Health Ombudsman v Dahl, Michelle Rut
[2023] QCAT 246
•7 JUNE 2023
[2023] QCAT 246
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JONES, Judicial Member
Assisted by:
MS ASHCROFT
DR CAVANAGH
DR QUINN OAM
No OCR 123 of 2022
HEALTH OMBUDSMAN Applicant
v
DAHL, Michelle Ruth Respondent
BRISBANE
WEDNESDAY, 7 JUNE 2023 JUDGMENT
JUDICIAL MEMBER: This proceeding is concerned with the conduct of one Michelle Ruth Dahl (the respondent). The Tribunal has the benefit of joint submissions filed on behalf of the parties.
Accordingly, there are no material factual disputes, and the parties are in agreement as to the findings and orders that the Tribunal ought to make. That there is such a level of agreement is of course a significant matter to be taken into account. However, at the end of the day, it is for the Tribunal to decide as to the appropriate findings and orders. It can also be observed that given the level of agreement as on both factual matters and the final orders that ought to be made, this matter was able to be dealt with on the papers.
Background
At the time of the conduct, the respondent held general registration with the Medical Board of Australia as a medical practitioner, and since 1 July 2010, was a registered health practitioner for the purposes of the relevant legislation and the National Law. The relevant conduct relates to the respondent’s clinical management, and the prescription for each of five patients over varying but extended treatment periods. The treatment periods are as follows:
(a)Patient DR: between 10 December 2002 and 4 October 2019;
(b)Patient SR: between November 2008 and January 2019;
(c)Patient SM: between 4 April 2000 and 4 July 2018;
(d)Patient WM: between 12 July 2000 and 4 July 2018; and
(e)Patient BM: between 4 April 2000 and 4 July 2018.
At the relevant time, the respondent was prescribing narcotics and benzodiazepines. There is no dispute that the prescribing was not consistent with an accepted standard of clinical practice. That is so for the following reasons:
(a)The respondent prescribed narcotics and benzodiazepines without eliciting any or an adequate clinical history from the patients, failing to conduct a risk profile to determine the patients’ potential for addiction or abuse, and without recording the clinical reason for the prescription.
(b)The respondent prescribed narcotics for the patients for pain management without adequately investigating, identifying and analysing the nature and source of the pain complained of.
(c)The respondent failed to refer patients to pain specialists at the earliest practicable, practical time.
(d)The conditions from which the patients suffered did not reasonably require the level of treatment with benzodiazepines or narcotics as prescribed.
(e)The amount of benzodiazepines and narcotics prescribed by the respondent to the patients greatly exceeded that which would be reasonably clinically indicated as appropriate in each case.
(f)The frequency of prescriptions for benzodiazepines and narcotics exceeded that which would be reasonably clinically indicated for each case.
The quantities of benzodiazepines and narcotics the respondent prescribed to the patients were such that the respondent ought to have known that they were each a drug-dependent person as defined by section 5 of the Health Act 1937, which was in force at the relevant times. Also, the respondent failed to make the required notifications and obtain approval to prescribe, as was then required by sections 120, 122 and 213 of the Health (Drugs and Poisons) Regulation 1996. It can also be said that the respondent failed to manage the patients’ drug dependence in accordance with an accepted standard of practice, and also failed to keep adequate clinical records with respect to each of the patients.
In addition, there were a number of concerning factors relating to individual patients. Patient RW suffered from epilepsy, and the respondent prescribed drugs for RW which were known to lower the threshold for epileptic seizures. In respect of patient SM, the respondent prescribed pethidine for treatment of migraines when it was no longer an accepted clinical practice to do so without conducting adequate investigations into the potential causes of SM’s migraines.
The characterisation and the conduct in the joint submissions adequately or accurately summarise the nature of that conduct. In those submissions, it is said:
It is also submitted, and the Tribunal accepts the following:
Factors of the respondent’s conduct which are of most concern and elevate the seriousness of her conduct are:
(i)The number of patients and the period of time over which the conduct occurred.
(ii)The nature and number of the drugs, and the manner in which they were prescribed; that is, in increasing and excessive quantities.
(iii)The risk posed to the patients in the failure to appropriately manage the prescription of those drugs.
(iv)The risk posed to the patients in failing to maintain appropriate records.
(v)The combinations and quantities of the prescribed drugs. And finally:
(vi)The failure to respond to patient behaviour.
In all the circumstances, there can be little room for doubt, as the parties agree that the conduct ought properly to be categorised as being professional misconduct.
Subsequent events
It can now be accepted that the respondent has an understanding of the broader impact of her actions, and has gained insight into her conduct. The respondent has made appropriate admissions in respect of her conduct, and accordingly, there are no factual issues in dispute. It can also be accepted that the respondent has engaged in relevant, targeted further education, and has had extensive periods of auditing of her practice and supervision.
In this regard, following investigations by the Health Ombudsman, since February 2019, the respondent has undergone 15 clinical audits with a Dr Jim McConochie, and the respondent has also attended 40 clinical meetings with an approved practice supervisor who has provided 40 written performance reports. The Tribunal also notes that on 22 January 2019, subsequent to the Health Ombudsman undertaking registration action, the respondent had her conditions of registration restricted to prohibit her from prescribing schedule 8 controlled drugs, and schedule 4 drugs of dependence.
Considerations and conclusions
Proceedings such as this are disciplinary, designed to adequately protect the public and the profession. They are not punitive in nature. In Medical Board of Australia v Jansz [2011] VCAT 1026, a number of useful principles were formulated. These included:
(i)The purpose of the disciplinary proceedings is to protect the public.
(ii)Determinations are intended to maintain proper ethical and professional standards for the protection of the public and also the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public.
(iii)Determinations ought not be punitive.
(iv)The likelihood of recidivism.
(v)The objectives of determinations can be achieved by specific deterrence. That is, the deterrence of the person concerned from further inappropriate conduct. By general deterrence, that is deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner.
(vi)Personal matters such as shame, personal ordeal and financial difficulty are of little relevance, save in so far as they contribute to the specific deterrence of the practitioner.
As already referred to, the conduct of the respondent is particularly serious. In matters such as this, deterrence looms particularly large. While personal deterrence may not now be of such significance, any decision that the Tribunal makes must be such as to send an appropriate message of general deterrence. There needs to be a clear message that conduct such as this will not be tolerated, and when discovered, appropriate sanctions will be brought to bear.
However, in reaching the final conclusion, the Tribunal must take into account the respondent’s actions of rehabilitation and the degree of insight and remorse that the respondent now displays. On balance, the Tribunal has reached the conclusion that the findings and orders sought jointly by the parties are appropriate. Accordingly, the Tribunal finds and orders as follows:
1. The Tribunal finds that the conduct of the respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) the respondent is reprimanded;
3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld) the respondent pay a fine in the amount of $5,000.00 to the Health Ombudsman;
4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) the immediate registration action effective 22 January 2019 is set aside; and
5. No order as to costs.
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