Key issues

  • In DYB v Medical Board of Australia [2019] NSWCATOD 162, the Tribunal considered the concept of “impairment” for practitioners and its application under the National Law.
  • The decision confirms that with appropriate medical support many practitioners with an impairment are able to practise without affecting the health and safety of the public.

Background

In 2015, Dr DYB surrendered her registration due to her health. Dr DYB had been diagnosed with autism spectrum disorder and major depressive disorder with atypical features, and had attempted suicide on a number of occasions.

In 2017, Dr DYB applied for general registration and the Medical Board (Board), following an independent psychiatric assessment, granted her general registration subject to conditions, including that she not engage in direct or indirect clinical care. After failing to overturn the restrictive condition, Dr DYB lodged an appeal against the relevant Board decisions.

The Tribunal found that the medical evidence:

  1. confirmed that Dr DYB did suffer a disability or impairment (first prong); and
  2. suggested that Dr DYB’s insight into her illness, and the need to follow her psychiatrist’s treatment plan and comply with medication, was relatively recent. This raised a real concern that, should she cease her medication or become depressed, that she may not have the necessary insight to withdraw from patient care or continue with her treatment. Consequently, her impairment was likely to detrimentally impact on her capacity to practise medicine (second prong).

The Tribunal acknowledged that there was no evidence that, while practising, Dr DYB ever engaged in conduct adverse to a patient’s care, and ultimately determined that Dr DYB could engage in direct patient care without compromising the health and safety of her patients with the imposition of specific conditions.

Findings

  • Dr DYB can safely engage in direct or indirect clinical care with conditions.
  • Dr DYB must only practice in pre-approved positions, in PGY2 positions, with level 1 supervision by a pre-approved supervisor.
  • Dr DYB must attend upon her GP and psychiatrist at frequencies to be determined by them.

Take home point

The blanket suggestion that any practitioner who has mental health issues of any type should not seek treatment for those conditions because he or she will be precluded by the Board from practising is not a principle of general application and is inconsistent with the way impairment is treated under the National Law. Many practitioners with a disability or disorder are, with appropriate medical support, able to practise without affecting the health or safety of the public.

Click here to read: DYB v Medical Board of Australia [2019] NSWCATOD 162.