness of truth and that overall he was not convincing;
- Abused his position of trust and confidence as a doctor and fell short of the standard of conduct that might reasonably be expected of him by the public or his professional peers; and
- Breached his professional code of conduct by failing to maintain professional boundaries in respecting and protecting his wife’s privacy and her right to confidentiality.
The Tribunal was satisfied that in light the finding made, Dr Shah was liable to sanction for professional misconduct.
Insofar as a penalty was concerned, Dr Shah argued that his conduct was not such that would require a period of suspension and that he had already been penalised enough as a consequence of his actions.
The Tribunal noted that in some cases adverse findings coupled with a monetary penalty may be sufficient even in cases of deceptive conduct. However, the Tribunal was not of the opinion that this was a case of unintended and later corrected misinformation. It was satisfied that Dr Shah knew that it was wrong to do what he did and instead of admitting at the first opportunity, he continued to the end of the proceedings to attempt to justify his behaviour and minimise the gravity by consistently denying the allegations to the Board, including in written responses.
In deciding what sanction to impose the Tribunal noted (at  to ):
(a) The medical profession is one requiring scrupulous candour at all times. It is an indispensable duty inherent in the role.
(b) The failure of a practitioner to be frank with a regulatory authority evidences a character flaw suggestive of an inability to be honest in his professional dealings with colleagues and clients.
(c) A period of suspension from practice is called for to mark the seriousness and failure to meet that basic requirement. The public cannot have confidence in a medical practitioner given licence to behave the way Dr Shah did here.
In light of its findings, the Tribunal suspended Dr Shah’s registration for a period of 6 months. In additional, conditions were imposed upon Dr Shah’s registration which included the completion of a course about ethical decision making and patient confidentiality.
Read the full version of HealthFiles | September 2016.