The Health Ombudsman v NLM[2018] QCAT 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

The Referral

1. [1]
   On 6 June 2017, the Health Ombudsman referred to the tribunal disciplinary proceedings against the registrant, NLM.  The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).
2. [2]
   There are 21 separate allegations set out in the referral. The allegations relate to the conduct of NLM whilst working as a general practitioner at a small practice (the Practice).
3. [3]
   In summary, it is alleged that:

   1. (a)
      over a nine-month period between 17 December 2013^[1] and 29 September 2014, on eight separate occasions NLM misappropriated Schedule 8 controlled drugs from the Practice (Charges 1, 2, 4, 6, 8, 13, 15 and 18);
   2. (b)
      on five occasions during that nine-month period, NLM unlawfully possessed Schedule 8 controlled drugs surrendered by a patient or relative of a patient or the property of the Practice (Charges 3, 10, 12, 17 and 20);
   3. (c)
      on eight occasions during that nine-month period, NLM made an entry in the ‘Drug of Addiction’ register (drug register) kept by the Practice which he knew was false (Charges 5, 7, 9, 11, 14, 16 and 19); and
   4. (d)
      on various dates between 17 December 2013 and 29 September 2014, NLM self-administered various Schedule 8 controlled drugs which he had either misappropriated, or taken unlawful possession of, from the Practice (Charge 21). 
4. [4]
   Over the nine-month period, NLM had misappropriated or unlawfully possessed:

   1. (a)
      13 tablets of MS Contin 15mg, recorded as being dispensed to a patient;
   2. (b)
      16 tablets of Jurnista, recorded as being dispensed to a patient;
   3. (c)
      one 5mg Norspan patch, recorded as being dispensed to a patient;
   4. (d)
      21 ampoules of morphine sulphate, originally prescribed to a deceased patient;
   5. (e)
      various amounts of Oxycontin, delivered to him by a patient as excess medication; and
   6. (f)
      various amounts of morphine, recorded as having been given to patients.
5. [5]
   The matters alleged in the disciplinary referral arose from a mandatory notification made by the owner of the Practice to the Health Ombudsman pursuant to s 142 of the Health Practitioner Regulation National Law (Queensland) 2009 (National Law).
6. [6]
   In these proceedings, the parties have filed a statement of agreed facts and joint submissions.  There are no factual issues in dispute between the parties.
7. [7]
   In the joint submissions, the parties submitted the appropriate orders to be made by the Tribunal were:

   1. (a)
      the respondent’s registration be suspended for a period of three months; and
   2. (b)
      the respondent pay a fine to the Health Ombudsman in the sum of $20,000.
8. [8]
   The Tribunal convened an oral hearing to consider whether or not the sanction proposed in the joint submission was appropriate and whether the proposed costs order should be made.

Factual Circumstances

9. [9]
   NLM commenced working at the Practice on 18 December 2013, having first visited the Practice and met with the owner of the Practice in July 2013.  NLM worked as a sole trader at the Practice, taking a percentage of the patient billings generated by the Practice.
10. [10]
    NLM and his family were considering a move to Queensland from interstate to enable the practitioner’s wife to undertake a self-funded doctorate.
11. [11]
    At the time of relocating, NLM had been working as a general practitioner interstate for around 13 years. 
12. [12]
    When NLM commenced at the Practice, the owner of the Practice was on leave.  NLM said the Practice’s location meant it had a high number of walk-in patients and quite a high turnover of holiday makers.
13. [13]
    In August 2014, the owner of the Practice raised with NLM concerns in relation to the drug register.  NLM did not make any admissions at that time.  Following that meeting, on 17 September 2014, NLM voluntarily gave notice of the surrender of his endorsement to prescribe Schedule 8 controlled drugs.
14. [14]
    NLM continued to work at the Practice until 28 November 2014.  Having informed the owner on 27 November 2014 of his intention to move to another practice as soon as a replacement could be found, NLM was notified by email that his services were no longer required. It was after NLM left the Practice that the owner of the Practice made the mandatory notification on 1 December 2014.
15. [15]
    The mandatory notification was referred to AHPRA by the Health Ombudsman on 19 January 2015.  By letter from his solicitors dated 19 January 2015, NLM provided written submissions in response to the notification.  NLM attended an interview conducted by the Health Ombudsman on 21 January 2015. 
16. [16]
    In that interview and in these proceedings, NLM admitted to having self-administered opiates for the treatment of irritable bowel syndrome.  He had first suffered symptoms of an irritable bowel in 1997, following a trip to South America.  NLM admitted to first taking opiates for his condition at the end of 2009 upon accidentally finding that opiates neutralised his diarrhoea symptoms. 
17. [17]
    NLM ceased taking opiates at the end of August 2014, soon after the first conversation with the owner of the Practice in relation to the drug register.  NLM referred to now being treated for his condition by his general practitioner and a gastroenterologist to whom he had been referred.  Since receipt of the notification, he also engaged a psychologist specialising in dependency issues “with a view to exploring any unresolved issues in relation to his previous use of opiates”.^[2]
18. [18]
    NLM commenced working at another general practice on 7 January 2015.  On commencing at that practice, NLM had a conversation with the senior member of that practice, fully explaining his circumstances.  The new practice was a much larger practice with a better support system.  The senior practitioner with whom NLM spoke offered his assistance to NLM.
19. [19]
    On 4 February 2015, the Queensland Immediate Action Committee of the Medical Board of Australia (the Board) took immediate action by imposing conditions on the registration of NLM relating to supervision and a health assessment. The senior member of the new practice was appointed as his supervisor. 
20. [20]
    In a report from an independent health assessor dated 4 May 2015, it was concluded that the practitioner shows signs of opiate dependence (in early remission).  It was said that “the opiate dependence explains the practitioner’s conduct issues”.  It was concluded that the practitioner was safe to practise as a general practitioner under the current registration conditions with the inclusion of a condition for ongoing treatment from a psychologist experienced in drug and alcohol counselling with reports to the Board and continuing restrictions on NLM’s use of and prescribing rights with respect to Schedule 8 drugs.
21. [21]
    On 3 November 2015, the Queensland Notifications Committee of the Board (the Committee) decided that NLM had an impairment and maintained the conditions already imposed on his registration.  Those conditions required supervision by another health practitioner registered in the same profession with regular reports to the Board regarding the practitioner’s health, conduct and performance, continuing restrictions on his use and dealings with Schedule 8 drugs, treatment by a psychologist and urine drug screening.
22. [22]
    In confirming the conditions, the Committee expressed the view that the conditions were “the most proportionate to address the practitioner’s health impairment and the safety of the public at this time”.  It was not suggested by the Committee that because of the impairment the practitioner was not fit to practise and it was not suggested that the practitioner had harmed or endangered the health of any of his patients as a result of his impairment.
23. [23]
    The imposition of the conditions was at that time noted on the public register of practitioners maintained by the Board in accordance with its obligations imposed pursuant to the National Law.^[3]  The details of certain conditions were not listed on the register due to privacy considerations.
24. [24]
    In these proceedings, it is not alleged that NLM is impaired; though it is accepted he continues to be dealt with as part of the Board’s impairment programme and conditions remain on his registration, some of which are noted on the public register, including the condition requiring NLM to practise subject to level 3 supervision.
25. [25]
    NLM has continued to comply with every restriction placed upon him, including attending additional psychologist appointments beyond what is required.  The senior practitioner from the new practice originally appointed as his supervisor continues to be his supervisor.

Categorisation of Conduct

26. [26]
    In respect of each charge, it was said that NLM’s conduct amounted to professional misconduct.  In the referral it was alleged that the conduct in respect of each charge fell within sub-paragraphs (a) and (c) of the definition under s 5 of the National Law, being:

    1. (a)
       unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of  a registered health practitioner of an equivalent level of training or experience; and

…

3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

27. [27]
    It was further alleged in the referral that if the tribunal makes findings of unprofessional conduct in respect of two or more charges, the tribunal could also make a separate finding of professional misconduct.  Such a finding would be professional misconduct within sub-paragraph (b) of the definition in respect of all the charges, being more than one instance of unprofessional conduct that, when considered together, amounts to conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
28. [28]
    In the parties’ joint submissions, it was said that the Tribunal would find professional misconduct in respect of charges 1, 2, 3, 4, 6, 8, 10, 12, 13, 15, 17, 18, 20 and 21 and unprofessional conduct in respect of charges 5, 7, 9, 11, 14, 16 and 19, and that given that there was more than one instance of unprofessional conduct, professional misconduct in respect of all the charges.
29. [29]
    Given the conduct admitted by NLM, the Tribunal agrees with the categorisation of the conduct as agreed by the parties.  The Tribunal finds that NLM has behaved in a way that constitutes professional misconduct.

Written Submissions on Sanction

30. [30]
    The parties have submitted the appropriate orders to be made by the Tribunal included a three month period of suspension and a $20,000 fine.
31. [31]
    In the joint submissions, it was said:

General and personal deterrence are relevant considerations when determining the appropriate sanction. However, this should be balanced against the whole of the circumstances including any mitigating factors such as the Respondent’s insight and remorse into the conduct.

32. [32]
    It was acknowledged that the purpose of sanctioning is not to punish, but to protect the public with reference to the need to uphold the standards of practice and to maintain public confidence in the profession. 
33. [33]
    The joint submissions referred to medical practitioners occupying a position of trust and referred to the community expectations that doctors can be relied upon to deal with drugs strictly in accordance with the law and the rules applicable to their use.
34. [34]
    It was said that while the respondent’s remorse and insight reduces the importance of personal deterrence, it does not displace the need for general deterrence.   It was submitted that the combined suspension period and fine would be sufficient in sending a message to other practitioners that conduct of this kind is taken very seriously by the tribunal.  It was said the parties had agreed to a shorter period of suspension from practise balanced with a fine to enable the practitioner to resume practise relatively swiftly.  It was said, in circumstances where the practitioner has demonstrated contrition and remorse, is fit to practise and is considered to be a competent doctor and valued employee, a relatively swift return to practise is in the public interest. 

Cases referred to in the Joint Submissions

35. [35]
    In their joint submissions, the parties referred in particular to a number of cases involving medical practitioners falsely prescribing or self-administering restricted drugs.
36. [36]
    In Medical Board of Australia v Dr ‘C’,^[4] a general practitioner self-administered morphine, Diazepam and Endone, falsified prescriptions for the supply of these drugs on 35 occasions by supplying a patient’s name, falsified the controlled drugs register maintained by the medical practices she worked at on 22 occasions, and on two occasions wrote prescriptions for these drugs for herself in her former married name, all for the purpose of unlawfully obtaining a drug of dependence for self-administration. The conduct continued over nearly a two-year period.  The tribunal found Dr C’s conduct to be professional misconduct, reprimanded the practitioner, ordered the practitioner to pay a fine of $5,000 and imposed conditions on the practitioner’s registration.
37. [37]
    Dr C voluntarily ceased practisfe for approximately one year, a factor the tribunal took into account when deciding not to impose a retroactive period of suspension.  Dr C, like NLM, suffered from an underlying physical health condition.  In fact, Dr C was suffering from a number of stressors and resulting health issues.  Unlike Dr C, NLM was able to keep working subject to conditions.  
38. [38]
    Dr C’s matter proceeded on the basis that there was no allegation that the health or welfare of any patient was compromised or jeopardised by her conduct, and there was no allegation of criminality.  This is also the case for NLM.  
39. [39]
    In Nursing and Midwifery Board of Australia v Mahon,^[5] a registered nurse stole a vial of morphine from her workplace for self-administration and subsequently stole four to six OxyContin tablets from a patient, replacing the missing tablets with Crestor tablets. This placed the patient at risk of harm both due to being denied the OxyContin to treat her pain and in unknowingly taking three times her prescribed dose of Crestor. The registered nurse was convicted in the Magistrates Court of two charges of possessing a drug of dependence and two charges of theft. No conviction was recorded and the practitioner was fined $500. The tribunal ordered that the nurse be reprimanded and disqualified from applying for registration as a nurse or midwife for a period of six months. The tribunal noted that, were it not for the fact that the practitioner had at the time of the hearing been prevented from practising for two and a half years, the six-month prohibition period would have been regarded as insufficient.
40. [40]
    The misconduct in Mahon is so different that any real comparison with NLM is difficult.  The conduct in Mahon involved stealing and substituting medication resulting in the real risk of harm to a patient, and was subject to criminal proceedings. There is no suggestion that NLM substituted medication, nor caused harm to a patient, and his conduct was never the subject of criminal proceedings.
41. [41]
    In Health Care Complaints Commission v Tanios,^[6] a pharmacist dispensed various medications to a close family member or herself, without valid prescription, over a period of 10 months.  The practitioner was initially defiant and belligerent towards the Pharmacy Council but ultimately made admissions and demonstrated remorse. The tribunal found “no real explanation” for the pharmacist’s conduct, but accepted psychological evidence that the pharmacist was motivated to make changes in her handling of stress, was seeking appropriate support from fellow healthcare professionals and had demonstrated insight into what contributed to her previous circumstances. The tribunal cancelled the practitioner’s registration and ordered that she be disqualified from re-applying for a period of 12 months.
42. [42]
    The parties submitted that the conduct in Tanios was more serious due to the pharmacist’s initial defiance when confronted, and the potential harm to the health of the relative receiving medication without prescription. The parties submit that the conduct by Tanios is comparable to NLM’s conduct in the deliberate mishandling and misuse of medication for a knowingly improper purpose. However, the dispensing to another is a matter of significance and makes the conduct different and more concerning than that of NLM.  There was also no suggestion of an underlying physical health condition.   Further, Tanios initially denied any wrongdoing, whereas NLM has been fully co-operative during the investigation and disciplinary proceedings.
43. [43]
    In Pharmacy Board of Australia v Dougherty,^[7] a registered pharmacist dishonestly took 84 x 105mg tablets of dexamphetamine sulphate from his employer without lawful authority and self-administered the tablets without prescription. Further, Dougherty possessed a range of Schedule 8 and Schedule 4 drugs in his home without prescription or lawful authority, and possessed a quantity of needles and syringes for use in taking amphetamines. The tribunal found that Dougherty deliberately departed from the proper standards of professional conduct over a long period of time, and held that Dougherty was not a fit and proper person to hold registration. The tribunal reprimanded Dougherty and retrospectively disqualified him from applying for registration for a period of two years.
44. [44]
    The parties submit that Dougherty is comparable to the current case in that Dougherty was afforded trust to work alone and subsequently abused that trust, and also in admitting to all the facts alleged with only the issue of sanction to be resolved by the tribunal. However, the facts of Dougherty are so different that any comparison is problematic. Dougherty’s conduct took place over the course of two years, rather than the nine months of conduct in the present case, and there appeared no underlying physical health condition that led to his dependency on amphetamines and other drugs including alcohol.  Dougherty was not entirely forthcoming and cooperative during his interview, and his conduct was subject to a criminal conviction.
45. [45]
    The parties also referred to the decisions in Medical Board of Australia v Langton^[8] and Chinese Medicine Board of Australia v Lim (Occupational and Business Regulations)^[9] as support for the proposed sanction of a fine and a period of suspension.  Whilst it was said that there were no Queensland cases in which both a fine and suspension had been imposed, in both cases tribunals in other jurisdictions had imposed a period of suspension with a fine.

Oral Hearing

46. [46]
    The Tribunal having reviewed the parties joint submissions, the parties were requested to deliver oral submissions in support of their written submissions and to further address the Tribunal as to the structure of the sanction proposed and, in particular, the inclusion of a fine and the quantum of the fine.
47. [47]
    At the oral hearing, counsel representing the Health Ombudsman referred to the case of Langton as an example of a case where a $30,000 fine had been imposed. Langton’s misconduct was multifaceted and involved a close personal and intimate relationship with a young, vulnerable patient.  The practitioner inappropriately provided morphine to that patient, and self-administered morphine, both for non-therapeutic purposes.  The tribunal imposed a $30,000 fine and suspended the practitioner’s registration for 18 months, with conditions imposed upon his return to practise.
48. [48]
    In Lim, a decision of the Victorian Civil and Administrative Tribunal, the sanction imposed included a suspension from registration for six months, conditions upon the practitioner’s registration and a $2000 fine.  The conduct in Lim concerned clinical performance matters, making the considerations which the tribunal had to address entirely different.
49. [49]
    The Health Ombudsman accepted that Langton’s conduct was significantly more serious but considered the authority relevant for the purpose of considering the suggested fine of $20,000.   The Health Ombudsman conceded a fine of $20,000 was a large fine in circumstances where the maximum able to be imposed by the tribunal under the legislation is $30,000.^[10]  It was said, however, that the suspension agreed by both parties was a short one which would both serve as a specific deterrent for NLM and allow him to return to practise promptly and benefit the community in that way.
50. [50]
    Counsel for the Health Ombudsman stated that the starting point for sanctioning practitioners in these cases is ensuring that the practitioner spends some time out of practise to demonstrate the seriousness with which the tribunal treats these kinds of misconduct.
51. [51]
    When asked, counsel for the Health Ombudsman accepted that the Tribunal can have regard to the fact that the practitioner has been operating under substantial conditions on his practise and registration for a significant period of time. By virtue of being subjected to these ongoing conditions, NLM has demonstrated an ability to comply with them over a significant period of time, which speaks to his ability to rehabilitate himself.
52. [52]
    The Health Ombudsman said that the medical condition which caused the practitioner to self-medicate is now under control, and there is no submission that the practitioner ever practised while under the influence of a controlled drug.
53. [53]
    On behalf of NLM, counsel referred to the mitigating factors including NLM’s quick and full cooperation, his remorse and diligent compliance with all conditions placed upon his registration.  Counsel explained that these publicly recorded conditions which NLM has been operating under are significant.  Counsel said NLM’s eager and willing compliance with all the conditions is an active demonstration of his insight and remorse “which goes beyond any professed remorse or insight without that demonstration”. 
54. [54]
    Counsel confirmed that the intensity of some conditions have been relaxed due to NLM’s ongoing compliance. NLM is now subject to Group 5 random testing, the least frequent of the possible testing frequencies. NLM continues to attend psychologist appointments every three months of his own volition for maintenance purposes. Counsel said that this shows insight into his own vulnerabilities.
55. [55]
    In referring to NLM’s current circumstances, counsel explained that NLM’s ongoing irritable bowel syndrome was now well-managed, particularly through diet, exercise and a regime of supplements.  Counsel referred to a letter provided by NLM’s supervisor, noting the supervisor had written a “glowing” report on NLM, his dedication and skill as a practitioner, and the extreme remorse NLM has demonstrated.  Counsel also tendered a character reference written by the practitioner with whom NLM worked whilst practising as a general practitioner interstate and he also spoke of NLM’s “very good performance as a doctor”.
56. [56]
    Counsel said that NLM has accepted that a review of the cases could allow for a longer suspension but has expressed his desire to return to work as quickly as possible, as he is passionate and committed to his work as a general practitioner. Counsel said that NLM has been told his current employment will be held for him while he is on suspension, and has requested that, for the benefit of his colleagues and patients, he be given one week’s notice of any suspension to ensure his patients are redirected appropriately.
57. [57]
    Counsel confirmed that while NLM had accepted the necessity of paying a fine, it would not be an easy matter. NLM pays school fees for two teenage children, a mortgage on his home, and his wife is currently not working while finishing her PhD studies.  NLM also financially supports his 91-year-old father who lives independently. To ease the burden of paying the fine, NLM has requested an instalment plan.  The Health Ombudsman confirmed its agreement to this request and both parties put forward a suggested plan of $1,250 repayments per month, in order to have the full $30,000 of the fine and the fixed costs paid within two years.

Approach to Sanction

58. [58]
    The jurisdiction being exercised by the Tribunal is protective, not punitive.^[11]  The main principle for administering the HO Act is that the health and safety of the public is paramount.^[12] 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.^[13]  Potentially, there will be a need for both personal and general deterrence.
59. [59]
    Where the parties have agreed a joint proposed sanction, the Tribunal should be slow to depart from an agreed position and should only do so if it falls outside the permissible range in all the circumstances of the case.  Any sanction must be one which the Tribunal considers appropriate.
60. [60]
    By s 126 of the HO Act, the Tribunal, in conducting a hearing of a disciplinary proceeding, must be assisted by three assessors, two of whom come from a panel who are registered practitioners in the same profession, and the other from a panel of assessors drawn from the public.  By s 127(1) of the HO Act, the function of an assessor is “to sit with the tribunal and advise the tribunal about questions of fact”.
61. [61]
    If the Tribunal determines that the practitioner has behaved in a way that constitutes misconduct, the range of orders open to the Tribunal includes:

    1. (a)
       a caution or reprimand;
    2. (b)
       the imposition of a condition;
    3. (c)
       the imposition of a fine of not more than $30,000;
    4. (d)
       the suspension of the practitioner’s registration for a specified period; and
    5. (e)
       the cancellation of the practitioner’s registration.^[14]

Conclusion on Sanction

62. [62]
    NLM has accepted his conduct amounts to professional misconduct.  He has been frank, honest and cooperative throughout the investigation process and these disciplinary proceedings.  This cooperation has allowed a comprehensive statement of agreed facts to be put before the Tribunal such as to obviate the need for a contested hearing of the facts and has resulted in an agreed position between the parties. 
63. [63]
    The Tribunal accepts that the imposition of a fine and a suspension may be an appropriate sanction in certain circumstances and the Tribunal accepts that is permissible to balance one against the other. 
64. [64]
    In doing so, however, the overriding purpose of any sanction must be protective, not punitive.  Protection of the public involves a deterrent element, both personal and general, and the maintenance of the standards of the profession.^[15]  The sanction “must not be framed in such a way or be constituted in such a way, or be so harsh as in reality to be punitive or retributive”.^[16]
65. [65]
    In determining the appropriateness of the sanction, the Tribunal has been guided by the assessors.  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. 
66. [66]
    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.
67. [67]
    The Tribunal considers that a public reprimand and $5,000 fine can achieve the legislative purpose. The Tribunal finds that these sanctions appropriately reflect the circumstances of this case and the need for a show of general deterrence.
68. [68]
    A reprimand is not a trivial penalty as it is a matter of public record and affects the reputation of the practitioner both in regards to the view of the public and the opinions of professional colleagues.^[17]  It has been described as “a public denunciation” of the conduct.^[18] The reprimand will remain on the register until the National Board “considers it is no longer necessary or appropriate for the information to be recorded on the Register”.^[19]
69. [69]
    The tribunal has previously found that the protective purpose of disciplinary proceedings against medical practitioners, particularly the element of general deterrence, could be met through the imposition of a sanction other than suspension of registration.^[20]
70. [70]
    The Tribunal is satisfied that the above fine and reprimand, when considered alongside the ongoing conditions upon the NLM’s registration, satisfy the purpose of the disciplinary proceedings, and does not consider it is necessary or appropriate to also impose a period of suspension.
71. [71]
    To do so would fail to take into consideration the significant impairment conditions which NLM has fully and willingly complied with since the conditions were first placed upon his registration in 2015, the acceptance that he is fit and able to practise, and the general deterrence provided by the imposition of a fine and reprimand.
72. [72]
    With consideration of the remorse and insight shown by NLM, the length of time he has continued practising without further incident, and the mitigating factors accepted by both parties, the Tribunal does not consider a suspension which would deprive NLM’s patients and colleagues of his treatment and support for three months to be in the public’s interest. 

Approach to Costs

73. [73]
    The making of costs orders in health disciplinary proceedings is governed by Part 6 Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The starting position under that Act is that each party bears its own costs unless the interests of justice require an order for costs to be made.^[21]
74. [74]
    Section 102(3) of the QCAT Act gives the tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order including, as identified by the Health Ombudsman in its submissions, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the tribunal considers relevant.
75. [75]
    The question for the tribunal has been formulated as:

…whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.^[22]

76. [76]
    The Court of Appeal in Medical Board of Australia v Wong described it as “a basis for departing from the default position”.^[23]  The Honourable James Thomas AM QC in Health Ombudsman v Antley said the proper approach for the tribunal is whether there are “countervailing considerations”.^[24]

Submission on Costs

77. [77]
    By agreement the parties have proposed that NLM pay the Health Ombudsman’s costs at a fixed amount of $10,000.
78. [78]
    In the joint submission, the parties relied upon the fact that the Health Ombudsman is funded to take these kinds of disciplinary steps against erring practitioners through the contributions of health practitioners of good standing.  It was submitted that it would be an unfair burden upon those practitioners if the costs were to be borne by them.
79. [79]
    In justifying the need for costs the joint submissions also noted that the Health Ombudsman was a statutory regulator with an obligation to bring such proceedings in the public interest, and that in this case legal representation was reasonable and desirable to advance the public interest.
80. [80]
    The submission addressed the comments made by Judicial Member Thomas in Antley, and in particular his comment that it was a “long bow to draw” to place the Health Ombudsman in the shoes of the Board.^[25]  It was submitted that Judicial Member Thomas had misconstrued the Health Ombudsman’s position and that his comments were contrary to what the legislation envisaged.
81. [81]
    A further factor raised in support of a costs order in favour of the Health Ombudsman was the fact that NLM has been meaningfully employed and earning a wage, and has continually been so since the time of the conduct.
82. [82]
    In contrast to the circumstances in Health Ombudsman v Dalziel,^[26] counsel for the Health Ombudsman in making oral submissions referred to the fact that NLM remained represented by counsel instructed by solicitors.  In making oral submissions, counsel for NLM did not withdraw her client’s agreement to pay the Health Ombudsman’s cost in the amount agreed. 

Conclusion on Costs

83. [83]
    The Tribunal rejects the submission that the nature and objectives of the disciplinary jurisdiction favours an award of costs to a regulator.  That submission is inconsistent with the costs provisions of the QCAT Act and the decision of the Court of Appeal in Wong.
84. [84]
    As stated by the tribunal in Dalziel, the nature of the proceedings, being by a regulatory body, is a factor to be considered by the tribunal in the exercise of its discretion, but it can be put no higher than that.  The fact that the Health Ombudsman is funded by registrants is another factor but so is the fact that professionals benefit from the upholding of professional standards.  The comments made by Judicial Member Thomas in Antley have much to commend them.
85. [85]
    A relevant factor in this particular case is that there was an agreement between the parties that NLM would pay the costs of the Health Ombudsman set at an agreed amount of $10,000.  It is to be assumed that in agreeing that amount NLM has been given credit for having made full admissions early and for not having protracted the proceedings in any way.
86. [86]
    Given the agreement of the parties to the making of a costs order and the quantum of such order, the Tribunal considers the interests of justice require the making of an order for NLM to pay the Health Ombudsman’s costs in the amount of $10,000, as agreed.

Non-publication order

87. [87]
    There is currently a non-publication order made in relation to these proceedings which extends only to the identities of any patients, or family members of any patients. 
88. [88]
    The Tribunal notes that in referring to the public national register that certain of the conditions in relation to NLM are not listed on the register due to privacy considerations.  In the material tendered by the parties as evidence in these proceedings, and in these reasons, reference has been made to all the conditions and to the contents of the health assessment report.
89. [89]
    No application was made seeking a non-publication order in respect of any of that material or the de-identification of all or part of these reasons.
90. [90]
    In the circumstances, it is appropriate that the Tribunal allow the parties to make an application for a non-publication order in respect of any of that material or these reasons.  To enable that to occur, these reasons have been de-identified and will remain so until 3 August 2018 to enable an application to be brought, if considered necessary. 
91. [91]
    The parties will be given liberty to apply. 

Orders

92. [92]
    Accordingly, the Tribunal orders that:

    1. (a)
       Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), NLM is found to have behaved in a way that constitutes professional misconduct.
    2. (b)
       Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), NLM is reprimanded.
    3. (c)
       Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), NLM is fined $5000 to be paid to the Health Ombudsman.
    4. (d)
       NLM is to pay the Health Ombudsman’s costs in the amount of $10,000.
    5. (e)
       NLM is to pay the amount of the fine and the costs by way of instalments of $1250 per month to the Health Ombudsman until fully paid, the first payment of which is due within 14 days of the date of this order.
    6. (f)
       On 3 August 2018, in the event that no application has been filed directed to the non-publication of all or part of these reasons, these reasons will be published with the name of the respondent inserted instead of the pseudonym NLM.
    7. (g)
       There be liberty to apply.