Medical Board of Australia v Tun

[2025] QCAT 428

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Tun [2025] QCAT 428

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

THAN TUN

(respondent)

APPLICATION NO/S:

OCR033-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 November 2025

HEARING DATE:

18 September 2025 (on the papers)

29 October 2025 (decision)

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC
Assisted by:
Prof S Brun
Assoc Prof G Senator
Mrs K Thomson

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct in relation to grounds one, three and four.

2. Pursuant to s 107(2)(b)(ii) of the HO Act, the respondent has behaved in a way that constitutes unprofessional conduct in relation to ground two.

3. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

4. Pursuant to s 107(3)(d) of the HO Act, the respondent is suspended from practice for a period of four months, starting from one month from the date of the Tribunal’s order.

5. Pursuant to s 107(3)(b) of the HO Act, upon returning to practice, the respondent's registration is subject to an audit condition in respect of the respondent’s prescribing and clinical records with a review period of 12 months.

6.     There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the respondent was a registered medical practitioner with specialist registration in general practice – where the respondent inappropriately prescribed Schedule 8 medications and Schedule 4 drugs of dependence – where the respondent inappropriately terminated the treating relationship with patients – where the respondent failed to maintain adequate clinical records – where the parties agree as to the characterisation of that conduct as professional misconduct – where the respondent failed to provide appropriate care to patients – where the parties agree as to the characterisation of that conduct as unprofessional conduct – whether the proposed period of suspension from practice should be accepted by the Tribunal as an appropriate sanction – whether the Tribunal should impose a condition on the respondent’s practitioner’s registration as an appropriate sanction      

Health Practitioner Regulation National Law (Queensland) ss 5, 156

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

Health Care Complaints Commission v Do [2014] NSWCA 307
Health Ombudsman v Alinia [2021] QCAT 43
Medical Board of Australia v Griffiths (2017) VCAT 822

APPEARANCES &REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

1. This matter has been referred to the Tribunal in respect of a number of allegations concerning the conduct committed by the respondent between 16 February 2010 and 12 May 2021. This includes a period before the Health Practitioner Regulation National Law (Queensland) (‘National Law’) came into effect on 1 July 2010, but the effect of the relevant savings and transitional provision in the former regulations mean the conduct of this referral is governed by the National Law despite some of the conduct occurring before its introduction.[1] 

   [1]Outline of Submissions for the Applicant, filed in the Tribunal 1 May 2025, 1 [2].

2. At all material times, the respondent was a registered medical practitioner with specialist registration in general practice. He provided general practice services at a practice owned by him. 

3. There are four grounds before the Tribunal. The allegations generally relate to the respondent's treatment of four patients between February 2010 and May 2021. A treating relationship existed between the respondent and four patients as follows:[2]

   (a)AB – between 16 February 2010 and 12 May 2021;

   (b)JJ – between 10 June 2015 and 12 May 2021;

   (c)MM – between 7 September 2015 to the present; and

   (d)TA – between 20 December 2012 and 12 May 2021. 

   [2]Ibid 2 [4].

4. In broad compass, it is alleged that the respondent:[3]

   (a)inappropriately prescribed Schedule 4 drugs of dependence and Schedule 8 medications to those patients mentioned above (‘ground one’);

   (b)failed to provide appropriate care to those patients (‘ground two’);

   (c)inappropriately terminated the treating relationship with those patients between December 2020 and January 2021 and ceased providing them the Schedule 4 drugs of dependence and Schedule 8 medications (‘ground three’); and

   (d)failed to maintain adequate clinical records for those patients (‘ground four’).

   [3]Ibid [5].

5. The particulars of the allegations in respect of grounds one, three, and four appear in Annexure B to the referral. In relation to ground two, the particulars appear in a further amended ground two of the referral, filed in the Tribunal on 10 September 2025 (‘further amended ground two’).

6. By his response on 21 February 2025, the respondent accepted the allegations in grounds one, three, and four, and accepts that the conduct amounted to professional misconduct.

7. In respect of ground two, the parties have advised they have resolved all factual disputes in respect of that ground. The parties accept this is of course subject to the Tribunal’s satisfaction in respect of those matters, and accept that while it is a matter for the Tribunal, the fact that the allegations and characterisation are agreed is a significant matter upon which ‘weight can and should be given’ by the Tribunal.[4] Here, bearing in mind the onus of proof and the evidence, the Tribunal accepts the resolution and the agreement between the parties. In the further amended ground two, the parties agree that the conduct set out in the amended allegations constitutes unprofessional conduct within the meaning in section 5 of the National Law. By way of the further amended ground two, the Tribunal was amenable to proceeding on the papers.

   [4]Medical Board of Australia v Griffiths (2017) VCAT 822, 57.

Background

1. On 18 March 2021, the Office of the Health Ombudsman received a confidential notification regarding the respondent's conduct. It raised concerns about his abrupt cessation of the provision of medication to the four patients mentioned.

2. On 22 July 2021, the Medical Board of Australia (‘Board’) took immediate action pursuant to section 156(1)(a) of the National Law by way of imposing conditions on the respondent's registration. Those conditions prohibited the respondent from accessing and prescribing, among other things, any Schedule 8 medications and any Schedule 4 drugs of dependence. The respondent was required to submit to regular audits of his practice.

3. As I said earlier, section 5 of the National Law provides definitions of professional misconduct and unprofessional misconduct. There are several decisions which the Tribunal is empowered to make in light of those findings. Here, the applicant argues it is open to the Tribunal to conclude that a global finding is appropriate in respect of the respondent's conduct and that the Tribunal does so characterising the conduct as professional misconduct. The appropriate sanction is to be considered at the time of making the sanction and not at the date of the conduct.

4. The purpose of disciplinary proceedings is protective and not punitive, which is a significant factor. One of the protections is the making of orders which secure the maintenance of proper professional standards.

5. I note that the respondent:

   (a)has been compliant with the conditions placed on his practice for at least four years;

   (b)has cooperated and been candid with the Board;

   (c)is seen generally as a hard-working and competent physician; and

   (d)has undertaken rehabilitation and education which speaks to his insight and remorse, reducing the need for specific deterrence.

6. Comparable cases have been referred to the Tribunal. No two cases are exactly the same, but comparable cases can be useful in determining the outer limits of the appropriate sanction.

7. It must be said that the conduct of the respondent occurred over a lengthy period and was conduct which exhibited a serious disregard for the requirements of professional practice. He repeatedly put his patients at risk by inappropriately prescribing medications and drugs of dependence, and that risk was magnified by his abrupt cessation of the treating relationships with those patients to whom he prescribed the medications and drugs of dependence. In Health Ombudsman v Alinia [2021] QCAT 43 the Tribunal determined that similar conduct involving inappropriate prescribing and clinical observations and the failure to keep proper records in relation to one patient over a five-year period constituted professional misconduct. In making that determination, the Tribunal stated:[5]

   The inappropriate prescribing and inappropriate clinical observations and failure to keep proper records over so many years in relation to an extremely vulnerable patient is clearly professional misconduct, bearing in mind that it is the responsibility of the applicant to prove it to the standard identified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

   The prescription of medication (and in particular schedule 4 drugs and/or drugs of dependency) without proper clinical indication is a serious matter given the trust placed in medical practitioners by the public. A failure to comply with the regulation, of itself, can lead to professional misconduct.

   [5]Health Ombudsman v Alinia [2021] QCAT 43, [32]-[33] (citations omitted).

Sanction

1. The protection of the public and the reputation of the profession should carry significant weight when determining an appropriate sanction. In Health Care Complaints Commission v Do [2014] NSWCA 307 the court observed at [35]:

   The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 

2. Dependence on prescription medication is a well-known problem in the community and the deterrence of medical practitioners who willingly or ignorantly enable such dependency is a significant consideration. The conduct here occurred over a prolonged period and in relation to multiple patients; it continued even after the respondent had been put on notice by Queensland Health that concerns existed in relation to his prescribing practices regarding Schedule 8 medications for three of the patients.

3. In addition, the respondent has had one previous compliance incident which resulted in a caution. 

4. In his favour, he has shown insight into his conduct and undertaken significant education and mentoring during the investigation period. As I said earlier, he has been compliant with the conditions imposed on him for over four years. The Board submits that the appropriate sanction would include the following:

   (a)an order that the respondent be reprimanded;

   (b)an order suspending the respondent from practice for six months; and

   (c)an order that upon returning to practice the respondent's registration be subject to an audit condition.

5. The respondent's position is that there should be a reprimand and an order suspending him from practice for a period of three months. Having considered the comparable cases suggested by both parties and bearing in mind the need to promote consistency of decision-making within the national scheme, the Tribunal has come to the view that the appropriate sanction in this case should take into account:

   (a)the comparable cases;

   (b)the respondent's extensive participation in an educational program and his reception of mentoring;

   (c)his remorse; and

   (d)the extra condition that the respondent’s registration be subject to an audit condition with a review period of 12 months.

Orders

1. The Tribunal orders that:

2. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct in relation to grounds one, three and four.

3. Pursuant to s 107(2)(b)(ii) of the HO Act, the respondent has behaved in a way that constitutes unprofessional conduct in relation to ground two.

4. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

5. Pursuant to s 107(3)(d) of the HO Act, the respondent is suspended from practice for a period of four months, starting from one month from the date of the Tribunal’s order.

1. Pursuant to s 107(3)(b) of the HO Act, upon returning to practice, the respondent's registration is subject to an audit condition in respect of the respondent’s prescribing and clinical records with a review period of 12 months.

1. There be no order as to costs.