Medical Board of Australia v Smith - [2013] QCAT 52

CITATION:

Medical Board of Australia v Smith [2013] QCAT 52

PARTIES:	Medical Board of Australia (Applicant)
v
Dr Benjamin Wade Smith (Respondent)

APPLICATION NUMBER:

OCR312-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 November 2012

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham
Assisted by:
Dr John North
Dr Josie Sundin
Agnes Whitten

DELIVERED ON:

4 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

With respect to the orders made on 18 April 2012:

1. Orders 1, 2, 8 and 9 are confirmed;

2. Orders 4, 5, 6 and 7 are superseded by this order.

3. Order 3 is substituted by the following:

“3. The following conditions are imposed upon the registrant’s registration for a period of two years from 18 April 2012:

1. The Registrant must submit to the medical supervision and treatment of an experienced general practitioner (who is not a member of Registrant’s family or a professional colleague) who the Registrant will attend at least every 6 months for review. The general practitioner will prescribe and supervise all medications other than those prescribed by treating specialists. The Registrant will keep the Board informed of the name of the Registrant’s current treating general practitioner and authorise him/her to notify the Board if the Registrant fails to attend for treatment or review or if there is a significant change in Registrant’s health status. Should the Registrant attend another general practitioner for any reason the Registrant will consent to that general practitioner communicating with the Registrant’s regular general practitioner.

2. The Registrant must attend for treatment by a psychiatrist of the Registrant’s own choice, for a period of not less than 12 months (on a monthly basis) from the date of this Order. Otherwise the treatment will be at a frequency to be determined by the treating psychiatrist. The treatment is to be at the Registrant’s own expense. The Registrant must provide to the treating psychiatrist a copy of Dr Reddan’s report dated 20 October 2012, and a copy of this order and the Tribunal’s reasons. The Registrant will continue to take any medication as prescribed by the Registrant’s treating psychiatrist. The Registrant will authorise the treating psychiatrist to inform the Board if there is a significant change in the Registrant’s health status, the Registrant fails to attend for review or comply with treatment and if he/she is of the opinion that the Registrant no longer requires treatment.

3. The Registrant must attend for a health assessment or review by a doctor or doctors nominated by the Board at the conclusion of the psychiatric treatment described in clause 2 (but before the expiry of these conditions), as requested by the Board. The Registrant will agree to meet the cost of this assessment or review.

4. The Registrant must consent to the release of the Board reports to the Registrant’s treating psychiatrist, general practitioner, and workplace supervisor.

5. The Registrant must recruit a medical colleague (to be first approved by the Board in writing) to act as a workplace supervisor (who will agree to comply with the requirements set out below) for a period of two years.

6. The Registrant must work as a supervised employee or associate in a group practice for the period of two years he is under supervision. During this time the Registrant will not seek to practise on his own.

7. The supervisor must provide a broad overview of the Registrant’s practice, put in place appropriate mechanisms approved by the Board for reviewing the Registrant and provide specific advice as requested by the Registrant. This entails the Registrant taking full responsibility for individual patients within the supervision framework.

8. The Registrant must authorise the supervisor to provide to the Board quarterly reports of the progress and health of the Registrant until such time as it is deemed that the Registrant does not require a supervisor.

9. The Registrant must not work more than 46 hours a week (in a 5.5 day week) for the first 12 months from the date of this Order. Thereafter, this restriction will be lifted or relaxed if the supervisor determines that the Registrant’s progress (both in terms of ability and health) has been satisfactory. The supervisor will inform the Board of this in writing.

10. The Registrant must authorise the supervisor to report to the Board any concerns they may have about the Registrant’s health or performance.

11. The Registrant must notify the Board, the Registrant’s supervisor and treating psychiatrist immediately the Registrant is aware that there is a material change in his health.

12. The Registrant must authorise the Board or its staff obtaining a list of his patients, reviewing his patient files, and to accessing his patient records and prescribing records through the Health Insurance Commission.

13. The Registrant must provide a copy of these conditions and the Tribunal’s Order to his employer, supervisor and/or any practitioner with whom he practises.

14. The Registrant must authorise the Registrant’s supervisor, treating psychiatrist and treating general practitioner to release information to the Board regarding the Registrant’s progress and health status as requested by the Board.

15. The Registrant must consent to the release of information from the Health Insurance Commission concerning the Registrant’s practice of medicine (eg practise profile of services rendered, including day, date, item number, number of services per item number and total number of services per day, week or month) and the Registrant’s own health care (eg any medication dispenses or prescribed for the Registrant, pathology ordering profile, profile of services rendered and/or referred where the Registrant is the patient). The Registrant will also consent to the Board advising the Health Insurance Commission of these conditions.

16. The Registrant must authorise Queensland Health to release to the Board information relating to the Registrant’s practice of medicine (should the Registrant be employed by Qld Health) and his own health care (eg the prescribing and obtaining of controlled drugs and employment profile such as work hours and clinical duties).”

4. The Registrant is not permitted to apply for a review of the conditions for a period of two years from 18 April 2012. However, the Registrant and the Registrant’s Board may agree to vary paragraph 1 to assist in its practical application and in such case such written variation shall be filed in the Tribunal within seven days.

CATCHWORDS:

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – MEDICAL PRACTITIONER – CRIMINAL CONVICTIONS – Where the practitioner was convicted of burglary – where the practitioner potentially suffering post traumatic stress disorder – where practitioner a former illicit drug user and a victim of a serious assault – whether practitioner impaired – whether his registration should be suspended – whether the suspension should be activated if he complied with conditions of supervision and treatment – where the parties agreed on the orders made by the Tribunal

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Forbes of DLA Piper Australia, Solicitors for the Board

RESPONDENT:

Mr Pratt of Gilshenan & Luton, Solicitors for Dr Smith

REASONS FOR DECISION

Background

On 8 November 2012, the Tribunal made orders by consent which disposed of disciplinary proceedings against Dr Smith. When the orders were made, I indicated written reasons would be delivered. These are the reasons the Tribunal imposed the orders jointly proposed.

Reasons for making orders jointly proposed

Dr Smith came to the attention of the Board in 2009 when he faced 2 charges of burglary, to which he subsequently pleaded guilty.
Dr Smith committed the offences, he says, because his sister prevailed upon him to help her recover a laptop and some jewellery that she thought a former friend had stolen from her. Dr Smith and another male, armed with baseball bats, forced their way into two homes on the one night in their attempt to locate and secure the property. In doing so, they terrorised a number of people.
On 25 May 2010 Dr Smith was sentenced to 12 months imprisonment, but that was suspended immediately. The sentencing judge accepted that, at the time of the offences, Dr Smith was suffering from an undiagnosed post traumatic stress disorder. Both the offences and the psychiatric condition call into question Dr Smith’s suitability to practise.
The Board commenced disciplinary proceedings in the Tribunal seeking a finding that Dr Smith engaged in unprofessional conduct, discreditable conduct and other improper or unethical conduct[1].
[1]These proceedings were commenced pursuant to the Health Practitioners (Professional Standards) Act 1999. Unsatisfactory professional conduct is a ground for taking disciplinary action (s 124(1)). The definition of unsatisfactory professional conduct includes conduct discreditable to the registrant’s profession and other improper or unethical conduct (Schedule 1).
As well as the offences in 2009, the Board relied upon previous offences which Dr Smith had disclosed to the Board when he was first registered as a doctor. They fell into two categories, drug possession (more than a decade earlier) and driving charges (6 years earlier).
In April 2012, Dr Smith conceded the Board’s case was made out by the 2009 burglary offences, although he denied the earlier offences were relevant. He consented to orders by the Tribunal which had the effect that his registration would be suspended for 2 years if, within three years from 18 April 2012, he faced further disciplinary action.
The parties also agreed on conditions which they asked the Tribunal to impose on an interim basis. The conditions were detailed and onerous and required Dr Smith to practise under supervision and for his psychiatric condition to be investigated and treated.
The purpose of the health assessment was to investigate whether Dr Smith’s capacity to practise was impaired by any condition he might now have.
Dr Smith was severely beaten on Valentine’s Day in 1996. At that time, Dr Smith was then in a dysfunctional relationship with another illicit drug user. It seems he continued using drugs as a form of self medication and had no treatment for the impact of his ordeal. It was this incident that was said to be the trigger for PTSD.
The Tribunal made orders in the agreed form on 18 April 2012 and adjourned the matter for further hearing later in the year.
On 8 November 2012, the application came back on before the Tribunal. Once again the parties were in agreement about what orders the Tribunal should make.
The Tribunal was assisted by the careful and considered report of Dr Jill Reddan, consultant psychiatrist, who assessed Dr Smith; having reviewed the opinions given by other practitioners, including Dr Smith’s treating practitioner.
In Dr Reddan’s opinion, which neither party disputed, Dr Smith was not then suffering from any impairment that would prevent him from practising as a medical practitioner, nor was there any evidence that would warrant a diagnosis of substance abuse or dependence.
However, Dr Reddan identified certain features she described as characterological problems which justified the interim conditions, slightly amended, being maintained for 2 years from the date the interim orders were imposed.
Dr Reddan expressed concern about Dr Smith practising without supervision for a period. She noted Dr Smith was somewhat evasive in his account of events and blamed others for his conduct. Although he expressed regret for his conduct, he was not remorseful. Dr Reddan described him as contemptuous of the victims of his offences. He showed no empathy for the effect of his conduct on them.
Dr Redden considered Dr Smith’s insight into how he came to offend in this way was superficial. She described him as seeing himself either as the victim of circumstances beyond his control or subject to the influence of others. This is concerning given the nature of his offences, which were voluntarily undertaken and deliberately threatening. His view of his circumstances indicates to the Tribunal that Dr Smith still does not fully accept responsibility for his actions and for the consequences for his professional position.
Dr Redden advised the treatment Dr Smith is now receiving from Dr Christensen relates to personality problems, rather than any psychiatric condition. She considered it was appropriate and consistent with her assessment of Dr Smith.
The Tribunal was persuaded by the joint submissions of the parties not to activate Dr Smith’s suspension, if Dr Smith fully complies with the conditions of supervision and treatment for 2 years and is not otherwise subject to any disciplinary proceedings in 3 years from the interim orders.
Dr Smith committed serious criminal offences for which a term of imprisonment was imposed. He was granted an indulgence by the sentencing judge who accepted Dr Smith’s judgment was then affected by a psychiatric disorder.
Assuming Dr Smith was suffering from such impairment at the time of the offences, the Tribunal is satisfied that he no longer does so. Nevertheless, Dr Reddan’s report highlights there is an ongoing basis for concern about Dr Smith’s suitability to practise, particularly in an unsupervised capacity.
Dr Smith has formally conceded the case is made out against him. However, he still has not fully accepted responsibility for his actions; he seeks to cast the blame on others; he has superficial insight about how his psychological functioning contributed to the offences and he is contemptuous of those affected by his offences.
Dr Smith should understand that he has been granted a further significant indulgence by this Tribunal in the decision not to activate the suspension, at this time.
However, if Dr Smith is to successfully serve out the term of his conditions and go on to fulfil his potential as a medical practitioner he, and his treating psychiatrist, should be alert to Dr Smith’s vulnerabilities, including his former use of illicit drugs to self medicate in circumstances of stress.