Health Ombudsman v LWM

[2023] QCAT 572

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v LWM [2023] QCAT 572

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

LWM

(respondent)

APPLICATION NO/S:

OCR 48 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Prof P Baker, Medical Practitioner Panel Member
Dr J Cavanagh, Medical Practitioner Panel Member
Ms M Ridley, Public Panel Member

ORDERS:

1.   Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act2013 (Qld), the respondent is reprimanded.

3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is required to pay a fine of $10,000 to the Health Ombudsman within six months of the date of this order.

4.   Each party bears 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 is a general practitioner — where the respondent was inappropriately prescribing restricted drugs of dependency to their spouse for a prolonged period — prior disciplinary history — finding of professional misconduct — practitioner reprimanded and fined 

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v SWB [2022] QCAT 267

Medical Board of Australia v Lang & Lang [217] SAHPT 5

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Introduction

1. In short compass, the complaint is that the respondent treated and prescribed restricted drugs of dependency to their spouse, Patient A, for approximately nine years and failed to keep adequate records for same.  These matters are set out in the applicant’s submission at [20]-[24].

Background

1. The respondent is 65 years of age and resides in central Queensland.  He obtained a Bachelor of Medicine and a Bachelor of Surgery in 1982.  He is currently practising as a full-time general practitioner at a medical practice in Queensland.

Disciplinary History

1. The respondent was the subject of previous disciplinary proceedings.  He was reprimanded by the Western Australian State Administrative Tribunal in June 2010 and conditions were imposed on his registration, restricting him from prescribing schedule 8 medications.  It was relevant conduct.  The conduct was the provision of 18 scripts of MS Contin, Morphine SR and Buprenorphine to Patient A without lawful cause or authority.  The prescriptions were in the names of other people, at Patient A’s request, to be filled for their own use.  In relation to this conduct, the respondent was also charged with fraud offences for which he was fined $2,000 in the Magistrates Court.

Discussion and Sanction

1. The Tribunal is satisfied in this case that the conduct is properly categorised as professional misconduct.  Clause 3.14 of the Medical Board of Australia Code of Conduct 2014[1] addresses treating friends and family.  Clause 14.15 of the Medical Board of Australia Code of Conduct 2020[2] addresses prescribing schedule 8 psychotropic medications and/or drugs of dependency.  The respondent has accepted that what he did was in breach of the Code of Conduct and wrong.  The respondent has cooperated to the full extent in relation to the proceedings today. 

   [1]           Good medical practice: a code of conduct for doctors in Australia (2014).

   [2]           Good medical practice: a code of conduct for doctors in Australia (2020). 

2. The Tribunal notes that the Code of Conduct exists because of the risks associated with acting for family members; these are set out in [33] of the applicant’s submissions and are plainly obvious: there is clearly a lack of objectivity, and the involvement of subjective emotion has an impact on the practitioner’s views.  This was highlighted by the experts which were engaged to look into the matter, although it should be noted that there were some extenuating circumstances in relation to Patient A’s mental health treatment, and it is understood that she is suffering from schizophrenia. 

3. The Tribunal notes the general principles of disciplinary proceedings, in particular that the health and safety of the public are paramount and that sanctions may serve for one or more of the purposes as described in [66] of the applicant’s submissions.  In this regard, the Tribunal has read and accepts the seriousness of the conduct as set out and described in the applicant’s submission at [69] and following.  The Tribunal has noted the sanction comparatives set out in [79] as being of assistance in determining the sanction which is to be applied today. 

4. It is noted that the applicant has submitted that a sanction comprising of a reprimand in conjunction with either a short suspension in the order of three months or a fine of $10,000-$15,000 would be appropriate.  In reply, the respondent has submitted that a reprimand and fine in the sum of $10,000 would be appropriate.

5. Having regard to the submissions, other material provided in the circumstances, as well as the respondent’s cooperation, seeming demonstration of remorse, acceptance of the allegations in full and his level of insight, the Tribunal considers that a fine in the amount submitted by the respondent, that is $10,000, is appropriate.  In settling on that amount, the submissions in relation to the comparative decisions of Medical Board of Australia v Lang & Lang[3] and Health Ombudsman v SWB,[4] where the conduct was more serious, the Tribunal accepts that, in the circumstances of this case, specific deterrence is not as significant. 

   [3]           [2017] SAHPT 5.

   [4] [2022] QCAT 267.

6. However, general deterrence, having regard to the need to uphold professional standards and maintain public confidence in the medical profession, is highly relevant.  The Tribunal is satisfied that the respondent’s proposed sanction adequately takes these matters into account and is appropriate in all the circumstances.  Accordingly, the respondent will be reprimanded and fined $10,000 to be paid within six months of the date of the order.

Orders

1. The Tribunal decides that:

2. Pursuant to section 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct;

3. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;

4. Pursuant to section 107(3)(c) of the HO Act, the respondent is required to pay a fine of $10,000 to the Health Ombudsman within six months of the date of this order; and

5. Each party bears its own costs of the proceedings.