Health Ombudsman v Skala - [2024] QCAT 14

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Health Ombudsman v Skala [2024] QCAT 14

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

JOHN THOMAS SKALA

(respondent)

APPLICATIONNO/S:

OCR287-18

MATTERTYPE:

Occupational regulation matters

DELIVEREDON:

24 January 2024

HEARINGDATE:

13 July 2021

HEARDAT:

Brisbane

DECISION OF:

Judge Allen KC Assisted by:

Dr P Baker

Dr B Manoharan Ms C Elliot

ORDERS:

Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is

reprimanded.

Pursuant to section 107(3)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the following condition is imposed on the respondent’s registration as a health practitioner:
The Practitioner shall refrain from applying for and/or from exercising the statutory rights of a doctor to deal with controlled drugs falling within Schedule 8 of the Poisons Standard and restricted drugs within Schedule 4 of the Poisons Standard previously defined as restricted drugs of dependency in Appendix 9 of the repealed Health (Drugs and Poisons) Regulation 1996 (Qld) and listed in Appendix 8 of the repealed Health (Drugs and Poisons) Regulation 1996 (Qld) (and attached to this order) or its equivalent in other State and Territory legislation in Australia.
Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the National Law, part 7, division 11, subdivision 2, applies to the condition.
Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the review period for the condition, for the purpose of applying that subdivision, is 2 years.
Pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration as a health practitioner is suspended for a period of 3 ½ months commencing in 60 days.
Pursuant to section 102 of Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent is to pay the applicant’s costs of and

incidental to the proceedings as agreed in the sum of $5,000.

Pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the contents of a document or thing filed in or produced to the Tribunal, evidence given and submissions made before the Tribunal, and any other information that may be able to identify a patient of the respondent, is prohibited to the extent that it could identify or lead to the

identification of a patient of the respondent.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT –

– where the respondent medical practitioner prescribed controlled drugs and restricted drugs of dependency in breach of the Health (Drugs and Poisons) Regulation 1996 (Qld) in ways which placed patients at risk or had the potential to place them at risk of harm – where the parties agree as to the characterisation of conduct and sanction – whether the respondent’s conduct should be characterised as professional misconduct – what sanction should be…

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 14
Decision Date: 24 January 2024

CaseChat Overview and Summary

In the matter of Health Ombudsman v Skala, the Health Ombudsman brought disciplinary proceedings against a medical practitioner, Dr Skala, for prescribing controlled drugs and restricted drugs of dependency in contravention of the Health (Drugs and Poisons) Regulation 1996 (Qld). The Tribunal was required to determine whether Dr Skala's conduct constituted professional misconduct, and if so, what sanction should be imposed. The parties agreed that the conduct amounted to professional misconduct but disputed the appropriate sanction.

The primary issue before the Tribunal was whether Dr Skala's prescribing practices constituted professional misconduct under the Health Ombudsman Act 2013 (Qld). The Tribunal found that Dr Skala's actions, which involved prescribing controlled and restricted drugs in a manner that contravened the Regulation, did indeed amount to professional misconduct. The Tribunal noted that Dr Skala's prescribing practices placed patients at risk or had the potential to place them at risk of harm, which was a clear breach of professional standards.

The Tribunal considered the agreed facts presented by the parties, which detailed Dr Skala's inappropriate prescribing practices over a period of several years. Dr Skala's conduct was found to be in breach of specific sections of the Regulation, including sections 122 and 213. The Tribunal was satisfied that Dr Skala's actions were not only breaches of the Regulation but also constituted professional misconduct due to the risk they posed to patients. The Tribunal concluded that the agreed sanction of a reprimand was appropriate, given the nature and circumstances of the misconduct.

The Tribunal ordered that Dr Skala be reprimanded for professional misconduct, in accordance with the agreed orders submitted by the parties. This outcome reflected the seriousness of Dr Skala's actions while also considering the agreed terms of the sanction.

Orders

Orders of the court

Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is

reprimanded.

Background

Background to the litigation

The parties have jointly filed and rely upon a Statement of Agreed and Disputed Facts. The parties agree as to the characterisation of the respondent’s conduct as constituting professional misconduct. The parties have jointly submitted agreed orders by way of sanction.Background The respondent obtained the qualification of Batchelor of Medicine, Batchelor of Surgery from the University of Queensland in 1971. In 2009 the respondent attained fellowship with the Royal Australian College of General Practitioners. During the period of the conduct the respondent was registered as a medical practitioner holding general registration and specialist registration as a general practitioner and owned, operated and practised at the CBD 7 Day Medical Centre and Travel Clinic. The respondent was subject to the Health (Drugs and Poisons) Regulation 1996 (Regulation) and was obliged to adhere to a reasonable direction of the Chief Executive, Queensland Health (Chief Executive) or their delegate. Relevantly: Section 78 of the Regulation provided that the respondent could not dispense, obtain, prescribe, sell or use as a specified condition drug (including Methylphenidate and Dexamphetamine) unless:(a)it was under approval, Section 122 of the Regulation provided that, where the respondent reasonably believed a person to be a drug dependent person:(a)he could not, without an approval of the Chief Executive, dispense, prescribe, administer or supply a controlled drug to the person; or(b)could only administer, dispense, prescribe, supply, or give the controlled drug under the terms of the approval given by the Chief Executive. Section 213 of the Regulation provided that where the respondent reasonably believed a person to be a drug dependent person:(a)he could not, without an approval of the Chief Executive, dispense, prescribe, administer or supply a restricted drug of dependency; or(b)he could only administer, dispense, prescribe, supply, or give a restricted drug of dependency under the approval.Summary of conduct Between 29 January 2008 and 21 December 2011, the respondent medical practitioner, in his practice as a general practitioner, prescribed controlled drugs and restricted drugs of dependency in circumstances that were inappropriate, including:(a)in breach of the Regulation; and Such conduct occurred in circumstances where: The respondent contravened the Regulation in his treatment of 11 patients and his prescribing to them of controlled drugs and restricted drugs in a way that contravened the Regulation and which placed the patients at risk or had the potential to place them at risk of harm. The contraventions included: The Tribunal has noted the details of the conduct as particularised in paragraphs 1-8 and Schedules 1-13 of the Statement of Agreed and Disputed Facts and as further The respondent breached s 122 of the Regulation by his prescribing in relation to nine patients. The respondent breached s 213 of the Regulation by his prescribing in relation to three patients.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Skala [2024] QCAT 14
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
JOHN THOMAS SKALA
(respondent)
APPLICATIONNO/S:	OCR287-18
MATTERTYPE:	Occupational regulation matters
DELIVEREDON:	24 January 2024
HEARINGDATE:	13 July 2021
HEARDAT:	Brisbane
DECISION OF:	Judge Allen KC Assisted by: Dr P Baker Dr B Manoharan Ms C Elliot
ORDERS:	Pursuant to section 107(2)(b)(iii) of the Health *Ombudsman Act 2013* (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct. Pursuant to section 107(3)(a) of the Health *Ombudsman Act 2013* (Qld), the respondent is reprimanded.