Health Ombudsman v NLM

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.