Health Ombudsman v Kirkman

[2023] QCAT 541

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kirkman [2023] QCAT 541

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

DAVID ALEXANDER KIRKMAN

(respondent)

APPLICATION NO/S:

OCR197-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Dr J Cavanagh, Medical Practitioner Panel Member
Dr J Quinn, Medical Practitioner Panel Member
Mr B Taylor, Public Panel Member

ORDERS:

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

3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months.

4.     Each party must bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — where the respondent was a general practitioner — where the respondent was inappropriately prescribing restricted drugs for a prolonged period — whether the conduct constitutes professional misconduct — appropriate sanction in circumstances where registration has been surrendered  

Health (Drugs and Poisons) Regulation 1996 (Qld)

Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

APPEARANCES & REPRESENTATION: 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

Background

1. The respondent was at all material times a registered medical practitioner practising as a general practitioner at Maple Street Surgery, Cooroy (‘Practice’).  He first registered in 1975 and is currently aged 72.  On 15 August 2022, he surrendered his registration.  There are three allegations before the Tribunal, all of which relate to the respondent’s prolonged and inappropriate prescribing of controlled and restricted drugs and his failure to comply with the requirements of the Health (Drugs and Poisons) Regulation 1996 (‘Regulation’).

2. The Health Ombudsman investigated the respondent’s critical treatment and management of five patients and engaged an independent expert, Dr C Stevens, to review the matter.

Onus and standard of proof

1. The applicant has the onus of proving that the respondent engaged in professional misconduct and/or unprofessional conduct.  The standard of proof is the civil standard on the balance of probabilities with a degree of satisfaction varying according to the gravity of the conduct, otherwise called the Briginshaw test.[1]

   [1]Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.

Allegations and particulars

1. The details of the allegations are set out in the applicant’s submissions.  They are serious allegations.

Characterisation of the conduct

1. Allegation 1: s 120(2) of the Regulation requires a practitioner prescribing controlled drugs to a patient for more than two months, or to a patient a doctor reasonably suspects has been prescribed controlled drugs by another doctor for more than two months, to advise the Chief Health Officer regarding the circumstances of the patient’s treatment. Between 1 and 12 October 2016, the applicant breached that regulation many times.

2. Allegation 2 relates to five patients in respect of whom the respondent is alleged to have breached the Regulation.

3. Allegation 3 relates to four patients in respect of whom the respondent is alleged to have breached the Regulation.

4. The respondent denies, but does not contest, a number of the particulars.  Dr Stevens has further reported on the particulars denied and, in each case, the respondent has not contested those matters.  The Tribunal accepts the evidence of Dr Stevens in all respects.

Comparatives

1. The respondent has referred to a number of previous decisions in Queensland and other jurisdictions.  To deal with the particulars, Patient A was drug-dependent, and the respondent knew so.  In 2004, Patient A was seen by another doctor at the Practice who recommended that they use MS Contin in conjunction with a physical therapy program and random drug screening.  There respondent made no attempt to reduce the dose or arrange physical therapy.  Instead, the respondent continued to prescribe the patient with MS Contin early, often and without authority.

2. Patient B was treated from May 2014.  The respondent was aware that he was under Alcohol, Tobacco and Other Drug Services (‘ATODS’).  Patient B had a high risk of falls and suffered a respiratory failure secondary to methadone narcosis in 2019.  Nevertheless, the respondent prescribed diazepam and temazepam to Patient B, despite these being contraindicated, when they were taking methadone and antidepressants.

3. Patient C was treated between 1999 and 2020 and was a medically complex patient.  In 2018, he was diagnosed with rapidly progressive renal failure.  Despite multiple warnings in writing from the Nambour Hospital, the respondent continued to prescribe high doses of morphine at erratic and inappropriate intervals.  In 2017, the respondent prescribed methadone on top of the MS Contin.

4. Patient D saw the respondent between 1999 and 2020 and had a history of opiate dependency and ATODS treatment.  The respondent, however, prescribed numerous pharmacologicals, which Dr Stevens found to be highly dangerous and negligent to a patient like Patient D.

5. Patient E consulted the respondent in 2016 following his discharge from the Queensland Opioid Treatment Program.  Dr Stevens observed that Patient E was portrayed in clinical notes other than those of the respondent as, “exceedingly complex with multiple psychiatric comorbidities and a difficult to control chronic or centralised pain disorder”.

6. In 2016, the respondent prescribed Patient E fentanyl for neck pain.  Dr Stevens described Fentanyl as “an extremely potent opioid medication” and not an appropriate treatment for Patient E.

7. In 2009, a physiotherapist opined that Patient E would benefit from pain education.  The respondent continued prescribing high-dose opioids.  Patient E was frequently noticed by police to be drowsy or asleep behind the wheel of the car, and the practice nurse documented slurred speech on 15 May 2017.  Nevertheless, the respondent prescribed Xanax and four different benzodiazepines and, four days later, another 50 benzodiazepines.  Dr Stevens opined this was unacceptable and expressed concern about the respondent’s lack of intervention in respect of Patient E’s driving licence.

8. Having taken into account the comparatives, the Tribunal is of the view that the conduct amounts to professional misconduct and is a serious example of such misconduct.  In framing this view, the Tribunal takes into account, inter alia:

   (a)the conduct related to a significant number of patients;

   (b)the conduct occurred over a significant period of time;

   (c)the conduct continued after warnings from other medical practitioners;

   (d)both patients and the community were placed at risk;

   (e)the respondent failed to involve specialist care in the management of the patients;

   (f)the respondent failed to adhere to notification and approval requirements of the Health Practitioner Regulation National Law (Queensland) (‘National Law’); and

   (g)the respondent had a prior disciplinary history relating to inappropriate prescribing of the drug duromine.  In respect of this prior history, the respondent had made inquiries of Queensland Health and had been told it was inappropriate; nevertheless, he continued.

Remorse

1. The respondent has cooperated with these proceedings.  The respondent’s submission states that he has taken appropriate steps to improve his practice, including his voluntary engagement in mentoring and education.[2]

   [2]Submissions of the Respondent filed 4 November 2022, [14].

2. Having said that, the education was a one-day pain management masterclass with the Avant Risk Advisory Service in January 2018, after which he continued to breach the Regulation. The mentoring involved two meetings with the mentor. Such rehabilitation is at best perfunctory.

Delay

1. There has been a significant delay, which would have had an adverse impact on the practitioner, but there is no convincing evidence of rehabilitation.

Surrender of registration

1. This is noted, but the respondent may reapply at any time, so specific deterrence is highly relevant as is general deterrence.

2. The main purposes of the hearing are not punitive but are about the protection of the public. In summary, the applicant has discharged its onus of establishing the respondent’s conduct amounts to professional misconduct. The respondent is reprimanded.  The respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months and each party bears its own costs of the proceedings.