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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Chandra  QCAT 512
Occupational regulation matters
16 December 2020 (Ex Tempore)
16 December 2020
Judicial Member J Robertson
Dr John Quinn
Ms Margaret Ridley
Professor Judy Searle
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was convicted of 14 counts of supplying a dangerous drug and one count of attempting to pervert the course of justice – where the respondent plead guilty to all charges – whether the respondent’s conduct should warrant a cancellation of his registration – whether the respondent is not a fit and proper person to be a medical professional
Drugs Misuse Act 1986 (Qld)
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Medical Board of Australia v Chandra  QCAT 271
Health Ombudsman v Field  QCAT 243
C Lloyd of Office of the Health Ombudsman
REASONS FOR DECISION
- These disciplinary proceedings were referred to the Tribunal by the applicant Director on 29 March 2019. At all relevant times, the respondent was a registered medical practitioner with the Medical Board of Australia (the Board); a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld) (the Act); and subject to registration standards, Codes and Guidelines approved by the Board as to what constitutes appropriate professional practice and conduct for medical practitioners.
- The referral contains one allegation relating to the conviction of the respondent upon his own plea of guilty to one count of attempting to pervert the court of justice and 14 counts of supplying dangerous drugs in the Brisbane District Court on 21 May 2018. The respondent was sentenced to two years imprisonment for attempting to pervert the course of justice, and 12 months imprisonment for each of the supply charges. All sentences were ordered to be served concurrently, but the overall sentence of two years was suspended after the respondent had served three months of actual custody for an operational period of two years. As a matter of law, convictions were recorded for all offences.
- The respondent has cooperated in these proceedings and he pleaded guilty to all offences in the District Court. The parties filed an agreed statement of facts on 2 September 2019.
- The applicant was born on 7 March 1950, so is now 70 years of age. He has tertiary medical qualifications from the University of Calcutta. He was registered under the Health Practitioner Regulation National Law (Queensland) (National Law) with the Board in 2002, and from 2004 to 2014 practised as a general practitioner in a number of clinics in Victoria Point and Redland Bay in Brisbane.
- In Medical Board of Australia v Chandra  QCAT 271, the Tribunal found that this respondent had engaged in professional misconduct and suspended his registration for two years from 20 May 2014. The relevant conduct on that occasion involved the respondent making sexualised comments to, and inappropriately touching a female patient, during a consultation in 2011. He then compounded his misconduct by breaching chaperone conditions imposed by the Board on 142 occasions and forging and uttering false letters to the Board and the patients’ lawyers. The conduct the subject of that hearing is closely interrelated with the relevant conduct in these proceedings.
- The suspension ordered by the Tribunal ended on 20 May 2016; however, the respondent was unable to obtain indemnity insurance because of the conditions on his registration.
- On 23 May 2016, he commenced work as a general practitioner at the Sherwood Family Medical Centre.
- In May 2017, the relevant Committee at the Board found that he had breached conditions of his registration, but the applicant fairly concedes he has been generally compliant. He was cautioned on that occasion.
- The conduct the subject of this referral occurred in 2014. He was not charged by police until 17 February 2016.
The relevant conduct
- The criminal conduct admitted by the respondent is very serious, particularly when viewed in the light of the earlier misconduct involving a female patient, but which also involved serious dishonesty by forging and uttering documents in an attempt to protect his own interests at a time when he was under investigation by the regulator.
- The relevant conduct occurred while he was working at the Redland Bay Surgery. The earlier misconduct occurred at the same practice.
- The respondent commenced treating a patient, a Mr O’Neill, in late 2013. At the end of a consultation in January 2015 (obviously at a time when he was under investigation for the earlier misconduct with his female patient), the patient offered to assist the respondent: “If there’s anyone giving you any trouble or anything I can do for you”.
- The respondent asked Mr O’Neill to return the next day to collect some paperwork.
- The respondent, on that occasion, then gave O’Neill a withdrawal of complaint form and asked him to approach the patient and have her sign the form. The respondent provided both her address and her phone number to O’Neill and indicated that he would pay O’Neill for his services, and that money would also, in part, go to the complainant.
- As part of that agreement, the respondent and Mr O’Neill agreed that the respondent would supply him with prescriptions, primarily for bodybuilding and muscle mass enhancement drugs. From 16 January 2014 to 30 June 2014, the respondent prescribed 163.5 grams of Testosterone, 29.28 grams of Oxycodone, 10.25 grams of Diazepam, and 48 grams of Phentermine to Mr O’Neill.
- Mr O’Neill sold the prescribed steroids to other users on the internet. There was no clinical or therapeutic basis for the respondent to prescribe Testosterone and Phentermine to Mr O’Neill. The supply of the Testosterone, Oxycodone, Diazepam and Phentermine on particular days form the basis of the 14 counts of unlawfully supplying dangerous drugs pursuant to the Drugs Misuse Act 1986 (Qld) to which the respondent later pleaded guilty.
- Perhaps not surprisingly, Mr O’Neill turned the respondent’s antisocial naivety to his (O’Neill’s) own advantage. He did not approach the complainant patient. Instead, he forged her signature on the withdrawal form and recruited a female friend to pose as the patient when the respondent and O’Neill telephoned her to confirm the arrangement. Mr O’Neill, on the pretence of being a conduit, extracted in total the sum of $17,500 from the respondent, only $5000 of which was said to be his original fee.
Characterisation of the Conduct
- The admitted conduct is disgraceful as it is criminal. The respondent’s intention clearly was to have Mr O’Neill approach the patient, who had made a legitimate complaint against him and which was then under investigation by the regulator, in an attempt to pay her off. It is made more serious as it occurred in the context of the previous episode of professional misconduct, where the Tribunal observed that the forging and sending the two letters constituted dishonest behaviour that was “a demonstration of significant misconduct in and of itself”.
- The Tribunal is satisfied that the applicant has proved to the required standard that the admitted conduct satisfies both paragraphs (a) and (b) of the definition of “professional misconduct” in the National Law.
- Apart from the attempt to pervert the course of justice, the prescribing of Schedule 4 and 8 drugs without a proper therapeutic basis is, by itself, sufficient to justify a finding of professional misconduct.
- The purpose of these proceedings is protective and not punitive.
- The paramount principle that underpins the Tribunal’s power to sanction health practitioners for proved professional misconduct is the health and safety of the public.
- In this case, given the nature of the professional misconduct, personal deterrence plays a more significant role than usual.
- A real concern for the Tribunal is that, despite what has happened to him - for example, the loss of his profession for a number of years – the respondent is still apt to divert blame from himself to others. For example, in his affidavit filed in these proceedings this year, he places most of the blame for the relevant conduct on his female patient and Mr O’Neill, who he alleges drafted the letters for the patient to sign, whereas he agrees, in the earlier proceedings, that he drafted those letters and gave O’Neill the name of the patient, her address and telephone number. He expresses anger against the female patient and (by implication) accuses her of making “false allegations”; and he demeans her character. This flies in the face of his acceptance of her account of proceedings in the proceedings before the earlier Tribunal. He also suggests now that threats were made towards him by Mr O’Neill (pointing a cocked gun at him, saying his father was the leader of a bikie gang and that he was an enforcer and threatening his family). A number of these allegations were made by his barrister in the District Court but were not accepted by the Crown, so they remain as mere allegations made by the respondent.
- In those proceedings in the District Court, the barrister relied on a report from consultant psychiatrist, Dr Greg Apel. In that report, the respondent again attempted inappropriately to justify his conduct with the patient the subject of the previous Tribunal finding and also his 142 breaches of chaperone conditions by stating that a chaperone was sometimes not available. In my opinion, in his reported discussions with Dr Apel, he understates his culpability as a tertiary educated medical practitioner in the engagement of Mr O’Neill to approach the complainant.
- Dr Apel does not diagnose any significant medical condition, psychological or otherwise, that would explain the calculated conduct of the respondent, both in his dealings with Mr O’Neill and in his attempt to pervert the course of justice in relation to the earlier proceedings.
- At this point in time, the respondent shows, unfortunately, little insight into how serious his conduct was and how much it has the tendency to undermine public confidence in the medical profession. This is a relevant finding in relation to ongoing risk and whether the respondent is a fit and proper person now to engage in the practice of his profession.
- It is relevant that he has been suspended from practice since 7 June 2018, and also had been out of practice for a number of years prior to that. But for the reasons articulated above, the Tribunal is of the opinion that he still lacks real insight, nor does he take appropriate responsibility for his conduct, and there remains a need to protect the public.
- The applicant submits that the respondent’s conduct warrants the cancellation of the respondent’s registration and that he should be prohibited from applying for registration for a period of five years from the date of this order. The Tribunal has already noted that in its opinion, the respondent, to this day, demonstrates little insight, or even real remorse, into his conduct and he should not obtain the full benefit of the suspension that he has served since 7 June 2018.
- In order to cancel the respondent’s registration, it is necessary for the Tribunal to decide that the respondent is not a fit and proper person to be registered as a medical practitioner. The Tribunal must make that assessment at the date of hearing.
- The important distinction between the suspension and cancellation of registration is that, in the latter case, it is necessary for the respondent, on seeking registration, to demonstrate that he is then a fit and proper person to be registered.
- In Health Ombudsman v Field  QCAT 243 at , the Tribunal observed that there are several factors relevant to a finding of whether a person is a fit and proper person to be registered, namely:
- (a)Whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
- (b)The intrinsic seriousness of the misconduct in relation to fitness to practice medicine;
- (c)Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
- (d)The motivation which may have given rise to the proven episode of misconduct;
- (e)The underlying qualities of character shown by previous and other conduct; and
- (f)Whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
- In the opinion of the Tribunal, the respondent’s conviction for attempting to pervert the course of justice and 14 counts of supplying dangerous drugs lies at the higher end of seriousness in the spectrum of misconduct.
- The respondent’s conduct was not isolated, nor was it a one-off event as described by Dr Apel. Rather, the respondent’s conduct constituted serious and calculated acts aimed at preventing the female complainant from proceeding with a legitimate complaint.
- The respondent’s prescription of a significant quantity of controlled substances to Mr O’Neill without a therapeutic basis in itself constitutes serious misconduct and occurred after the respondent had already been referred by the Board to the Tribunal in 2013 for the original boundary violation.
- The Tribunal concludes that upon a consideration of the respondent’s conduct, the subject of these proceedings, as set out in the referral, in conjunction with the conduct in the earlier case, could not be described as an aberration and is demonstrative of a defect in his character and that he is currently not a fit and proper person to hold registration. The Tribunal agrees with the applicant that the seriousness of the respondent’s conduct warrants the cancellation of his registration and such a sanction is appropriate to maintain public confidence in the medical profession. It also acts as a general deterrent to other practitioners that conduct of this nature will not be tolerated in the profession. Having said that, this is a most unusual example of misconduct and, as Mr Lloyd indicated as a result of a data search of cases throughout Australia, is probably unique.
- In the opinion of the Tribunal, it is appropriate to disqualify the respondent from applying for registration as a medical practitioner for the period contended for by the applicant, namely, five years from today’s date.
- In those circumstances, the Tribunal makes the following findings and orders:
- The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
- The respondent is reprimanded.
- The respondent’s registration is cancelled pursuant to section 107(3)(e) of the Health Ombudsman Act 2013.
- The respondent is prohibited from applying for registration as a health practitioner for a period of five years from today’s date pursuant to section 107(4)(a) of the Health Ombudsman Act 2013.
- Pursuant to section 62(1)(a)(ii) of the Health Ombudsman Act 2013, the Tribunal sets aside the decision to take immediate registration action on 7 June 2018.
- There will be no order as to costs.
- Published Case Name:
Health Ombudsman v Chandra
- Shortened Case Name:
Health Ombudsman v Chandra
 QCAT 512
Member J Robertson, Dr John Quinn, Ms Margaret Ridley, Professor Judy Searle
16 Dec 2020