Health Ombudsman v Maish - [2024] QCAT 431

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Maish [2024] QCAT 431

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

WILLIAM NEIL MAISH

(respondent)

APPLICATION NO:

OCR 295 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Dr D Rimmer, Medical Practitioner Panel Assessor
Dr D Bodnar, Medical Practitioner Panel Assessor
Mr M Halliday, Public Panel Assessor

ORDERS:

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. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PROFESSIONALS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT — where the respondent was a registered medical practitioner — where the respondent was convicted on his own plea of guilty of one count of supplying a dangerous drug, being cannabis — where the conduct occurred in the context of a social event with the respondent and a patient — where the patient suffered a psychogenic nonepileptic seizure after ingesting alcohol and cannabis — where the respondent inappropriately provided a medical certificate for the patient — where the respondent failed to keep adequate records — where the parties are agreed as to characterisation — whether the conduct is appropriately characterised as professional misconduct

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PROFESSIONALS — DISCIPLINARY PROCEEDINGS — SANCTION — where the parties agree as to sanction — whether the sanction sought is within the acceptable range

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Christie [2022] QCAT 429

Health Ombudsman v Gillespie [2021] QCAT 54
Health Ombudsman v Vale [2020] QCAT 363
Health Ombudsman v Veltmeyer [2021] QCAT 77
Medical Board of Australiav Fitzpatrick [2023] VCAT 517
Medical Board of Australia v Griffiths (Review and Regulation) [2017] VCAT 822
Medical Board of Australia v Martin [2013] QCAT 376
Peeke v Medical Board of Victoria [1994] VicSC 7

Psychology Board of Australia v Cameron [2015] QCAT 227

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

Introduction

The applicant Director referred this disciplinary referral to the Tribunal on 30 November 2023. The respondent, by his response to the referral, admitted the matters the subject of the allegations contained in the referral. There is a statement of agreed facts signed by the parties’ legal representative dated 16 May 2024.
The parties requested by email dated 13 September 2024 that the Tribunal consider dealing with the matter on the papers. As the parties have agreed the facts, and made joint submissions as to characterisation and sanction, the Tribunal proceeds to deal with the matter…

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.

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Details

Case: [2024] QCAT 431
Decision Date: 29 October 2024

CaseChat Overview and Summary

The Health Ombudsman has brought disciplinary proceedings against a registered medical practitioner in the Queensland Civil and Administrative Tribunal. The respondent was convicted on his own plea of guilty of supplying a dangerous drug, being cannabis, to a patient during a social event. The patient experienced a psychogenic nonepileptic seizure after consuming both alcohol and cannabis. The respondent subsequently provided a medical certificate for the patient and failed to maintain adequate records. The respondent and the Health Ombudsman agree on the characterisation of the conduct as professional misconduct.

The primary legal issues the tribunal had to decide were whether the respondent's conduct constituted professional misconduct and, if so, whether the proposed sanction was appropriate. The tribunal considered the respondent's conviction, the context of the social event, and the impact of the respondent's actions on the patient. The tribunal noted the respondent's previous good standing and the lack of any prior complaints, but emphasised the seriousness of supplying a dangerous drug and the subsequent failure to maintain proper records.

In its decision, the tribunal held that the respondent's conduct did constitute professional misconduct. The tribunal found that the supply of a dangerous drug, especially in the context of a social event with a patient, was a significant breach of professional standards. Furthermore, the tribunal considered the respondent's failure to maintain adequate records as a serious lapse in professional responsibility. The tribunal accepted the agreed sanction of a reprimand, noting the respondent's guilty plea and the absence of any previous disciplinary issues.

The tribunal made a formal reprimand against the respondent, finding that his conduct amounted to professional misconduct. The tribunal did not order any costs. This decision highlights the importance of maintaining professional boundaries and proper record-keeping in the medical profession.

Orders

Orders of the court

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. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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