Health Ombudsman v YHU
[2023] QCAT 544
•29 March 2023 (ex tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v YHU [2023] QCAT 544
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
YHU (respondent)
APPLICATION NO/S:
OCR150-20
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
29 March 2023 (ex tempore)
HEARING DATE:
29 March 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member J Dick SC
Assisted by:
Professor Peter Baker
Professor David MorganMs Margaret Ridley
ORDERS:
It is the decision of the Tribunal That:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, 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, the respondent is reprimanded.
3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013, the respondent is to pay a fine of $12,500.00.
4. No order as to costs.
The Tribunal orders that:
1. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
(a) the contents of a document or other thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of the respondent or any patient of the respondent save as provided for by the terms of this order, and save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to;
(i) provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman's functions under the Health Ombudsman Act 2013 (Qld); and
(ii) provide a copy of the anonymised final decision and reasons for the final decision to Patient AB and the health service complainant.
2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT – where the respondent was married to a person to whom he provided care – where the applicant alleges, and the respondent admits that he failed to maintain adequate medical records or implement treatment plans in relation to his spouse – where the applicant alleges and the respondent admits that he inappropriately prescribed schedule 4 and schedule 8 drugs to his spouse – where the applicant alleges and the respondent admits that he was self-administering controlled drugs – where the respondent was convicted of three counts of uttering a forged document, being prescriptions – where the respondent has been diagnosed with substance abuse disorder – whether disciplinary findings and orders should be made – what orders are appropriate
ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal has previously made a non-publication order protecting the identity of the respondent and any patient of the respondent until further order – whether a final non-publication order should be made
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
APPEARANCES & REPRESENTATION:
Applicant:
C Templeton instructed by Clayton Utz Lawyers
Respondent:
A Luchich instructed by Avant Law
REASONS FOR DECISION
Background
The respondent was born in the mid-1980s. He is presently in his mid-late thirties. He first obtained registration as a medical practitioner in 2010.
At the time of the relevant conduct, he worked as an orthopaedic registrar in Northern New South Wales and subsequently at a hospital in South East Queensland and was married to Patient AB. The practitioner and Patient AB have since divorced. They were married in the mid-2010s, and in the same year that they were married, Patient AB gave birth to their daughter who has only one kidney. Initially, they lived in Sydney but in 2016, the respondent obtained a contract as an unaccredited registrar at a hospital in Northern New South Wales. Over the next couple of years, the family moved around South East Queensland. In 2018, the respondent obtained a position at a hospital in South East Queensland.
Conduct
The respondent admits that:
(a)between 2016 and April 2018, he provided medical care to Patient AB for a number of conditions, including generalised anxiety, depression, sleep disturbance and lumbar disc herniation;
(b)in the course of so doing, he also prescribed her schedule 8 and schedule 4 drugs;
(c)this was not a continuation of treatment provided by other practitioners; and
(d)she was a vulnerable person.
His prescription of the schedules 4 and 8 drugs was excessive; he admits that. He admits that he failed to develop and implement an appropriate and timely management plan and that he failed to maintain adequate medical records with respect to Patient AB. He failed to develop and implement appropriate treatment plans and a clinical opinion and/or diagnosis, and his care generally was compromised by reason of his familial relationship with AB. During the period that this was happening, Patient AB saw other practitioners for the purpose of obtaining repeat prescriptions for medication that had been prescribed by the respondent. It is also alleged the respondent performed pap smears on Patient AB at their apartment, though this is a particular of the treatment provided by him to Patient AB. All 126 prescriptions for schedule 8 and schedule 4 drugs were written either by the respondent or by Patient AB with the respondent’s authority.
The second allegation relates to supplying or administering a controlled substance for a non-therapeutic purpose. The particulars of this allegation are that on five occasions between September 2017 and March 2018, the respondent prescribed morphine sulphate for his doctor’s bag and then he used it, self-administering on several occasions and administering to Patient AB on other occasions or sometimes on the same occasion. He admits that he provided Patient AB morphine for a non- therapeutic purpose and that he and Patient AB injected morphine together for a non-therapeutic purpose.
Allegation 3 relates to his appearance in the Brisbane Magistrates Court on 21 March 2019, where he pleaded guilty to three counts of uttering a forged document. The forged documents were prescriptions. He was there sentenced to a fine of $2,000, but no convictions were recorded.
Discussion and Sanction
There are a number of matters to be considered. The first of the matters which needs to be considered is the respondent’s health at the time of the impugned conduct. On 12 July 2018, Dr Nigel Prior provided a health assessment report to the Medical Board of Australia (‘Board’). Dr Prior opined that the respondent had a substance use disorder that detrimentally affected or is likely to detrimentally affect his capacity to practise his profession, and that disorder was of a moderate intensity. Dr Prior considered that at the date of his assessment that the disorder had reduced to mild intensity and was likely in early remission. A number of supervisory conditions were then placed on the respondent’s registration.
In November 2018, his employment at the hospital was suspended. Subsequently, about four months later, he began working two and a-half days a week as a surgical assistant at another South East Queensland Hospital, which he has explained in his documents involved a fly-in fly-out sort of basis. This was because he, at the time, had the care of his daughter in Sydney. He was able to do this, assisted by his parents.
His endorsements to prescribe schedule 4 drugs and schedule 8 drugs was suspended in 2018 for 12 months. In December of that year, the Board accepted undertakings limiting his hours of work, requiring to be supervised and prohibiting him from accessing schedule 8 drugs. He was also required to undertake urine and hair drug screening and receive treatment from a general practitioner (‘GP’) and a psychiatrist.
In November 2019, the Medicines Compliance and Human Tissue Unit (‘MCHTU’), cancelled the respondent’s section 4 and section 8 endorsements. Over time, some of the more stringent conditions have been relaxed. His level of supervision was relaxed in January 2020 and there were amendments to the restrictions on his access to medication. Eventually, in July 2020, his level of supervision went to remote, and in October 2020, the MCHTU restored his endorsements. A week later, the respondent applied to the Board seeking removal of his prohibition on access to those drugs, and in November the Board acceded to that application.
On 16 December 2020, the Board decided to grant the respondents application under section 125(5) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) to remove the undertakings requiring him to be supervised. The agreed statement of facts sets out the considerations the Board took into account on that occasion.
In 2021, the Board decided to grant his application to remove the undertakings requiring him to submit to urine and hair samples summed up in the statement of agreed facts. Finally, the Board considered the undertakings were no longer necessary for the protection of the public. The respondent presently has no restrictions on his registration.
In 2022, he secured a position on the Australian General Practice Training Program with the Royal Australian College of General Practitioners. He is currently employed part time in a GP practice, working shifts at two hospitals and lecturing anatomy at a university. In his initial responses, the respondent did not agree to all the alleged facts, but there is now a statement of agreed facts, and a sanction has also been agreed.
The behaviour, without doubt, is a serious example of professional misconduct and there is no difficulty in coming to the view that the behaviour amounts to professional misconduct. But it is to be remembered that the purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession and to protect the public.
It is not about punishment, and each case must be considered on its particular facts and circumstances, and the Tribunal should take into account a number of features:
(a)the conduct itself;
(b)the nature and seriousness of the conduct;
(c)whether the practitioner has cooperated in the proceedings;
(d)whether there is a demonstration of remorse;
(e)whether there is any longer a need for specific deterrence;
(f)evidence of rehabilitation; and
(g)the practitioner’s health at the time of the impugned conduct and his health now.
The applicant acknowledges that the respondent’s conduct at the time must be seen in light of his substance abuse disorder and also acknowledges that he has suffered professional and personal consequences over and above anything that the Tribunal can impose, that is, the restrictions on his registration, his unemployment for periods of time, the difficulty in obtaining other employment. The applicant acknowledges that the respondent has exhibited genuine insight and remorse and points out that the position we are in now has obviated the need for Patient AB to give evidence, which is a genuine consideration.
The Tribunal has considered the comparative cases suggested by the applicant. While this matter remains a discretionary matter for the Tribunal, where there is an agreement between the parties, it should only be disturbed for a compelling reason. The penalty suggested involves a reprimand, which is considered a strong rebuke by the Tribunal for failings of the respondent. It is not a trivial penalty.
Orders
In the circumstances, in relation to the substantive matters, the Tribunal makes the following orders:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, 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, the respondent is reprimanded.
3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013, the respondent is to pay a fine of $12,500.00.
4. No order as to costs.
Non-publication order
There has already been a non-publication order in respect of this matter made by his Honour Judge Allen on 14 October 2020. The material attached to a copy of that order sets out his reasons for so deciding at that time. It is, of course, the default position that matters before this Tribunal are open and to be heard openly, and that is to ensure transparency in the process. However, pursuant to section 66(1) and (2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’): the Tribunal may make an order prohibiting the publication of documents, evidence or information that may enable a person who has appeared before the Tribunal to be identified if the Tribunal considers the order is necessary, relevantly, to avoid the publication of confidential information or information whose publication would be contrary to the public interest;[1] or for any other reason in the interests of justice.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2)(d).
[2]Ibid s 66(2)(e).
The Tribunal has already noted that Patient AB is a vulnerable person, and that publication of the details would almost certainly have an adverse effect on her mental condition. In addition, the first application was brought on the basis that the matter had been referred to the Tribunal as an impairment matter, rather than a disciplinary proceeding, and that it would have been held in private unless it was in the public interest for it to be open to the public.
The second reason was that the misconduct that is the subject of the proceeding, is inextricably linked to the respondent’s impairment and health issues. It was also argued that publishing a deidentified decision still serves as an important reminder to the profession and the public of the consequences of the misconduct. Further, the Tribunal has heard submissions on the fact that the reprimand will be recorded in the appropriate way.
In those circumstances, in relation to the application for a non-publication order, by consent, the order is:
Pursuant to section 66(1) of the QCAT Act, publication of:
(a) the contents of a document or other thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of the respondent or any patient of the respondent save as provided for by the terms of this order, and save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to;
(i)provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman's functions under the Health Ombudsman Act 2013 (Qld); and
(ii)provide a copy of the anonymised final decision and reasons for the final decision to Patient AB and the health service complainant.
Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
0
0
1