Health Ombudsman v NLM - [2018] QCAT 164

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Health Ombudsman v NLM [2018] QCAT 164

PARTIES:

THE HEALTH OMBUDSMAN
(applicant)

v

NLM
(respondent)

APPLICATION NO/S:

OCR113-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 June 2018

HEARING DATE:

30 May 2018

HEARD AT:

Brisbane

DECISION OF:

Judge S Sheridan, Deputy President

Assisted by:
Dr G Powell
Dr K Goh
Mr M Halliday

ORDERS:

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

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

3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), NLM is fined $5000 to be paid to the Health Ombudsman.

4.   NLM is to pay the Health Ombudsman’s costs in the amount of $10,000.

5.   NLM is to pay the amount of the fine and the costs by way of instalments of $1250 per month to the Health Ombudsman until fully paid, the first payment of which is due within 14 days of the date of this order.

6.   On 3 August 2018, in the event that no application has been filed directed to the non-publication of all or part of these reasons, these reasons will be published with the name of the respondent inserted instead of the pseudonym NLM.

7.   There be liberty to apply.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURES FROM ACCEPTED STANDARDS – where the practitioner admitted to unlawfully misappropriating and self-administering Schedule 8 controlled drugs over nine months – where the practitioner made false entries in the controlled drug record book of the medical practice – where, at the time of the conduct, the practitioner was suffering from an underlying physical health condition – where the practitioner had an impairment – where the medical practitioner admitted to professional misconduct – where the parties made joint submissions on the categorisation of conduct and sanction – whether the sanction agreed is appropriate

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the parties had made joint submissions on costs – where the practitioner had agreed to pay the Health Ombudsman’s costs in the amount of $10,000 – whether the interests of justice require the tribunal to make an order as to costs

Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(3)(c), s 126
Health Practitioners Regulation (National Law) Act 2009, s 5, s 5(a), s 5(c), s 142, s 224, s 225, s 226(3)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 100, s 127(1)

Chinese Medicine Board of Australia v Lim (Occupational and Business Regulations) [2012] VCAT 1614 (25 October 2012), considered
Health Care Complaints Commission v Tanios [2017] NSWCATOD 94, distinguished
Health Ombudsman v Antley [2016] QCAT 472, cited
Health Ombudsman v Dalziel [2017] QCAT 442, cited
Medical…

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: [2018] QCAT 164
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the matter of Health Ombudsman v NLM, the Health Ombudsman initiated disciplinary proceedings against the practitioner, NLM, for professional misconduct and unprofessional conduct. The key issue before the Tribunal was whether the agreed sanction of a $20,000 fine and a suspension was appropriate in the circumstances. The practitioner admitted to misappropriating and self-administering Schedule 8 controlled drugs, making false entries in the controlled drug record book, and suffering from an underlying physical health condition at the time of the conduct. Both parties submitted on the categorisation of the conduct and the appropriate sanction. The Tribunal found that while a fine and suspension may be appropriate in some circumstances, the overarching purpose of any sanction must be protective, not punitive. The Tribunal concluded that the proposed sanction was too punitive and did not appropriately reflect the circumstances of the case and the need for general deterrence. The Tribunal determined that a public reprimand and a $5,000 fine would achieve the legislative purpose and appropriately reflect the circumstances of the case and the need for general deterrence.

The Tribunal considered the principles established in Attorney-General v Bax and Medical Board of Australia v Jansz, which emphasise that sanctions must not be framed or constituted in a way that is punitive or retributive. The Tribunal accepted that the practitioner had been cooperative, honest, and remorseful throughout the investigation and disciplinary proceedings, and that the practitioner had already operated under conditions on his public registration for some time. Given these factors, the Tribunal did not consider that personal deterrence was necessary, but that general deterrence was still required. The Tribunal did not accept that the protective purpose required the imposition of a fine as large as $20,000 and believed that the proposed sanction was too punitive. The Tribunal found that a public reprimand and a $5,000 fine would appropriately reflect the circumstances of the case and the need for general deterrence, while still achieving the legislative purpose.

Orders

Orders of the court

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

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

3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), NLM is fined $5000 to be paid to the Health Ombudsman.

4. NLM is to pay the Health Ombudsman’s costs in the amount of $10,000.

5. NLM is to pay the amount of the fine and the costs by way of instalments of $1250 per month to the Health Ombudsman until fully paid, the first payment of which is due within 14 days of the date of this order.

6. On 3 August 2018, in the event that no application has been filed directed to the non-publication of all or part of these reasons, these reasons will be published with the name of the respondent inserted instead of the pseudonym NLM.

7. There be liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If the Tribunal determines that the practitioner has behaved in a way that constitutes misconduct, the range of orders open to the Tribunal includes:(a)a caution or reprimand;(b)the imposition of a condition;(c)the imposition of a fine of not more than $30,000; (d)the suspension of the practitioner’s registration for a specified period; and(e)the cancellation of the practitioner’s registration.[14] [14]HO Act, s 107.Conclusion on Sanction NLM has accepted his conduct amounts to professional misconduct. He has been frank, honest and cooperative throughout the investigation process and these disciplinary proceedings. This cooperation has allowed a comprehensive statement of agreed facts to be put before the Tribunal such as to obviate the need for a contested hearing of the facts and has resulted in an agreed position between the parties. The Tribunal accepts that the imposition of a fine and a suspension may be an appropriate sanction in certain circumstances and the Tribunal accepts that is permissible to balance one against the other. In doing so, however, the overriding purpose of any sanction must be protective, not punitive. Protection of the public involves a deterrent element, both personal and general, and the maintenance of the standards of the profession.[15] The sanction “must not be framed in such a way or be constituted in such a way, or be so harsh as in reality to be punitive or retributive”.[16][15]Attorney-General v Bax [1999] 2 Qd R 9, 17; Medical Board of Australia v Jansz [2011] VCAT 1026, [371].[16]Medical Board of Australia v Jansz [2011] VCAT 1026, [366]. In determining the appropriateness of the sanction, the Tribunal has been guided by the assessors. Given the circumstances of these events, NLM’s full cooperation, insight and remorse, the length of time he has already operated under conditions on his public registration and the continuing presence of those conditions, there remains no need for personal deterrence. The issue of general deterrence remains. The community must be able to rely on medical practitioners to deal with drugs strictly and practitioners must be deterred from ever breaching that trust. The Tribunal does not accept that that protective purpose requires the imposition of a fine as large as the $20,000 submitted. The Tribunal believes it is difficult to view the imposition of such a large fine, together with a period of suspension from practise, as anything other than punitive on the facts of this case. The Tribunal is not satisfied that the sanction proposed by the parties is within the appropriate range. The Tribunal considers that a public reprimand and $5,000 fine can achieve the legislative purpose. The Tribunal finds that these sanctions appropriately reflect the circumstances of this case and the need for a show of general deterrence. A reprimand is not a trivial penalty as it is a matter of public record and affects the reputation of the practitioner both in regards to the view of the public and the opinions of professional colleagues.[17] It has been described as “a public denunciation” of the conduct.[18] The reprimand will remain on the register until the National Board “considers it is no longer necessary or appropriate for the information to be recorded on the Register”.[19][17]Medical Board of Australia v Grant [2012] QCAT 285, [49].[18]Medical Board of Australia v Jones [2012] QCAT 362, [14].[19]National Law, s 226(3).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	The Health Ombudsman v NLM [2018] QCAT 164
PARTIES:	THE HEALTH OMBUDSMAN (applicant)
v
NLM (respondent)
APPLICATION NO/S:	OCR113-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	22 June 2018
HEARING DATE:	30 May 2018
HEARD AT:	Brisbane
DECISION OF:	Judge S Sheridan, Deputy President Assisted by: Dr G Powell Dr K Goh Mr M Halliday
ORDERS:	1. Pursuant to s 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), NLM is found to have behaved in a way that constitutes professional misconduct. 2. Pursuant to s 107(3)(a) of the *Health Ombudsman Act* 2013 (Qld), NLM is reprimanded. 3. Pursuant to s 107(3)(c) of the *Health Ombudsman Act* 2013 (Qld), NLM is fined $5000 to be paid to the Health Ombudsman. 4. NLM is to pay the Health Ombudsman’s costs in the amount of $10,000. 5. NLM is to pay the amount of the fine and the costs by way of instalments of $1250 per month to the Health Ombudsman until fully paid, the first payment of which is due within 14 days of the date of this order. 6. On 3 August 2018, in the event that no application has been filed directed to the non-publication of all or part of these reasons, these reasons will be published with the name of the respondent inserted instead of the pseudonym NLM. 7. There be liberty to apply.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURES FROM ACCEPTED STANDARDS – where the practitioner admitted to unlawfully misappropriating and self-administering Schedule 8 controlled drugs over nine months – where the practitioner made false entries in the controlled drug record book of the medical practice – where, at the time of the conduct, the practitioner was suffering from an underlying physical health condition – where the practitioner had an impairment – where the medical practitioner admitted to professional misconduct – where the parties made joint submissions on the categorisation of conduct and sanction – whether the sanction agreed is appropriate PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the parties had made joint submissions on costs – where the practitioner had agreed to pay the Health Ombudsman’s costs in the amount of $10,000 – whether the interests of justice require the tribunal to make an order as to costs Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(3)(c), s 126 Health Practitioners Regulation (National Law) Act 2009, s 5, s 5(a), s 5(c), s 142, s 224, s 225, s 226(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 100, s 127(1) Chinese Medicine Board of Australia v Lim (Occupational and Business Regulations) [2012] VCAT 1614 (25 October 2012), considered Health Care Complaints Commission v Tanios [2017] NSWCATOD 94, distinguished Health Ombudsman v Antley [2016] QCAT 472, cited Health Ombudsman v Dalziel [2017] QCAT 442, cited Medical…