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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Butler  QCAT 221
Director of proceedings on behalf of the health ombudsman
adam maurice butler
Occupational regulation matters
20 April 2020 (ex tempore)
On the papers
Judicial Member McGill SC
Mr M Halliday
Dr E Chew
Dr D Khursandi
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – Self medication – opiate addiction – writing dishonest prescriptions – response to painful condition – self-disclosure – treatment of condition – successful return to practice – characterisation of conduct – sanction
Health Ombudsman Act 2013 (Qld) s 103, s 104, s 107
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate  HCA 46
Health Ombudsman v White  QCAT 36
Medical Board of Australia v de Silva  QCAT 63 Medical Board of Australia v Martin  QCAT 376
Director of Proceedings on behalf of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. Under s 126 of that Act, I constitute the Tribunal. I am sitting with assessors, Dr Chew, Dr Khursandi and Mr Halliday in accordance with the Act: s 126. Their function is to advise me in relation to questions of fact: s 127. The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law Qld.
- The applicant alleges that the respondent engaged in professional misconduct, or, in the alternative, unprofessional conduct, in that while registered and practising as a medical practitioner: Ground 1, between 30 September 2014 and 1 August 2016, he dishonestly obtained a Schedule 8 controlled drug, Oxycodone, for his own personal use. Ground 2, between 22 April 2015 and 7 July 2016, he dishonestly obtained a Schedule 8 controlled drug, Oxycodone, for his own personal use. Ground 3, on 5 November 2015 he dishonestly obtained a Schedule 8 controlled drug, Oxycodone, for his own personal use.
- The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has been legally represented in these proceedings, admits the grounds alleged and that the conduct in question amounts to professional misconduct. The parties have provided joint written submissions to the Tribunal. The hearing proceeded on the papers in accordance with the Queensland Civil and Administrative Tribunal Act 2009, section 32.
- The Tribunal accepts the facts set out in the agreed statement of facts. They may be summarised as follows: the respondent was born in 1965 and is now 54. He was first registered as a medical practitioner in 1991, and currently holds general and specialist registrations in general practice. He has practised for some time as a non-specialist anaesthetist in a provincial centre working at a public and a private hospital, and at a dental centre.
- The respondent has had a long history of psoriatic arthropathy and back pain. In time, the former was controlled by medication, but the back pain continued and worsened. X-rays showed extensive severe disc disease, worst at the L3/4 level. This condition interfered with his ability to work. In April 2014, his GP prescribed OxyContin for the back pain. The respondent found this very helpful, although in time, its effectiveness diminished.
- In September 2014, he suffered a heart attack for which he had two stents inserted and was put on blood-thinning medication. This prevented any back surgery, and after he returned to work, he began to write prescriptions for OxyContin, ostensibly for his wife, to obtain it for his own use. Between September 2014 and August 2016, he wrote 17 such prescriptions. These are the subject of ground 1. He also wrote 13 prescriptions for OxyContin between April 2015 and July 2016, ostensibly for his father, the subject of ground 2, and one prescription for OxyContin in November 2014, ostensibly for his mother, the subject of ground 3. All of these prescriptions were used to obtain OxyContin for his own use.
- In February 2015, the respondent consulted a pain medicine specialist who tried various treatments, none of which proved as helpful as OxyContin. In July 2015, he was advised by an orthopaedic surgeon that surgery was not indicated for his back because of the extent of his problem. The respondent had hoped surgery would provide a way out of his use of OxyContin, and during 2015, became increasingly depressed, and continued to use OxyContin. In late 2015, his GP began to prescribe antidepressants.
- In December 2015, he suffered a ruptured disc at the L5/S1 level, which was treated with a left-side discectomy by a neurosurgeon. In June 2016, the neurosurgeon offered a lumbar fusion at the L3/4 level, and the respondent began to wean himself off OxyContin. He was given a different antidepressant which helped. After mid-August 2016, he did not take OxyContin. In October 2016, the respondent underwent a spinal fusion at L3/4 which was successful in reducing his back pain considerably. In November 2016, the respondent saw a psychiatrist who diagnosed a major depressive disorder due to chronic pain and opioid use disorder.
- In July 2016, the Medicines Compliance Human Tissue Unit began an investigation into the respondent’s prescribing and drug disposal practices. On 16 September, in a letter from his solicitors, the respondent admitted writing prescriptions, ostensibly for his father, to obtain OxyContin for his own use. On 22 September 2016, the respondent surrendered his endorsement under the Health (Drugs and Poisons) Regulation 1996, s 58, which prevented his practising as a GP/anaesthetist. He reported the surrender to AHPRA the next day, and in October 2016, provided full details of the reason for that surrender.
- On 24 November 2016, he provided, through his solicitors, a written submission to the applicant about his prescribing conduct. During an interview on 29 August 2017, the respondent made full admissions to the present grounds, including disclosing the prescriptions in grounds 2 and 3, which were not then the subject of the applicant’s investigation. The admissions have subsequently been repeated in submissions to the applicant.
- In September 2017, after obtaining a report from a psychiatrist, AHPRA imposed a number of conditions on the respondent’s registration. These prevented him from working normally as an anaesthetist, and required certain drug testing. Following this, the endorsement under the Regulation was restored. In March 2018, the conditions were modified, and the respondent was again able to work as an anaesthetist. On 24 April 2019, the board removed all the conditions on the respondent, and he is now working as a GP/anaesthetist. He is coping with the work. His back pain is now well managed without medication, and his psychiatric conditions are said to be in full remission.
- I should mention at this stage that the statement of facts, when dealing with the aspects of investigation disclosure and regulatory response, is anything but clear, largely because no attempt appears to have been made to present these facts in chronological order. Such a presentation is important for the proper understanding of the sequence of events. Chronological order should be used in the future in such a statement.
- The Tribunal has been given an affidavit by the medical superintendent of the hospital where the respondent works. It sets out that he ceased work at the hospital on 22 September 2016 for two months, after which he returned to work conducting pre-anaesthetic clinics which he could still do, freeing other practitioners to cover the anaesthetists’ workload. This continued until his restrictions were removed and he resumed normal work as an anaesthetist. The affidavit outlines the burden the hospital would suffer if the respondent were unable to continue to work there in his present capacity.
- I am conscious of the definition of professional misconduct in the National Law, s 5. I am also aware of the relevant part of the code of professional conduct for doctors of Australia, developed by the National Board. It is agreed that the respondent, by engaging in the relevant conduct, breached paragraphs 9.2.2 and 9.2.7 of that code. Further, the behaviour was dishonest, since it involved writing prescriptions in the names of patients for whom the medication was not required and using those prescriptions to obtain Schedule 8 drugs for himself. The drugs obtained in this way were drugs of addiction, and the conduct continued over a period of almost two years. This is seriously wrongful conduct, and the Tribunal has no hesitation in finding that it amounts to professional misconduct. So much was admitted by the respondent.
- In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant, and are shown here by the respondent.
- The respondent has taken steps to rehabilitate himself. His misuse of the drug arose in the context where he was initially prescribed it for pain relief, and he continued with the relevant conduct because he was not able to get such effective pain relief otherwise. His surgery has now removed his need for strong pain relief, reducing the risk of further such behaviour. There is no great need for personal deterrence.
- The parties referred the Tribunal to the decision in Health Ombudsman v White  QCAT 36. There are a number of features of that case which are also present here. That case involved the abuse of a medication obtained in the course of practice, albeit without the element of dishonesty present here, and over a shorter period of time, about six months. That respondent had also had conditions imposed which produced a substantial modification of his work, but those conditions had been removed by the time of the hearing, and there was evidence that the circumstances leading to the misuse would be unlikely to recur. Judge Sheridan said at :
In terms of the need to deter others, the respondent’s unique situational stressors and the interplay between the respondent’s health at the time and the misconduct must be relevant. Whilst the Tribunal accepts that the period off work and the monitoring by the Board cannot be treated in these proceedings as the respondent having been penalised, it is part of the overall factual matrix. Ultimately, the issue for the Tribunal is whether the protective purpose can be satisfied without subjecting the respondent to a period of suspension from practice as proposed, or in the alternative a very significant fine.
- In White, the respondent was reprimanded and a fine of $5000 was imposed. The parties both support the proposition that the same result should follow in this case. The submissions refer to a number of matters, including that the respondent was otherwise a respected member of his profession; that his behaviour had been self-reported, albeit in the context that he was subject to some investigation; there was good reason to expect that he had been effectively rehabilitated, having undertaken treatment including successful surgery on his spine and various courses; his work had been limited by conditions for a period; and the value of his work in the particular community where he practices. These are all valid points.
- The considerations of general deterrence and the maintenance of professional standards and public confidence remain, but it was submitted that these could be adequately met by a reprimand and a fine. Ultimately, it is a matter for the Tribunal to determine what sanction to impose. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin  QCAT 376 at - by reference to authorities in terms with which I respectfully agree. I would merely add a reference to later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate  HCA 46, in particular at  and Medical Board of Australia v de Silva  QCAT 63 at -.
- It is important to guard against the risk of a particular sum becoming a tariff for fines in such circumstances, because fines should always take into account the capacity of the individual practitioner to pay. See by analogy the Penalties and Sentences Act 1992, s 48(1). The fact that the respondent is a party to the joint submissions suggests that this proposed fine would not unduly challenge his capacity to pay. Nevertheless, in the future when a fine is proposed, it would be better if the question of capacity to pay were addressed specifically.
- In all the circumstances of this case, taking into the account the content of the agreed statement of facts and the joint submissions and with the benefit of the advice of the assessors, I consider that the proposed penalty is appropriate. The orders of the Tribunal are therefore:
- The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The respondent is fined the sum of $5000 to be paid to the applicant within one month; and
- The parties bear their own costs of this proceeding.
- Published Case Name:
Health Ombudsman v Butler
- Shortened Case Name:
Health Ombudsman v Butler
 QCAT 221
Judicial Member McGill
20 Apr 2020