Health Ombudsman v SWB - [2022] QCAT 267

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v SWB [2022] QCAT 267

PARTIES:

Director of proceedings on behalf of the helath ombudsman

(applicant)

v

SwB

(respondent)

APPLICATION NO/S:

OCR234-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 June 2022 (ex tempore)

HEARING DATE:

21 June 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Dr B Manoharan

Dr J Cavanagh

Ms C Narayan

ORDERS:

1.     Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (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 Act 2013 (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 in the amount of $25,000 to the Health Ombudsman within six months of the date of this order.

4.     Each party must bear their own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent admits to prescribing various drugs of dependence to his then-wife and other family members for pain relief – where the responded performed surgery on his then-wife – where the respondent initially admitted these allegations but denied others – where the applicant did not pursue certain allegations and filed an amended referral – where parties now agree as to conduct and sanction - where the matter has been ongoing for over 7 years and the applicant accepts that the delay was unacceptable in the circumstances – whether the proposed sanction is appropriate in the circumstances

Health Ombudsman v Alinia [2021] QCAT 43

Health Ombudsman v Jolley [2019] QCAT 173

Health Ombudsman v ORC [2020] QCAT 181

Health Ombudsman v Veltmeyer [2021] QCAT 77

Medical Board of Australia v Griffiths [2017] VCAT 822

Medical Board of Australia v Lang & Lang [2017] SAHPT 5

Medical Board of Australia v Sevdalis (Review and Regulation) [2018] VCAT 1931

Medical Board v Evans [2013] QCAT 217

Health Ombudsman Act 2013 (Qld) s 4

Health Practitioner Regulation National Law (Qld) s 5

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

The disciplinary proceeding before the Tribunal proceed on the basis of an amended referral filed by the applicant on the 30th of November 2020 and the respondent’s amended response filed on 1 March 2021. The parties have filed a statement of agreed facts. There are no relevant facts in dispute, and they are agreed as to the appropriate characterisation of the respondent’s admitted conduct and the disciplinary response by way of sanction.
The referral concerns the prescribing of controlled and restricted drugs to the respondent’s then-wife (LW) and his two stepsons (JS and LS), the performance of two surgeries on LW, and inadequate record-keeping in relation to that prescribing and surgery.
The…

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: [2022] QCAT 267
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought a case against a medical practitioner, SWB, before the Health Complaints Tribunal in Queensland. The primary issues in the case were related to the respondent's prescribing of Schedule 8 drugs to certain patients and his failure to maintain accurate records. The case also included a complaint from one of the patients regarding surgery performed by the respondent. The Health Ombudsman alleged that the respondent's conduct was unsatisfactory professional conduct and/or professional misconduct under the Health Ombudsman legislation.

The Tribunal had to determine whether the respondent's actions constituted unsatisfactory professional conduct and/or professional misconduct. The key legal issues were whether the respondent breached the Codes of Conduct by providing medical care to patients with whom he had a close personal relationship and by performing a procedure on a family member without a life-threatening emergency, and whether he failed to maintain accurate records as required by the Codes. The Tribunal also needed to consider whether the respondent's actions amounted to professional misconduct, which could result in more severe penalties, including suspension or cancellation of registration.

The Tribunal found that the respondent had breached the Codes of Conduct by providing medical care to patients with whom he had a close personal relationship and by performing surgery on a family member without a life-threatening emergency. The Tribunal also found that the respondent failed to maintain accurate records as required by the Codes. The Tribunal concluded that the respondent's conduct was unsatisfactory professional conduct and/or professional misconduct. The Tribunal decided to impose a suspension of the respondent's registration for a period of six months.

The Tribunal ordered that the respondent's registration as a medical practitioner be suspended for a period of six months, commencing on the date of the order and ending six months later. The Tribunal also ordered that the respondent pay the costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

On the 29th of October 1985, the respondent obtained registration with the Medical Board of Queensland. On the 20th of January 1999, he commenced practice as a specialist surgeon in plastic surgery in Queensland. He has maintained registration in Queensland since the 19th of October 1985. Background On the 1st of June 2016, the Health Ombudsman received a notification from Medicines Regulation and Quality (MRQ) of Queensland Health. The notification concerned the respondent’s prescribing of Schedule 8 drugs to LW (commencing in 2003) and also to JS and LS On the 7th of July 2016, the Health Ombudsman took immediate registration action by way of placing conditions on the respondent’s registration. The conditions (which remain in place) were to the effect that the respondent could not provide health services to anyone with whom he had a close personal relationship, including, but not limited to, his wife and stepsons. The Health Ombudsman commenced an investigation into the respondent’s prescribing of Schedule 8 drugs to LW, J.S and LS. In March 2018, the Health Ombudsman referred the matter to the Director of Proceedings for consideration, and on the 28th of June 2019, the Director of Proceedings referred the matter to the Tribunal. On the 30th of July 2020, the Health Ombudsman received a complaint from LW in relation to surgery on her eyelid performed by the respondent in 2019. This complaint was referred to the Director of Proceedings on the 28th of August 2020 and the surgery included in the amended referral filed on the 30th of November 2020. The Relevant Conduct The agreed conduct is set out in the statement of agreed facts. The respondent at all relevant times was subject to and bound by a number of Codes that are applicable in these proceedings, including the Good Medical Practice: A Code of Conduct for Doctors in Australia and the Royal Australian College of Surgeons (RACS) Code of Conduct in their relevant renditions over the relevant period. Of particular relevance, those Codes require medical practitioners like the respondent to avoid providing medical care to anyone with whom he had a close personal relationship, and not to undertake a procedure on a family member, except in a life-threatening emergency when no other appropriately trained surgeon was available; and to maintain clear and accurate records for the continuing good care of all patients; including the reporting relevant details of clinical history/findings/investigations, information given to patients, and medications and patient management records. The respondent was also subject to the requirements of the Health (Drugs and Poisons) Regulation 1996 (the Regulation). The following sections of the Regulation are relevant. Under section 58, doctors are authorised to supply/administer/dispense controlled drugs to patients to the extent necessary to practice medicine and where therapeutically required. Section 120 provides that if a doctor supplies/administer/dispenses/prescribes controlled drugs to patients for more than two months, a written report must be provided to the Chief Health Officer about the circumstances of the patient’s treatment. Sections 122 (2) and (3) require the doctor obtain approval from the Chief Health Officer to supply, administer, dispense and/or prescribe a controlled drug, a restricted drug of dependency, to a person the doctor reasonably believes is a drug-dependent person.

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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