Owens v Medical Board of Australia
[2011] QCAT 628
•5 December 2011
| CITATION: | Owens v Medical Board of Australia [2011] QCAT 628 |
| PARTIES: | Mark Anthony Owens (Applicant/Appellant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR156-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Harpreat Moudgil Ms Emma Robertson Dr John Waller |
| DELIVERED ON: | 5 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. All conditions imposed on Dr Owens’ registration by the former Health Practitioners Tribunal are lifted with the exception of conditions 4, 5, 6 and 12. 2. Dr Owens cannot review conditions 4, 5, 6 or 12 for a further 2 years from the date of these orders. |
| CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – REVIEW OF CONDITIONS – where practitioner applied to remove all conditions imposed in earlier proceedings –where board argued some should remain – whether practitioner still vulnerable to potential abuse of alcohol – whether conditions necessary to address potential risk Health Practitioners (Professional Standards) Act1999, ss 241(3)(a), 345(2) Medical Board of Queensland v Owens [2007] QHPT 002 cited |
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 (QCAT Act).
REASONS FOR DECISION
Dr Owens’ registration has been subject to conditions imposed by order of the former Health Practitioners Tribunal[1] since April 2007. Those conditions were imposed, as a result of Dr Owens’ alcohol and substance abuse and dependence, in order to ensure public safety.
[1] Medical Board of Queensland v Owens [2007] QHPT 002.
For more than four years Dr Owens has complied with those conditions and has now applied to the Tribunal to remove all but one.
After the proceedings commenced, Dr Owens was assessed by Dr Prior, a psychiatrist and Fellow of the Australasia Chapter of Addiction Medicine of the Royal Australasian College of Physicians. Dr Prior recommended that most of the conditions be removed but that conditions 4, 5, 6 and 12 should remain in place.
Dr Owens submitted that the conditions are no longer necessary, that they retard his career progression, including restricting his ability to work in other hospitals, towns or overseas; that a professional stigma is attached to the conditions; and, they impose a psychological barrier which inhibits him from performing his duty with unabated gusto. The Board conceded most of the conditions could be removed, largely those requiring on-going stringent breath testing, urine testing and blood testing, but supported Dr Prior’s conclusion that those specified conditions should be retained.
The remaining conditions require:
a) On-going treatment by Dr Owens’ general practitioner, Dr See – condition 4;
b) On-going treatment of Dr Owens by Dr Hogan (psychiatrist) – condition 5;
c) An annual review by an independent medical examiner – condition 6;
d) Restraint on undertaking certain procedures due to Dr Owens’ health status – condition 12.
The last condition is not in dispute between the parties. Dr Owens always accepted that condition should remain unchanged. The other three conditions Dr Owens initially sought to be removed. However, he has made no submissions in response to the report of Dr Prior dated 10 November 2011 on which the Board’s position is based.
There is no challenge to Dr Prior’s assessment or recommendations and nothing in the material to suggest the Tribunal should not be guided by it. His report is comprehensive and thoughtful. He considers Dr Owens is in sustained remission from opiate abuse or dependence and cannabis abuse and is in remission from alcohol abuse. Dr Prior considered Dr Owens would benefit from on-going treatment with his psychiatrist, Dr Hogan, and his general practitioner, Dr See. Dr Owens, it seems, intends to continue with the treatment from both doctors and acknowledges the benefits that he receives from their treatment. Dr Prior recommended the conditions continue because Dr Owens’ history of substance abuse and dependence is lengthy and there is one factor which remains of concern to Dr Prior.
That is, although Dr Owens states he considers himself abstinent from alcohol, he still continues to report a small, infrequent intake of alcohol on special occasions. Dr Prior noted that Dr Owens has reduced his alcohol intake in the past twelve months. He reports that in the past four months he had only consumed alcohol once, consuming a couple of glasses of wine at a wedding. Dr Owens told Dr Prior that alcohol no longer has a part in his life, but he still considers it is reasonable for him to imbibe at special events.
Although Dr Prior does not consider Dr Owens has an alcohol dependence syndrome, he did consider Dr Owens is vulnerable to alcohol abuse. He noted Dr Owens’ on-going vulnerability to addictive behaviours which, if he is not mindful of the risks, has the potential to relapse into significant intake and possibly to escalate to significant alcohol abuse.
Dr Prior considered the conditions he recommended be retained, are appropriate to further assist Dr Owens’ goal of complete abstinence.
The Tribunal considers Dr Owens should be subject to the conditions recommended by Dr Prior for a further two years before he is entitled to apply to review those remaining conditions.[2]
[2] Health Practitioners (Professional Standards) Act 1999, ss 345(2), s 241(3)(a).
Although the Tribunal considers there is still some element of risk given Dr Owens’ long history of substance abuse and his on-going, albeit apparently very limited, use of alcohol, it considers the conditions address that risk. There is no indication that Dr Owens has been intoxicated while working since these conditions were imposed. Under the Health Practitioner Regulation National Law Act 2009, practitioners are now required to notify the Board if a practitioner practices his/her profession while intoxicated by alcohol or drugs.[3] This measure provides a further level of assurance that the public will be protected even though the regime of random and regular testing has been removed.
[3] Health Practitioner Regulation National Law, s 141.
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