Health Ombudsman v Kirkman

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,…