Medical Board of Australia v AXZ

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v AXZ [2025] QCAT 363

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

AXZ

(respondent)

APPLICATION NO/S:

OCR160-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 May 2025 (Ex tempore)

HEARING DATE:

27 May 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Ms D Blond
Dr G Goulding
Dr G Kelly

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Old), 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 FZ, JZ and 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, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).

2.   Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to these proceedings or any appeal or review arising from these proceedings.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   Pursuant to s 196(1)(b)(iii) of the National Law, in respect of both grounds of the referral, the respondent has behaved in a way that constitutes professional misconduct.

2.   Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.

3.   Pursuant to s 196(2)(b) of the National Law, the conditions set out in Annexure A to the formal orders of the Tribunal are imposed on the respondent’s registration.

4.   Pursuant to s 196(3) of the National Law, the review period for the conditions is twelve months from the date of this order

5.   Part 7, Division 11, Part 2 of the National Law applies to these conditions.

APPEARANCES & REPRESENTATION:

Applicant:

K Reid solicitor of Clayton Utz

Respondent:

J Underwood instructed by Avant Law

REASONS FOR DECISION

The proceeding is concerned with a disciplinary referral brought by the Medical Board of Australia (‘Board’) against AXZ (‘respondent’).
The conduct that brings the respondent before the Tribunal is set out in the Statement of Agreed Facts, namely that the respondent:[1]
engaged in professional misconduct as defined in section 5 of the [Health Practitioner Regulation National Law (Queensland) (‘National Law’)] in that between January 2022 and October 2022, [he] prescribed Schedule 4 medicines, namely paracetamol + codeine and paracetamol codeine phosphate, in the name of his wife…, for the purpose of self-administration.
[1]Statement of Agreed Facts, filed in the Tribunal 21 October 2024, 1-2 [7].
All or several of the prescriptions were issued on a false basis because the respondent at no time intended that the prescribed medication would actually be dispensed to his wife and was, in fact, prescribed for the purposes of self-administration.[2]
[2]Ibid [8(c)].
In respect of ground two, the respondent:[3]
engaged in professional misconduct as defined in section 5 of the National Law in that, between October 2021 and August 2022 [the respondent] prescribed Schedule 4 medicines, namely paracetamol + codeine and paracetamol codeine phosphate, in the name of his ex-wife ..., for the purpose of self-administration.
[3]Ibid 3 [9].
At all material times, the respondent was a registered medical practitioner. Both parties are legally represented and it is not in dispute that the conduct of the respondent amounts to professional misconduct, nor that the consequential order of a reprimand ought to be imposed.[4]
[4]Respondent’s Written Submissions, filed in the Tribunal 19 February 2025, 2 [2] (‘Respondent’s Submissions’).
What was left in dispute was whether any further sanctions ought to be imposed. On behalf of the respondent, it was submitted that no further sanctions were required.[5] On behalf of the Board, it was submitted that the respondent’s registration ought to be suspended for a period of three months and that thereafter, his right to practise should be subject to a number of conditions to be reviewed after twelve months.[6] Those conditions were set out in Annexure A to the submissions filed on behalf of the Board and are now Annexure A to the findings and orders made by the Tribunal.
[5]Ibid.
[6]Applicant’s Written Submissions, filed in the Tribunal 22 January 2025, [5(b)(c)] (‘Applicant’s Submissions’).
The respondent is clearly remorseful and has full insight as to the seriousness of his conduct. He has also been extremely cooperative in respect of the progression of this matter and had taken voluntary steps to address his underlying circumstances that led to his conduct. It should be noted that he is also greatly ashamed of his conduct. The extent of the cooperation of the respondent is acknowledged in the written submissions filed on behalf of the Board. The respondent has, at all material times, been forthright with the Board about his conduct and health upon the Board notifying him about the complaints. He engaged proactively with his treating team and provided evidence of the progress of that treatment to the Board.
He has also cooperated at all relevant times with the investigation, including admitting the conduct as alleged and providing an initial proposed undertaking. He has undertaken education with Avant Mutual regarding the issues relevant to his conduct, and he has provided a further undertaking in response to the proposed immediate action to address the Board’s concerns regarding his prescribing practices in light of the referred conduct.[7] It is also noteworthy, and to the credit of the respondent, that he voluntarily withdrew from practice for a period of six months to address the underlying issues that led to the conduct that brought him before the Tribunal.
[7]Applicant’s Submissions (n 6), [43(f)].
In the Respondent’s Written Submissions filed under the heading of ‘Root Cause of Alleged Conduct’, it was said that ‘the Board accepts that there is a nexus between the conduct as alleged in the referral and the [respondent’s] health’.[8] He goes on to submit that he:[9]
is a 63-year-old skin cancer doctor. For many years, he suffered chronic pain from a variety of sources. In 2016, he began suffering night pain from severe osteoarthritis in his wrists and, in 2019, began suffering additional pain in his back. The pain began subtly, but gradually increased. He sought pain relief from his general practitioner but was prescribed only limited amounts of Palexia. The pain continued getting worse, and, by October 2021, had become unbearable. It is further submitted that it was in this context that the respondent made the decision to self-prescribe.
[8]Respondent’s Submissions (n 4) 4 [5].
[9]Ibid [6].
As submitted by the respondent, the reason for that was:[10]
He felt that he was out of options. He had tried obtaining additional pain medication from his regular general practitioner but had been refused. Further, he feared he would be accused of doctor shopping if he sought medication from someone else.
[10]Ibid [7].
The Tribunal would note that, by reference to the uncontested affidavit of the respondent,[11] the above description or references to his medical health could be seen as materially understating the state of the respondent’s physical and mental health at the time. As has been observed, the physical and mental health of the respondent leading up to the conduct is not disputed by the Board.
[11]Affidavit of the Respondent, affirmed 29 November 2024.
Turning to the question of further sanctions. It has, of course, been recognised on a number of occasions that a reprimand is not a trivial sanction but amounts to a serious condemnation of a medical practitioner’s conduct, which also forms part of the public record. It also seems to be accepted by the Board that personal deterrence is not a particularly relevant consideration. Instead, in respect of the need for suspension, it was submitted on behalf of the Board that:[12]
… a short period of suspension (3 months) is also warranted in this matter. The Board considers that a period of suspension is necessary to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Board acknowledges the significant efforts the [respondent] has made at rehabilitating himself, including undertaking numerous courses. However, a failure to impose a period of suspension would, in the Board’s view, be directly inconsistent with the expectations of the public in relation to the appropriate determination in this case given the gravity of the conduct.
….
The proposed suspension period of 3 months is a modest and measured determination, which takes into account the need to deter the profession whilst not straying into being punitive.
[12]Applicant’s Submissions (n 6), [47], [50].
It is a given that the conduct of the respondent is serious, thus the finding of professional misconduct and the reprimand. The protection of the reputation and public confidence of medical practitioners is, of course, of great importance, and a strong message of general deterrence is sometimes necessary in order to maintain, as far as one can, those values. However, it must always be borne in mind that any orders of the Tribunal are not meant to be a form of punishment. Instead, they are to ensure, as far as is practicable, the safety and well-being of the public. It is tolerably clear that the respondent is a highly regarded medical practitioner.
In the employer’s report, which is part of the agreed material, the employer comments on various topics (including the respondent’s ability, his responsibilities at work, how he interacts with staff and patients and whether the employer has any concerns with the respondent’s clinical practice), in which the employer says:[13]
[The respondent] has displayed no changes in his professional ability when at work. His identification rate of skin cancers remains high and his procedural work is of a high quality. He continues to be a mentor for one of the other Doctors with some teachings in surgical techniques.
….
[The respondent] is responsible for his results and follow ups for his patients. Even when he decided to take some time off due to a physical complaint (back pain) he did perform a proper handover of his patients to an alternate practitioner as per accreditation guidelines and continued reviewing his results and handing over to alternate practitioners. [The respondent] is a valued member of the community and the practice and is well respected and loved by his patients and peers alike.
[The respondent] has a significant patient base, with some patients seeing him for their skin cancer management for more than 10years.
….
From the time [the respondent] has returned in June 2023 to current, I have no concerns regarding his clinical ability and no other Practitioner in the clinic has expressed concerns.
[13]Hearing Brief, filed in the Tribunal 24 March 2025, 66 (‘HB’).
In circumstances where the respondent voluntarily stood aside from his practice for a period of six months, from November 2022 to June 2023, one might rhetorically ask, how would a further suspension of three months be in the public interest in the sense of sending an appropriate message of general deterrence? Overall, the Tribunal is of the view that a suspension of only three months in addition to a reprimand would, at best, send only a very moderate message of general deterrence. On balance, it would more likely be for the benefit of the public to see the respondent return to his practice without further interruption.
As to the submission that a failure to impose a period of suspension would be ‘directly inconsistent with the expectations of the public in relation to the appropriate determinations this case given the gravity of the conduct’,[14] the Tribunal does not find that submission particularly persuasive. Understandably, no authority has been cited to support that proposition, but one might think that the expectations of the public might be that each case be dealt with on its merits, rather than the adoption of one particular course of action.
[14]Applicant’s Submissions (n 6) [47].
Turning then to the issue of conditions. In support of the imposition of conditions, the Board submits that the conversion of the respondent’s undertaking into conditions would first, better ensure that the respondent would not revert to the inappropriate practice of self-prescribing; and second, ensure the maintenance of professional standards in the profession.[15] To a very significant extent, both of those matters tend to overlap.
[15]Ibid [50].
In a report by his then-treating psychiatrist, Dr Edwards, on 9 July 2023, he reported as follows:[16]
With regards to [the respondent’s] safety to practice as a medical practitioner, I discussed this with [the respondent] at our most recent appointment on 28/06/2023. [The respondent] has been compliant with all treatment direction and is once again abstinent from alcohol and nearly abstinent from opioids, managing these in a controlled fashion as part of a plan for reduction and cessation in the coming month. [The respondent] intends to engage in psychotherapy once again to manage his anxiety and does not currently present with depressive symptoms. [The respondent] is back working two half days in his practice and I do not have current concerns for impairment in his ability to practice. There is the potential for future relapse during times of stress or exacerbation of pain, and I have suggested to [the respondent] he voluntarily undertake or suggest to AHPRA a restriction in prescribing rights for s4 and s8 medications. I would have no concerns for [the respondent’s] future practice were he unable to prescribe opioids, and this is a concession I believe [the respondent] would willingly make to continue his practice.
[16]HB (n 13) 70.
On 21 March 2024, the Board was prepared to permit the respondent, upon him giving an undertaking which prevented him from prescribing all monitored medicines prescribed in Schedule 2 of Part 4 of the Medicines and Poisons (Medicines) Regulation 2021 (Qld), to continue his practice.[17] There is no suggestion that the respondent has all but complied with the terms of that undertaking.
[17]HB (n 13) 378, 383.
Further, that undertaking, by reference to its form, is open-ended, that is, it has no specific expiry date. There are a number of factors to be considered here. First, the respondent voluntarily entered into the undertaking more than 12 months ago.[18] Second, there is no suggestion of any failure to comply with that undertaking. Third, in March 2024, the Board considered that the undertaking was sufficient. Fourth, there is nothing, apart from the submissions referred to, that would suggest that the undertaking is no longer sufficient and conditions are now required. Finally, it would seem that the respondent’s medical condition that led to his untoward conduct has been largely addressed and is being monitored.
[18]Ibid 374-375.
In respect of the undertaking, it was pointed out to the Tribunal that at the conclusion of these proceedings, the undertaking would cease to be of any force and effect. As identified in the report of Dr Edwards, there was the potential of a relapse on the part of the respondent in times of high stress. In a more recent report dated 17 March 2024, Dr Edwards explained the following observations:[19]
Since my last update, [the respondent] has now weaned off all opioids and the last prescription for these was >6 months ago. He remains abstinent from alcohol also. [The respondent] is compliant with his anti-depressant medications and has seen a psychologist, continuing to make good progress managing his mental health. There are ongoing mild symptoms of anxiety, though his Complex PTSD is otherwise considered stable. [The respondent] has continued to work part time in his GP practice without incident, and largely confines his practice to excisions of skin cancer and other minor procedures.
….
Perhaps a more carefully worded opinion on my behalf might be to suggest [the respondent] is restricted from providing or handling all S8 medications and any S4 medications that are currently regulated under the Monitored Medicines Standards (MMS) and subject to supervision under Q Script. This more narrow definition would cover any medications of concern that I might have with regards to [the respondent’s] health and safe medical practice. I include the link below that outlines these regulations and the inclusion of the specified medications as per Queensland Health guidelines.
[19]HB (n 13) 372-373.
The Tribunal was not directed to any more recent reports by Dr Edwards. On balance, given the albeit guarded observations and opinions of Dr Edwards, the Tribunal has reached the conclusion that the conditions proposed on behalf of the Board ought to be imposed.

Orders

After hearing from the legal representative for both parties, the Tribunal makes the following findings and orders:
Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Old), 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 FZ, JZ and 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, or any appeal or review arising from these proceedings, and for the applicant or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the National Law.

Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)     a judicial member;
(b)     a tribunal member;
(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d)     any assessor appointed to assist the Tribunal;
(e)     the staff of the Tribunal registry;
(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)     the parties to these proceedings or any appeal or review arising from these proceedings.
Pursuant to s 196(1)(b)(iii) of the National Law, in respect of both grounds of the referral, the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
Pursuant to s 196(2)(b) of the National Law, the conditions set out in Annexure A to the formal orders of the Tribunal are imposed on the respondent’s registration.
Pursuant to s 196(3) of the National Law, the review period for the conditions is twelve months from the date of this order
Part 7, Division 11, Part 2 of the National Law applies to these conditions.

[2025] QCAT 363

27 May 2025 (Ex tempore)