Medical Board of Australia v Andersen
[2014] QCAT 374
•30 July 2014
| CITATION: | Medical Board of Australia v Andersen [2014] QCAT 374 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Peter Neils Andersen (Respondent) |
| APPLICATION NUMBER: | OCR048-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr David Evans, Dr Harpreat Moudgil, Ms Alison Christou |
| DELIVERED ON: | 30 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The parties are to file an order in terms of paragraphs 1(amended to include the period of suspension as 1 September 2014 to 28 September 2014 inclusive), 2, 4, 6, 8, 9, 10, 11, 12, 13 and 14 of the draft set out in paragraph 41 of the applicant’s written submissions, with the amendment of the date at paragraph 4(c) of that draft from 30 September 2014 to 30 June 2015. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the respondent admitted to engaging in professional misconduct by inappropriately prescribing pseudoephedrine products – where parties jointly proposed a sanction which included a suspended suspension – where the Health Practitioner Regulation National Law (Queensland) does not provide for such a sanction – whether the jointly proposed sanction can be made – whether the respondent should be suspended Health (Drugs and Poisons) Regulation 1996 (Qld), s 15(1) Lee v Health Care Complaints Commission [2012] NSWCA 80 |
APPEARANCES and REPRESENTATION (if any):
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
Dr Peter Neils Andersen admits that he has engaged in a series of conduct that amounts to professional misconduct as defined by the Health Practitioner Regulation National Law (Queensland) (‘National Law’). That series of conduct involves the inappropriate prescribing by Dr Andersen of products containing pseudoephedrine (‘PSE’).
Notwithstanding that there has been a series of conduct, Dr Andersen describes it as being conduct involving the same theme, and an aberration rather than conduct indicative of him being a person who is unfit to practice, or who otherwise, more broadly, represents a material risk to his patients or the public at large.
Nonetheless, Dr Andersen concedes that he should be the subject of a disciplinary sanction.
Dr Andersen’s conduct
The conduct to which Dr Andersen admits was set out in the statement of agreed facts filed by the parties.
On 2 June 2009, a covert operation was undertaken during which Dr Andersen prescribed a large volume of PSE to a “patient”. An undercover officer employed by the Queensland Police Service attended Dr Andersen’s practice using a false identity. The officer told Dr Andersen that she wanted Sudafed for sinus. She claimed that she was travelling for three months and wanted to take Sudafed with her as it was difficult to purchase. Dr Andersen prescribed 120 Sudafed tablets for the officer.
Dr Andersen also admits that he prescribed PSE to patients in circumstances where he did not carefully determine that each patient had a genuine therapeutic need for it. His admitted conduct concerns 6 patients.
Patient 1 had been seen as a patient of Dr Andersen since 31 January 2000. Dr Anderson’s notes from a consultation with Patient 1 in January 2004 read, “Facing Court possession of amphetamine, withdrawals, uses pot. Letter re Court.”
A note in the records for 12 September 2006 shows that Sudafed was prescribed on that occasion. Patient 1 also received prescriptions for Sudafed on 29 January 2007, 31 March 2007, 12 September 2008 and 29 September 2008.
Dr Andersen admits that it was inappropriate to prescribe PSE to Patient 1 repeatedly, without demonstrated and documented reasons for prescribing such medication, and without having trialled alternative forms of treatment for any of the symptoms of which the patient complained.
Patient 2 first consulted Dr Andersen on 21 August 2007. On that occasion he was prescribed MS Contin and Codral Cold & Flu. On 28 August the patient’s records record that he was “robbed last weekend in bush”. It is not, however, apparent whether further prescriptions were written as a result of that alleged robbery.
On 5 September 2007 Codral Cold & Flu was prescribed. On 20 September 2007 the patient’s notes contain a note which is understood to be a prescription for Codral Cold & Flu. The statement of agreed facts sets out that on 3 October 2007 the patient is recorded to have fallen in a creek. On 13 October 2007 he is recorded as having again been robbed. On 28 November 2007 the notes record that the patient was leaving Queensland. The notes record his return on 20 February 2009. It is not, however, apparent from the agreed facts whether PSE was prescribed by Dr Andersen for Patient 2 on any of those occasions.
On 12 March 2009 Dr Andersen prescribed Augmentin Duo Forte and Demazin Cold & Flu tablets for Patient 2. On 7 July 2009 and in October 2009 Dr Andersen prescribed Sudafed for Patient 2. Dr Andersen admits that the continuous prescribing of PSE to Patient 2 was inappropriate in the absence of a demonstrated and documented need for the prescription of such medication, and without having trialled alternative forms of treatment for any symptoms of which he complained.
Patient 3 saw Dr Andersen five times between 27 November 2008 and 1 December 2009. On 27 November 2008 a prescription was provided for what appears to be 60 Sudafed tablets. This entry in the notes is followed by an undated note reading “no more”.
Patient 3 received a prescription for Sudafed again on 12 December 2008. It appears it was for 12 tablets on that occasion. On 24 October 2009 Dr Andersen prescribed 60 Demazin for Patient 3. He again prescribed Demazin Cold & Flu on 19 November 2009. On 1 December 2009 the patient’s records contain a note saying “says wallet stolen”. It is not clear what Dr Andersen prescribed on that occasion.
Dr Anderson admits that the repeated prescribing of PSE at short intervals without referral to a specialist, or without alternative treatments being considered, was inappropriate as concerned Patient 3.
Patient 4 was prescribed Sudafed by Dr Andersen on 25 August 2009, 14 September 2009 and 27 October 2009. On the last of those occasions Dr Andersen recorded in his notes for the patient “writing the letter for her as her car was broken into”.
Dr Andersen admits that the repeated prescribing of PSE at short intervals and without evidence of any further investigation being undertaken as to Patient 4’s condition was inappropriate.
Dr Andersen prescribed PSE to Patient 5 for sinusitis on 18 November 2008 and 12 December 2008 on a date that is not recorded, Dr Andersen wrote “no more” on the notes. He admits that the prescribing of PSE shortly after Patient 5 was prescribed PSE on 18 November 2008, without evidence of any further investigation having been undertaken, was inappropriate.
Dr Andersen prescribed 60 Sudafed tablets for Patient 6 on 4 occasions. On 26 November 2008 the patient notes read “sinusitis. Sudafed. On parole.” On 15 May 2009 the notes record “still sinusitis. Sudafed. 60.” On 16 June 2009 the notes record “Sudafed 60” after a note which appears to record the patient’s presentation as having been the same as on the earlier occasion on 15 May 2009.
On 24 July 2009 a further 60 Sudafed were prescribed and it was noted that the patient had been evicted.
Dr Andersen admits that the continuous prescribing of large quantities of PSE to Patient 6 without evidence of him ever referring Patient 6 to a specialist, or considering alternative treatment, was inappropriate.
Dr Anderson
Dr Andersen has been registered as a medical practitioner since 1963. He is presently in his 70’s and intends to continue to practice until he is approximately 80 years old.
Apart from the matters the subject of these proceedings, he has not come to the attention of the Board (or, I infer, its predecessors) at any time during his career. Numerous affidavits have been filed in which the deponents provide testimonials as to Dr Andersen’s abilities, dedication and professionalism. It is apparent that he is highly regarded and well respected for his commitment to both his patients and to the community.
Sanction
The parties have jointly proposed orders by way of sanction. Those orders include that Dr Andersen’s registration be suspended for a period of one month. The proposed orders provide for that suspension to itself be wholly suspended for a period of 12 months during which Dr Andersen must not be the subject of any disciplinary action by the Board or the Tribunal.
In Medical Board of Australia v Martin[1] it was observed that the Tribunal ought not to depart from a proposed sanction agreed between the parties to a disciplinary matter such as this unless it falls outside of the permissible range of sanction for the conduct. The Tribunal explained the sound public policy reasons for taking such an approach.
[1][2013] QCAT 376 at [91] – [93].
In this matter, however, the proposed order suspending the operation of the suspension imposed is beyond the permissible range because it is not authorised by the National Law.
In Pharmacy Board of Australia v Tavakol[2] the Tribunal has recently stated why it is that the capacity to suspend a suspension which existed under the provisions of Part 6, Division 6, Subdivision 6 of the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld) does not exist under the National Law. This matter, like others, including Tavakol itself, seems to have proceeded on a shared assumption that suspensions imposed under s 196(2)(d) of the National Law could be suspended.
[2][2014] QCAT 112 at [39] – [50].
I have considered whether the parties, not having identified any basis upon which the Tribunal may suspend the suspension of a registrant’s registration, ought be heard further on the issue. I have decided not to follow that course because I am of the opinion that a wholly suspended suspension, even if authorised by the legislation, would not, in this case, be appropriate.
The written submissions filed on behalf of Dr Andersen acknowledge, albeit in the context of the submission in favour of a suspended suspension, that the conduct warrants an order of the kind that would operate as a deterrent to other practitioners from engaging in like conduct, and that a short suspension serves that purpose. In my view, that submission is correct.
In disciplinary proceedings such as these care needs to be exercised in considering earlier cases with a view to establishing comparative sanctions. Earlier cases might legitimately be considered if they demonstrate some discernable range or pattern of outcome; but any such range cannot be considered as a precedent indicating what is ‘correct’.[3]
[3]Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
Particular care in this regard must be exercised when the sanctions in those other cases were imposed under a different statutory regime.
In the Medical Board of Australia v Sykes[4] the Tribunal declined to suspend the registration of a medical practitioner against whom disciplinary proceedings were brought under the National Law because of his treatment of 1 patient with PSE between June 2009 and October 2010. Dr Sykes was aware that the patient had a substance abuse problem when he commenced treating the patient with PSE. The Tribunal accepted, though, that Dr Sykes commenced prescribing the PSE believing that it may be of therapeutic benefit in treating the patient’s psychological condition. Dr Sykes had referred the patient to Dr Flanagan. Dr Flanagan had reported on the patient. With hindsight, Dr Sykes conceded that he should have interpreted Dr Flanagan’s report as advising against treatment using PSE. Dr Sykes also agreed that he did not have a proper basis for the treatment.
[4][2012] QCAT 293.
The Tribunal found that Dr Sykes had been aware of the risks inherent in the course which he adopted and could not be said to have disregarded his responsibilities in prescribing the medication. Nonetheless, it was found that it should have become evident to him that the patient was exploiting his willingness to prescribe PSE. In my view, the agreed statement of facts demonstrates that a number of patients were likewise exploiting Dr Anderson’s willingness to proscribe PSE and to accept explanations for the need to obtain more PSE, the plausibility of which a less naïve or more enquiring mind might have questioned.
The Tribunal rejected the allegation that Dr Sykes conduct amounted to professional misconduct. Dr Sykes had accepted that his conduct did amount to unprofessional conduct.
In this case, the prescribing of PSE by Dr Andersen concerned 6 patients and spanned the period between approximately September 2006 and December 2009. It is more serious than the conduct in Dr Sykes’ case. Importantly, Dr Andersen’s conduct, by his own admission, amounts to professional misconduct.
In Medical Board of Australia v Dolar[5] a Medical Practitioner, of similar age and experience to Dr Andersen, avoided suspension of her registration, although the Tribunal found that a suspension was certainly open. The disciplinary proceedings related to the doctor’s prescription of steroids and other medications to seven patients. She had admitted unsatisfactory professional conduct as defined under the Health Practitioners (Professional Standards) Act 1999 (Qld).
[5][2012] QCAT 271.
There have been many cases which have concerned the sale by pharmacists of PSE. The more serious of those cases have had as an aggravating feature the pharmacists having been convicted of having produced a dangerous drug.[6]
[6]Pharmacy Board of Australia v Daddow [2013] QCAT 41 (‘Daddow’) and Pharmacy Board of Australia v Huynh [2013] QCAT 42.
In one such case, Daddow, the pharmacist’s registration was suspended for 18 months to be suspended after 3 months for an operational period of 18 months. In another, Hyunh, the pharmacist, who was no longer registered, was prohibited from applying for registration for one year.
In less serious cases there have been many instances of pharmacists having had their registration suspended, with the suspension being itself wholly suspended for operational periods of varying lengths.[7]
[7]Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552, 3 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Kent [2012] QCAT 329, 3 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Smith [2012] QCAT 186, 6 months wholly suspended for 12 months; Pharmacy Board of Australia v Donnelly [2011] QCAT 584, 6 months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Booy [2011] QCAT 522, 3 months wholly suspended for 12 months; Pharmacy Board of Australia v Heron [2011] QCAT 424, 3 months wholly suspended for 18 months.
Whilst, as already observed, care must be exercised when comparing sanctions imposed under the earlier regime as it existed under the Disciplinary Proceedings Act which permitted the suspension of a suspension, insofar as there is a discernable range or pattern in those cases, it is that the registrant’s registration was suspended. The primary sanction in each instance was the suspension of the registration. The suspension of the decision to suspend was secondary. It was permitted under s 247(1) of the Disciplinary Proceedings Act if the Tribunal was satisfied that it was appropriate in the circumstances: s 247(2).
In Pharmacy Board of Australia v Naghdi[8] professional misconduct was found against the pharmacist. She was suspended for a period of three months suspended after one month.[9] Ms Naghdi was the manager of the pharmacy. The owner of the pharmacy has also been subject to disciplinary proceedings. In Pharmacy Board of Australia v Tavakol[10] the pharmacist’s registration was suspended for one month. The Tribunal indicated that had it not been for maintaining parity with the sanction imposed in Naghdi, a three month suspension would have been imposed. In Naghdi the Tribunal had indicated that but for the fact that Ms Naghdi would have lost her employment if a period of actual suspension of more than one month was imposed, the Tribunal would have suspended her registration for an actual period of three months.
[8][2012] QCAT 675.
[9]The proceedings were brought under the National Law. The issue of whether the suspension of registration under s 196(2)(d) could be suspended does not appear to have been considered.
[10][2014] QCAT 112.
In my view, it is appropriate that Dr Andersen’s registration be suspended for a period of one month. Had it not been for his demonstrated otherwise good character and commitment to the community I would have considered a period of suspension of three months appropriate.
It is appropriate Dr Anderson be given a period during which to make arrangements for his practice for the period of suspension. The suspension shall be for the period 1 September 2014 to 28 September 2014 inclusive.
The parties have proposed a number of conditions which would be imposed upon the registration of Dr Andersen pursuant to s 196(2)(v) of the National Law. Those conditions are, largely, appropriate.
Paragraph 4(c) of the proposed orders requires Dr Andersen to provide evidence of his having successfully completed a particular tertiary course on general practice prescribing by 30 September 2014. The date should be amended to 30 June 2015.
Proposed order 5 provides for the details of the conditions imposed to be recorded on the Board’s register for the period during which they are in force. It is appropriate for conditions to be recorded on the register; it informs the public of the conditions. This forms part of the protective regime which the National Law establishes. However, it is not necessary that there be a separate condition imposed to that effect. Section 225(k)(ii) of the National Law requires that if a condition is imposed on a practitioner’s registration, the national register must include details of the conditions. Section 225(k) does not expressly provide for the period during which the condition is to be recorded; but it might be inferred that it is for the period during which the condition is in force. A condition, or order, requiring that is unnecessary. The Act already does that work.
If, however, the intention of s 225(k) is that the information be recorded on the register beyond the period during which the conditions are in force, a matter upon which I express no view, then it would be improper for the Tribunal to interfere with that intent by purporting to impose a condition, or to otherwise order, to the contrary. Without an express conferral of jurisdiction to do so, the Tribunal would not be authorised to make an order contrary to the Act. Section 226(2) confers a residual discretion upon the Board concerning the information to be recorded in the Register in certain circumstances. The Tribunal should not, in my view, impose a condition, or otherwise make an order, which would act as a further fetter on that discretion.
Proposed condition 7 would prohibit Dr Andersen from applying to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 (Qld) for reinstatement of his unrestricted endorsement for PSE until after he had complied with the 12 months mentoring conditions imposed. In my view, such conditions should not be imposed. The legislature has entrusted the endorsement of medical practitioners prescribing rights to the Chief Executive. Section 15(1) of the Health (Drugs and Poisons) Regulation 1996 (Qld) prescribes matters which the Chief Executive may have regard to, and make enquiries about, in deciding whether a person is a suitable person to hold an endorsement. Those matters include:
· The person’s knowledge and understanding of the person’s obligations under the Regulation;
· The person’s qualifications and experience;
· The person’s character and standing;
· Whether the person engages, or has engaged, in conduct that risks, or is likely to risk, a controlled drug, or a restricted drug or a poison being used for a purpose that is unlawful under a law of the state or the commonwealth.
Conditions to which a Registrant is presently, or has been in the past, subject to would fall within the scope of the matters which the Chief Executive may consider. The Chief Executive may, in a particular case, consider the existence of unexpired or unfulfilled mentoring conditions a reason to refuse to grant an endorsement. In my view, in the circumstances of this case, a condition prohibiting Dr Andersen from applying to the Chief Executive for an endorsement for PSE during that 12 month period adds very little by way of protection of the public. In my view, the public will be adequately protected, in this case, by the Chief Executive conscientiously discharging the duties imposed upon that office by law.
I will make an order in terms of paragraphs 1 (amended to include the period of suspension as 1 September 2014 to 28 September 2014 inclusive), 2, 4, 6, 8, 9, 10, 11, 12, 13 and 14 of the draft set out in paragraph 41 of the Board’s written submissions, with the amendment of the date at paragraph 4(c) of that draft from 30 September 2014 to 30 June 2015.
The parties are directed to file an order in those terms.
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