Health Ombudsman v Cheong - [2022] QCAT 181

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Cheong [2022] QCAT 181

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSAMN

(applicant)

v

IAN ROBERT CHEONG

(respondent)

APPLICATION NO/S:

OCR221-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 May 2022 (ex tempore)

HEARING DATE:

24 May 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

J Stuckey
J Quinn
S Phipps

ORDERS:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) The Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Respondent is reprimanded.

3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013, the conditions in the attached scheduled of conditions be imposed on the respondents registration.

4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act2013 (Qld), the immediate registration action taken by the Health Ombudsman on 9 June 2015 to impose conditions on the respondents registration, and amended 11 July 2019, is set aside.

5. Costs are reserved.

CATCHWORDS:

PROFESSIONS AND TRADES- MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT- where complaint was made to Health Ombudsman about the respondent’s prescribing of Schedule 8 drugs to drug dependent patients in March 2015 – where immediate registration action taken by OHO which included conditions that prohibited the respondent from prescribing Schedule 8 drugs to patients -where investigation undertaken – where first referral was not filed until 2019 – where matter proceeded on the basis of a Further Amended Referral filed 8.2.2021 and a Further Amended Referral filed 24.2.2021- where parties filed and Amended Statement of Agreed Facts on 20.12.2021- where applicant withdrew a number of allegations made in it original referral – where respondent made certain admissions of conduct which he agreed amounted to professional misconduct – whether delay is relevant as a mitigating factor in relation to sanction – where parties agree as to sanction except the imposition of mentoring and auditing conditions – where respondent has continued to practice subject to the immediate registration conditions without further complaint – whether the respondent has demonstrated appropriate insight into his conduct and remorse for it – where legislative scheme governing the prescribing of Schedule 8 and other drugs of dependency has changed completely since the first notification

Health Ombudsman Act 2013 (Qld) s 107, 62

Health Practitioner Regulation National Law (Qld) 2009 s 41

Craig v the Medical Board of South Australia (2001) 79 SASR 545

Health Care Complaints Commission v Litchfield [1997] NSC 297

Health Ombudsman v Duggirala [2021] QCAT 326

Health Ombudsman v Veltmeyer [2021] QCAT 77

Health Ombudsman v Wabersinke [2019] QCAT 156

Medical Board of Australia v Evans [2013] QCAT 217

Medical Board of Australia v Hydemann [2020] SACAT 106

Medical Board of Australia v Marzola [2020] SACAT 116

Medical Board of Australia v Moschou [2020] SACAT 110

Medical Board v Watts [2019] VCAT 1471

APPEARANCES & REPRESENTATION:

Applicant:

AR Forbes, Solicitor Turks Legal

Respondent:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Cheong and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 181
Decision Date

CaseChat Overview and Summary

The case of Health Ombudsman v Cheong involved the Health Ombudsman as the plaintiff and the respondent, a registered medical practitioner, as the defendant. The dispute centred around allegations of the respondent's inappropriate professional conduct, particularly in relation to his prescribing practices of high-dose opiates to patients outside of accepted general practice and without appropriate review. The case was heard by the Tribunal, which was tasked with determining whether the respondent's actions constituted professional misconduct warranting disciplinary action.

The primary legal issues before the court were whether the respondent's prescribing practices and failure to comply with certain statutory obligations amounted to professional misconduct under the National Law. Specifically, the court needed to assess whether the respondent's actions fell below the expected standards of professional conduct as outlined in the Good Medical Practice (Code of Good Practice) and the Good Medical Practice: A Code of Conduct for Doctors in Australia. Additionally, the court had to consider whether the respondent's failure to report a patient's drug dependency as required by the Health (Drugs and Poisons) Regulation 1996 constituted a breach of his professional obligations.

In reaching its decision, the Tribunal carefully examined the evidence and submissions presented by both parties. It noted that while there were factual disputes, the matter had been compromised through negotiations, leading to a clearer understanding of the relevant conduct. The Tribunal found that the respondent's prescribing practices and failure to report a patient's drug dependency did indeed amount to professional misconduct. The Tribunal concluded that the respondent's actions fell below the standard of care expected of a medical practitioner and that his failure to comply with statutory obligations was a significant breach of professional conduct. Consequently, the Tribunal upheld the Health Ombudsman's imposition of conditions on the respondent's registration, including the prohibition on prescribing schedule 8 drugs.

The Tribunal ordered that the conditions imposed on the respondent's registration by the Health Ombudsman remain in place. This includes the prohibition on prescribing schedule 8 drugs and the requirement for the respondent to complete education on safe and effective opioid prescribing. The Tribunal's decision underscores the importance of adhering to professional standards and statutory obligations to ensure patient safety and maintain public trust in the medical profession.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent was, at all relevant times, subject to registration standards, codes and guidelines developed by the State Board and the Board to govern what is appropriate professional conduct for the profession, including the Good Medical Practice (Code of Good Practice) developed by the State Board as about 2004; and the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct), which are admissible in proceedings such as this as evidence of what constitutes appropriate professional conduct for the health profession.[2][2]Section 41 National Law.Background The respondent graduated with a Bachelor of Medicine, Bachelor of Surgery from the University of Queensland in 1986. He commenced general practice training in 1993 and was awarded a fellowship with the Royal Australian College of General Practitioners in 1999. The respondent has been a GP principal and director of the practice since 2003. He usually consults 3.5 days a week at the practice. As referred to earlier, a complaint was made on the 1st March 2015 to the OHO by a colleague within the practice, concerning the respondent’s alleged prescribing of high-dose opiates to patients outside of general accepted practice who had not been reviewed by a pain management specialist or colleague. As noted earlier, the Health Ombudsman took immediate action on the 9th of June 2015 and imposed conditions on the respondent’s registration. As well as the prescribing conditions referred to earlier, the respondent was required to complete education regarding, inter alia, safe and effective opioid prescribing. The conditions were amended on the 11th of July 2019 but not so that the prohibition on prescribing schedule 8 drugs was affected. Those conditions are still imposed on the respondent’s registration. The Relevant Conduct There remain factual disputes between the parties but, in effect, the matter has been compromised after lengthy negotiations, and a succinct summary of the factual basis on which the Tribunal is now to proceed is set out in the submission of Ms Robb, Counsel for the respondent.[3] I respectfully adopt that summary.[3]Page 366 of the Hearing Brief (HB). In relation to patient RO, and in accordance with the ASOAF, the respondent accepts that:(a)he prescribed restricted drugs of dependency and controlled drugs to patient RO on various dates between the 18th of January 2012 and the 1st of June 2015;(b)by March 2012, he believed that patient RO was drug-dependent and in those circumstances he made contact with Medicines Regulation Quality (MRQ) regarding patient RO;(c)between March 2012 and the 3rd of September 2014, he failed to comply with his obligation under section 122 of the Health (Drugs and Poisons) Regulation 1996 (the Regulation) to give the Chief Executive a report in the approved form about the circumstances of patient ROs treatment in circumstances where he believed patient RO was drug-dependent; (d)by a letter faxed to the practice on or about the 31st of July 2014, the delegate of the Chief Executive of MRQ requested the respondent contact MRQ and provide information with respect to patient RO by 22nd of August 2014, and asked that the respondent contact MRQ prior to prescribing any controlled drugs to patient RO;(e)he prescribed controlled drugs to patient RO on the 8th of August 2014 and the 20th of August 2014 without first contacting MRQ, contrary to the delegate of the Chief Executive’s request; (f)he contacted MRQ regarding patient RO on the 3rd of September 2014 and provided a report regarding patient RO on the 17th of September 2014, so that there was a period in which he failed to comply with the request of the delegate of the Chief Executive that he communicate with MRQ regarding patient RO by 22nd of August 2014, in contravention of section 122 of the Regulation; and(g)he, on occasions, allowed for early prescriptions and the escalation of the prescribed dose over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.