Mitchelson v Medical Board of Australia
[2011] QCAT 347
•26 July 2011
| CITATION: | Mitchelson v Medical Board of Australia (No 2) [2011] QCAT 347 |
| PARTIES: | Dr Mark Leslie Mitchelson (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR055-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Reza Adib Ms Lee Cross Dr Margaret Turner |
| DELIVERED ON: | 26 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision made on 15 May 2009 is confirmed. 2. Each party must bear their own costs of and incidental to these proceedings. |
| CATCHWORDS: | HEALTH PRACTITIONER – Medical Practitioner – where registration cancelled – where re-registered subject to conditions – where practitioner applied to renew registration – where renewal granted subject to conditions – whether conditions necessary or desirable for the practitioner to practise competently and safely. Health Practitioners (Professional Standards) Act 1999 s 253(1) Health Practitioner Regulation National Law Act 2009 s 205 Medical Practitioners Registration Act 2001 s 59 Queensland Civil and Administrative Tribunal Act 2009 s100 Medical Board of Queensland v Mitchelson (unreported, HPT, Judge Richards, 31 October 2007) cited Mitchelson v Medical Board of Australia [2010] QCAT 571 cited Proprietors Units Plan No52 v Gold (1993) 116 ALR 638 followed Ralacom Pty Ltd v Body Corporate Paradise Island Apartments (2) [2010] QCAT 412 Re Re Liddle and Commissioner for Superannuation (1991) 14 AAR 456 followed State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 followed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Dr Mitchelson has applied to review a decision to renew his registration as a medical practitioner subject to conditions. Since the Medical Board of Queensland made the decision, the Medical Board of Australia has assumed its responsibilities, pursuant to a national system of registration for health practitioners.
In 2007, Dr Mitchelson was the subject of disciplinary proceedings relating to his prescription of narcotics to more than 100 patients. The Health Practitioners’ Tribunal, the predecessor to QCAT, made a number of orders, including cancelling his registration. The Tribunal precluded Dr Mitchelson from applying for further registration until April 2008. When the Tribunal made those orders, Dr Mitchelson had not practiced since April 2004.
As well as cancelling his registration, the Tribunal specified a number of conditions that it required the Board to impose upon any future registration of Dr Mitchelson.
At some time not advised to the Tribunal, Dr Mitchelson was successful in obtaining re-registration. On 15 May 2009, on Dr Mitchelson’s application to renew his registration, the Board imposed the conditions required by the Tribunal. They are conditions 4 to 11 inclusive, of 12 conditions imposed on Dr Mitchelson’s registration.
Dr Mitchelson wanted to review the imposition of all of those conditions. On 10 November 2010, this Tribunal decided that it could not review conditions 4 to 11, because the Board imposed them to give effect to the order of the former Tribunal. Dr Mitchelson elected to continue with his application to review the remaining conditions (1 – 3 & 12).
Conditions must be necessary or desirable
At the time of the decision, the Queensland Board had the power to impose additional conditions it considered necessary or desirable for the applicant to competently and safely practise the profession.[1]
[1] Medical Practitioners Registration Act 2001 s 59 (since repealed).
For the condition to be necessary, it need not be essential but must be reasonably required.[2] The word desirable connotes a positive aspiration, something worthy of achievement.[3] In either case, the conditions must address the object of the applicant competently and safely practising the profession.
[2]State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447; Proprietors Units Plan No52 v Gold (1993) 116 ALR 638.
[3] Re Liddle and Commissioner for Superannuation (1991) 14 AAR 456.
The conditions
The conditions:
a)require prior approval by the Board of a supervised practice plan prepared by Dr Mitchelson’s employer providing a direct supervision arrangement (condition 1);
b)require prior approval of the position in which Dr Mitchelson will practise and of any change to the nature or place of his practise (condition 2);
c)require the supervisor to provide assessment reports to the Board after three, six and twelve months and as otherwise reasonably required by the Board (condition 3);
d)provide the Board will review the conditions in twelve months from the date they are imposed (condition 12).
Dealing with the last condition first, the review could only relate to conditions 1, 2 and 3, because the Board has no power to vary the conditions imposed pursuant to the Tribunal’s order. Dr Mitchelson has not complained about the period before review and he could hardly challenge the reasonableness of that period. It seems that condition 12 has been swept up in the complaint made about conditions 1 - 3. The Tribunal will not further consider condition 12.
[10] Condition 1 gives the Board the power to approve the supervision arrangements. The practical effect, however, of both conditions 1 and 2 is to provide the Board with a level of control over the nature of the position in which Dr Mitchelson might practise and the nature of his supervision. Condition 3 ensures the supervisor keeps the Board informed about Dr Mitchelson’s practise.
Are the conditions necessary or desirable for the applicant to practise competently and safely?
[11] The Board argued conditions 1, 2 and 3 are not only necessary or desirable but are essential to give effect to conditions 4 to 11 (set out in the attached Annexure), which the former Tribunal considered were the minimum conditions under which Dr Mitchelson could return to practise. Apparently, the Tribunal was so concerned about Dr Mitchelson’s prescribing practices that it decided those conditions should apply indefinitely to Dr Mitchelson’s registration.
[12] While it is not the function of the Tribunal to review conditions imposed by the former Tribunal, the evidence presented to that Tribunal certainly justified the Tribunal’s orders.
[13] Between February 2001 and April 2004, Dr Mitchelson breached the Health (Drugs and Poisons) Regulation 1996 on 1,035 occasions. Those breaches involved prescribing excessive amounts of morphine products.[4] During the first six months of 2003, his prescriptions represented 3.18% of the total community prescribing of morphine in Queensland; a quantity three times as high as the next highest prescriber.[5]
[4]Medical Board of Queensland v Mitchelson (unreported, HPT, Judge Richards, 31 October 2007), 4–29 to 4–32.
[5]Letter from Dr Alun Richards, Manager, Drugs of Dependence Unit to Medical Board of Queensland 11 December 2003.
[14] Dr Richards, Manager, Drugs of Dependence Unit, when referring to some of those breaches stated in a letter to the Board dated 2 April 2004 that:
…in each of these 253 incidences, Dr Mitchelson ignored the advice of the Chief Executive and continued to treat these patients with controlled drugs without the approval of the Chief Executive. In one particular case, Dr Mitchelson continued to treat a patient (who had been convicted of selling morphine tablets) with controlled drugs on thirteen occasions after being served (by registered post) with a ‘Statement of Reasons’ on why the Chief Executive would not issue him an approval.
[15] The approval referred to is the endorsement under the Drugs and Poisons Regulation that had authorised Dr Mitchelson to prescribe narcotics. It is particularly concerning that Dr Mitchelson continued to prescribe controlled drugs after his endorsement had been removed and he had been notified of the reasons for that action.
[16] The Board has a responsibility to implement the decisions of the Tribunal.[6] It considered the following matters in deciding to impose the further conditions:
a)The number of breaches;
b)Dr Mitchelson’s concession that he engaged in unsatisfactory professional conduct;
c)The scale of Dr Mitchelson’s prescription of narcotics when compared with prescribing practitioners as a whole;
d)That 253 breaches occurred when Dr Mitchelson was not endorsed to prescribe the medication; that 13 breaches involved prescription to a patient who had been convicted of selling morphine tablets and after Dr Mitchelson had received the Statement of Reasons from the Chief Executive of Queensland Health explaining the decision to remove his endorsement to prescribe such drugs;
e)Concerns of the Queensland Police Service that Dr Mitchelson was prescribing morphine to upwards of 15 patients suspected of on-selling morphine;
f)The attitude Dr Mitchelson displayed when interviewed by Dr Warwick Carter;
g)Dr Carter’s observations about the inadequacy of Dr Mitchelson’s records of the patients’ symptoms, his diagnosis and his treatment, as well as discrepancies in the records regarding the drugs prescribed.
[6]Health Practitioners (Professional Standards) Act 1999 s 253(1); Health Practitioner Regulation National Law Act 2009 s 205.
[17] It is clear, then, that the Board took into account not merely Dr Mitchelson’s admitted breaches, but also information that casts considerable doubt on Dr Mitchelson’s insight into the deficiencies in his practice.
[18] For example, Dr Carter, who provided an expert report in the disciplinary proceedings, expressed concern about Dr Mitchelson’s assessment that he is a better than average doctor, when his clinical notes and management indicate the opposite.[7]
[7] Expert opinion of Dr Warwick Carter dated 6 December 2004 at pg 1.
[19] It seems Dr Mitchelson’s attitude that he possesses superior knowledge and skill is ongoing. This self-assessment is at odds with his admissions of unsatisfactory professional conduct. He considers he was and still is being victimised by persons who have a vendetta against him or an ulterior motive.
[20] In a telephone call to Ms Erin Finn (then Director of Professional Standards, Medical Board) on 17 April 2008, Dr Mitchelson said he did not think it necessary for him to complete an education course (as required by the former Tribunal) as he considered himself the most experienced doctor in pain management in Australia. He has since completed the course he objected to undertaking. Further, he has selectively cited materials from it to maintain his assertions that his former practise was sound, a worrying indication that he has not learned what the course was intended to convey.
[21] He has made submissions in a similar vein during these proceedings. For example, that:
a)He probably had more clinical experience in this particular area of medical practice than most of his peers;[8]
b)He has a call to this particular area of medicine as a result of his own medical condition;6
c)That he has been subject to a pointless witch hunt;6
d)That the medical system mismanages and completely bungles the medical treatment of extremely vulnerable chronic pain patients;6
e)That his surgical colleagues rely heavily on the surgical modal of treatment of patients. That patients are subject to one size suits all treatment regimes leading to permanent suffering and in the end suicide.[9]
[8] Submissions dated 7 September 2010.
[9] Submission dated 16 February 2010.
[22] Dr Mitchelson’s submissions display a limited understanding of the range of interventions open for chronic pain management. His submissions imply there are only two options: surgical intervention or drug therapy. He does not seem to place his practise in the context of multimodal interventions for pain management, including combinations of physiotherapy, occupational therapy, psychiatry and psychology. His attitude to pain management suggests that he is either unaware of or has rejected the significant developments regarding chronic pain management in Australia and internationally.[10]
[10]See, for example, publications by the Pain Management Research Institute, a joint initiative between the University of Sydney and Royal North Shore Hospital and the provider of the course that Dr Mitchelson undertook.
[23] It is of concern to the Tribunal that it does not have a full record of Dr Mitchelson’s registration history in this matter. It is not clear, for example, when Dr Mitchelson was first re-registered after his registration had been cancelled in October 2007. It may well be that he secured re-registration on 15 May 2009, however, that is not certain. However it occurred, it appears that the Board has considered Dr Mitchelson’s fitness to practice generally at that time in approving his registration, subject to conditions.
[24] The Tribunal accepts that prior approval of a supervision plan is reasonably required to give effect to the former Tribunal’s requirement for supervision of Dr Mitchelson’s prescription practices.
[25] Arguably, direct supervision is not strictly required to give effect to the former Tribunal’s orders. However, this Tribunal considers that is desirable to ensure Dr Mitchelson practises competently and safely.
[26] Dr Mitchelson has an extraordinary history of prescription of drugs of dependence. He continues to regard his former practices as not only acceptable but as superior to those of his peers. Although he previously admitted he had engaged in unsatisfactory professional practice, his current attitude demonstrates that he does not believe that to be so. It is concerning that his self assessment has been reinforced rather than challenged by the course he undertook with the Pain Management Research Institute. His selective take up of what he could be expected to have learnt during the course serves to emphasise his lack of insight into the inappropriateness of his former practice. That in itself indicates an on-going risk that warrants management by direct supervision, as decided by the Board.
[27] The potential variability of practice of a medical practitioner, justifies the Board’s involvement in approving the nature and location of Dr Mitchelson’s practice, at least for the first twelve months during which the conditions apply. For example he may well be able to secure work with an agency that provides personnel for private hospitals to assist in surgery. This would provide him with easy access to narcotics in an environment where indirect supervision might be inadequate. Or he might seek work in a pain clinic or in an area where there is a high volume of drug dependent patients.
[28] Because of Dr Mitchelson’s prescribing history and his on-going attitude to best practice in treatment of chronic pain, he presents a potential risk to patient safety. The Board’s conditions are necessary or desirable to ensure he practises competently and safely.
[29] It is not the function of the Tribunal, in reviewing a decision made by the Board, to look for error by the Board. The function of the Tribunal is to make the correct and preferable decision based on the evidence available at the time of the review. Exercising the Board’s power to impose conditions that are necessary or desirable for Dr Mitchelson to practise competently and safely, the Tribunal confirms the decision made by the Board.
[30] The application to remove the conditions is refused.
Costs
[31] The Board seeks an order that Dr Mitchelson pays its costs of and incidental to the proceedings. The provisions of the QCAT Act govern the question of the costs of these proceedings. The general position is that each party to a proceeding must bear their own costs.[11] The Tribunal has the discretion to award costs in appropriate circumstances. The question is whether the circumstances point so compellingly to a costs award that they overcome the strong contra-indication against costs.[12]
[11] Queensland Civil and Administrative Tribunal Act 2009, s 100.
[12]Ralacom Pty Ltd v Body Corporate Paradise Island Departments (2) [2010] QCAT 412, 5.
[32] Whilst the Tribunal has some sympathy with the Board’s submission that Dr Mitchelson’s application had little prospect of success, that is not the only factor to consider. It is concerning that the Tribunal has not been assisted by a full account of the registration history involving Dr Mitchelson.[13] Dr Mitchelson has not acted in a way that prolonged the proceedings or increased the Board’s costs and has co-operated in the Tribunal’s processes. This is not an appropriate case in which to exercise the Tribunal’s discretion to award costs in favour of the Board.
[13] See Mitchelson v Medical Board of Australia [2010] QCAT 571, [8]–[17].
[33] The Board’s application for costs is refused. Each party must bear their own costs of and incidental to these proceedings.
Annexure
Statement of Conditions
Prior to commencing employment, the registrant’s employer must provide and obtain approval from the Board, for a supervised practice plan providing a direct supervision arrangement.
The Registrant is to practice only in a position approved by the Board and is to obtain approval prior to changing the nature or place of his practice.
The Registrant’s supervisor as approved by the Board must provide assessment reports to the Board after 3, 6 and 12 months and as otherwise reasonably required by the Board.
The Registrant must forthwith surrender his authority to prescribe controlled drugs.
The Registrant will not apply to Queensland Health for reinstatement (either full or partial) of his authority to prescribe any controlled drugs.
The Registrant is only to prescribe restricted drugs of dependence under the supervision of another practitioner (approved by the Board) who is to provide a report as required by the Registrant’s Board.
The Registrant will authorise his supervisor (referred to in condition numbered 3) to provide a report as required by the Registrant’s Board.
The Registrant must communicate to his employer/supervisor/partner/medical superintendent or any prospective employer/supervisor/partner/medical superintendent these and any other conditions in writing (the conditions) prior to commencing employment or practice as a medical practitioner and the Registrant shall within 7 days provide to the Board documentary evidence that the conditions have been so communicated and acknowledge including the identity of any person or entity to whom they have been communicated.
The Registrant must authorise the Board to access, inspect and copy records at the Registrant’s practice, including patient and prescribing records.
10. The Registrant must authorise Medicare Australia to release to the Registrant’s Board information relating to his practice of medicine.
11. The Registrant must authorise Queensland Health to release to the Registrant’s Board information relating to his practice of medicine.
12. The Board will review these conditions in 12 months from the date on which they are imposed.
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