Health Ombudsman v HQB

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v HQB [2024] QCAT 538

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

HQB

(respondent)

APPLICATION NO/S:

OCR259-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 July 2024 (decision)

12 August 2024 (reasons)

HEARING DATE:

11 July 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Prof P Baker
Ms M Ridley
Dr F Walden

ORDERS:

IT IS THE DECSION OF THE TRIBUNAL THAT:

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

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

3.     Each party bear their own costs of and incidental to the proceeding.

4.     The Tribunal recommends the Board seriously consider whether it is appropriate for the reprimand to remain on the public register for more than two and a half years, being after 11 January 2027.

5.     The non-publication order made 9 May 2024 remain in force.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – where the respondent was convicted of stealing as a public servant and possessing dangerous drugs – where the parties have reached a significant level of agreement as to what the relevant facts are and what the relevant outcome should be – whether the conduct had the potential to deprive patients of appropriate medication – whether the Tribunal should recommend that the reprimand be expunged by no later than five years after the date of offending – whether the conduct of the respondent was inconsistent with him being a fit and proper person to hold registration

Health Ombudsman Act 2013 (Qld)

Health Ombudsman v HNH [2021] QCAT 235

APPEARANCES & REPRESENTATION:

Applicant:

M Price, Principal Lawyer of the Office of the Health Ombudsman

Respondent:

D Callaghan instructed by Avant Law

REASONS FOR DECISION

This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against HQB (‘respondent’).

Orders made following the Tribunal Hearing on 11 July 2024

After hearing oral submissions made by counsel for each party at the hearing on 11 July 2024, the Tribunal made the following findings and orders:
(a)pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct;
(b)pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
(c)each party is to bear their own costs of and incidental to the proceeding;
(d)the Tribunal recommends the Medical Board of Australia seriously consider whether it is appropriate for the reprimand to remain on the public register for more than two and a-half years, being after 11 January 2027;
(e)the non-publication order made 9 May 2024 is to remain in force.
Following are the reasons underpinning those findings and order.

Background

A brief chronology of the relevant background facts as agreed by the parties can be summarised as follows.[1]
[1]See Statement of Agreed and Disputed Facts filed 30 March 2023, 1-4.
On 21 December 2016, the respondent obtained his medical degree.
On 5 January 2017, the respondent first gained registration as a medical practitioner.
Between 2018 and 2019, he practised in Central Queensland.
In summary, the particulars of the offending conduct is as follows. On 29 October 2021 and 4 November 2021, while working as a training anaesthetist registrar at the Sunshine Coast University Hospital, the respondent:
(a)Signed out an ampoule of fentanyl from the Pyxis machine, drew two millilitres of this fentanyl into a syringe and rather than providing the fentanyl to the principal anaesthetist, instead gave him a syringe containing a saline solution; and
(b)Removed and prepared a syringe – hydromorphone – despite another anaesthetist having already removed both remifentanil and fentanyl from the Pyxis machine. Later, when questioned about this, the respondent admitted having a syringe of remifentanil in his pocket.
On 4 July 2022, the respondent was convicted of four criminal offences, namely:
(a)two charges of stealing as a public servant; and
(b)two charges of possessing dangerous drugs.
The respondent was convicted on his own plea of guilty and fined $2,000 to be paid within 28 days. No convictions were recorded.

Discussion and sanction

The respondent had not been employed as a medical practitioner since 5 November 2021, a period of about two years and nine months as at the date of hearing this matter.
On 23 November 2022, the respondent was released from an undertaking and entered into a fresh undertaking which placed conditions on his right to practise. The later set of undertakings were described by Ms Callaghan, who appeared on the respondent’s behalf, as not being dramatically different from the previous undertakings and were marked as exhibit 1 during the hearing of the matter.
It is of significance that there has been no further misconduct on the part of the respondent, nor was his offending motivated by profit.
During the sentencing proceedings, a report dated 19 May 2022 was prepared by the respondent’s treating psychiatrist, Dr C. Dr C had first seen the respondent on 10 November 2021 and had reviewed him monthly up to the time of the preparation of the report. The report recorded a history of depression on the part of the respondent which he described as being stress-related. Particularly in regard to him having to work in, effectively, isolation for a period of six months in Wide Bay while studying for his examinations. That stress led him to self-medicate with opioid medication, which in turn, led to the subject criminal charges. It was the psychiatrist’s opinion that it seemed more likely than not that in the absence of any previous substance misuse and the full remission of his recent misuse, that the respondent was self-medicating his mood symptoms with the aforesaid diverted opioids.
The respondent’s condition was diagnosed as being a major depressive disorder with opioid misuse disorder. The treating psychiatrist described the respondent’s prognosis as positive, provided that he remained under appropriate psychiatric and medical care, including continued medication and attendances upon his psychiatrist/psychologist and general practitioner.
On behalf of the applicant, it was submitted that the Tribunal should find an order as follows:
(a)Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decide that the respondent had behaved in a way that constituted professional misconduct;
(b)Pursuant to section 107(3)(1) of the HO Act, the respondent be reprimanded;
(c)Each party to the proceeding is to bear their own costs.
In the written submissions filed on behalf of the applicant, it was identified that the respondent had demonstrated remorse, insight, and it was accepted that he was a low risk of reoffending. In this regard, in the applicant’s written submissions, it was said:
The respondent has demonstrated a level of insight into, and remorse about, his conduct in the following ways:
(a)      On 4 November 2021, upon being confronted by [Dr H, he] admitted that he had a syringe in his pocket containing remifentanil;
(b)     On 4 July 2022, the respondent pled guilty to all four charges in the Brisbane Magistrates Court;
(c)      He was treated by a consultant psychiatrist, [Dr C], for management of depression and anxiety, and was first seen by him on 10 November 2021;
(d)      He has cooperated with the applicant in these disciplinary proceedings, admitting his conduct in his response to the referral.
The ongoing risk presented by the respondent appears to be low but also dependent upon ongoing regular medical, psychiatric and psychological care and continued compliance with medication.
[…]
The respondent has continued to attend regular consultations with his general practitioner, psychologist and psychiatrist, in compliance with the restrictions on his registration. (Footnotes omitted).
Indeed, having regard to all of the relevant circumstances, the applicant did not contend for any suspension from practice. It is clear that, despite the conduct that brings the respondent before this Tribunal and by reference to a number of affidavits filed on his behalf, he was held in high regard.
Having regard to the level of agreement between the parties, it is unnecessary to dwell on this matter in too much detail. In [1]-[4] of the respondent’s submissions, it was said:
Summary
The respondent agrees with the matters and proposed orders set out in the summary of the applicant’s submissions.
Submissions
The respondent agrees with the facts set out in paragraphs 5-24 and 27 of the applicant’s submissions.
The respondent admitted that his conduct amounted to professional misconduct from the outset.
The respondent does not dispute that matters set out in paragraphs 25-48, with this exception–
The facts, as agreed by both parties, is that the respondent signed out an additional ampoule of opiate medication on each of the two occasions, for the purposes of diverting that opiate, or an opiate already signed out for that patient, for self-use. That was the subject of the four criminal charges as well as the facts admitted and agreed upon in this referral.
It is the respondent’s respectful submission that the applicant’s submission that the respondent’s actions did, or potentially would, deprive either or both patients of necessary opiate analgesia and/or failed to provide safe care to these patients goes beyond the allegations raised against the respondent, the facts agreed and the evidence in this referral.
It was accepted in respect of the positions of the parties, as articulated in their written submissions and the agreed statement of facts, that there were really only three live issues to be resolved:
(a)First, the suggestion made on behalf of the applicant that the conduct of the respondent might have been likely to have the potential to deprive patients of appropriate medication.
(b)Second, whether the sanction imposed be expunged no later than five years after the date of offending, which occurred on 29 October 2021. That is, it was submitted on behalf of the respondent that the reprimand should be expunged no later than 29 October 2026.
(c)The third matter was whether the Tribunal should make a finding that the conduct of the respondent was inconsistent with him being a fit and proper person to hold registration as a medical practitioner.
As to the first of those matters, in circumstances where there is no probative evidence one way or the other about the matter, the Tribunal is not prepared to proceed on the basis that there was a likelihood of a deserving patient being deprived of appropriate medication. The Tribunal does, however, accept that the conduct had the potential, no matter how remote the risk, to result in that situation occurring. In this regard, the Tribunal also considers that an aggravating feature of the respondent’s conduct at the time was that he substituted the relevant drug with a syringe containing a saline solution, which he then handed to the principal anaesthetist.
As to the second of those matters, after hearing from the parties and having regard to the reasons given in Health Ombudsman v HNH [2021] QCAT 235, the Tribunal decided to make the recommendation that it did concerning the removal of the reprimand from the respondent’s record. Indeed, in this regard, Mr Price, who appeared on behalf of the applicant, accepted that on the facts of this case, the making of such a recommendation was open.
Turning then to the final matter: whether the conduct was inconsistent with the respondent being a fit and proper person to hold registration.
At the outset, Ms Callaghan had this to say:[2]
Yes. Yes, your Honour, and may I say the third point is a very minor point, and it’s addressing the, I guess in some cases, confusion between whether the Tribunal needs to look at the conduct at the time being inconsistent with being a fit and proper person to hold registration, and whether the person at the time of the hearing is a fit and proper person. We both agree that it’s quite clear from the legislation it’s the conduct at the time that is inconsistent with being a fit and proper person. The respondent concedes that the conduct was such and that such a finding could be made.
The submissions made in the respondent’s outline of submissions were simply to address for the sake of completeness our submission that at the time of the hearing and at the time the submissions were made the respondent is a fit and proper person and the reasons why.
[2]Transcript of proceedings on 11 July 2024, 1-3 ll 22-34.
In response, Mr Price responded as follows:[3]
Yes, and, so there’s no conflation, I’m certainly not asking that when viewing sanction that the respondent be viewed as not being a fit and proper person to hold registration such that I’d be asking that his registration be cancelled. It’s clear that he has done a lot of work to remedy his situation.
Instead, the “fit and proper person” [test] is relevant to the issue of characterisation under section 107 of the Health Ombudsman Act and section 5, subsection (3), of the definition of “professional misconduct”. So my submissions were initially and remain towards the issue of the characterisation, not towards sanction, and they are sometimes conflated, and I think that was my friend’s concern. So I don’t think here’s any issue there, given that we both agree that it should be a reprimand.
[3]Ibid ll 42-49, 1-4 ll 1-3.
In the circumstances of this case, the Tribunal considers that it is only necessary to observe that the conduct at the time was clearly inconsistent with the respondent being a fit and proper person to hold registration as a medical practitioner but, as Mr Price observed, things had moved on considerably since then.
It is of course for this Tribunal to decide the final outcome of a proceeding such as this, but in circumstances where the parties are represented by experienced legal practitioners and where there are such significant levels of agreement as to what the relevant facts are and what the relevant outcome should be, significant weight ought to be given to the findings and orders as agreed.
In the circumstances of this proceeding, the Tribunal finds the submissions made on behalf of the parties are not only agreed but are also persuasive. It is for these reasons that the Tribunal made the findings and orders that it did on 11 July 2024.

[2024] QCAT 538

11 July 2024 (decision) 12 August 2024 (reasons)