Medical Board of Australia v House
[2020] QCAT 336
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Medical Board of Australia v House[2020] QCAT 336
- Add to List
Medical Board of Australia v House[2020] QCAT 336
Medical Board of Australia v House[2020] QCAT 336
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v House [2020] QCAT 336 |
PARTIES: | Medical Board of Australia (applicant) v Brian House (respondent) |
APPLICATION NO/S: | OCR300-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 28 May 2020 (Ex Tempore) |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Ms Carolyn Ashcroft Dr Eleanor Chew Dr John Phipps |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was in breach of conditions imposed on his registration – where the respondent prescribed restricted and controlled drugs without approval of his supervisor – where the respondent mislead his practice supervisor by providing them outdated registration certificates – whether the respondent’s conduct should be characterised as professional misconduct – where the parties agree as to the characterisation of the conduct and sanction – whether the proposed sanction is appropriate Health Practitioner Regulation National Law (Queensland) s 5, s 196 |
REPRESENTATION: | |
Applicant: | Clayton Utz |
Respondent: | Self-represented |
APPEARANCES: | 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
- [1]These disciplinary proceedings were filed on behalf of the applicant Medical Board of Australia (“the Board”) with the Tribunal on 11 September 2019.
- [2]The proceedings proceed on the basis of agreed facts and the parties have filed a joint outline of submissions at a time when the respondent Dr Brian House was legally represented. At paragraph 32 of those submissions, the parties agree with both the findings to be made by the Tribunal in relation to the characterisation of Dr House’s admitted conduct as a medical practitioner and to the sanctions to be imposed.
- [3]Notwithstanding this agreement, the Tribunal still has to, in its discretion, make findings as to the proper characterisation of the conduct pursuant to section 196(b) of the National Law, and the order or orders to be made by way of sanction pursuant to section 196(2) of that Act. Section 5 of the Health Practitioner Regulation National Law (Queensland) (“National Law”) relevantly defines “professional misconduct” to include:
- (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
- (b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below that reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- (c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [4]It would only be in exceptional circumstances that the Tribunal would, in its discretion, depart from an agreement reached between the parties as to the appropriate findings and orders. That proposition is stated in many cases in these terms; “The Tribunal ought not to depart from the joint position of the parties unless the sanction proposed falls outside the permissible range for such sanction.”
- [5]These proceedings, being disciplinary proceedings, are protective in nature and are not punitive. The health and safety of the public is paramount in the administration of the National Law.
- [6]The Board bears the onus of proof to the standard as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. As the joint submission notes, the Tribunal can proceed on the basis that the allegation forming the basis of the disciplinary proceedings are proved and amount to professional misconduct, given the respondent’s acceptance of these factual allegations. To depart from the joint position of the parties where the position adopted is within the permissible range, in all the circumstances of the case, is to offend the public policy principle that to do so or to go on a frolic of its own, would rightly expose the Tribunal to the criticism that it is thereby discouraging fair and appropriate resolution of what are protective proceedings, thus avoiding potentially lengthy and complex legal proceedings.
The agreed facts
- [7]It is appropriate, given the agreement of the parties, to set out a summary of the facts forming the basis of the disciplinary referral.
- [8]The respondent was, at all material times, a registered medical practitioner. On 5 July 2016 the Board imposed conditions upon his registration, described in the referral as the practice limitation, supervised practice, and nomination of supervisor conditions. The respondent breached all of those conditions.
- [9]In relation to the practice condition; between 25 July 2016 and 17 October 2016, he practised at two additional practices which were not approved by, nor was approval sought from the Board. Contrary to the supervised practice condition, the respondent practised without an approved supervisor at four medical practices during the period 25 July 2016 to19 October 2016.
- [10]During that period, he prescribed restricted (Schedule 4) and controlled (Schedule 8) drugs on up to 429 occasions, with 34 of those occasions involving prescribing of Schedule 8 drugs without approval of any relevant supervisor. In breach of the nomination of supervisor condition, he did not nominate a supervisor by 5 August 2016. Further, he did not comply with conditions that he notify the regulator with confirmation of the senior person in any practice he worked at had sighted the conditions on his registration. In relation to one of the practices he worked at in Mount Isa, without seeking the approval of the Board, he misled the practice supervisor by providing the practice with a copy of an outdated registration certificate which did not contain the stringent conditions imposed on 5 July 2016.
- [11]On 8 December 2016, having regard to this conduct, the Board suspended the registration of Dr House which suspension remains in place.
- [12]The reason for the imposition of the conditions, and probably the respondent’s failure to comply with them in such a comprehensive way is revealed in the material annexed to the agreed facts. Sadly, he has since he was quite young, suffered from schizophrenia which, according to some of the material, is well controlled with medication at times but not at others. On 2 November 2010, he gave an undertaking to the Board not to engage in solo practice for the rest of his working life.
- [13]The respondent was born on 14 August 1948 so he’s now 71. It appears that he has not worked as a doctor since his registration was suspended.
- [14]I agree with the submission jointly made by the parties that, when viewed in its totality, and having regard to the basis for the imposition of the conditions, the admitted conduct amounts to professional misconduct within all three limbs of section 5 of the National Law.
- [15]In relation to sanction, as noted earlier, the paramount guiding principle is the health and safety of the public. The respondent’s failure to comprehensively comply with the relevant conditions is aggravated by the fact that he prescribed restricted scheduled drugs to patients while unsupervised. There is no evidence that any patient thereby suffered any health mishaps or adverse reactions but, by his own admissions, he repeatedly and deliberately breached the condition imposed by the Board for the purpose of protecting the health and safety of the public. It is a tragic case of an impaired health practitioner, who at times has demonstrated insight and, at others, for example during the relevant period of the breach of the conditions, seems to have little insight into the importance of compliance. It is relevant and very much in his favour that he has cooperated fully with these disciplinary proceedings and with the regulator and the Board. In those circumstances, the orders of the Tribunal will be as follows:
- In relation to the allegations set out in the disciplinary referral, the Tribunal finds those allegations proved and makes a finding that the respondent has engaged in professional misconduct.
- By way of sanction, the Tribunal orders that the respondent be reprimanded.
- The Tribunal further orders that his registration be cancelled and that he be disqualified from applying for registration for a period of two years.
- Each party pay their own costs