WSS v Medical Board of Australia

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WSS v Medical Board of Australia [2022] QCAT 447

PARTIES:

WSS

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR 294 of 2021

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 November 2022 (ex tempore)

HEARING DATE:

18 November 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Professor Peter Baker
Dr Bavahuna Manoharan
Ms Carolyn Ashcroft

ORDERS:

1. The Tribunal confirms the decision to take relevant action and impose conditions on the Applicant’s registration pursuant to section 178 of the National Law.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – REVIEW OF DECISION OF NATIONAL BOARD – where the applicant practitioner seeks review of a decision of the respondent medical board to take action by imposing conditions on his registration – where the action was taken on the basis that the applicant is alleged to have demonstrated poor clinical performance while prescribing narcotic drugs – whether the decision to take action is the correct and preferable one

Health Practitioner Regulation National Law, ss 3A, 178

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 18, 33

AMS v Medical Radiation Practice Board of Australia (No. 2) [2019] QCAT 401

APPEARANCES & REPRESENTATION:

Applicant:

The applicant appeared on his own behalf

Respondent:

M Brooks instructed by Minter Ellison Lawyers

REASONS FOR DECISION

On 25 August 2021, the Medical Board of Australia (‘Board’) decided to take action and impose conditions on the general registration of the applicant pursuant to section 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
The information considered by the Board in coming to its decision is set out in its reasons forwarded to the applicant under cover of letter dated 1 September 2021. The decision concerns the applicant’s performance regarding the prescribing of schedule 8 medications to, and the management of, a patient displaying drug-seeking behaviour. In summary, the conditions require the applicant to engage and complete a program of one-on-one education in relation to prescribing such medications to vulnerable patients consisting of a minimum of eight hours over a three-month period.
On 29 September 2021, the applicant filed an application to review the decision pursuant to ss 18 and 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Although described as an application, it relates to an “appellable decision” as described in s 199(1) of the National Law which gives Dr Wanninayake the right to appeal against the decision to this Tribunal.
In such a proceeding, the Tribunal has all the functions of the Board, and the review involves a fresh hearing on the merits, and its purpose is to produce “the correct and preferable decision”.
Accordingly, the Tribunal may confirm or amend the decision, set it aside and substitute its own decision, or set aside the decision and return the matter for reconsideration by the decision-maker with such directions as the Tribunal considers appropriate.

The legislative regime

Section 178 of the National Law permits a National Board to take relevant action in relation to a registered health practitioner if it forms a reasonable belief that the way a health practitioner practises their profession, or the practitioner’s professional conduct, is or may be unsatisfactory. The condition for the exercise of the power pursuant to section 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.
In the matter of AMS v Medical Radiation Practice Board of Australia (No. 2),[1] the then-Deputy President of the Tribunal, Allen KC DCJ, held:
I am required to determine whether, pursuant to s 178(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner’s professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practise of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
With respect to the terms of section 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting a proposition.
The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory – it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that the reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient.[2]
[1][2019] QCAT 401 (‘AMS’).
[2]At [26]–[28].
Perhaps unsurprisingly, and given his lack of legal training, in the applicant’s submission filed on 30 April 2022 in response to Dr Brooks’ submission, the applicant misapprehends the importance of the words “is or may be” in section 178(1)(a)(i) of the National Law. The reasonable belief does not have to be, as the applicant submits, that his conduct “had been unsatisfactory.”
While s 3A of the National Law stipulates that the health and safety of the public are paramount in administering that law, restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. If conditions are considered necessary, the impact of the conditions on the registration of the health practitioner is a relevant consideration. The conditions should specifically address the relevant risk identified and be the least onerous possible to address the specific risk.

Background

The applicant gained his medical qualifications in Sri Lanka in 1996. He holds general registration as a medical practitioner and does not have any specialist registration. At the relevant time, the applicant was working in general practice at the Divine Medical and Cosmetic Skin Centre, Hervey Bay in Queensland under the supervision of Dr Jean O’Brien and Dr Olabode Samson Osedimilehin.
He does not appear to have been working towards gaining fellowship of the Royal Australian College of General Practitioners (‘RACGP’), and in his written submissions in relation to this matter he states he was a non-vocationally registered general practitioner, who had only commenced in that role a mere four months before the events that give rise to these particular proceedings. He also states he is no longer working in general practice. He told me today that he is not working in a medical centre at all and is residing in Melbourne and undertaking other medical education, but not the education the subject of the conditions.
The applicant has other conditions currently imposed on his registration preventing him from practising in any hospital setting and any places that are not approved by the Board and requiring the applicant to be supervised by another registered health practitioner.
These conditions were the subject of an unsuccessful appeal by the applicant which proceeded over a number of days and involved the calling of witnesses and in which the applicant represented himself: WSS v Medical Board of Australia [2021] QCAT 5; and WSS v Medical Board of Australia (No 2) [2021] QCAT 190, in which the conditions referred to above are set out. The conduct the subject of those decisions predated the events the subject of this application.
Between October 2019 and April 2020, on 13 different occasions, the applicant consulted with a patient who was displaying drug-seeking behaviour. The patient had a complex mental health history as well as sciatica. It should be noted that the patient saw other medical practitioners at the Divine Medical and Cosmetic Skin Centre during this period, in addition to the consultations with the applicant.
On 16 October 2019, the patient had a first consultation with the applicant. During the consultation she requested a prescription for a medication to treat her sciatica which she said she had been prescribed by her previous GP in Tamworth. The medical records indicate the applicant prescribed the patient the medication (Targin) but did not carry out any examination of the patient and did not conduct any investigation into whether she had been prescribed those medications by her previous general practitioner, for example, by contacting the GP or attempting to contact her by telephone.
On 9 December 2019, the applicant contacted the prescription shopper service and documented in the medical records that the patient had been identified as a “prescription shopper”. Clinical notes indicate that the applicant refused to prescribe the patient Targin on this occasion.
On 3 February 2020, the Monitored Medicines Unit (MMU) wrote to the applicant advising him that the patient had been seeking schedule 8 medications from multiple prescribers and requesting that, should the patient present requesting further prescriptions, the applicant should contact the MMU. Between 24 January 2020 and 27 April 2020, the applicant prescribed the patient Targin on another six occasions. The medical records do not contain any indication that the applicant reduced the patient’s Targin dose in this time period.
As the present application must be heard and determined by way of a fresh hearing on the merits, the Tribunal can consider material that was not before the Board when it made its decision and events that have occurred since.
In this regard, the Board has obtained a report from an expert, Dr Gillian Singleton, which is dated 4 February 2021, and which is exhibit 1 in these proceedings. In his response to Dr Singleton’s report, and in his cross-examination of her today, the applicant did not challenge her expertise. Rather, he was critical of her opinions and conclusions, which he clearly regards as inferior to his own opinions and expertise.
On 30 May 2020, the patient passed away. The coroner found her death was caused by mixed drug toxicity, principally from methamphetamine, fentanyl, and pregabalin. None of those medications were prescribed by the applicant.
On 30 June 2020, the Office of the Health Ombudsman (OHO) received a notification from the parent of one of the applicants’ patients who had recently died of a drug overdose of both illicit and prescription drugs. The notification identified concerns about the applicant’s prescribing of schedule 8 medications to the patient, specifically Targin, with a combination of oxycodone and naloxone, and the management of the patient who displayed drug-seeking behaviour. The matter was referred to Ahpra for management.
On 18 August 2020, Ahpra informed the applicant of the notification and its intention to investigate the matter. On 25 September 2020, Ahpra provided the applicant with material it had collected during the investigation and invited him to provide a written response and any other information he considered relevant. On 15 October 2020 and 14 April 2021, the applicant provided written responses through his solicitors at the time.
On 27 May 2020, Ahpra informed the applicant that the Board had formed a reasonable belief that his professional performance is, or may be, unsatisfactory and that it proposed to impose conditions on his registration.
On 9 June 2021, the applicant provided a statutory declaration and written submission in response to the Board’s proposed action. In that submission he argued, inter alia, that the patient did not demonstrate characteristics of a drug-seeking patient; he took steps to manage the patient by telling the receptionist not to book future consultations in December 2019 and then again in April 2020; he counselled the patient about rehabilitation and gave her the number of the prescription hotline for support and took steps to reduce the dose of Targin he was prescribing.
He submitted that he did not receive a notification regarding the patient from the MMU and was unaware of the organisation. Because he was unaware of the organisation, he did not check the “correspondence in” the file for the patient; and he did not recall the patient when he consulted with her again after she booked an appointment online, and did not check beyond the one or two previous consultations when reviewing her clinical notes and saw that other practitioners had prescribed Targin.
On 25 August 2021, the Board determined that on the basis of the information available to it, it reasonably believed that his professional performance is or may be unsatisfactory and imposed the conditions referred to earlier.
The Board acknowledged that as the applicant is not a fellow of the RACGP, he cannot be “held to the standard” referred to in the College’s guidelines regarding prescribing of drugs of dependence in general practice and, in particular, part C2 of those guidelines. However, the Board indicated in its decision that the guidelines “provide an indication of the expected standard in Australia relating to the prescribing of benzodiazepines and opioids by general practitioners”.
The Board noted, in particular, that it was not documented in the clinical notes that the applicant conducted any examination of the patient or made any inquiries with her previous general practitioner in Tamworth as to the need to prescribe Targin.

The Evidence

The annexure to the application contains some similar assertions to his June 2021 statutory declaration, but as Dr Brooks points out in her submission, there are contradictions which are significant. On the one hand in his statutory declaration, the applicant states that the patient did not demonstrate characteristics of a drug-dependent person, whereas in his application he says he identified that behaviour through “sheer intuition” and investigated it further by contacting the Prescription Shopping Centre.
In his statutory declaration, he says he did not receive the notification from MMU on 3 February 2020 and “was unaware of the organisation”. In his application, he states that the correspondence from MMU was sent to the clinic, but it was not forwarded to him by the reception staff. In his application he says he refused to prescribe her Targin on 9 December 2019, when he realised she was displaying drug-seeking behaviours and that he then completely terminated their doctor/patient relationship when he again identified she was displaying drug-seeking behaviours and “had not reformed”.
In what is a theme throughout his material of blaming others, he blamed the patient for becoming a drug addict, and not taking the medication as prescribed; the reception staff for not passing on to him the correspondence from MMU; and the reception staff again for rebooking the patient 14 days after he says he terminated the doctor/patient relationship on 9 December 2019. As noted earlier, he says he did not recognise her when he saw her again, which is surprising given the clinical notes of her attendances previously before him and other members of the practice when she was prescribed Targin.
At that time, he was subject to Board conditions that required him to work under supervision. He also blames his supervisors who were “constantly” checking his work and did not find “any issues with his prescriptions of medicines to the patient”; but today in his questioning of Dr Singleton, he criticised his supervisors for being unavailable to him and of little or no help in assisting him in general practice.
Not surprisingly, and based on the medical notes at the time, including those of her previous GP at Tamworth, which disclosed the patient’s suspected opioid abuse, but which the applicant did not have when he first consulted with her in October 2019, he did not check with the previous practice (which a competent GP would do) or conduct any examination of her, or any other investigations for prescribing Targin particularly with a patient who identified as having mental health issues.
The records received by the practice on 24 December 2019 indicate a clear pattern of opioid abuse and/or dependency over many years. The applicant (according to the practice records) also prescribed Targin to the patient on 21 October 2019, 29 October 2019, 4 November 2019 and 19 November 2019, all being prescriptions for one tablet twice a day with 28 tablets.
As Dr Singleton notes in her reports the applicant’s clinical notes of 21 October 2019 record the patient taking 26 tablets of Targin in five days due to “worsening pain”. As she notes this was excessive and a sign of misuse and possible dependency, and there was no examination or exploration (according to the notes) of the reason for the “worsening pain”.
Although the applicant is not a fellow of The Royal Australian College of GPs, he is still a registered medical practitioner and was working, albeit under supervision as required by conditions, in a general practice. I agree with Dr Singleton that the guidelines promulgated by the College are current, comprehensive and evidence based and represent best practice in minimising adverse effects and risks to this particularly vulnerable cohort of patients, and more broadly the health and safety of the public and should not be confined to those in general practice who are fellows of the College.
The applicant saw the patient on a further six occasions between 24 January 2020 and 27 April 2020 despite being aware from 9 December 2019 that she had been identified as a prescription shopper. On each occasion he prescribed Targin. With the exception of refusing to prescribe Targin on 9 December 2019, the medical records contain no evidence of any attempts by him to reduce the dose. As Dr Singleton observes, he did not adequately assess the patient when she presented on 27 April 2020 and when he prescribed Targin, having also seen her on 15 April 2020 when he also prescribed Targin and at a time when he knew she was a prescription shopper and ought to have known that she was drug dependent. He was also aware of her mental health issues at that time as recorded in the practice notes, including his. That is a particularly important issue in deciding to prescribe schedule 8 drugs to such a vulnerable person. He did not contact Queensland Health after two months of treatment with Targin in contravention of the then regulations.
The applicant says he has ceased prescribing schedule 8 drugs of his own volition. He says in response to Dr Singleton’s report that it is unfair that he should be held to the same standard as fellows of the college and that both of his supervisors (neither of whom has provided a statement) were ignorant, he says, of the rules. Presumably he means the regulations and/or the guidelines and/or the code of practice pertaining to the prescribing of schedule 8 drugs. He seems to respond to criticisms of him which are valid that he made no examinations of or inquiries into the patient’s condition, e.g., her worsening pain, and her mental state by blaming others, including the previous Tribunal for warning him not to venture into areas he is not the master of, e.g., neurological examinations, and he says that it is likely that he discussed the risks of taking excessive doses of Targin with the patient, even though it is not documented.
I agree with Dr Singleton that responses such as these demonstrate the possibility that he may lack insight into the standard of his skills and knowledge, particularly in the area of prescribing schedule 8 medications.
In his submission in response to the submission filed by the respondent, he refers to a large number of cases, which demonstrate that he does not understand the significant difference between a proceeding such as this on a review or appeal from the Board’s decision to impose conditions, and disciplinary proceedings. Most of the 26 cases he references involve findings of professional misconduct by health practitioners in relation to the prescribing of schedule 8 and schedule 4 medications and the imposition of sanctions.

What is concerning and is supportive of the concerns expressed by Dr Singleton by reference to the material from the applicant that she read, is this submission at paragraph 38:
I was unfairly deceived by the patient and was somewhat naive to the drug seeking tactics at the beginning. Despite these disadvantages, I believe I tried to contend with the situation as best I could.

Discussion

Clearly, on the basis of the material and evidence before the Tribunal, the respondent’s submission that the Tribunal ought to form a reasonable belief that the way the applicant practises the health profession, or his professional conduct is or may be unsatisfactory, should be accepted. In particular, the way the practitioner was practising his profession between October 2019 and April 2020 is, or may be, considered unsatisfactory for the following reasons:
(a)firstly, he failed to meet the base requirements for patient care as provided for in s 3 of the Medical Board of Australia Code of Conduct as opined by Dr Singleton, because he failed to adequately assess, and document his assessment of, the medical needs of a patient who was requesting opioid medication;
(b)secondly, the applicant was not aware, and did not make himself aware, of the regulatory requirements and guidelines regarding a patient requesting opioid medication, and then operate within those standards; and
(c)the applicant does not appear to appreciate the needs of patients encountered in general practice, understand his professional obligations or show sufficient insight into where his treatment of this patient was deficient.
The applicant submits that the conditions are no longer necessary as he is now not working in general practice and has an intention not to prescribe schedule 8 drugs.
He also asserted in his annexure to the application, without reference to any evidence, that one-on-one education of the kind proposed by the Board in its conditions has not been validated in randomised controlled trials as an effective means of modifying the behaviour of prescription shoppers. Dr Singleton, in her report, disputes this unsupported assertion by reference to a number of systematic reviews that focus on the evidence of such conditions being effective.
His submissions miss the point of such conditions. He is still a registered medical practitioner. The conditions which, in my opinion, are not onerous, are primarily for his benefit to at least take some positive step to protect the health and safety of the public and particularly patients within this particularly vulnerable cohort.
The conditions do not prevent him from working as a medical practitioner or earning a living. I accept Dr Singleton’s opinion that the conditions here are very useful and may assist the applicant to reflect on areas of his practice which will lead to an improvement for any patients that he may have in the future.
In those circumstances, the order of the Tribunal is that the decision under review made by the Board on 25 August 2021 is confirmed and the educational conditions are also confirmed.

[2022] QCAT 447

18 November 2022 (ex tempore)