Health Ombudsman v Angus Cheyne DAVIE
[2024] QCAT 383
•29 MAY 2024
| [2024] QCAT 383 | |
| QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL | |
| DICK SC, Judicial Member | |
| Assisted by: | |
| MR P GARCIA | |
| MS L J MICHEL | |
| MR M HALLIDAY | |
| OCR 355 of 2022 | |
| HEALTH OMBUDSMAN | |
| Applicant | |
| v | |
| ANGUS CHEYNE DAVIE | |
| Respondent | |
| BRISBANE | |
| WEDNESDAY, 29 MAY 2024 | |
| REASONS FOR DECISION | |
JUDICIAL MEMBER: This is the matter of the Director of Proceedings on behalf of the Health Ombudsman and Angus Cheyne Davie. This is a hearing on the papers. The respondent has not filed any material other than to agree to the proposed characterisation and sanction.
The referral concerns the respondent who was then a registered medical radiation practitioner. He was convicted of 75 drug-related offences and one offence involving the possession of weapons, that is a Taser. He was born on 15 December 1965. He has no disciplinary or notification history prior to being arrested on the said charges on 10 June 2020. He has a criminal history of a minor unrelated criminal offence in 1988 and no weight is put on that offence. At the time of the criminal conduct, he was employed as a radiographer.
On 11 June 2020, the Office of the Health Ombudsman received information from the Queensland Police Service (QPS) that the respondent had been charged. On 18 June 2020, a delegate of the Health Ombudsman decided to refer the matter to AHPRA due to concerns that the respondent was suffering from a health impairment.
On 14 July 2020, the Medical Radiation Practice Board of Australia (Board) decided to take immediate action and suspend the respondent’s registration. This was on the basis of a reasonable belief in respect of the respondent’s health.
On 10 November 2021, in the District Court at Ipswich the respondent was convicted on his own plea of guilty of 76 offences under the Criminal Code 1899 (Qld), Drugs Misuse Act 1986 (Qld), Health (Drugs and Poisons) Regulation 1996 (Qld) and the Weapons Act 1990 (Qld). He was sentenced to a two year period of imprisonment, to be suspended after the respondent served three months’ imprisonment with an operational period of four years.
On 22 June 2022, the Health Ombudsman commenced an own motion investigation and on 12 August 2022, the Health Ombudsman decided to refer the matter to the Director of Proceedings. On 20 October 2022, the respondent conveyed his intention to surrender his registration in accordance with s 137 of the Health Practitioner Regulation National Law (Queensland) (National Law).
On 11 November 2022, the Board revoked the suspension of the respondent’s registration. On 23 December 2022, the applicant filed this referral.
The Respondent’s Conduct
On 10 June 2020, the police executed a search warrant at the respondent’s home in Regency Downs. The police located and seized a number of drugs and drug-related items found throughout the respondent’s home. The police located several different quantities of cannabis in different places and 10 cannabis plants. They also located five Cryovac bags containing psilocin, a dangerous drug; a clip-seal bag of another dangerous drug, count 4 on the indictment; and three silver foil packets containing lysergol, a dangerous drug.
The respondent told police that all of the cannabis was his and he used it to treat his depression and help him sleep.
During the search, the police also found drug paraphernalia and small quantities of other restricted drugs; tramadol and Eletriptan. In respect of the Eletriptan he said he had obtained that from his workplace, where he worked as a radiographer, and advised that the drugs are meant to be disposed of in a special bin at work.
The police found two Samsung Galaxy phones which the respondent admitted owning. An analysis of telephone records identified that between the 16 July 2015 and 25 May 2020, the respondent committed 64 counts of supplying dangerous drugs amongst 16 of his contacts, some of those charges of supplying were in fact preparatory to supplying.
It is submitted that from the messages from the telephones it was clear that the quantities of drugs supplied by the respondent were not substantial and it was not suggested that the respondent was making a profit from selling drugs.
The first matter to be determined is the characterisation of the conduct. Professional misconduct as defined in section 5 of the National Law as:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The applicant submits that the respondent’s conduct readily fits into each of the subsections.
It would be unusual if criminal conduct resulting in a prison sentence were not found to amount to professional misconduct, even if that conduct occurred otherwise than in the course of the practitioner’s practice. That is because the fact that the conduct resulted in a prison sentence exposes the seriousness of the conduct itself and the extent and seriousness of the departure from the required standard of conduct.
Sanction
The next matter to be determined is the sanction. The main guiding principle is that the health and safety of the public are paramount and that the purpose of disciplinary proceedings is to protect, not punish.
When determining sanction the Tribunal needs to take into account the facts of each case and may consider other factors including:
(a)the nature and seriousness of the practitioner’s conduct;
(b)the insight and remorse shown by the practitioner;
(c)the need for specific and general deterrence;
(d)any steps taken by the practitioner to mitigate the risk of reoccurrence of the conduct;
(e)mitigating features such as evidence of matters which may give context to the conduct, for example mental health issues; and
(f)other matters including:
(i) past disciplinary history;
(ii) police history;
(iii) character evidence;
(iv) periods of preclusion/non-practice; and
(v) cooperation during the disciplinary proceedings.
As to the seriousness of the conduct, it was objectively serious and, as the applicant submits, completely inconsistent with the professional ethical obligations of a medical radiation practitioner.
Insight and Remorse/Future Risk
The respondent made an early plea of guilty to the charges. He has attended a psychologist, psychiatrist and his general practitioner regularly. He has undertaken and completed a drug and alcohol rehabilitation treatment programme and he has expressed his remorse and told his psychologist that he intends never to use cannabis again. He has cooperated with the proceedings in that he removed himself from the profession in October 2022. He has cooperated with this disciplinary matter and in his formal response admitted all of the conduct alleged.
Deterrence
The significance of deterrence in disciplinary proceedings is not to punish. It is important for a protective purpose. Sanction orders reassure the public and the health professions that appropriate standards are being maintained and emphasise that certain conduct will not be tolerated.
Specific deterrence is of less relevance in this matter because he is currently subject to a suspended sentence and his treating practitioners report he is determined to continue to avoid cannabis use and improve his mental health.
Health
The applicant notes that the psychologist, Mr Horan, reported that:
The respondent is non-responsive to antidepressant medication and found that marijuana was his only escape from his feelings. He has now ceased use.
His general practitioner provided a report in which he said the respondent suffers from: “severe endogenous depression” and “responds poorly to the usual suite of medications used to treat this disease”.
The applicant acknowledges the respondent has made a genuine effort to improve his mental health and abstain from the use of illicit drugs, and further notes that on 26 October 2021, a urine drug screen was negative for cannabis and other illicit drugs.
The Tribunal does not have current medical reports.
The applicant says the Tribunal may take evidence of mental health issues into account in a number of ways. First, in all such cases the evidence must properly establish a causal connection between the mental illness and the offending conduct.
This proposition is easier to accept for those charges that related to the possession of cannabis rather than the supply.
In this matter, the applicant accepts that the respondent’s mental health provides a mitigating circumstance in considering what disciplinary order should be made. The Tribunal has considered the comparative cases set out in the applicant’s submissions.
Consideration
There is authority correctly set out in the applicant’s submissions which would lead to the conclusion, as a general principle, that a practitioner who has been convicted of a serious criminal offence or offences should not be permitted to resume his practice until he has satisfactorily completed his sentence. In terms of a partially suspended sentence, that is not until the operational period has elapsed. That operational period in this case will lapse on 10 November 2025. The second matter relating to that is that gives the authorities the opportunity to see that the applicant has served out a, in this case, relatively lengthy period of being under scrutiny.
The submission originally received by the Tribunal is that as part of the orders there should be an order that the respondent be disqualified from applying for registration as a health practitioner for a period of two years and two months. However, this submission was dated 9 October 2023 and needs to be adapted to allow for the time that has passed since the submission was made.
The Tribunal is of the view that the respondent’s conduct requires the following orders:
(a)first, a finding that the respondent has engaged in professional misconduct;
(b)secondly, that the respondent is reprimanded. It has been clearly set out in the authorities that a reprimand is not a trivial penalty; and
(c)third, that the respondent is disqualified from applying for registration until at least his sentence has been fulfilled.
The orders that the Tribunal makes are:
1. The respondent has engaged in professional misconduct.
2. The respondent is reprimanded.
3. The respondent is disqualified from applying for registration as a health practitioner until the 10 November 2025.
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