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CITE

Unreported Judgment

Medical Board of Australia v Stark[2016] QCAT 175Carmody J
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Medical Board of Australia v Stark[2016] QCAT 175

CITATION:

Medical Board of Australia v Stark [2016] QCAT 175

PARTIES:	MEDICAL BOARD OF AUSTRALIA (Applicant)
	v
	KENNETH JAMES STARK (Respondent)
APPLICATION NUMBER:		OCR309-13

MATTER TYPE:

Occupational regulation matter

HEARING DATE:

9 November 2015

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:

Dr Jennifer Cavanagh

Mr Brad Taylor

Dr Margaret Jane Turner

DELIVERED ON:

2 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

In terms of paragraph [17] in these reasons.

CATCHWORDS:

PROFESSIONS AND TRADE – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEDURES – unprofessional conduct – professional misconduct – inappropriate prescribing – treating persons in a close personal relationship – inappropriate storage and handling of controlled drugs – substandard documentation – recklessly making an untrue statement – performing surgery while impaired – where the parties reached a joint position and filed a statement of agreed facts and joint submission on sanction – where the proposed orders achieve the purpose of disciplinary proceedings and sanctions.

Health Practitioner’s (Disciplinary Proceedings) Act 1999 ss 126, 196

Medical Board of Australia v Bhamjee [2013] QCAT 259

Nursing and Midwifery Board v Brereton [2011] QCAT 578

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 (Qld) (QCAT Act).

REASONS FOR DECISION

[1]
The Medical Board of Australia initially referred this disciplinary matter to the Tribunal under s 126(1)(b) of the Health Practitioner’s (Disciplinary Proceedings) Act 1999 (the Act) to decide whether a disciplinary ground had been established against the practitioner in respect of the matters set out in paragraphs 1 to 23 of the amended referral.
[2]
However, a substantive hearing of the matter was avoided because, after listing, the parties reached a joint position and filed a statement of agreed facts and joint submission on sanction.
[3]
The practitioner admits that charges 1, 5, 6, 7, 8,10A and 11 constitute unprofessional conduct. The practitioner also admits that charges 19 and 23 constitute professional misconduct, and taken together, charges 12, 13, 14, 21, 22, and 23 collectively amount to professional misconduct.
[4]
The details of the conduct constituting the unsatisfactory professional conduct and professional misconduct are set out between paragraphs 9 and 78 of the statement of admitted facts but they can be categorised as follows:
1. inappropriate prescribing (charges 1,6, 7 and 8);
2. treating persons in a close personal relationship (charge 5);
3. inappropriate storage and handling of controlled drugs (charges 10, 10A and 11);
4. substandard documentation (charges 12,13 14, 21 and 22);
5. recklessly making an untrue statement to the Board’s investigator (charge 19); and
6. performing surgery while impaired (charge 23).
[5]
The Tribunal is reasonably satisfied that the practitioner’s conduct constitutes unsatisfactory professional conduct and professional misconduct.
[6]
The practitioner was registered on 2 January 1990. His registration has been subject to an undertaking since 19 October 2011. For all of the offending period he practised primarily as a general practitioner at North Town Medical Centre in Townsville which he co-owns. He also practised variously at the Tully Medical Centre, and from October 2009 to December 2010 on a part-time cosmetic consultancy in Townsville.
[7]
He is 50 years old and presently employed as a medical practitioner by the Australian Defence Force in Townsville.
[8]
Taken overall the admitted conduct demonstrates:
1. careless behaviour (charge 19);
2. a lack of proper regard for patient welfare (charge 23);
3. the real potential to adversely affect the continuity of medical care of drug dependent patients (charges 12,13,14,21 and 22);
4. disregard of prescribing practices designed to ensure patient safety and welfare (charges 1,6,7 and 8);
5. an inability to separate personal and professional relationships by treating spouses and ex-spouses (charge 5); and
6. taking unacceptable risks by poor drug handling practices (charges 10,10A and 11).
[9]
Many aspects of the practitioner’s conduct represent a substantial departure from acceptable professional standards assessed in the context of his training, experience and seniority in the profession trusted to prescribe to drug dependent persons and supervise other doctors in his practice.
[10]
It is unnecessary to make any finding of impairment under s 196(1)(iv) of the National Law based on the diagnoses of a benign tremor because any practice issues relating to that are covered by the practitioner’s undertaking.
[11]
The parties jointly propose an order the main features of which are:
1. suspension of two years to reflect “the numerous and significant shortcomings identified in the conduct;”
2. retraining by completing a tertiary level course of education on clinical record keeping during the period of suspension;
3. conditions once suspension is lifted for a review period of four years aimed at addressing, in particular:
  1. a)protection of patients by restricting the practitioner’s practice to a position with the Australian Defence Force or similar as approved by the Board and only under supervision;
  2. b)restricting the prescribing rights to those medications used in general practice for common ailments such as headache, flu etc;
  3. c)submission to medical supervision of a nominated GP and;
  4. d)both internal and external monitoring of the practitioner’s competence and fitness.
[12]
The Tribunal is not bound by agreed sanctions. On the contrary, it has a duty to consider whether the proposed sanction is within the acceptable range and, if not, independently decide the proper sanction.
[13]
The purposes of disciplinary proceedings include the protection of public safety and welfare, and the preservation of the reputation of the medical profession. This is achieved by individual deterrence, general deterrence, and the rehabilitation of sanctioned medical practitioners.
[14]
The parties contend, and I accept, that an order along these lines is consistent with the comparable case of Medical Board of Australia v Bhanjee.^[1]
[15]
I am satisfied that the proposed orders achieve the purpose of disciplinary proceedings and sanctions, and that the jointly proposed orders are the least onerous effective orders to make in the circumstances.
[16]
In those circumstances I will make the following orders which include a reprimand and payment of the Board’s costs to be assessed.

ORDERS

[17]
It is the decision of the Tribunal that:
1. The practitioner is reprimanded.
2. The practitioner’s registration is suspended for a period of 2 years starting one month after the date of these orders.
3. It is a condition of the practitioner’s registration that within 2 years of the date of these orders, the practitioner must provide evidence to the Board’s satisfaction of his successful completion of a tertiary level course of education addressing clinical record-keeping, which course must be nominated in writing by the practitioner and approved by the Board.
4. The following conditions are imposed on the practitioner’s registration following the period of suspension:
  1. a)The practitioner must only practise medicine in a position with the Australian Defence Force or another position approved in writing by the Board;
  2. b)The practitioner is prohibited from prescribing sch. 8 medications, benzodiazepines and compounds containing codeine, with the exception of Aspalgin, Panadeine and Panadeine Forte;
  3. c)The practitioner may only provide medical care under the supervision of another medical practitioner. The level of supervision must be level 3 supervision as described in the Guidelines: Supervised practice for limited registration published by the Board. In addition, the supervisor must:
    1. (i)
      be senior to the practitioner in terms of years of experience of position;
    2. (ii)
      practice at the same place of employment and physical location as the practitioner; and
    3. (iii)
      be approved in writing by the Board;
  4. d)The practitioner must provide a copy of these orders and the Tribunal’s reasons to the supervisor approved in accordance with the condition in paragraph 4(c)(iii) within 5 days of receiving that approval, as well as a written authority and direction to the supervisor to provide a written report to the Board about:
    1. (i)
      whether the practitioner’s medical records are adequate;
    2. (ii)
      the practitioner’s ability to practise medicine competently and safely; and
    3. (iii)
      the mechanisms, if any, the supervisor has put in place for monitoring whether the practitioner is practising competently and safely;

and the following intervals:

(iv)
monthly for the first 6 months of the operation of this condition, then quarterly;
(v)
if the supervisor holds a concern about the practitioner’s ability to practise competently and safely; and
(vi)
if requested by the Board;

e)The practitioner must submit the medical supervision of his own health care to a general practitioner (‘GP’). The practitioner must advise the Board of the name of his treating general practitioner (his usual GP) and authorise his usual GP and the Board to communicate in relation to his health and prescribed medications. The practitioner may only obtain prescriptions for medications from his usual GP or a treating specialist, except where the usual GP is away or otherwise unavailable in which case the practitioner must, within 24 hours of seeing a GP other than his usual GP, inform the Board as to why he saw the other GP and the treatment provided and provide a consent to the Board to obtain information from that other GP.
f)The practitioner must provide a copy of these orders and the Tribunal’s reasons to his usual GP within 5 days of these orders being made, as well as a written authority and direction to his usual GP to provide a written report to the Board about the Practitioner’s fitness to practise, including the medications the GP has prescribed to the practitioner, at the following intervals:
1. (i)
  quarterly;
2. (ii)
  if the GP holds a concern about the practitioner’s fitness to practice; and
3. (iii)
  if requested by the Board;

The review period for the conditions imposed on the practitioner’s registration is 4 years from the date of these orders, save for the condition in paragraph 3 which is 2 years from the date of these orders.
The practitioner must comply with these orders at his expense.
The practitioner shall pay the Board’s costs of and incidental to these proceedings as assessed by QICS or Hickey & Garrett (as appointed by the Board) on the standard basis on the District Court Scale of Costs within 28 days of receiving the assessment.

Footnotes

[1] [2013] QCAT 259; see also Nursing and Midwifery Board v Brereton [2011] QCAT 578, [3].

Editorial Notes

Published Case Name:
Medical Board of Australia v Stark
Shortened Case Name:
Medical Board of Australia v Stark
MNC:
[2016] QCAT 175
Court:
QCAT
Judge(s):
Carmody J
Date:
02 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Medical Board of Australia v Bhamjee	[2013] QCAT 259	2 citations Jump To Cite 1 - [2013] QCAT 259 Cite 2 - [2013] QCAT 259
Nursing and Midwifery Board of Australia v Brereton	[2011] QCAT 578	2 citations Jump To Cite 1 - [2011] QCAT 578 Cite 2 - [2011] QCAT 578

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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Medical Board of Australia v Stark[2016] QCAT 175