Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Health Ombudsman v Euston (No. 2)[2019] QCAT 258

Health Ombudsman v Euston (No. 2)[2019] QCAT 258

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v Euston (No. 2) [2019] QCAT 258

PARTIES:

Health Ombudsman

 

(applicant)

 

v

 

gregory scott euston

 

(respondent)

APPLICATION NO/S:

OCR238-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 September 2019

HEARING DATE:

26 April 2019

HEARD AT:

Brisbane

DECISION OF:

Sheridan DCJ

Assisted by:

Dr T Chamberlain

Dr H Moudgil

Mr P Zimon

ORDERS:

  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Dr Euston has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Dr Euston is reprimanded.
  3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), Dr Euston is to pay a fine of $30,000 to the Health Ombudsman to be paid within 28 days of the date of this order, or such other time as may be agreed between the parties.
  4. There be no order for costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – CONVICTION OF OFFENCE – where respondent pleaded guilty to four counts of supply and three counts of possession of a dangerous drug in the Supreme Court of Queensland –– where respondent admitted criminal convictions amounted to professional misconduct – where Tribunal accepted respondent’s evidence – where disagreement as to sanction – whether the registration of the respondent should be suspended

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where applicant made application for costs – where respondent sought no order as to costs – whether interests of justice required the making of an order for costs  

Drugs Misuse Act 1986 (Qld) s 6, s 8

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 5

Queensland Civil and Administrative Tribunal Act 2009 s 100, s 102

Ex parte Tziniolis; re Medical Practitioners Act (1966) 67 SR (NSW) 448, cited

Healthcare Complaints Commission v King [2013] NSWMT 9, cited

McBride v Walton [1994] NSWCA 199, cited

Medical Board of Australia v Wong [2017] QCA 42, cited

Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283, cited

Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, cited

APPEARANCES &

REPRESENTATION:

 

Applicant:

KA McMillan QC instructed by the office of the Health Ombudsman

Respondent:

C Wilson instructed by Synkronos Legal

REASONS FOR DECISION

  1. [1]
    By its decision dated 21 December 2018, the Tribunal gave its finding in respect of the three charges the subject of the referral.  The charges arose from Dr Euston having been charged and subsequently convicted of offences of possession and supply of dangerous drugs pursuant to s 6 and s 9 of the Drugs Misuse Act 1986 (Qld) and Dr Euston dealing with the regulators subsequent to his arrest on 19 October 2013. 
  2. [2]
    In giving its decision, the Tribunal found:
  1. Charge 1 to be proven in part in that Dr Euston had made statements to AHPRA,[1] which he knew, or ought to have known were false and/or misleading, to be proven: the Tribunal accepted that a statement had been made in correspondence from his solicitors to AHPRA denying that he had ever supplied dangerous drugs or that he had ever been in possession of dangerous drugs.  The Tribunal did not find that the statements were false in the other respects alleged, namely that Dr Euston knew of the existence of the drugs discovered at his home or that Dr Euston had never used ice; and
  2. Charge 3 to be proven in that Dr Euston pleaded guilty to four counts of supply and three counts of possession of a dangerous drug and was convicted in the Supreme Court on 4 December 2015.
  1. [3]
    The Tribunal did not find Charge 2, relating to an allegation of Dr Euston having given a false declaration to AHPRA, to be proven.
  2. [4]
    The Tribunal must now decide the appropriate sanction to be imposed. 

Categorisation of Conduct

  1. [5]
    The Tribunal can proceed on the basis that Dr Euston has always admitted that the conduct giving rise to the criminal convictions the subject of Charge 3 constitutes professional misconduct.
  2. [6]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) defines professional misconduct as:

Professional misconduct, of a registered health practitioner, includes –

  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
  1. (b)
    more than one instance of unprofessional conduct that, when considered together, 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
  1. (c)
    conduct of the practitioner, whether occurring in connection with the practice of the health practitioners profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”
  1. [7]
    The Health Ombudsman submitted that there is a significant overlap between the considerations relevant to whether the conduct of Dr Euston is inconsistent with his being a fit and proper person to hold registration, and on the other hand, his conduct being substantially below the standard expected of a registered health practitioner. 
  2. [8]
    In considering the conduct giving rise to the criminal charges, the subject of charge 3, the Health Ombudsman referred to the list of factors identified by President Kirby in McBride v Walton as being relevant for a determination of a person’s fitness and proprietary:
  1. (a)
    whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
  1. (b)
    the intrinsic seriousness of the misconduct qua fitness to practice medicine;
  1. (c)
    whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
  1. (d)
    the motivation which may have given rise to the proven episode of misconduct;
  1. (e)
    the underlying qualities of character shown by previous and other conduct; and
  1. (f)
    whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be posed to him to uphold and observe the high standards of moral rectitude required of a medical practitioner.[2]
  1. [9]
    It was submitted that Dr Euston’s conduct was inconsistent with him being a fit and proper person to hold registration.  In particular, it was said that the conduct was not a mere error of judgment, given the repetition of the conduct over an 11 month period resulting in the bringing of seven charges, Dr Euston was not driven by an addiction, other impairment or financial need and the text messages revealed a familiarity with, and contacts in, the drug dealing environment.  It was submitted that the conduct itself was very serious, as demonstrated by its criminality, the nature of the charges and the maximum sentence which attached to them.
  2. [10]
    There can be no doubt that conduct involving the supply of illicit drugs to another and the possession of such drugs was conduct inconsistent with Dr Euston being a fit and proper person to hold registration as a medical practitioner and a specialist anaesthetist.  As submitted by the Health Ombudsman, the supply of illicit drugs to another is “inimical with the practitioner’s professional obligation to care for the health of others”; “[t]his is especially so where the drug in question is methamphetamine, which is both addictive and detrimental to the user’s health.”  His Honour Justice Byrne during his sentencing remarks commented, “Methamphetamine has a very significant potential for harm in the community.  As a medical practitioner, [Dr Euston] ought to have been expected to appreciate that better than most.”
  3. [11]
    The conduct the subject of the criminal charges was undoubtedly conduct “incompatible with the characteristics, attributes and ethical standards” required in the medical profession.[3]  That conduct plainly satisfied the definition of professional misconduct.
  4. [12]
    In terms of the conduct found to be proven in relation to Charge 1 of Dr Euston having made a false and misleading statement to the regulator, both Dr Euston and the Health Ombudsman accept that that conduct amounts to unprofessional conduct, being conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
  5. [13]
    On behalf of Dr Euston, however, it is submitted that the denial contained in the correspondence, which was found to be false and misleading, must be considered having regard to the legal advice which had been given to Dr Euston by his solicitor at the time. 
  6. [14]
    The statement accepted by the Tribunal to have been untrue was the statement made in the solicitor’s letter denying that Dr Euston had ever supplied dangerous drugs or been in possession of dangerous drugs.  Given the criminal charges to which Dr Euston subsequently pleaded guilty, that statement was clearly not true.
  7. [15]
    The Tribunal did not accept that the other statements made in the solicitor’s letter were untrue, namely that Dr Euston did not have any knowledge of the existence of the drugs discovered at his home or that he had never used ‘ice’. 
  8. [16]
    In considering the statement found to be false, the Tribunal accepts that the initial correspondence from his solicitor to AHPRA was sent days after the criminal charges, in relation to the allegation of possession and supply, were first laid and in circumstances where the legal advice given to Dr Euston had been to deny the charges.  The Tribunal accepted Dr Euston’s evidence that his solicitor had, on numerous occasions, stressed to him the importance of not saying anything to anyone about the charges, and if pushed to comment, he should deny all matters relating to the charges.
  9. [17]
    Dr Euston said he was told by his legal advisers the statement made in the letter was the submission that had to be made.  Dr Euston said his solicitor “had indicated that anything I say about those charges may harm my criminal defence.” Dr Euston said he was very worried, at that time, about the criminal charges
  10. [18]
    The Tribunal accepts that the denial should be considered in the light of that evidence.  Whilst the denial could justify a finding of unprofessional conduct on its own, it is more appropriately treated as an aggravation to the totality of the conduct that has to be considered.
  11. [19]
    The approach may have been different if the Tribunal had not accepted the evidence of Dr Euston and had not found, contrary to what was alleged, that Dr Euston was not a user of ‘ice’. 

Sanction

  1. [20]
    Having found Dr Euston’s conduct amounts to professional misconduct, the Tribunal must decide the appropriate sanction to be imposed in accordance with s 107 of the Health Ombudsman Act 2013 (Qld) (HO Act)
  2. [21]
    The Health Ombudsman submitted that the appropriate sanction was that Dr Euston’s registration be suspended for a period of six months.  On behalf of Dr Euston, it was submitted that a reprimand and/or a fine and any ongoing conditions on practice would be appropriate, with the ultimate submission being that a reprimand was the appropriate sanction.
  3. [22]
    The primary purpose of disciplinary proceedings, as distinct from any criminal proceedings, is protective, not punitive.[4]  In the exercise of its protective jurisdiction, the Tribunal must consider issues of personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence in the profession.[5]
  4. [23]
    Evidence of insight and remorse will be relevant, as will evidence of rehabilitation.[6]
  5. [24]
    In proceeding to sanction, the focus of the submissions of the Health Ombudsman was a question of general deterrence. 
  6. [25]
    It was not suggested that Dr Euston was not a fit and proper person to hold registration.  Further, there was no suggestion of any issue of personal deterrence.  It was not suggested that Dr Euston had continued any involvement in the taking of recreational drugs.  Dr Euston, on his own admissions, had previously been involved in the “drug party scene” and had been convicted of offence of being in possession of and supplying cocaine and ice in 2013 and 2012 respectively.  On the evidence accepted by the Tribunal, Dr Euston had only ever been an intermittent recreational drug user and had never used ‘ice’.
  7. [26]
    The Health Ombudsman referred to the aspect of “commerciality” in respect of counts 4 and 6 of the criminal charges, involving as they did the intention to supply and the supply of dangerous drugs respectively.   It is not suggested, however, there was any profit motive nor profit ever made.
  8. [27]
    It is clear from the text messages, sent and received by Dr Euston at the time of the criminal offences for which he was charged, that Dr Euston was participating in the unsavoury drug world, effectively leading a double life.  As he admitted, he had developed a tolerance for illicit recreational drug use in the context of socialising with others with similar attitudes.  However, in late November 2012 Dr Euston had drawn “a line under drugs being present in the house” and had removed himself from any involvement in drug culture.  The Tribunal accepts his evidence that he initially could not understand why the police were executing a search warrant at his home, some 12 months after he considered he had left that life behind him.
  9. [28]
    Given the serious criminal charges with which Dr Euston was charged, in allowing Dr Euston to continue to practice, on 1 November 2013 by way of immediate action the Board imposed conditions on his registration, in particular conditions requiring attendance for urine drug screening (UDS) and hair drug analysis together with a requirement for notification of the conditions to be given to any hospital at which Dr Euston was credentialed.  Dr Euston had, prior to that decision, from around 25 October 2013 already submitted to drug testing voluntarily.
  10. [29]
    Initially, the conditions required that Dr Euston submit to Group 2 testing regime which required that he present for UDS approximately 8 to 12 times per month and hair drug analysis at such frequency determined by the Board.
  11. [30]
    Since 3 February 2016, the frequency of hair testing has been set at 3-monthly and on average, Dr Euston is required to present for a UDS test every 3 days.
  12. [31]
    Dr Euston still remains subject to that regime.  As at 19 January 2018, Dr Euston had spent approximately $31,000 on testing.  By the time the matter came on for hearing to determine sanction, Dr Euston had been subject to the drug testing regime for five and a half years.  On the basis of the evidence accepted by the Tribunal, in that period, he had never tested positive for any illicit substance.
  13. [32]
    There was no evidence before the Tribunal and it was not suggested that Dr Euston’s professional life and responsibilities were impacted by his drug related activity. 
  14. [33]
    Dr Euston is an extremely highly regarded anaesthetist, described as someone who has empathy for his patients and “cares deeply for his colleagues and the field of medicine as a whole”.  The references tendered refer to his honesty and integrity, and his level of knowledge and excellent judgement with regard to patient care.  Most have known and worked with Dr Euston for periods in excess of 10 years, many in excess of 15 years.
  15. [34]
    Those within the group practice to which he belongs, refer to the enormous assistance provided to others within the group practice and the practice generally.  He is described as the “common go to with all and especially the younger colleagues in our group, particularly those who trained under his supervision at the Royal Brisbane and Women’s Hospital.”  To those in training positions, it is said, he provided extra tutorials and viva practice for many years.  He continued, out of hours, to provide those tutorials until this year.  One of his professional colleagues in his group practice, says any loss to his clinical practice “would be a loss of experience and talent for the Australian community and indeed a great loss of the country’s investment in his training.”  The colleague stated that Dr Euston “makes an outstanding contribution as a clinician on many levels of practice.”
  16. [35]
    As a result of the criminal charges, Dr Euston’s employment as a Visiting Medical Officer in Anaesthetics at the Royal Brisbane and Women’s Hospital (RBWH) was suspended on 25 October 2013. In February 2018, Dr Euston resigned from that position.  With his resignation from RBWH, Dr Euston’s position as a senior lecturer at the University of Queensland also ceased.
  17. [36]
    It was submitted by the Health Ombudsman that at the sentencing hearing, the sentencing Judge was told that as a result of Dr Euston’s conduct, Dr Euston stood to have his registration cancelled or suspended.  The Health Ombudsman said that the sentencing Judge had referred to that as a factor taken into account. 
  18. [37]
    Following the laying of the criminal charges, which then resulted in the bringing of these proceedings, Dr Euston has had two periods where the stress of the proceedings caused him to stop working for a period.  He appropriately sought the assistance of a psychiatrist, Dr New, for the management of his emotional state.  Dr Euston continues to attend for treatment with Dr New, who has provided a report to the Tribunal.[7]  In his report, Dr New stated that, in his opinion, the likelihood of Dr Euston again using illicit substances is “so small as to be insignificant”. He further stated that, in his opinion, “there is no requirement for drug monitoring of any form to continue for clinical purposes, or to provide grounds for my confidence about this aspect of the matter.”
  19. [38]
    On pleading guilty and being sentenced, Dr Euston immediately ceased practice whilst awaiting the decision of the Board, following his notification to the Board of the change in his criminal history.
  20. [39]
    The Health Ombudsman also made reference to Dr Euston’s attitude in relation to Charge 1 and submitted it was reflective of a lack of insight and remorse.  It was said that Dr Euston contested the charge in its entirety and actively disputed the allegations contained in the paragraphs within Charge 1.  It was said that Dr Euston had “eschewed personal responsibility for his own conduct, and is prepared to attribute blame to others acting on his behalf.” 
  21. [40]
    Whilst the Tribunal considers that it is unfortunate that Dr Euston did not make an admission in relation to the statement in the correspondence so far as it related to the possession and supply of dangerous drugs being untrue, the focus of Charge 1 was the allegation made by the Health Ombudsman that Dr Euston was the user of ‘ice’.  The focus of the Health Ombudsman and as a consequence by those advising Dr Euston was on that allegation.  Much of the evidence, including expert evidence and that of Mr Holt QC, was directed to that issue.  Relevantly, the Tribunal did not accept that Dr Euston was a user of ‘ice’, and in accepting his evidence on that point, found more generally Dr Euston to be a reliable and truthful witness who was deliberative and careful in his manner, conceding where necessary matters which were against his interests.
  22. [41]
    The Tribunal does not accept that Dr Euston was seeking to attribute blame to others, rather he was acknowledging his reliance on legal advice.  Dr Euston admitted that he was very aware as to the seriousness of the charges which had been laid and was very dependent on others to guide him. The Tribunal accepts he acted on legal advice in his response to the regulator.
  23. [42]
    The Tribunal considers that Dr Euston has shown great insight and remorse. He has repeatedly expressed regret, remorse and contrition for his previous behaviours.  As Dr New observed, “his thoughts, attitudes and behaviours have been conveyed in a manner that is sincere, consistent, plausible and persuasive.”
  24. [43]
    Against this background, the Health Ombudsman nevertheless maintained that, in order to deter others and maintain confidence in the profession, it was necessary to impose a sanction which did more than merely record misconduct on the public register but actually suspended the practitioner’s registration.

Case authorities

  1. [44]
    The Health Ombudsman relied on three earlier decisions of the Tribunal which, it was submitted, supported the imposition of a suspension, Nursing and Midwifery Board of Australia v Brereton,[8] Nursing and Midwifery Board of Australia v Smith,[9] and Nursing and Midwifery Board of Australia v Mundy.[10]
  2. [45]
    Those authorities provide examples of nursing practitioners who had been convicted of drug related charges, ranging from possession, production and extending to trafficking, and all of whom were drug users at the time. It was submitted that the matter of Brereton was a useful yardstick in the sanction process.  However, it is hard to draw any useful analogy as the practitioner’s addiction led to an acknowledged impairment.
  3. [46]
    In the cases of Smith and Mundy, periods of suspension of five months and three months respectively were imposed.  Mundy involved conduct which had a close connection to the practitioner’s work and the practitioner had a history of unprofessional conduct and substance abuse issues at work. Smith was a user of methylamphetamine at the time of her offending and previously, and had previous convictions for possession of prohibited substances.
  4. [47]
    On behalf of Dr Euston, the Tribunal was referred to the recent decisions of Health Ombudsman v NLM [11]and Health Ombudsman v Barber.[12]  NLM involved the stealing of Schedule 8 drugs from a small GP practice, the self-administration of the drugs stolen and the making of false entries in the drug register.  The offending was so different that any comparison is difficult; albeit the case is an indication of the alternative sanctions open to the Tribunal, including the imposition of a fine.  The Tribunal concluded that the element of general deterrence could be met through the imposition of a sanction other than suspension. The sanction imposed was a public reprimand together with the imposition of a fine of $5000.00.
  5. [48]
    The offending behaviour in Barber involved two counts of trafficking in dangerous drugs over two separate periods and possession of dangerous drugs.  The evidence was that Barber had engaged in trafficking for profit. While sentenced to terms of imprisonment, he was immediately released on parole. The Tribunal found professional misconduct but on the unique facts, considered that no period of suspension was justified and the imposition of a public reprimand was appropriate.

Conclusion

  1. [49]
    In all the circumstances, the Tribunal is not satisfied that any useful purpose will be served in imposing on Dr Euston a period of suspension.  Dr Euston is clearly held in high regard by his colleagues, is committed to his profession and a valuable contributor in the wider sense, in particular giving generously of his time in educating trainee anaesthetists.
  2. [50]
    Dr Euston has removed himself from any connection with or involvement in the recreational drug scene.  The Tribunal accepts that he has shown “clear proof” that he has “established himself as a different man.”[13]  There has been “a complete reformation of character and of behaviour.”[14] 
  3. [51]
    The Tribunal accepts his remorse is genuine, as are his expressions of regret and shame.
  4. [52]
    Dr Euston has already paid a significant price for his misconduct: since October 2017 he has been excluded from working as an anaesthetist at RBWH and as a consequence his teaching role at the University of Queensland has ceased, he has been subjected to monitoring by the Board for the last five and a half years and he has incurred the financial cost of complying with the strict testing regime imposed by the Board.  He has been subjected to publicity and has had periods when he has not worked.  Appropriately, he has engaged the services of a psychiatrist so as to develop coping mechanisms to deal with his emotional stress.
  5. [53]
    While none of those consequences can be treated as a formal sanction, it serves as a reminder to others as to some of the likely consequences which flow from this type of misconduct.
  6. [54]
    This is not a case where the need for personal deterrence would require the imposition of any further sanction.  The Tribunal accepts, however, that the seriousness of the conduct raises issues of general deterrence, both in terms of deterring other medical practitioners from using recreational drugs or being involved in the recreational drug scene and in terms of maintaining public confidence in the medical profession.
  7. [55]
    The Tribunal considers that the finding of professional misconduct, a public reprimand and a significant fine would satisfy the applicable disciplinary objectives, while having regard to the personal circumstances of Dr Euston and the gravity of the offending conduct.  The Tribunal does not consider that a practitioner must necessarily spend time out of practice in order to demonstrate the seriousness with which the Tribunal treats this kind of misconduct.
  8. [56]
    The maximum fine permitted by the legislature is $30,000.  In this case, so as to recognise the seriousness with which the Tribunal views the conduct, the Tribunal considers this would be an appropriate case for the imposition of the maximum fine.

Costs

  1. [57]
    Since the introduction of the HO Act, the issue of costs falls to be determined under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).  The starting position is that each party pays their own costs[15] unless “the interests of justice require” the tribunal make a costs order against a party.[16]
  2. [58]
    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 unnecessarily disadvantaging another party to the proceeding, 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. 
  3. [59]
    The tribunal is given a broad discretion and in the exercise of that discretion, the question for the tribunal has been formulated as:

… Whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” points so compellingly to a costs award that they overcome the strong contraindication against a costs order in s 100.[17]

  1. [60]
    The Court of Appeal in Medical Board of Australia v Wong described s 102(3) as “a basis for departing from the default position” that there be no order as to costs.[18]
  2. [61]
    The Health Ombudsman sought an order for its costs, relying on the approach taken by Dr Euston in contesting charge 1 in its entirety and his persistence in doing so despite ample opportunity to correct his position.  It is submitted that Dr Euston never sought to corroborate his version by filing affidavits, or calling evidence, from his former solicitor, his current solicitor and his counsel.  It was said the third day of the hearing, when his counsel was called, could have been adverted if Dr Euston had decided to corroborate his evidence earlier. 
  3. [62]
    It was further submitted that the allegation of personal use of methamphetamine was not outlandish in light of the uncorroborated submissions on behalf of Dr Euston at sentence, the sentencing remarks of his Honour Justice Byrne and the failure to corroborate his version.
  4. [63]
    In oral submissions, it was stated that if the Tribunal was against the submission that the Health Ombudsman ought to have his costs, then at the least the Ombudsman should have the costs the day when Mr Holt QC was called to give evidence. 
  5. [64]
    On behalf of Dr Euston, it was submitted that the interests of justice do not require a costs order in favour of the applicant.  It was said that almost all of the evidence, including the expert evidence and the evidence of Mr Holt QC, went to the issue of whether Dr Euston had used methamphetamine, and his denial of that fact.  It was submitted that the Health Ombudsman did not succeed in that regard. 
  6. [65]
    In terms of the allegations in Charge 1, the issues in dispute were whether the correspondence from his solicitor to AHPRA contained false statements.  In the letter, Dr Euston denied:
    1. (a)
      any knowledge of the existence of the drugs alleged to have been discovered at his dwelling;
    2. (b)
      that he has ever supplied dangerous drugs;
    3. (c)
      that he has ever been in possession of dangerous drugs;
    4. (d)
      that he has ever used ‘ice’.
  7. [66]
    The Tribunal found the statements in paragraphs (b) and (c) were false, namely the denial that he had ever supplied or been in possession of dangerous drugs.  Those statements were clearly false, given the criminal offences to which Dr Euston pleaded guilty.  The proof of the falsity of those statements did not one require the calling of additional evidence in these proceedings.  It did not require the calling of expert evidence.  It is true that it was unfortunate that the falsity of those statements was not conceded prior to Dr Euston giving evidence but, in the course of his evidence, Dr Euston properly admitted the falsity of the statements.  The Tribunal accepted that these false statements in the letter were made on the basis of legal advice received by Dr Euston. 
  8. [67]
    In terms of the statements in paragraphs (a) and (d), the Tribunal determined the denials by Dr Euston to be true.  It is true that Dr Euston did not produce the evidence or seek to corroborate his evidence in terms of his denial of ever using ‘ice’ until invited to do so by the Tribunal, the late calling of Mr Holt QC did cause delays in the proceedings and hence additional costs. 
  9. [68]
    The calling of Mr Holt QC, however, was necessitated by the vigorous pursuit by the Ombudsman of the allegation that Dr Euston had used ‘ice’.
  10. [69]
    Whilst there was a good basis for the pursuit of the allegation, ultimately the Tribunal found that part of the charge not proven.  The evidence of Mr Holt QC was not challenged by the Ombudsman.  The Tribunal accepted it and accepted the evidence of Dr Euston.
  11. [70]
    In any event, significant costs were incurred in the pursuit by the Health Ombudsman in obtaining medical evidence, including calling expert evidence, relating to the positive hair test result.  Ultimately, the Tribunal did not accept that the positive hair test result relied upon by the Ombudsman could be interpreted as evidence that Dr Euston had used methylamphetamine (ice).
  12. [71]
    The elements of Charge 3 and the admission of professional misconduct as a consequence of that conduct had always been admitted by Dr Euston.  Charge 2 was found by the Tribunal not to be proven.
  13. [72]
    In these circumstances, and particularly having regard to the findings made by the Tribunal and the evidence accepted by the Tribunal, the Tribunal does not consider the interests of justice require the making of an order for costs. 

Orders

  1. [73]
    Accordingly, the Tribunal orders that:
  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Dr Euston has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Dr Euston is reprimanded.
  3. Pursuant to s 107(3)(c) of the Health Ombudsman Act 2013 (Qld), Dr Euston is to pay a fine of $30,000 to the Health Ombudsman, to be paid within 28 days of the date of this order, or such other time as may be agreed between the parties.
  4. There be no order for costs.

Footnotes

[1]  Australian Health Practitioner Regulation Agency.

[2]  [1994] NSWCA 199, 29.

[3] Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283, [8].

[4]  See, for example, Klein v New South Wales Bar Association (1960) 104 CLR 186; New South Wales Bar Association v Evert [1968] HCA 20; Medical Board of Australia v Dollar [2012] QCAT 271, [30].

[5] Healthcare Complaints Commission v King [2013] NSWMT 9, [27]; Ooi v Medical Board of Queensland [1997] 2 Qd R 176, 177.

[6] Pharmacy Board of Australia v The Registrant [2015] QCAT 477, [30].

[7]  Report of Dr New dated 20 January 2019.

[8]  [2011] QCAT 578.

[9]  [2016] SAHPT 4.

[10]  [2012] SAHPT 5.

[11]  [2018] QCAT 164.

[12]  [2017] QCAT 431.

[13] Ex parte Tziniolis; re Medical Practitioners Act (1996) 67 SR (NSW) 448 at 461.

[14]  Ibid.

[15]  QCAT Act, s 100.

[16]  QCAT Act, s 102(1).

[17] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29] per Wilson J.

[18]  [2017] QCA 42, [35].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Gregory Scott Euston (No. 2)

  • Shortened Case Name:

    Health Ombudsman v Euston (No. 2)

  • MNC:

    [2019] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Sheridan DCJ

  • Date:

    06 Sep 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.