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Health Ombudsman v CLT[2019] QCAT 378

Health Ombudsman v CLT[2019] QCAT 378

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v CLT [2019] QCAT 378

PARTIES:

HEALTH OMBUDSMAN

(applicant)

 

v

 

CLT

(respondent)

APPLICATION NO/S:

OCR012-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 September 2019

HEARING DATE:

9 October 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:
Mr M Halliday

Ms N Cawcutt

Dr G Neilson

ORDERS:

The Tribunal orders that:

  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. There be no order as to costs.

The Tribunal directs that:

  1. The parties file any application to vary the terms of the non-publication order made on 12 October 2018 and any submissions in support of such matters as to the de-identification of all or part of these reasons by 20 September 2019.
  2. This decision including the reasons for the decision shall not be published other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURES FROM ACCEPTED STANDARDS – where pharmacist misappropriated Schedule 8 controlled drugs over a nine month period – where pharmacist’s admissions of misappropriation were misleading – where pharmacist admitted to self-administration after expert report provided – where pharmacist suffered from impairment at time of conduct and at time of initial Tribunal hearing – where subsequent evidence as to impairment provided – where pharmacist no longer registered – where admitted that pharmacist engaged in professional misconduct – whether pharmacist’s conduct amounts to professional misconduct – whether appropriate sanction was a reprimand – whether the sanction should include a further period of disqualification from re-applying – whether costs order appropriate

Health (Drugs & Poisons) Regulation 1996 (Qld) s 24

Health Ombudsman Act 2013 (Qld)  s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48,  s 100, s 102

Attorney-General v Bax (1999) 2 Qd R 9, cited

Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103, cited

Health Care Complaints Commission v Do [2014] NSWCA 307, cited

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, cited

Legal Services Commissioner v Madden (No 2) [2008] QCA 301, cited

NSW Bar Association v Meakes [2006] NSWCA 340, cited

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

Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited

 

APPEARANCES &

REPRESENTATION:

 

Applicant:

L J Marshall, instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    The Health Ombudsman referred disciplinary proceedings to the tribunal comprising five charges of disciplinary misconduct against the respondent on 12 January 2017 pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).  An amended referral was filed on 19 June 2017.
  2. [2]
    The amended referral relates to six charges. They are:
    1. (a)
      Charge 1 – Between 23 April 2013 and 9 February 2014, the respondent misappropriated Schedule 8 controlled drugs, namely oxycodone, from the dispensary of a pharmacy located in a regional centre in the State of Queensland (the Pharmacy);
    2. (b)
      Charge 2 – Between 23 May 2013 and 9 February 2014, the Respondent made false entries in the Controlled Drugs Register kept by the Pharmacy;
    3. (c)
      Charge 3 – Between 23 April 2013 and 9 February 2014, the respondent generated false dispense records, namely Patient Narcotic Script records, in the computerised dispensing database of the Pharmacy;
    4. (d)
      Charge 4 – Between 25 April 2013 and 31 January 2014, the respondent generated false electronic prescriptions for Schedule 8 controlled drugs, namely oxycodone, using the computerised software of the Pharmacy;
    5. (e)
      Charge 5 – Between 21 May 2013 and 14 August 2013, the respondent unlawfully supplied Schedule 8 controlled drugs, namely oxycodone, to [the respondent’s] partner, for the [respondent’s partner’s] consumption, which the respondent had misappropriated from the Pharmacy; and
    6. (f)
      Charge 6 – Between 23 April 2013 and 9 February 2014, the respondent self-administered Schedule 8 controlled drugs namely, oxycodone, which had been misappropriated from the Pharmacy.
  3. [3]
    The amendment to the original referral inserted an additional charge of misappropriating for the purpose of self-administering and amended the time period of the period of misappropriation and supply in charge 5.
  4. [4]
    In respect of each charge, it was alleged that the respondent engaged in professional misconduct, or in the alternative, unprofessional misconduct, as those terms are defined in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law); it being alleged that if there is more than one instance of unprofessional misconduct when considered together amounts to professional misconduct.
  5. [5]
    The matter proceeded before the Tribunal by way of a statement of agreed facts.  There was no agreement as to sanction.
  6. [6]
    The bringing and pursuit of the referral proceedings has been complicated by the fact that the respondent was found to be impaired and became part of the impairment program of the Pharmacy Board of Australia (Board).

Relevant facts and circumstances

Background facts

  1. [7]
    The respondent obtained a Bachelor of Pharmacy from the University of Queensland in 1992 and was first registered with the Pharmacy Board of Queensland (as it was then) in 1993.  On 1 July 2010, the respondent obtained general registration from the Board as a registered pharmacist.
  2. [8]
    Between 1992 and 2004, the respondent worked in a full time capacity, initially as an intern pharmacist and, from 1993 onwards, as a registered pharmacist.  Between 2000 and 28 June 2014, the respondent was employed as a registered pharmacist at a pharmacy in a regional centre.  Between 2007 and 8 February 2014, the respondent also worked one to three days per week in a part time locum capacity at another pharmacy. In that capacity, the respondent was the sole pharmacist on duty.
  3. [9]
    The respondent has not worked as a registered pharmacist since 7 March 2014 and at the time of the hearing in 2018 was unemployed.
  4. [10]
    The respondent does not have a criminal history nor has the respondent previously been the subject of any disciplinary charges by the Board or the Health Ombudsman.

The offending conduct

  1. [11]
    The respondent has admitted, as outlined in the statement of agreed facts, that for a period of nine months and 16 days between 23 April 2013 and 9 February 2014 (the relevant period) the respondent misappropriated various strengths and quantities of oxycodone (branded as ‘Oxycontin’ and ‘Endone’), a Schedule 8 dangerous drug, from the respondent’s place of employment without a lawful prescription and without permission or lawful authority.
  2. [12]
    Over the relevant period, a total of 724 oxycodone tablets were misappropriated; an average of 2.5 tablets per day.
  3. [13]
    While the respondent primarily misappropriated the oxycodone for self-consumption, the respondent also misappropriated a quantity for the respondent’s partner after undergoing surgery in 2013. For about a week prior to the surgery and a week after the surgery, between 22 May 2013 and 7 June 2013, the respondent supplied 20mg of oxycodone twice a day to the respondent’s partner without a lawful prescription or authority. For a further approximately two months, up until early August 2013, but not beyond 14 August 2013, the respondent supplied 20mg of oxycodone to the respondent’s partner, at night, on an as needed basis but not every day, without lawful prescription or other lawful authority. The respondent did so in order to assist the respondent’s partner in managing pain before and after surgery.
  4. [14]
    In order to conceal the misappropriation of the oxycodone over the relevant period the respondent:
    1. (i)
      made 19 false entries in the pharmacy’s Controlled Drugs Register book representing purported dispense transactions in Oxycontin CR 20mg, Oxycontin CR 40mg and Endone 5mg for the oxycodone [the respondent] possessed;
    2. (ii)
      generated 17 false electronic dispense records in the pharmacy’s Patient Narcotic Script record database, to correspond with the false entries in the  Controlled Drugs Register book, which falsely recorded that the oxycodone was dispensed lawfully;
    3. (iii)
      generated six false pharmacy copies of prescriptions and repeat authorisations to falsely indicate that lawful prescriptions were made in respect of the false dispense records.[1]
  5. [15]
    These entries, records and pharmacy copies were made out mostly in the respondent’s partner’s name, with some made out in the respondent’s own name.  Two of the entries in the Controlled Drugs Register book were purported to have been made in the name of a patient of the pharmacy.  In making full admissions to the charges of misconduct, at the oral hearing the respondent said that they did not recall using the patient’s name.
  6. [16]
    All those entries, records and pharmacy copies were false.  There was no lawful prescription issued by the doctor named as the prescriber to the person recorded as the recipient.
  7. [17]
    The respondent’s employer noticed some irregularities in the records and confronted the respondent on 14 February 2014.  The respondent confessed to forging the Schedule 8 scripts for the purpose of supplying the drugs to the respondent’s partner.  The respondent ceased working at the pharmacy.
  8. [18]
    The respondent’s employer notified the Drugs Dependency Unit (DDU) of Queensland Health and an investigation was commenced and subsequently notified the Australian Health Practitioners Regulation Agency (AHPRA).

Queensland Health Investigation

  1. [19]
    On 25 February 2014, the respondent voluntarily attended a recorded interview with investigators from Queensland Health.  During that interview the respondent admitted to the misappropriation of drugs but stated that all of the drugs were given to the respondent’s partner. The respondent denied self-administering any of the misappropriated oxycodone.  This information was false and misleading because the respondent did in fact self-administer a large quantity of the misappropriated drugs.
  2. [20]
    On 7 March 2014, the respondent provided an undertaking to Queensland Health that they would not work as a pharmacist.[2]  The respondent made a written submission to Queensland Health on 3 April 2014 repeating statements to the effect that the respondent had provided all of the misappropriated drugs to the respondent’s partner for pain management after shoulder surgery.[3]  That submission was again false and misleading.
  3. [21]
    The respondent’s Schedule 4 and Schedule 8 restricted drugs endorsements as a pharmacist were cancelled by Queensland Health on 8 April 2014 for a period of three years.[4] The effect of the cancellation was that the respondent could not obtain, prescribe, dispense, sell, possess or otherwise deal with all drugs falling within Schedules 4 and 8.
  4. [22]
    By notice, dated 7 May 2014, the respondent applied to the Queensland Civil and Administrative Tribunal for a review of that decision on the basis that the preclusion period of three years was excessive and did not appropriately reflect mitigating factors.
  5. [23]
    In the course of that review, the respondent filed an affidavit in the tribunal dated 17 February 2016 confirming that the medications unlawfully obtained were supplied to the respondent’s partner who had a genuine medical condition.  The statements contained in that affidavit were false.
  6. [24]
    The respondent’s partner gave a sworn affidavit dated 17 February 2016 to the tribunal outlining how the Oxycodone which was taken had been obtained “from [the respondent] over several months.”[5] 
  7. [25]
    The submissions filed in the tribunal were also based on the same false premise.  Subsequent submissions also stated that the respondent was not impaired at the time of the conduct. Given the responent’s dependency on oxycontin at that time, those statements were false.
  8. [26]
    In giving the tribunal’s decision, The Honourable JB Thomas determined that the respondent was no longer suitable to obtain, prescribe, dispense, sell, possess or otherwise deal with Schedule 8 and Schedule 4 drugs but held that the respondent may not apply in writing to have the decision to repeal those endorsements for a preclusion period of two years; effectively allowing for a reduction of a year over the Chief Executive’s original decision.

AHPRA/Health Ombudsman Investigation

  1. [27]
    On 28 February 2014, the respondent was sent a notification from AHPRA and given an opportunity to provide written submissions by 14 March 2014. In response, solicitors acting on behalf of the respondent requested that the assessment of the notification be placed in abeyance pending the Queensland Health investigation, or alternatively an extension of time be granted until 4 April 2014. 
  2. [28]
    By letter dated 19 March 2014, notice was given of an intention to take immediate action.  The letter attached proposed conditions, including a proposed condition not to practice.
  3. [29]
    On 1 April 2014, the respondent agreed to enter into an undertaking with the Board, the terms of which included that the respondent “will not practice as a pharmacist until I have received approval to do so in writing from the Board.”  It was agreed the terms of the undertaking would be entered in the National Register. 
  4. [30]
    By letter dated 1 July 2014 AHPRA confirmed that it was commencing an investigation into the respondent’s conduct, including the conduct in failing to notify the Board of the cancellation of the respondent’s endorsements and asked for written submissions.  In submissions dated 18 July 2014, the respondent repeated the false and misleading statement as to the oxycodone’s misappropriation to the respondent’s partner without prescription.[6]  The respondent provided a copy of the submissions made to Queensland Health. The respondent stated that they continue “to think about and regret my conduct every day.”
  5. [31]
    On 9 September 2014, given the belief formed by the Board, the issue of the respondent’s conduct was referred by the Board to the Health Ombudsman.  The matter was retained by the Health Ombudsman.
  6. [32]
    In the course of the investigations by the Health Ombudsman, the previous positions taken by the respondent and the respondent’s partner were maintained up until the filing of the statement of agreed facts in July 2017.  In the statement of agreed facts, the respondent admitted that the misappropriated drugs were primarily for self-use.  The statement of agreed facts was signed shortly after Dr Prior had provided an expert report to the Health Ombudsman in which he expressed the view that the respondent was likely to have been self-administering the drugs.[7]

Impairment

  1. [33]
    On 24 July 2015, under s 91 of the HO Act, the Health Ombudsman referred to AHPRA the issue of whether the respondent had a health impairment, namely a substance abuse disorder, or dependency that did or was likely to detrimentally affect the respondent’s capacity to practice.[8]
  2. [34]
    By letter dated 14 August 2015, the respondent maintained that the back condition and medication did not affect the respondent’s ability to work.
  3. [35]
    On 17 December 2015, the Board considered the matter and formed a reasonable belief that the respondent has or may have a health impairment and decided to impose conditions on the respondent’s registration under s 178(1)(a) and s 178(2)(c) of the National Law.  Those conditions replaced the undertaking the respondent had voluntarily given on 1 April 2014.  The Health Ombudsman was notified of the decision by letter dated 11 January 2016.
  4. [36]
    The conditions, amongst other things, prohibited the respondent from returning to practice without written approval to do so from the Board and required the respondent to attend for treatment by a medical practitioner of the respondent’s own choice experienced in pain management and to authorise the exchange of information between the Board and the respondent’s treating practitioners, including information about the respondent’s fitness to practise.
  5. [37]
    The respondent’s long term general practitioner (General Practitioner) was required to provide reports to AHPRA.  In his report dated 20 June 2016, the General Practitioner stated that in his opinion “[The respondent] is not fit to practice due to [the respondent’s] Oxycontin dependency and persistent lower back pain”. The General Practitioner continued to provide reports to AHPRA at three monthly intervals.
  6. [38]
    The reports provided stated that the respondent continued to suffer from an Oxycontin dependency, chronic back pain and was unfit to practice.[9] It is clear from the reports that there has been ongoing conversations between the General Practitioner and the respondent about pain management for a very long time.
  7. [39]
    As at the date of hearing on 18 October 2018, it was not disputed that the opinion of the General Practitioner remained unchanged.
  8. [40]
    At that time, the position of the Health Ombudsman, as had been outlined in its written submissions, was that it had not referred a charge of impairment and was not seeking a finding from the Tribunal that the respondent had an impairment.  It was submitted that the respondent’s impairment was being dealt with by AHPRA and will be finalised by AHPRA.
  9. [41]
    At that time, there was evidence before the Tribunal from the respondent’s treating doctor of the respondent’s impairment.  Consistent with the evidence at that time, the Tribunal considered it would have had to find the respondent had an impairment.
  10. [42]
    That evidence has now changed.  By letter dated 19 July 2019 directed to AHPRA, The General Practitioner  stated:

[The respondent] was “admitted to Buderim Private Hospital on 11/06/19 and underwent a full detoxification and withdrawal from Oxycontin. [The respondent] was discharged on 24/06/19 and was completely off all narcotic medication.

I have seen [the respondent] over the past month and [the respondent] is now a healthy person with no reliance at all on any medication.

It is my medical opinion that [the respondent] is now medically and mentally fit to resume practicing as a pharmacist and has no impairment that would affect [the respondent’s] work.

  1. [43]
    A letter dated 22 July 2019 was also provided to AHPRA from a consultant psychiatrist and pain medicine physician.  The letter stated that under his care the respondent “undertook a detoxification with the assistance of Ketamine off [the respondent’s] prescribed Oxycontin.  [The respondent] was discharged on no opioids and remains off opioids with no cravings or use.”  He also stated that:

As part of [the respondent’s] treatment plan I have advocated that [the respondent] return to work in [the respondent’s] trained vocation (pharmacist). I understand [the respondent] is no longer registered but I fully support [the respondent’s] re-application and return to work as a pharmacist.

  1. [44]
    At a subsequent hearing in the matter August 2019, by consent, those reports were tendered as exhibits before the Tribunal.[10]  The reports were provided to the assessors.  The effect of the reports is that the General Practitioner no longer considers the respondent to be impaired and the respondent’s treating psychiatrist and pain management physician considers that the respondent can return to work as a pharmacist.
  2. [45]
    By the date of this hearing, however, the status of the respondent’s registration had changed.  In December 2018, the respondent failed to renew registration and as a result on 30 January 2019, the respondent’s registration lapsed.  In further submissions filed on 23 August 2019, as a result of that change the Ombudsman submitted that the Tribunal has no power to make any finding as to impairment.
  3. [46]
    Given the new evidence, whether or not the Tribunal has power to make a finding, the Tribunal does not consider any finding should be made.  In the circumstances, the question of the respondent’s impairment can appropriately be dealt with by Board.

Categorisation of Conduct

  1. [47]
    In respect of each charge, it is alleged that the respondent’s conduct amounts to professional misconduct.  The term professional misconduct is defined in s 5 of the National Law.  Sub-paragraphs (a) and (b) are defined by reference to unprofessional conduct.  Sub-paragraph (c) defines the term as being conduct inconsistent with the respondent being a fit and proper person to hold registration in the profession.
  2. [48]
    Whilst the referral relied on all three limbs, the submission made on behalf of the Health Ombudsman was that the conduct fell within sub-paragraph (a), namely: “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.”
  3. [49]
    The offending conduct of the respondent was multifaceted, having as its origins the misappropriation of controlled drugs over a nine month period.  The misappropriation did not involve a single lapse of judgement, rather, it comprised multiple instances, over a nine month period.
  4. [50]
    The conduct extended to the supply of drugs to another person without a prescription which had the potential for serious adverse consequences.
  5. [51]
    As submitted by the Ombudsman, the charges relating to the respondent’s dealing with drugs of addiction alone would fall within the definition of professional misconduct.[11]
  6. [52]
    The respondent’s conduct clearly breached the various professional codes and guidelines for pharmacists.
  7. [53]
    The conduct, as particularised in charges one to six, fell substantially below the standard expected of the respondent having regard to the respondent’s training and experience.  It was conduct that amounted to professional misconduct as defined in s 5 of the National Law, and is appropriately admitted as such.

Sanction

  1. [54]
    The Tribunal, having found that the respondent has behaved in a way that constitutes professional misconduct, must decide the appropriate sanction to be imposed.[12]
  2. [55]
    The guiding principle of the Tribunal in determining sanction is protection not punishment.[13] This jurisdiction is exercised to protect the public, uphold standards of practice and to maintain public confidence in the profession.[14]
  3. [56]
    It is important for the Tribunal to take into account the maintenance of professional standards in the eyes of the public and the need to deter the respondent and others from engaging in similar conduct.[15] A denunciation of the misconduct “operates as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice”.[16]
  4. [57]
    Demonstrations of remorse and insight into the conduct will be important considerations.[17]

Submissions

  1. [58]
    In its written submissions filed for the purposes of the hearing held on 9 October 2018, the position of the Health Ombudsman was that cancellation of the respondent’s registration is the appropriate sanction for the misconduct with a period of disqualification from re-applying for registration for a period of 12 months. 
  2. [59]
    The respondent, in making submissions, stated that it was hoped cancellation would not be necessary as the respondent was truly sorry and had now been out of paid employment for four and a half years.  In making submissions, the respondent accepted that the respondent was not currently in a position where the respondent could return to work because of the impairment.  The respondent stated that the General Practitioner was hoping the position would be reached by “early next year (meaning early 2019) where the respondent would be “100 percent off the Oxycontin.”
  3. [60]
    The Health Ombudsman submitted that the Tribunal must have some regard to the period from 1 April 2014 when the respondent gave the undertaking to the Board not to practise.  The Ombudsman conceded that it was “appropriate that the tribunal consider the nonpractice period the respondent has been subject to when determining the appropriate orders to be made in this matter.”  However, in oral submissions it was said, that the length of time is “in part because of the practitioner’s lack of candour and dishonesty in coming clean about [the respondent’s] impairment.”  
  4. [61]
    Further, the Ombudsman submitted there was a distinction between the period when the respondent had voluntarily ceased practising on 1 April 2014 and the period after December 2015 when the Board imposed conditions on the respondent’s registration arising from the finding of an impairment.  It was submitted that the Tribunal should not take into account the subsequent period when considering sanction as that period was related to the respondent’s impairment.  It was submitted that the previous period of 20 months from April 2014 to December 2015 could be taken into account.  It was submitted that period of voluntary nonpractice could be treated as an effective suspension.[18] 
  5. [62]
    The Health Ombudsman referred to the fact that the misappropriation and falsification of the pharmacy records involved conscious repeated decisions to act in an unlawful manner in the respondent’s dealings with controlled drugs over a period of nine months.  It was said the unlawful supply to the respondent’s partner, without medical supervision, posed a serious risk to the respondent’s partner.
  6. [63]
    It was submitted that the respondent’s conduct demonstrated a level of dishonesty as part of the misappropriation process through the falsification of dispensing records and prescriptions and the respondent consistently lied during the course of the investigation process.  It was said that it was only on the presentation of the independent expert report of Dr Prior midway through the referral proceedings that the respondent admitted to the self-administration of a large proportion of the oxycodone. That led to the respondent signing the statement of agreed facts in July 2017.
  7. [64]
    It was submitted that the respondent’s course of conduct throughout these proceedings and in the dealings with Queensland Health, AHPRA, the Health Ombudsman and this Tribunal “demonstrates appalling self-serving dishonesty.”  It was submitted that the extent of the respondent’s dishonesty would cause the Tribunal to have concerns as to the respondent’s insight and remorse.
  8. [65]
    It was submitted that the respondent’s attempts to mislead by giving false information to the Health Ombudsman is “clearly suspendible conduct.”[19]  It was said, “In the respondent’s circumstances, where the principal conduct warrants suspension or cancellation, ‘[m]isrepresenting the truth in an attempt to conceal and avoid responsibility for misconduct is rightly regarded as an aggravating circumstance of the initial lapse’, such that the only appropriate sanction is cancellation.”

Case Authorities

  1. [66]
    In support of the submission for cancellation and a 12 month period of disqualification from re-applying, the Ombudsman relied in particular on the case authorities of Pharmacy Board of Australia v Christie,[20] Health Care Complaints Commission  v Orr,[21] Health Care Complaints Commission v Kahli Bard,[22] Pharmacy Board of Australia v Dougherty[23] and Pharmacy Board of Australia v Chrenowski.[24]  Those authorities give general support to the submissions made for cancellation and some period of disqualification.

Discussion

  1. [67]
    The misappropriation giving rise to these proceedings took place over five years ago. The respondent has not practised since 1 April 2014.  That period of nonpractice is related to both the misconduct the subject of these referral proceedings and the respondent’s impairment.  The impairment was such that the respondent’s General Practitioner considered that the respondent had remained unfit to practise up until his report dated 19 July 2019.
  2. [68]
    In submissions the Health Ombudsman sought to draw a distinction between the period of nonpractice as a result of what was described as the respondent’s voluntary withdrawal from practise and that period which was related to the impairment.  It was on that basis that it was initially submitted, by reference to the case authorities, a further period of disqualification from re-applying was necessary.
  3. [69]
    In this type of case, where there is a clear interplay between the misconduct and the impairment, it is difficult and somewhat artificial to treat certain periods as effective suspension and not others.  Dr Prior considers that it is possible the respondent was already dependent on the opiates in April 2013, when the responent commenced misappropriating the Schedule 8 drugs.  Dr Prior considers that the respondent was probably dependent on opiates in the form of Panadeine Forte prior to starting on Oxycontin.  Significantly, he noted that there is an underlying chronic pain syndrome related to the respondent’s lower back.
  4. [70]
    There is no suggestion that any person, including the respondent’s partner, suffered as a consequence of the respondent’s conduct.
  5. [71]
    That history does not excuse the respondent’s behaviour, though it gives context; including context to the respondent’s deceitful behaviour in the dealings throughout the various investigations.  It was, as submitted by the Health Ombudsman “appalling self-serving dishonesty” and indicative of a lack of insight and remorse, at that time.
  6. [72]
    As the Health Ombudsman stated in its submissions, the maintaining by the respondent of the lie is in some respects a more serious reflection on the respondent’s character than the principal misappropriation of drugs in this matter; but it was undoubtedly clearly linked to the respondent’s drug dependency, in respect of which the respondent was slow to obtain the necessary treatment.   It was only with the presentation of Dr Prior’s expert report that the respondent fully disclosed the entire truth of the misconduct.
  7. [73]
    The totality of the conduct over such an extended period was such as to warrant the Tribunal ordering the cancellation of the respondent’s registration.
  8. [74]
    By the time the matter came on for hearing in October 2018, the Tribunal considers that the respondent had both insight and remorse.  In making submissions on the respondent’s own behalf, the respondent stated, “There hasn’t been a day gone by in the last four and a half years where I haven’t regretted my actions.  I thought I was above the law and I can’t believe I did it, but I did and I shouldn’t have.”  The respondent said, “I was delusional with regard to…what I was doing...you’d think I’d know better… I just hope you can see that I am truly sorry.”
  9. [75]
    The respondent was continuing to work closely with the respondent’s treating practitioner to make the respondent opiate free.  The respondent stated, “I’m committed to reducing my dosage because I’m committed to getting back to work and supporting my family.” 
  10. [76]
    By the time of the hearing in October 2018, the Tribunal was of the view that, in all the circumstances, in addition to the cancellation of the respondent’s registration, an additional period of disqualification from re-applying was not warranted.

Post hearing evidence and submissions

  1. [77]
    In the meantime, however, the registration of the respondent has lapsed.  It is accepted that the lapse of the registration of the respondent had the effect that there was no longer any registration for the Tribunal to cancel.
  2. [78]
    The Health Ombudsman submitted that, as a result, the order of the Tribunal should be a reprimand together with a period of disqualification from re-applying.[25]  It was submitted that, in the changed circumstances, a period of disqualification of one to three months was sought to serve as a personal deterrent.  In oral submissions reference was made to the need for a period of disqualification to ensure the National Register properly reflects the seriousness of the misconduct.
  3. [79]
    The Tribunal is not so persuaded.  There is no evidence which would alter the view formed by the Tribunal, as at the date of the hearing in October 2018, that an additional period of disqualification was not warranted. 
  4. [80]
    The Tribunal confirms its position that, if the respondent remained registered, an order would have been made for the cancellation of that registration.  In the absence of being able to make an order for cancellation, the Tribunal accepts that it is appropriate an order is made that the respondent is reprimanded.  The respondent’s misconduct was a very serious transgression.
  5. [81]
    In the further submissions, given that the respondent was reported as being opioid free, the Health Ombudsman no longer maintained the previous submissions, which the Tribunal had not accepted, regarding insight and remorse.  The Health Ombudsman now acknowledged the steps the respondent had taken to rehabilitate and the acceptance by the respondent of the wrongfulness of the conduct and the fact of being sorry.
  6. [82]
    The Tribunal’s view is that if the National Register records the finding of professional misconduct, the giving of a reprimand and provides the appropriate link to the Tribunal’s reasons, the extent of the respondent’s misconduct will be apparent as will the consequences which follow.

Costs

  1. [83]
    At the subsequent hearing of the matter, apart from dealing with the further medical evidence which had been provided after the hearing in October 2018, the Tribunal indicated to the parties that subject to any further submissions which may be made, the orders the Tribunal was proposing to make was to cancel the registration of the respondent, subject to submissions as to its power given that the respondent’s registration had now lapsed, with no period of disqualification from reapplying.  The parties requested, and directions were made permitting, each party to provide further written submissions.  In the process, the Tribunal requested that the parties include in any further submissions, submissions as to costs.
  2. [84]
    In its written submissions, the Ombudsman sought the costs of the report of Dr Prior in the amount of $3,740 and an order, “If necessary the parties be at liberty to make further submissions on the question of costs and file evidence, once the tribunal has delivered its decision and reasons.”  It is unclear as to why the Health Ombudsman would wish to make further submissions, particularly as the Tribunal indicated at the further hearing on 16 August 2019 its likely position as to its finding and sanction and that position has not changed.  In requesting the parties to make submissions as to costs, the Tribunal had not intended that this would be an ongoing process.
  3. [85]
    There is, however, merit in the submissions made by the Health Ombudsman that the conduct of the respondent was such as to require, in the interests of justice, a departure from the general rule that each party to a proceeding bear the parties own cost.[26] 
  4. [86]
    The Health Ombudsman referred in particular to s 102(3)(a) of the QCAT Act which provides:

“(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—

  1. (a)
    whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g).”
  1. [87]
    One of the factors in s 48(1), as referred to by the Health Ombudsman, is sub-paragraph (e) which provides “attempting to deceive another party or the tribunal.”
  2. [88]
    Section 102(3) details other matters to which the tribunal may have regard in considering whether the interests of justice require a costs order.  Such other matters include 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.  The Tribunal is given a broad discretion.
  3. [89]
    In relying on the conduct of the respondent, the Health Ombudsman referred to the respondent’s conduct in continuing to maintain the denial to self-administering any of the controlled drugs which the respondent had misappropriated.  During the investigation stage, the respondent made a submission to the Office of the Health Ombudsman on 13 November 2015 in which the respondent maintained that the respondent had misappropriated the controlled drugs to give to the respondent’s partner to help manage shoulder pain post reconstructive surgery.  On 19 February 2016, the respondent had provided the Health Ombudsman with a statement from the respondent’s partner that was also misleading. 
  4. [90]
    As a result, the Health Ombudsman engaged Dr Prior to give expert opinion based on the submissions made by the respondent.  On 22 March 2017, Dr Prior’s opinion was provided to the respondent.  The Health Ombudsman subsequently amended the referral to include a charge of self-administration. 
  5. [91]
    It was not until 17 July 2017, upon signing the statement of agreed facts, the respondent admitted to misappropriating controlled drugs for self-administration. 
  6. [92]
    The Health Ombudsman submits that had the respondent admitted culpability in the respondent’s initial submissions, the expert report of Dr Prior would not have been necessary and the matter would have proceeded through the Tribunal more expeditiously. 
  7. [93]
    Ordinarily, that conduct would have justified the making of an order for the respondent to pay costs in the amount of $3,740. 
  8. [94]
    However, in the respondent’s submissions, it is said the respondent has not worked outside the home for the past 5 years 5 months, the respondent’s partner had a major stroke on Australia Day 2018 and the respondent is in a position of financial hardship. 
  9. [95]
    Given the respondent’s financial and personal circumstances, the Tribunal does not consider the interests of justice require it to make the order. It is appropriate for the Tribunal to make an order that there be no order as to costs.

Non-publication order

  1. [96]
    There is currently a non-publication order in relation to these proceedings which extend to the publication of the medical records of the respondent, or any family member of the respondent.
  2. [97]
    In the material tendered by the parties as evidence in these proceedings, and in these reasons, reference has been made to conclusions reached by the respondent’s treating practitioners and by the expert, Dr Prior, as to the respondent’s medical conditions.
  3. [98]
    At the time the various reports were provided to the Tribunal, 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.
  4. [99]
    The Tribunal raised the issue with the parties at the further hearing on 16 August 2019 and it was agreed that these reasons would first be published non de-identified solely to the parties and the Board, but not more widely, and that the parties be given liberty to make further submissions with respect to the de-identification of all or part of these reasons.  Directions will be made for the provision of submissions in relation to that issue. 

Orders

  1. [100]
    Accordingly, the orders to be made by the Tribunal are:
  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
  1. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  1. There be no order as to costs.

The directions to be made by the Tribunal are:

  1. The parties file any application to vary the terms of the non-publication order made on 12 October 2018 and any submissions in support of such matters as to the de-identification of all or part of these reasons by 20 September 2019.
  1. This decision including the reasons for the decision shall not be published other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision.

Footnotes

[1]Statement of agreed facts page 3.

[2]The undertaking was given to Chief Executive of the Environmental Health Unit of the Queensland Health Department.

[3]Agreed statement of facts, [31].

[4]By the delegate of the Chief Executive of Queensland Health by operation of s 24 of the Health (Drugs & Poisons) Regulation 1996 (Qld).

[5]Statement of agreed facts [42], [43].

[6]Statement of agreed facts [35], [37], [40].

[7]Report of Dr Nigel Prior dated 20 March 2017.

[8]Applicant submissions, [26].

[9]Reports dated 23 February 2018 and 28 May 2018.

[10]Exhibits 11 and 12 respectively.

[11]  Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103, [256].

[12]  HO Act, s 107(3).

[13]  Legal Services Commissioner v Madden (No 2) [2008] QCA 301, [399]; Health Care Complaints   Commission v Litchfield (1997) 41 NSWLR 630, 637.

[14]  Ooi v Medical Board of Queensland [1997] 2 Qd R 176, 177.

[15]  Attorney-General v Bax (1999) 2 Qd R 9, 14 [14-21]; NSW Bar Association v Meakes [2006] NSWCA 340.

[16]  Health Care Complaints Commission v Do [2014] NSWCA 307, [35]. 

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

[18]  See Health Ombudsman v MacDonald [2016] QCAT 473, [27].

[19]  Medical Board of Australia v Shah [2016] QCAT 158, [6].

[20]  [2016] QCAT 291.

[21]  [2015] NSWCATOD 124.

[22][2013] NSWNMT 15.

[23][2014] SAHPT 6.

[24][2011] SAHPT 26.

[25]Written Submissions filed for the Health Ombudsman dated 23 August 2019.

[26]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 100, s 102.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v CLT

  • Shortened Case Name:

    Health Ombudsman v CLT

  • MNC:

    [2019] QCAT 378

  • Court:

    QCAT

  • Judge(s):

    Sheridan J

  • Date:

    03 Sep 2019

Appeal Status

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

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