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Health Ombudsman v ECA

Health Ombudsman v ECA

Case [2020] QCAT 216 26 June 2020

Professional Misconduct

Reprimand

Fine

Non-publication Order

Health Law

Administrative Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v ECA [2020] QCAT 216

PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

ECA

(respondent)

APPLICATION NO/S:

OCR220-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC,
Assisted by:
Dr T Chamberlain,
Dr D Khursandi, and
Ms J Felton.

ORDERS:
1.   The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.

2.   The respondent is reprimanded.

3.   The respondent is fined the sum of $5,000, to be paid to the applicant within one month.

4.   The parties bear their own costs of the proceeding.

5.   Save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, until further order publication is prohibited, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66(1), to the extent that it would identify the respondent or enable the respondent to be identified, of:

(a)    The contents of a document or other thing produced to the Tribunal;

(b)   The evidence given before the Tribunal;

(c)    Any order made or reasons given by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – writing prescriptions for friend for medication not clinically required - obtaining restricted and controlled drugs through friend – feeding addition – impairment managed by Board – good rehabilitation – sanction – non-publication order made

Health Ombudsman Act 2013 s 103(1)(a), s 104, s 107

Queensland Civil and Administrative Tribunal Act 2009 s 66

Health Care Complaints Commission v Do [2014] NSWCA 307
Health Ombudsman v Kimpton [2018] QCAT 405
Health Ombudsman v NLM [2018] QCAT 164
Health Ombudsman v NLM (No 2) [2019] QCAT 366
Health Ombudsman v Shemer [2019] QCAT 53
Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149
Legal Services Commission v XBV [2018] QCAT 332
Medical Board of Australia v Blomeley [2018] QCAT 163
Medical Board of Australia v Martin [2013] QCAT 376
Pharmacy Board of Australia v Thomas [2011] QCAT 637

REPRESENTATION:

Applicant:

A Forbes of Turks Legal

Respondent:

R M O’Gorman, instructed by Avant Law

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act I am sitting with assessors Dr T Chamberlain, Dr D Khursandi and Ms J Felton.[1]
[1]Health Ombudsman Act 2013 s 126. For their function, see s 127.
The respondent is and was at relevant times a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional…

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.

Continue reading Health Ombudsman v ECA

Details

AGLC: Health Ombudsman v ECA [2020] QCAT 216
Case: [2020] QCAT 216
Decision Date: 26 June 2020

CaseChat Overview and Summary

The respondent, a medical practitioner, faced a disciplinary proceeding brought by the Health Ombudsman. The dispute centred on the respondent's professional conduct in writing prescriptions for a friend for medication not clinically required, obtaining restricted and controlled drugs through this friend, and feeding his friend's addiction. The Queensland Civil and Administrative Tribunal was tasked with determining whether the respondent's actions constituted professional misconduct and, if so, what sanctions should be imposed.

The Tribunal had to decide whether the respondent's actions constituted professional misconduct under the Health Ombudsman (Health Practitioner) Regulations 2008. Specifically, the Tribunal needed to assess whether the respondent's prescribing practices, particularly those related to obtaining restricted and controlled drugs and fostering addiction, fell below the standard of professional conduct expected of a medical practitioner. The Tribunal also needed to consider the mitigating factors, such as the respondent's good rehabilitation and the fact that his impairment was managed by the Board.

The Tribunal found that the respondent's actions constituted professional misconduct. The Tribunal acknowledged the respondent's good rehabilitation and the management of his impairment by the Board but found that his actions were a clear breach of professional standards. The Tribunal imposed a reprimand and a fine of $5,000, to be paid within one month. The Tribunal also made a non-publication order to protect the respondent's identity, except where necessary for the Office of the Health Ombudsman to inform the Australian Health Practitioner Regulation Agency about the matter. The parties were ordered to bear their own costs of the proceeding.

Orders

Orders of the court

1. The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.

2. The respondent is reprimanded.

3. The respondent is fined the sum of $5,000, to be paid to the applicant within one month.

4. The parties bear their own costs of the proceeding.

5. Save as is necessary for the Office of the Health Ombudsman to provide information about this matter to the Australian Health Practitioner Regulation Agency, until further order publication is prohibited, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66(1), to the extent that it would identify the respondent or enable the respondent to be identified, of:

(a) The contents of a document or other thing produced to the Tribunal;

(b) The evidence given before the Tribunal;

Background

Background to the litigation

Full text does not contain this section.

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.

Actions

Citations

Health Ombudsman v ECA [2020] QCAT 216

Cases Citing This Decision

No citing cases yet.

Cases Cited

Health Ombudsman v NLM (No 2) [2019] QCAT 366
Citation 1 (Para 5)

…In Health Ombudsman v NLM (No 2) [2019] QCAT 366 Sheridan DCJ made a non-publication order in a matter which involved an impairment of the practitioner which was closely bound up with the relevant misconduct, although it was not an impairment matter. She pointed out that there is a special statutory provision for…
Health Ombudsman v Shemer [2019] QCAT 53
Citation 2 (Para 1)

…Reference was made to two earlier decisions of the Tribunal. In Health Ombudsman v Shemer [2019] QCAT 53 the practitioner had taken and self-administered restricted and controlled drugs from hospitals, to feed an addiction, over an extended period. At times this adversely affected his performance at work. He had…
Health Ombudsman v Kimpton [2018] QCAT 405
Citation 3 (Para 2)

…missioner v Madden (No 2) [2009] 1 Qd R 149 at [122]. [4] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. [5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143]. [6] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31]…
Health Ombudsman v NLM [2018] QCAT 164
Citation 4 (Para 2)

…In Health Ombudsman v NLM [2018] QCAT 164 the practitioner had over a period of 9 months stolen and self-administered Schedule 8 drugs. This was prompted by the existence of a medical condition which was painful, and for which he had since sought other, more appropriate treatment. He had taken steps towards rehabi…
Medical Board of Australia v Blomeley [2018] QCAT 163
Citation 5 (Para 2)

…re Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. [5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143]. [6] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].…
Medical Board of Australia v Waldron [2017] QCAT 443
Citation 6 (Para 4)

…In Medical Board of Australia v Waldron [2017] QCAT 443 Sheridan DCJ noted that the discretion is to be exercised only if it was “necessary” and only where the circumstances came within one of the categories nominated. The fifth category, although expressed in broad terms, was to be interpreted as subject to that…
Pharmacy Board of Australia v Christie [2016] QCAT 291
Citation 7 (Para 4)

…e Tribunal, A Wilson J, in Cutbush v Team Maree Property Service [2010] QCATA 89 at [7] – [10]; see also Pharmacy Board of Australia v Christie [2016] QCAT 291 at [31] – [37].…
Medical Board of Australia v de Silva [2016] QCAT 63
Citation 8 (Para 1)

…f Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29]-[31]. Ultimately, it is a matter for the Tribunal to determine what sanction to impose.…
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Citation 9 (Para 1)

…ectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29]-[31]. Ultimately, it is a matter for the Tribunal to determi…
Health Care Complaints Commission v Do [2014] NSWCA 307
Citation 10 (Para 2)

…lth Ombudsman Act 2013 s 4(1). [3] Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122]. [4] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. [5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143]. [6] Pharmacy…
Medical Board of Australia v Martin [2013] QCAT 376
Citation 11 (Para 1)

…ission before the Tribunal. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonweal…
Pharmacy Board of Australia v Thomas [2011] QCAT 637
Citation 12 (Para 2)

…mpton [2018] QCAT 405 at [79]. [5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143]. [6] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].…
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
Citation 13 (Para 4)

…o s 66(2)(e) was consistent with the approach adopted by the then President of the Tribunal, A Wilson J, in Cutbush v Team Maree Property Service [2010] QCATA 89 at [7] – [10]; see also Pharmacy Board of Australia v Christie [2016] QCAT 291 at [31] – [37].…
LSC v XBV [2018] QCAT 332
Citation 14 (Para 2)

…al operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV [2018] QCAT 332 at [26], where the Hon P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts…

Legislation Cited

Queensland Civil and Administrative Tribunal Act 2009 (Qld) 66, 66(1), 66(2)
4 mentions (from Para 1)
Health Ombudsman Act 2013 (Qld) 103(1)(a), 126, 4(1)
3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 48
1 mention (from Para 2)