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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Steptoe  QCAT 162
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
DAYMAN PAUL STEPTOE
Occupational regulation matters
27 May 2020
On the papers
Judicial Member D J McGill SC, assisted by Dr D Khursandi, Dr J Cavanagh and Ms C Eliot.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – Professional misconduct – self-administration of opioid drugs – drugs ostensibly prescribed for patients – treatment of painful injury to knee – self notification and voluntary cessation of practice – extended course of treatment – resumed practice subject to conditions – favourable medical opinion – disruption to career – mitigating circumstances – sanction
Health Ombudsman Act 2013 s 107
Health Practitioner Regulation National Law (Qld) s 5
Health Ombudsman v NLM  QCAT 164
Health Ombudsman v White  QCAT 36
Medical Board of Australia v C  SAHPT 4
Medical Board of Australia and Stephens  WASAT 13
Office of the Health Ombudsman
J Hunter QC, instructed by Avant Mutual solicitors.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. I am sitting with assessors Ms Elliot, Dr Khursandi, and Dr Cavanagh in accordance with the Act.
- The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional misconduct, in that he inappropriately prescribed Schedule 8 drugs, ostensibly for patients but in fact to self-administer, and otherwise failed properly to deal with Schedule 8 drugs.
- The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct. The parties have provided written submissions to the Tribunal. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information before the Tribunal, may be summarised as follows: The respondent was born in 1975 and is now 44. He was first registered as a medical practitioner in 2010. He was at the relevant time working at an after-hours medical service. In July 2012 he injured his knee in a motor vehicle accident, as a result of which he was unable to work for over three months. In about July 2013 he underwent surgery on the knee, but it remained painful. Because of the time he had lost from work, he was working long hours to recover financially.
- Following this, he began to self-administer morphine and pethidine. Between February and the end of April 2014 he wrote 115 prescriptions for morphine or pethidine in the names of various patients, but in fact to self-administer. These prescriptions were not reflected in the clinical notes for their patients, or recorded in any controlled drug record kept by the respondent. As well on one occasion he self-administered such medication from his doctor’s bag. His failure to keep proper records of the controlled drug use breached the Health (Drugs and Poisons) Regulation 1996 s 111.
- In time his behaviour came to the attention of some pharmacists, and in April AHPRA and another agency were advised about him. On 1 May the respondent notified AHPRA that he had been taking these drugs, said he was taking leave from work, and surrendered his endorsement to prescribe Schedule 8 drugs. On 6 May the respondent was registered on the Queensland Opioid Treatment Programme as a drug dependent person, and on 8 May the respondent’s psychiatrist advised that the respondent had been hospitalized. AHPRA suspended his registration, and referred him for a health assessment.
- In December 2014 AHPRA allowed the respondent to return to practice, subject to conditions including supervision and regular drug screening. The matter was further investigated, and in July 2018 was referred to the applicant. The referral was filed in the Tribunal in May 2019, but amended referrals were filed on 22 July 2019 and 28 October 2019. A non-publication order was made by the Deputy President of the Tribunal on 26 August 2019, concerning the identification of any relevant patient.
- As a result of his behaviour, and the response of AHPRA and the Medical Board of Australia, the respondent was unable to practice for about one year. His registration was subject to conditions until October 2019, and he is still subject to an undertaking to undergo drug testing by way of hair analysis on a quarterly basis, and to continue to receive treatment from a general practitioner. He has undertaken additional training in appropriate record keeping, and in professionalism in medicine. He has received treatment from a psychiatrist which has helped him overcome his drug problem, and also helped him to gain insight into his situation, and the wrongfulness of his conduct. He has shown remorse, and cooperated with the investigation and this proceeding.
- The respondent provided the Tribunal through his solicitor with a report by his treating psychiatrist, who advised that the respondent had been successfully treated for opioid dependence. He had taken Suboxone, off which he had been weaned in 2018. As well the psychiatrist had assisted in the management of personality factors, and considers that the respondent is now a more mature and responsible medical practitioner. He noted that there had never been any concerns about patient care, and that the respondent was now in stable employment and a stable domestic situation, and was continuing in contact with himself and a general practitioner, so that he had a support network in place. The psychiatrist considered that the risk of reoffending was very low.
- The applicant alleged that the respondent offended in the following respects:
Allegation 1: Between February and April 2014 he inappropriately prescribed Schedule 8 drugs under patients’ names for self-administration.
Allegation 2: On one occasion in February 2014, he inappropriately prescribed and collected Schedule 8 drugs for his doctor’s bag.
Allegation 3: Between April 2013 and May 20124, he failed to keep controlled drug records for Schedule 8 controlled drugs as required by the Health (Drugs ad Poisons) Regulation 1996 s 111.
- The applicant further alleged that this conduct amounted to professional misconduct. That the factual allegations are correct, and that the conduct amounted to professional misconduct, were admitted by the respondent. This behaviour breached the code of conduct for doctors in Australia published by the Medical Board of Australia, as was also admitted by the respondent.
- The Tribunal has been referred to earlier decisions. In Medical Board of Australia v C  SAHPT 4 the respondent self-administered morphine and other drugs over a period of two years, writing false prescriptions and falsifying the controlled drug register at her practice. The Tribunal characterised this as professional misconduct, reprimanded the respondent, imposed a fine of $5,000, and conditions on her registration, and would have suspended her registration for about a year had she not already herself ceased practice for about that period pursuant to an undertaking. She had originally been self-medicating for back pain, the conduct occurred at a time of serious domestic stress for her, due to factors since resolved. She had obtained treatment from a psychiatrist, who considered her fit to return to work. She had demonstrated remorse and insight, and the Tribunal regarded her as unlikely to reoffend. The matter was dealt with only a couple of years after the relevant conduct.
- In Health Ombudsman v NLM  QCAT 164 the respondent over about nine months from late 2013 was self-administering morphine and other Schedule 8 drugs which had been taken from his practice, or prescribed for but not used by deceased patients. This was to treat a medical condition. The conduct was characterized as professional misconduct. The respondent’s registration had been, and was to some extent still, subject to conditions. The Tribunal reprimanded the respondent, and imposed a fine of $5,000, less than the fine proposed in a joint submission by the parties.
- The then Deputy President of the Tribunal, Sheridan DCJ, said at :
The jurisdiction being exercised by the Tribunal is protective, not punitive. The main principle for administering the [Health Ombudsman] Act is that the health and safety of the public is paramount. The protection of the public includes protection from continuing misconduct or incompetence of the erring practitioner, or similar misconduct or incompetence by other practitioners and upholding public confidence in the standards of the profession. Potentially, there will be a need for both personal and general deterrence. [citations omitted]
- At  she concluded that “Given the circumstances of these events, NLM’s full cooperation, insight and remorse, the length of time he has already operated under conditions on his public registration and the continuing presence of those conditions, there remains no need for personal deterrence.” She continued at :
The issue of general deterrence remains. The community must be able to rely on medical practitioners to deal with drugs strictly and practitioners must be deterred from ever breaching that trust. The Tribunal does not accept that that protective purpose requires the imposition of a fine as large as the $20,000 submitted. The Tribunal believes it is difficult to view the imposition of such a large fine, together with a period of suspension from practise, as anything other than punitive on the facts of this case. The Tribunal is not satisfied that the sanction proposed by the parties is within the appropriate range.
- I respectfully agree with the statements of principle of her Honour.
- For the respondent it was submitted that the conduct was worse in NLM, as the misuse of the drugs continued over nine months; but the respondent’s use appears to have been more intensive. A more significant factor is that, unlike NLM, the respondent had not been able to work for about twelve months.
- In Health Ombudsman v White  QCAT 36 the respondent was a medical practitioner working in intensive care who, over a period of some months in 2013, began to self-administer Fentanyl in an attempt to deal with the effects of stress at work. When challenged he initially denied the conduct, and later made only limited admissions. He then self-reported, and obtained treatment from a psychiatrist. Conditions were imposed on his registration, and he ceased work for three months until a health assessor concluded that he was fit to work subject to conditions. By late 2016 he was regarded as fit to work without conditions. This conduct was characterized as professional misconduct, and the respondent was reprimanded and fined the sum of $5,000. The substantial issue at the hearing was whether the respondent’s registration should be suspended. Sheridan DCJ considered that the risk of reoffending was extremely low , and concluded that suspension was not required for the protection of the public: . In imposing the fine, her Honour said at : “It is important to affirm the seriousness with which the misconduct must be treated.”
- The respondent sought to distinguish this decision on the basis that the conduct of that respondent was more serious, and he had a pre-existing anxiety disorder, whereas in this case the opioid dependency was a new disorder; but it arose in response to a pre-existing medical condition, chronic pain in the knee, and this is not a significant difference. I do not regard the misconduct as less serious in this case. On the other hand, the adverse effects on the practitioner’s earning capacity were significantly less in White than in this case.
- In its submissions the applicant adopted a statement from the Western Australian State Administrative Tribunal, that “even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.” That is similar to the approach in White (supra). The applicant, in seeking a fine of only $5,000, has taken into account the financial hardship caused to the respondent by his having ceased practice, and then having to practice under strict conditions.
- For the respondent it was submitted that there was minimal risk to the public from the respondent, in the light of the respondent’s successful treatment. There was no diversion of drugs from patients. The respondent’s self-reporting and having sought treatment voluntarily were positive factors, and there was good material supporting rehabilitation before the Tribunal. The respondent has shown considerable insight, assisted by his course of treatment. He cooperated with the investigation, and in this proceeding.
- As well, it was submitted that the respondent had already suffered a significant financial penalty in being unable to practice for a year, and in then being subject to strict conditions, which limited his earning capacity, and exposed him to further expense, such as for drug testing. His process of returning to work had been quite difficult, and had come on top of a loss of income in connection with the original motor vehicle accident.
- Fines should always take into account the capacity of the individual practitioner to pay: See by analogy the Penalties and Sentences Act 1992 s 48(1). The material on behalf of the respondent does not provide much information about the current financial situation of the respondent, although it appears that he is now settled in a practice in a country town. On the other hand, he has clearly suffered considerable financial loss from his various periods when he was unable to work, or was working in less remunerative positions, or was incurring additional expense, in the form of treatment and to comply with the conditions placed on his registration. Although he received a substantial damages settlement in 2017 for his motor vehicle accident injury, that would have covered only a part of the overall loss he has suffered.
- The orders made by the Tribunal must always take into account the particular circumstances of the individual practitioner. The seriousness of the misconduct of the respondent must be recognized, and considerations of general deterrence are important in this area, but in view of all of the loss which this respondent has already suffered, on the whole I consider that for the Tribunal to impose on him the fine proposed, it would cause the sanction to stray into the area of punishment. Overall, I consider that the respondent has suffered enough through the consequences of his misconduct for his case to function as a deterrent to others who may be similarly tempted.
- Accordingly the orders of the Tribunal are:
- The Tribunal decides that the respondent behaved in a way that constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The parties bear their own costs of this proceeding.
 Health Ombudsman Act 2013 s 126. For their function, see s 127.
 Medical Board of Australia and Stephens  WASAT 13 at . In that case the care of a patient with bladder cancer was seriously inadequate, involving a failure to read a pathology report and a failure to advise on appropriate treatment. A fine of $30,000 was imposed, the Tribunal deciding that a suspension was not warranted in the practitioner’s circumstances.
- Published Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Dayman Paul Steptoe
- Shortened Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Dayman Paul Steptoe
 QCAT 162
Judicial Member D J McGill SC
27 May 2020