Health Ombudsman v Kajewski[2020] QCAT 396

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant Director referred these proceedings to the Tribunal by way of application filed on 30 April 2019 pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
2. [2]
   The respondent was an anaesthetist technician at all material times. The referral contains five grounds, the first three of which relate to the misappropriation by the respondent of schedule 8 drugs intended to be administered to patients who were either being prepared for or in the process of undergoing significant surgery. Ground 4 relates to the respondent’s conviction by his own plea of guilty in the Brisbane Magistrates Court on 17 April 2018 to three criminal offences relating to his unlawful actions in relation to the schedule 8 drugs, and ground 5 alleges, because of the conduct pleaded in the previous four grounds, that the respondent has demonstrated a serious lack of judgement and ethical behaviour as a health practitioner.
3. [3]
   The applicant seeks a prohibition order pursuant to the now-repealed s 113(1) of the Act. That section was repealed upon the commencement of the Health Transparency Act 2019, division 4, part 10. However, as a result of transitional proceedings in the Act,^[1] the Tribunal can deal with the matter as if s 113(1) remained in force, given that the referral application was filed prior to the commencement of the Amending Act.

Background

4. [4]
   The parties have signed a statement of agreed facts.
5. [5]
   In that statement of agreed facts, the respondent disputes that he poses a serious risk to persons.^[2]
6. [6]
   The respondent has not filed a submission in the proceeding, and I infer that he does not intend to further participate in and/or has disengaged from the disciplinary process.
7. [7]
   At all relevant times, he was a non-registered anaesthetic assistant.
8. [8]
   He was born on 13 January 1978; so, 39 to 40 at the time of the conduct at the heart of the referral which occurred in 2017 and 2018.
9. [9]
   He obtained a diploma of paramedical science in anaesthetics from the Southbank Institute of Technology in 2008.
10. [10]
    He was employed as a trainee anaesthetic technician at the Mater Hospital South Brisbane (the Mater) between 2007 and 2008; and was subsequently employed as a qualified anaesthetic technician at the Mater between 2009 and 2012 and from November 2015 to May 2017.
11. [11]
    On 27 October 2017, the Health Ombudsman made an interim prohibition order prohibiting the respondent from providing any health service, paid or otherwise, or in a clinical or non-clinical capacity. That interim prohibition order remains in force.

The relevant conduct

12. [12]
    As the respondent has agreed to the facts which form the basis of the referral, it is unnecessary to descend into minute detail. On 19 February 2017, at the hospital, he misappropriated a quantity of alfentanil which was to be administered to a patient during the procedure for his own personal use.
13. [13]
    The patient was required to have emergency endoscopy surgery to remove a lodged chicken bone. A consultant registrar anaesthetist was assigned to the patient to perform anaesthesia, and the respondent was assigned to assist the two doctors, including an anaesthetic registrar. The registrar ordered two by one milligram ampules of alfentanil, drew the drug into a syringe and placed the syringe on the anaesthetic trolley in readiness for the commencement of the anaesthetic process.
14. [14]
    The respondent left the operating theatre, and entered another empty theatre and placed an alfentanil label on another syringe and drew two milligrams of saline solution into that syringe. 
15. [15]
    He then returned to the operating theatre, and while the other professionals were occupied in the procedure, he substituted the original syringe for the saline solution-filled syringe and then took possession of the original syringe containing alfentanil.
16. [16]
    The registrar then commenced intubation of the patient and administered what he thought was a syringe containing alfentanil. He then observed the patient experience extreme tachycardia and hypertension, which he immediately reported to the consultant who left the theatre and obtained a fresh dose of fentanyl, which was administered to the otherwise healthy 30-year-old female patient. Her heart rate and blood pressure then decreased, and the surgery proceeded normally.
17. [17]
    It is agreed that the delay resulting from the respondent’s actions, in administering alfentanil, elevated the patient’s risk of having a stroke or a heart attack. In my opinion, it was extremely dangerous conduct.
18. [18]
    The second incident the subject of ground 2 involved theft of a schedule A drug, and that occurred at the hospital on 2 March 2017.
19. [19]
    The patient was a quite significantly compromised young person with cerebral palsy who was acutely unwell due to kidney stones, and required a cystoscopy and the insertion of a left ureteric stent. A consultant anaesthetist and an anaesthetic registrar and a registered nurse were assigned to administer the appropriate anaesthesia prior to and during the surgery.
20. [20]
    The respondent was not assigned to assist and his attendance in the theatre was unnecessary.
21. [21]
    The consultant requested a 10-millilitre glass ampule containing 500 mcg of fentanyl, which he then drew into a 10-mil syringe which was placed on the drug tray on the anaesthetic trolley. Initially, he administered half of the drug, and placed the syringe containing the remaining half back on the drug tray. 
22. [22]
    At that point, the respondent entered the theatre and said he could assist. He was told by the registered nurse that he was not needed, but nevertheless, he remained in the theatre near the drug trolley, and was observed by the registered nurse to change his gloves on three occasions and to handle the drugs on the trolley.
23. [23]
    The respondent then left the theatre and the registered nurse noticed that the 10-mil syringe labelled fentanyl was placed on top of two by 10 millilitre syringes.
24. [24]
    The respondent returned to the theatre, stood by the drug trolley and swapped the fentanyl syringe with a syringe containing saline. The registered nurse noticed that the fentanyl syringe had been moved. She spoke to the respondent who then left the theatre.
25. [25]
    The nurse then reported her concerns to the registrar who informed the consultant who then discarded the syringe labelled fentanyl, and then requested a fresh dose of 200 mcg which he administered to the patient.
26. [26]
    The third incident occurred on 10 May 2017 at the hospital. Again, the respondent’s dangerous dishonesty followed a similar pattern, where by deception he substituted a 10-millilitre filled syringe of fentanyl for use during orthopaedic surgery over a lengthy period on a 73-year-old male, for a 10-mil syringe filled by him with saline solution. On this occasion, the staff anaesthetist in charge of anaesthesia noticed the deception and reported the respondent to the hospital’s administration.
27. [27]
    The referral^[3] also relies on the respondent’s convictions on his own plea of guilty to three offences on 17 April 2018 in the Brisbane Magistrates Court, namely:  one count of stealing between 19 February 2017 (it was actually aggravated stealing, referred to stealing as a servant); this offending incorporated three similar charges relating to the three incidents referred to in grounds 1 to 3. Ground 4 describes a second offence as “fraud causing detriment” between the same dates. Once again, it is clear from the materials supplied by the police to the Office of the Health Ombudsman,^[4] and from the transcript of the proceedings before the magistrate,^[5] that this charge incorporated three charges, again relating to each incident in which the respondent “dishonestly applied to (his) own use, medical syringes, saline solution and fentanyl stickers belonging to Mater Health Services while (he) was an employee of Mater Health Services”.^[6]  Ground 4 also refers to the respondent’s plea of guilty to the unlawful possession of the dangerous drug fentanyl between those same dates.
28. [28]
    The transcript of the hearing, and indeed in her short sentencing remarks, her Honour seems to have confused at least one of the patients with another. In any event, the seriousness of his criminality given that he had no previous convictions is reflected in the significant penalty of “six months to do two”, to quote her Honour. The Verdict and Judgment^[7] records that the sentence on each count was a six-month term with a parole release date after serving two months. Her Honour was required to set a release date and according to the transcript, did not. The respondent had also apparently served three days in pre-sentence custody, which the magistrate was required to declare and did not, although the declaration is recorded in the verdict and judgment record. She did say, “He’ll be released on the 17th of June 2018”, which does not take into account the three days served.
29. [29]
    In any event, as I have noted, the seriousness of the offending is reflected in the imposition of a sentence involving actual custody, and which involved an automatic recording of convictions on each of the three offences and reflected the seriousness of the conduct.

Service of the hearing brief on the respondent

30. [30]
    The respondent participated in these proceedings by signing a statement of agreed and disputed facts on 20 September 2019. The only disputed fact is that he does not accept that he poses a serious risk to persons.
31. [31]
    Otherwise, he has not participated in these proceedings. He has not filed a submission, for example, to support his contention that he does not pose a serious risk to persons.  He has no onus upon him; that never shifts from the applicant. I am satisfied that he has decided not to participate further in these proceedings by reference , to the contents of the affidavits of a principal legal officer at OHO, Mr Lloyd, affirmed and filed on 2 June 2020 and the affidavit of Mr Lloyd affirmed on 13 October 2020, filed by leave this morning. I am also satisfied that he has been properly served with all the material contained in the hearing brief. He did not comply with directions orders made by the Tribunal but has on a number of occasions responded to emails from Mr Lloyd and other officers in the Office of the Health Ombudsman, which I am satisfied reflects a clear intention not to participate further in these proceedings. For example, on 28 April 2020, Mr Lloyd sent an email to the respondent enclosing a copy of the applicant’s submissions prepared by Mr Templeton of counsel at 1.26 pm. Mr Lloyd and other health ombudsman employees have used a Gmail address and that was the address used by Mr Lloyd that day. The respondent replied at 1.41 pm in these terms:

Hi Carson,

That’s fine.  I would like to personally thank you for your support in this matter and your honesty. The whole saga was an incredibly distressing and confusing time and I’m just glad to have it behind me.  Many thanks and best wishes.

Evan.

32. [32]
    I also infer from other annexures to Mr Lloyd’s first affidavit, and to the annexures to the affidavit filed this morning that the respondent is well aware of the hearing date and his name was called. He did not appear. In some of those responses, he indicated that he had an intention to file information relating to his:

Psychiatrist, psychologist, you(sic) current diagnosis process, and the name/dosage of medications you have been prescribed…and write a brief statement of your current situation and new job.

33. [33]
    He has never filed any evidence about any of those matters, despite directions to do so (if he wished), and fair indications on many occasions from the Office of the Health Ombudsman to provide him with more time if he needed it. 

Serious risk to persons

34. [34]
    The term “serious risk” has been considered in a number of decisions of the Tribunal.  The term was not defined in the Act. In Health Ombudsman v Kirk [2019] QCAT 301, the Deputy President of QCAT, his Honour Judge Allen QC, wrote (at [14]):

The term “serious risk” is not defined in the (Act); the National Law or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as:

“Of grave aspect; weighty or important’ giving cause for apprehension; critical, to be considered as an extreme example of its kind.”

35. [35]
    The statutory context does provide guidance. Relevantly, as it stood before its repeal, s 113(1) required the Tribunal to decide if, “Because of the health practitioner’s…conduct or performance…the practitioner poses a serious risk to persons”. The use of the present tense “poses” means that the applicant has the obligation of proving a serious risk now and necessarily into the future. The standard of proof is on the balance of probabilities subject to the principle enunciated in Briginshaw v Briginshaw (1938) 60 Commonwealth Law Reports 336 at 361-362.
36. [36]
    The respondent is a “health service provider” and therefore a “health practitioner” by virtue of s 8(a)(ii) of the Act, because he was “an individual who (provided) a health service”.
37. [37]
    Section 113(2) of the Act prior to repeal also relevantly provides statutory guidance to the Tribunal in assessing whether or not the applicant has proved that the respondent poses a serious risk to the person.
38. [38]
    It provides (relevantly):

3. (2)
   without limiting sub-section (1), the serious risk posed to a person by a health practitioner may be a serious risk of harm caused by the practitioner –

1. (a)
   practising the practitioner’s profession unsafely, incompetently or while intoxicated by alcohol or drugs; …^[8]

39. [39]
    Adopting the three-pronged approach in assessing serious risk in a particular case as mandated in the jurisprudence, for example, Health Ombudsman v MacBean [2019] QCAT 300, and bearing in mind that the health and safety of the public is the paramount consideration for the Tribunal when deciding a matter referred to it under the Act, the Tribunal is satisfied that the nature of the risk here can only be determined by reference to the admitted actions of the respondent as set out above.
40. [40]
    In the criminal court proceedings, the magistrate proceeded on the basis that the reasons behind the respondent’s dangerous and irresponsible behaviour was a marriage breakdown, which precipitated anxiety and depression “followed by a toxic relationship”, as a result of which “he self-medicated with fentanyl”. There was not a shred of independent corroborative evidence placed before the magistrate to support this contention;  however the actions of the respondent, and the observations of some of the staff from February 2017 of his behaviour (agitation, profuse sweating, suspicious behaviour and mention of his marriage breakdown), does suggest he was out of control during the relevant period.
41. [41]
    The magistrate also made reference to four visits to a psychologist, and some contact with a men’s group and a reference to a “negative” drug report which was referred to by his solicitor but not given an exhibit number, but again, as the police prosecutor pointed out, none of this was supported by independent corroborating evidence.  Certainly, none of this evidence has been placed before this Tribunal.
42. [42]
    Although it is not clear,^[9] it appears that the magistrate gave him a generous discount on the head sentence and actual time to be served “for the addiction”, in circumstances in which she had no evidence before her that he had been, or was still addicted to any dangerous drugs.
43. [43]
    I agree with Mr Templeton of counsel that the nature of the relevant conduct can properly be described as indicating the respondent is a person who is prepared to put his own interests before those of vulnerable patients and to behave in a way that is significantly dangerous. As regards to the risk of harm to persons eventuating, his past conduct as admitted is the most persuasive evidence, given that the respondent has not taken the many opportunities given to him to place before the Tribunal evidence indicating that he has addressed any of the underlying issues that may have contributed to his conduct. There is very little evidence that he has developed any insight into how serious his conduct was. Indeed, he disputes that he poses a serious risk to persons.
44. [44]
    He pleaded guilty, and he signed the statement of agreed facts, but still disputes that he poses a serious risk to persons.
45. [45]
    The deliberate switching of syringes and drugs at the commencement of and/or during surgery is highly dangerous. As Dr Young opines in his expert report, opioids are often used in general anaesthesia “to reduce the patient’s response to surgical or other stimuli”. This is exactly what happened on 19 February 2017 in relation to an otherwise healthy 33-year-old patient, causing alarming increases in heart rate and blood pressure ameliorated only by the quick actions of the consultant. The other two patients, as I’ve stressed earlier by refence to the agreed facts, were extremely vulnerable, and any serious health consequences for them as a result of the respondent’s dishonesty, were only prevented by the quick response of observant professionals present in the theatre.
46. [46]
    The final issue is the seriousness of the consequences if the risk eventuates. The respondent’s self-interested behaviour can only be described as dangerous and the potential for real harm of this sort of conduct is obvious.
47. [47]
    The Tribunal is satisfied that the respondent poses a “serious risk” to persons within the meaning of the now-repealed s 113(1) of the Act.

Orders

48. [48]
    Again, I agree with Mr Templeton that the respondent’s conduct is indicative of a fundamental flaw in character which sees him willing to place his own  interests above those of vulnerable people who he was employed to look after. His conduct in the second incident indicates that he was even prepared to enter a theatre to which he was not assigned in order to steal dangerous drugs set aside for use during surgery. His breach of trust on all occasions was calculated and premeditated.
49. [49]
    Many of the cases stress the special need for deterrence in cases involving unregistered practitioners where the practitioner is not subject to registration with a peak body and subject to its codes of ethics and professional conduct.^[10] The Tribunal must also take into account that proceedings of this nature are protective in nature and not punitive.
50. [50]
    In such a matter, it is important in exercising its protective function and giving effect to the paramount principle, that a strong message be sent by the Tribunal to other unregistered health practitioners who practise in settings that give them access to restricted medications, that the theft of these drugs will not be tolerated.
51. [51]
    Here, the evidence does not permit the Tribunal to say, when and/or if, the respondent will cease to pose a serious risk to persons, nor does it permit the Tribunal to satisfy its protective jurisdiction by imposing restrictions on the respondent’s right to practice. The only way to satisfy the Tribunal’s primary obligation, to consider the protection of the health and safety of the public as paramount in this case, is to make a prohibition order that has permanent effect. In those circumstances, the orders of the Tribunal will be as follows:

1. Pursuant to s 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.
2. Pursuant to s 73(2)(a)(ii) of Health Ombudsman Act 2013 (Qld) the Tribunal sets aside the decision of the Health Ombudsman to issue an interim prohibition order on 27 October 2017.
3. Pursuant to s 113(4)(a) of Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
4. Each party bear their own costs of the proceeding.