Medical Board of Australia v Bhalla
[2015] QCAT 555
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- Unreported Judgment
- Medical Board of Australia v Bhalla[2015] QCAT 555
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Medical Board of Australia v Bhalla[2015] QCAT 555
Medical Board of Australia v Bhalla[2015] QCAT 555
CITATION: | Medical Board of Australia v Bhalla [2015] QCAT 555 |
PARTIES: | Medical Board of Australia (Applicant/Appellant) |
v | |
Ajay Bhalla (Respondent) |
APPLICATION NUMBER: | OCR096-14 |
MATTER TYPE: | Occupational Regulation Matter |
HEARING DATE: | 28 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody Prof Errol Maguire Dr Glenda Powell Mr Brad Taylor |
DELIVERED ON: | 21 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | THE TRIBUNAL ORDERS THAT:
| ||
CATCHWORDS: | PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – PROFESSIONAL COMPETENCE AND DILIGENCE – PRESCRIPTION OF CONTROLLED SUBSTANCES – where the respondent was an accredited specialist general practitioner engaging in medical practice – where a patient presented to the respondent in circumstances signalling that the patient was a drug dependent person – where the respondent prescribed fentanyl to the drug dependent patient – where the respondent failed to contact the MRQU to ascertain whether the patient was known to possess a drug dependency – where the respondent failed to maintain adequate records demonstrating the administration of appropriate diagnostic tests and examination of the patient – where the patient ingested the fentanyl in combination with other substances resulting in acute toxicity and death – whether the respondent committed unsatisfactory professional conduct or professional misconduct – whether the respondent should be suspended or deregistered from medical practice. ACCC v Colgate Palmolive Pty Ltd [2002] FCA 619 Barbaro v The Queen [2014] 253 CLR 58 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) ALR 631 Matthews v R [2014] VSCA 291 Medical Board of Australia v Alroe [2014] QCAT 677 Medical Board of Australia v Andrew [2015] QCAT 94 Medical Board of Australia v Gregory [1999] QMAT 19 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v O'Toole [2014] VCAT 143 Medical Board of Australia v Pearce [2001] QHPT 004 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 Pharmacy Board of Australia v Jattan [2015] QCAT 294 R v Verrall [2015] QCA 72 Tax Practitioners Board v HP Koyla Pty Ltd [2015] FCA 472 | ||
APPEARANCES and REPRESENTATION:
APPLICANT: J Crawford instructed by McInnes Wilson
RESPONDENT: J Rosengren instructed by Moray and Agnew
REASONS FOR DECISION
- [1]Dr Ajay Bhalla (the practitioner) is and throughout 2011 was a registered health practitioner in general practice at North Ipswich in Queensland (the practice). Between 27 April and 11 July of that year he treated the patient with fentanyl for reported back pain.
- [2]Fentanyl is a powerful opioid analgesic and sedative commonly having a mood altering and euphoric effect on users. In durogesic form (skin patches) it is used to manage chronic (usually cancer-related) pain. It is a Schedule 8 controlled drug contraindicated in combination with alcohol and other depressants. Extra care is needed to ensure that at risk patients (including those with opioid addictions) do not misuse dosages outside a medically controlled environment.
- [3]The patient was a drug dependent male aged 41. He died on 12 July 2011 (the day after last consulting the practitioner) as a result of a self-administered fentanyl toxicity.
- [4]The practitioner admits albeit belatedly that his treatment and management of the patient was unacceptable and that grounds exist for taking disciplinary action against him.
- [5]He does not contest the opinions of Dr Turnbull contained in his reports dated 27 October and 19 May 2004 respectively, as clarified in his updated affidavit filed 12 June 2015.
- [6]This evidence confirms the practitioner’s peers would not reasonably expect a practitioner of an equivalent level of training and experience to prescribe a very potent analgesic for unconfirmed back pain on the first consultation without adequate clinical investigation, examination and the patient’s medical history.
The context
- [7]The practitioner commenced working at the practice in March 2011. The conduct occurred within the first few months after that.
- [8]Although he took steps to obtain the patient’s previous medical records at both the first and second consultations and had the patient sign a release authority he continued prescribing the controlled drug without waiting for the records to arrive or consulting them after 15 June 2011.
- [9]Incredibly, another practitioner at the practice also prescribed fentanyl to the patient between his third and fourth consultation with the practitioner despite the medical history contradicting the patient’s claims of having been prescribed fentanyl in the past. This intermediate but equally inappropriate management by the other doctor gave the practitioner “some reassurance” when he last saw the patient on 11 July 2011 and reinforced his own decision to prescribe the medication.
- [10]The Board accepts that it is unlikely that the practitioner will make the same mistakes again, but points to circumstances of aggravation warranting suspension as including:
- failing to check with the MRQU on any consultation date regarding the patient;
- failing to undertake training to address the impugned conduct until 30 March 2015;
- the benefits of educative and training programmes undertaken before the date of the hearing is unclear; and
- the importance of ensuring all practitioners exercise appropriate care and diligence when prescribing Schedule 8 drugs, especially in respect of individuals who are known to be drug dependent.
- [11]The Board submits that the appropriate sanctions include:
- suspension from practice for a 12 month period;
- a public reprimand;
- a requirement to undertake additional education and training programmes; and
- conditions designed to protect the community from careless prescribing practices.
- [12]The Board takes the position that the prescribing conduct of the practitioner, at least partly, facilitated the patient’s death by overdose, and that such grave consequences of negligent practice requires an appropriate sanction for the purposes of achieving general deterrence. For that reason, the Board submits that a period of actual suspension should be imposed.
- [13]While a finding of professional misconduct may, and often does, result in suspension of a practitioner’s registration, other orders can serve the objects of disciplinary proceedings just as well without related detriments.
- [14]It has been four years since the subject events, and the practitioner has continued working full-time at the practice. Throughout this time, the practitioner has tended to more than 16,000 patients without any repetition of the offending conduct or apparent cause for concern.
- [15]Counsel for the practitioner contends that the objects of the disciplinary proceedings would be adequately secured through the imposition of a formal reprimand and appropriate conditions. She submits that this is not a trivial penalty, as a reprimand is a matter of public record and regarded seriously by peers. It goes to his reputation as a practitioner. Any residual concern may be discharged by imposing registration conditions.
- [16]The practitioner graduated in India in 1997 and relocated to Australia in 2004. He was granted specialist general practitioner registration and fellowship with the Royal Australian College of General Practitioners in 2010.
- [17]The practitioner concedes that his management of the patient including inadequate record keeping and examination exposed his patient to serious risks and, unfortunately, likely contributed to his overdose.
- [18]The practitioner accepts he was naïve and should have suspected the patient was drug dependant and “doctor shopping”. No excuse is offered for not contacting the Drugs of Dependence Unit about the patient before prescribing.
- [19]Although the practitioner’s initial response to the complaints and charges demonstrated a lack of appreciation of the seriousness of his conduct, his affidavit filed 12 June 2015 displayed a significantly improved level of insight after he had taken steps to inform himself about Schedule 8 medications.
- [20]A number of letters of support for the purposes of these proceedings have been provided, including one from Dr Graham Cruikshank a senior medical practitioner of the practice of 40 years standing.
- [21]Dr Cruikshank has worked alongside the practitioner for five years and expressed the belief that his conduct the subject of these proceedings is not characteristic of the standard of practice he has witnessed from the practitioner at the practice. He also notes that any limitation or restrictions on the practitioners ability to practice would not only present difficulties for him, but also limit his ability to care for patients in need.
- [22]The practitioner and his wife have two teenage children. In her statement to the Tribunal she identifies the severe emotional impact that the relevant conduct has had on him and his relationship with his children as a role model, and the financial hardship which may ensue if he is suspended.
- [23]The practice manager at the Kambu Medical Centre at Ipswich refers positively to the practitioner’s professionalism and empathy towards indigenous patients as a locum, and then full-time between mid-2008 and early 2011, as well as his high regard within the general and clinical community there.
Comparable cases
- [24]
- [25]The practitioner in Pearce administered excessive quantities of a controlled drug resulting in the death of a 15 month old child being treated for burns. She was sentenced to a period of imprisonment for criminal negligence and suspended for two years from practice.
- [26]Pearce involved more serious offending. She administered five to 10 times the correct dosage of morphine to the patient. In this case, there is no suggestion the dose of the drug prescribed was excessive. Furthermore, Dr Pearce was convicted of a serious criminal offence.
- [27]Gregory involved a medical practitioner who was suspended for 18 months after prescribing excessive amounts of Physeptone to a patient who subsequently died of an overdose. He had no knowledge of the patient despite writing out six scripts, with the last being in a notifiable amount. The suspension was imposed to reflect the need for special and general deterrence, and to communicate to the medical profession the importance and diligence required when prescribing Schedule 8 drugs.
- [28]Gregory was decided 16 years ago. The Tribunal was satisfied that Dr Gregory must have known that the patient was taking more than he had prescribed. At one stage the patient was ingesting four times the prescribed dose, and the average was twice the prescribed dose. The quantities and duration of the prescriptions were inappropriate. The last script was for three times more tablets than the previous scripts. Dr Gregory was still denying the conduct three days prior to the hearing, and the Tribunal was not convinced that he displayed adequate remorse.
- [29]In Alroe, the medical practitioner prescribed methadone for a drug dependent patient with a history of drug abuse and psychiatric illness on a single occasion. Notes of the consultation or rationale for his treatment where not kept and no enquiries were made of the Drugs of Dependence Unit. The patient died from methadone overdose a few days later. However, Dr Alroe had been subject to unrelated but serious previous disciplinary proceedings and was unregistered at the time of the hearing. He was ordered to wait a further 16 months before seeking re-registration.
- [30]The proven misconduct in Alroe was greater in magnitude than that of the practitioner, and involved other significant circumstances of aggravation. Dr Alroe was a psychiatrist, and his registration had been cancelled for unsatisfactory professional conduct in 2004. The date of re-registration was extended because of a later finding of mis-prescription in 2007. Dr Alroe re-registered as a general practitioner in May 2009 with conditional registration, which he breached by prescribing controlled drugs following the expiration of certain required approvals.
- [31]Counsel for the practitioner provided a summary and copies of recent prescribing cases in Queensland, Victoria and New South Wales. In the majority of cases, orders other than suspension were found to be appropriate, especially in cases where the evidence establishes that the relevant practitioner can nevertheless be considered to have the capacity to safely practice subject to appropriate conditions.
Sanction
- [32]It is not for patients to dictate their own medication. Practitioners have professional responsibilities to treat and prescribe within responsible limits.
- [33]The use of such a potent opioid to treat a middle age man with non-cancer pain of apparent musculoskeletal origin, whose actions were highly suggestive of drug dependence, required him to be on alert and to take all necessary and appropriate steps to ensure that the patient actually required the controlled drug for genuine therapeutic purposes and protect against potential misuse by implementing a more rigorous management regime.
- [34]The practitioner failed to exercise proper precautions in a course of conduct extending over a two and a half month period with the result that the patient was exposed to avoidable risks of narcotic abuse, including a fatal overdose.
- [35]The practitioner’s pattern of unprofessionalism included lack of proper enquiry, inadequate clinical examination, poor patient management and insufficient medical records.
- [36]Moreover, on each occasion he failed to comply with regulations for prescription of Schedule 8 medications.
- [37]An aggravating feature of the present case is the patient’s death. The Board seems to concede in referring to Andrew that such a tragic outcome does not necessarily bring a case within the realms of suspension.[5] Further support for this can be found in the Victorian case of Medical Board of Australian v O'Toole.[6]
- [38]The practitioner in O'Toole managed a patient for five years for chronic pain without a clear treatment plan or specialist input. He placed heavy reliance on morphine, but failed to monitor how and where his patient was injecting. After the patient’s death the coroner concluded that his health management not only compounded the patient’s drug dependence but contributed to his death. The coroner observed that none of the experts supported the prescription for self-administration, particularly the quantity and duration over which it was prescribed in the period immediately preceding death. The medication was prescribed without adequate physical examination of the patient or a documented treatment plan. The practitioner admitted his conduct, limited his prescribing of Schedule 8 drugs and completed training and education programmes. The Tribunal was satisfied it amount to serious unprofessional conduct, and issued a caution and reprimand with conditions placed on his registration.
- [39]The Tribunal is satisfied in this case that the finding of professional misconduct, a formal reprimand and the imposition of appropriate conditions achieves the key objectives of protecting the public and deter other practitioners from engaging in similar disciplinary breaches. The practitioner should also pay the Board’s costs.
Orders
- [40]The Tribunal orders that:
- Dr Ajay Bhalla is reprimanded.
- The conditions imposed on Dr Ajay Bhalla are:
- the practitioner must keep a register of every prescription written for a Schedule 8 controlled drug and maintain a file containing all correspondence from medical specialists concerning the medication of patients with such drugs. A copy of the relevant pages of the register is to be provided to the auditor on a monthly basis and/or to the Board (or its delegate) on request.
- the practitioner must undergo an audit of his practice by a General Practitioner nominated by Dr Ajay Bhalla and approved by the Board (or its delegate) to determine the practitioner’s compliance with the conditions.
- the auditor must:
- be senior to the practitioner by years or position;
- agree to the nomination;
- provide a detailed copy of their current curriculum vitae;
- declare that they do not have a conflict of interest in auditing the practitioner’s records; and
- be approved in writing and in advance by the Board.
- the audit will:
- be conducted every six months from the date of the imposition of the conditions;
- be conducted only after the Board (or its delegate) has given the practitioner seven days written notice of its intention to conduct the audit;
- be paid for by the practitioner;
- include (but not be limited to) a review of a sample of patient files, appointment diaries and registers to determine compliance with the conditions; and
- be finalised by the production of a report, a copy of which is to be disclosed to the practitioner within two months of the report being received by the Board (or its delegate).
- the practitioner authorises the Board (or its representative) and/or the approved auditor to request, access, inspect, take or copy the practitioner’s clinical records and any other relevant documentation nominated by the Board (or its representative) and/or the auditor, at such time or times as the Board (or its delegate) shall determine, for the purpose of monitoring compliance with the conditions imposed on his registration. Any copies of the documents sought by the Board or its representative or auditor shall be provided at the practitioner’s expense.
- For the purpose of monitoring compliance with the conditions, the practitioner must authorise the Board (or its representative) to contact and exchange information at such time or times as deemed necessary with the following:
- the practitioner’s employer/hospital/facility where he works;
- the practitioner’s colleagues (including administration staff);
- his approved auditor; and
- any health practitioner who dispenses, prescribes, supplies, obtains, destroys or otherwise deals with medication generated, prescribed, dispensed or requested by the practitioner.
- the practitioner authorises Medicare Australia, health insurance funds and the relevant drug regulation units of the relevant State and/or Territory to release to the Board (or its delegate) any information relating to his practice of medicine. Such information may be requested at such time or times as determined by the Boar (or its delegate).
- the practitioner must notify, in writing, any current and future employers, Chief Executive Officer (or equivalent) of any health care facility where he works, of the conditions imposed on his registration within seven (7) days of their imposition (or prior to commencing any future employment).
- the practitioner must provide the Board (or its delegate) with a list of the names of employers, Chief Executive Officer’s (or equivalent), and persons whom he has notified of the conditions imposed on his registration.
- the practitioner must notify the Board (or its delegate) of any and all changes in his practice, with such notification to include the name and address of any employer, partner or person for whom or with whom the practitioner is working, and the address or addresses from which he is practising.
- The Board must review the conditions not before the auditing has been completed for 24 months or until the outcome of any other concurrent process has been considered by the Board (whichever occurs first).
Postscript
- [41]This Tribunal, and other tribunals, have traditionally taken the position of not departing from a proposed sanction agreed between the parties in disciplinary proceedings unless it exceeds the permissible range for that type of conduct because of their primarily protective and non-punitive purpose, and public policy considerations.[7]
- [42]Despite the lack of consensus regarding sanction options in this case, issues emerged regarding the validity of this and related practices in light of the recent decisions of Barbaro v The Queen[8] and Director, Fair Work Building Industry Inspectorate v CFMEU[9]. The hearing of the application was adjourned, and the parties directed to file written submissions.
- [43]After the filing of written submissions, Deputy President Judge Horneman-Wren handed down Pharmacy Board of Australia v Jattan considering Barbaro and CFMEU in relation to a discrete, but similar, point.[10] In Jattan, the applicant and respondent filed (a) an agreed statement of facts, (b) joint submissions, and (c) jointly proposed orders regarding the sanction for the respondent registered pharmacist.
- [44]Deputy President Judge Horneman-Wren concluded that Barbaro and CFMEU should not be applied by the Tribunal in disciplinary proceedings under the relevant health practitioner disciplinary legislation principally, but not only, for the following reasons:
- in contrast to CFMEU and Barbaro, the Tribunal exercises a non-punitive jurisdiction, imposing protective orders, not penalties;[11]
- receiving submissions from the Board, as regulator, as to the appropriateness of particular disciplinary actions is consistent with purposes of disciplinary proceedings;[12]
- the Tribunal is not bound by the rules of evidence or any practices of superior courts of record under s 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld);[13]
- the statutory regime governing disciplinary proceedings before the Tribunal permits the Tribunal to give effect to a settlement reached by the parties, and mediation is an integral component of vocational disciplinary proceedings;[14]
- disciplinary action may be taken by the Board without recourse to the Tribunal or the courts, and it would seem artificial to draw a distinction between proceedings before a panel and the Tribunal;[15] and
- the Board is compelled to refer matters involving disciplinary breaches which are sufficiently serious to attract suspension or deregistration, meaning the Tribunal is permitted to receive opinions from the Board as to the appropriateness of particular forms of sanction.[16]
- [45]These proceedings are distinguishable from both Jattan and CFMEU, insofar as the parties have not filed joint submissions as to sanction or jointly proposed orders, but the decision in Barbaro is not limited to such situations. Rather, the High Court more broadly disapproved of the practice of prosecutors submitting quantified penalty ranges to sentencing judges.
- [46]In Verrall I described the effect of the reasoning of French CJ, Hayne, Kiefel and Bell JJ in Barbaro as follows:
- Statements regarding the available penalty range result from underlying assumptions regarding the facts to be found by the sentencing judge;
- The proposed penalty range is determined from the application of the relevant law to the assumed facts, and balancing competing discretionary considerations;
- Accordingly, representations regarding the available penalty range are conclusions constituting an expression of opinion;
- As the expression of opinion derives from a synthesis of legal and factual findings, this tends to cause the prosecutor to assume the judicial function; and
- Because the law requires the maintenance of a sharp distinction between prosecutorial and judicial functions, it is inappropriate for the prosecutor to provide a penalty range.[17]
- [47]Emerging from these propositions are two critical principles underpinning the proscription against submissions quantifying the applicable penalty range in sentencing proceedings: (a) proffering a quantified penalty range is merely an expression of opinion and, therefore, inadmissible; and (b) submissions quantifying the penalty range tend to usurp the judicial function, which undermines judicial independence.
- [48]The nature or description of the relevant authority would not appear to modify the character of a submission quantifying the applicable penalty range as an expression of opinion. Furthermore, judicial independence also requires tribunal members to keep a safe distance away from special interest groups or regulators which are not strictly emanations of the Executive. Therefore, in my view, differences in the characterisation of the relevant authority, and its relationship with the Executive, would not, of itself, be enough of a distinction to get around the effect of the reasoning of the High Court’s in Barbaro.
- [49]I do not, and do not need to, express any opinion about its conceptual validity or practical utility. Barbaro has been subject to trenchant academic criticism, but the policy considerations underpinning Barbaro are now properly for Parliament and the High Court itself to revisit. Inferior courts and tribunals should avoid drawing subtle or dubious distinctions which are irrelevant to the central ratio of Barbaro as a means of avoiding the (unintentional) adverse consequences of faithfully adhering to it. Furthermore, it is doubtful whether the mechanical incorporation of generalised assertions of independence in judicial decisions will be sufficient to circumvent the practical effect of Barbaro.[18] This cautionary note, however, should not be interpreted as suggesting that Deputy President Judge Horneman-Wren has taken a pragmatic rather than strictly principled approach in his careful and cogent analysis in Jattan.
- [50]Indeed, I willingly defer to his Honour’s decision for the sake of legal certainty and predictability in this important jurisdiction.
Footnotes
[1]Medical Board of Australia v Pearce [2001] QHPT 004.
[2]Medical Board of Australia v Gregory [1999] QMAT 19.
[3]Medical Board of Australia v Alroe [2014] QCAT 677.
[4]Medical Board of Australia v Andrew [2015] QCAT 94.
[5]Medical Board of Australia v Andrew [2015] QCAT 94.
[6]Medical Board of Australia v O'Toole [2014] VCAT 143.
[7]NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285, 290-291; Medical Board of Australia v Martin [2013] QCAT 376; cf ACCC v Colgate Palmolive Pty Ltd [2002] FCA 619.
[8]Barbaro v The Queen [2014] 253 CLR 58.
[9]Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) ALR 631.
[10]Pharmacy Board of Australia v Jattan [2015] QCAT 294.
[11] Ibid, [47].
[12] Ibid, [48].
[13] Ibid, [49].
[14] Ibid, [51].
[15] Ibid, [63].
[16] Ibid, [67].
[17]R v Verrall [2015] QCA 72, [14]. A similar analysis was conducted by the Victorian Court of Appeal in Matthews v R [2014] VSCA 291, [5].
[18] See, for example: Tax Practitioners Board v HP Kolya Pty Ltd [2015] FCA 472, [105].