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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v CJJ  QCAT 513
Occupational regulation matters
2 December 2020 (Ex Tempore)
2 December 2020
Judicial Member J Robertson
Mr Peter Caldwell
Ms Kathleene Dower
Dr Anne Fitzgerald
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical radiation practitioner – where the respondent’s registration has been suspended – where the respondent convicted of various fraud and stealing offences – sanctions available to the Tribunal when the respondent is no longer registered – whether a prohibition order should be made pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld)
Evidence Act 1977 (Qld) s 79.
Health Ombudsman Act 2013 (Qld) s 107(4)(b).
Health Practitioner Regulation National Law (Queensland) ss 1, 5.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Health Ombudsman v ADV  QCAT 364.
Health Ombudsman v Antley  QCAT 472.
Health Ombudsman v Corocher  QCAT 47.
Health Ombudsman v CLT  QCAT 378.
Health Ombudsman v Drinkwater  QCAT 203.
Health Ombudsman v Joy  QCAT 202.
Health Ombudsman v Martin  QCAT 350.
C Templeton of counsel, instructed by the Office of the Health Ombudsman
REASONS FOR DECISION
- The applicant director referred these disciplinary proceedings to the Tribunal on 21 December 2018. The referral contained three allegations, only one of which, allegation 1, is now pursued, for reasons that will become obvious.
- Allegation 1 is an allegation that the respondent engaged in professional conduct in that, while holding registration as a medical radiation practitioner, he engaged in professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). On 20 May 2016, he appeared in the Brisbane Magistrates Court and pleaded guilty to 15 charges relating to the stealing, forging and unauthorised filling of prescriptions for morphine and on one occasion obtaining Sertraline without authority. A conviction was recorded for all offences. The Magistrate sentenced the respondent to an 18-month probation order with conditions including one that he submit to such “medical, psychiatric or psychological assessment and treatment as directed by the authorised Corrective Services officer...”.
- On 8 November 2016, the respondent appeared in the Brisbane Magistrates Court and pleaded guilty to a number of further criminal charges, 27 in total, also relating to stealing, forging and unauthorised filling of prescriptions for morphine. A conviction was recorded for all 27 offences. The Magistrate sentenced the respondent to a term of six months’ imprisonment wholly suspended with conditions not to commit an offence punishable by imprisonment for a period of two years.
- The respondent was born on 17 September 1979, so is now 41 years of age. His name was called at this morning’s proceedings and he has not appeared. The reasons for that will appear evident later in my reasons.
- He was first registered as a medical radiation practitioner on 11 July 2005. On 29 April 2016, his registration was suspended. One of the conditions of that suspension order was that he not practice as a medical radiation practitioner. His registration lapsed on 27 April 2019, so he is now a “former” health practitioner.
- For the reasons articulated in Mr Templeton’s submission dated 19 November 2020, the Tribunal is empowered by section 21(2) of the Health Ombudsman Act 2013 (Qld) (the Act), to deal with the respondent as if he were still registered in relation to conduct which occurred while his registration was suspended.
- The respondent has not participated in these proceedings, but the Tribunal is satisfied he is aware of the proceedings and has decided not to participate. His only participation was to attend a compulsory conference in 2016. Emails to an address advising him of various dates have not been returned.
The Relevant Conduct
- The applicant relies upon two sets of convictions referred to in allegation 1 in the referral as the basis for its submission that the respondent has engaged in professional misconduct. His convictions for the various offences are proved by the verdict and judgment records filed by the applicant. On numerous occasions, where a respondent has not in the disciplinary proceedings formally admitted the fact of his or her convictions, the Tribunal has relied on section 79 of the Evidence Act 1977 (Qld) as the mechanism of proof of those convictions.
- As to the first set of convictions, they are divided into three groups. The first group of three involved the respondent consulting a doctor at the respondent’s home. The doctor wrote out a script for Sertraline for the respondent. Sometime between 28 and 31 March 2016, the respondent used Whiteout to erase Sertraline from the script and wrote “Morphine Sulphate, 30 milligrams” onto the script. He then presented the script to the Chemist Warehouse at Lawnton with the intention of collecting morphine. The chemist did not prescribe the medication and instead called the police, following which the respondent made full admissions.
- The second conviction was a single offence for a failure on 8 April 2016 to comply with an “identify particulars” notice.
- The third group of 11 involved the respondent, while employed at XRadiology in Toowong, stealing scripts and prescription pads and presenting 16 forged scripts, all for Morphine Sulphate, at three chemists in Brisbane. The eleventh charge in this group was in relation to the respondent obtaining Sertraline without a script after stating to the chemist that his doctor would fax the script over. The fax never arrived. These offences occurred between 6 October 2015 and 28 March 2016.
- The respondent was sentenced to probation for a period of 18 months with a special condition that he submit to such medical and psychiatric and/or psychological assessment and treatment as directed and convictions were recorded.
- The second set of convictions contained in allegation 1 fall into two groups. As to the first group involving five charges, no evidence was offered on charge 1, and the prosecution proceeded with the alternative charge of receiving tainted property. The offending the subject of charge 2 involved the respondent presenting a stolen script for morphine purportedly signed by a doctor on a date he or she was, in fact, overseas at two pharmacies, neither of which filled it. The offence occurred on 5 April 2016.
- The facts of charges 3 to 5 were that on 5 April 2015, the respondent obtained a doctor’s blank prescription pad from the Canossa Private Hospital. He handwrote patient details on the script, as well as the requested medication, being a five-ampoule pack of Morphine, nil repeats. The prescription was dated 4 April 2015 and purportedly signed. The respondent then presented the script to the Canossa Medical Centre pharmacy, but it was not dispensed upon.
- As to the second group involving 23 charges, convictions on charges 1 to 21 contained 7 occasions on which the respondent forged scripts for Morphine Sulphate by completing the details and signing a blank prescription, uttering the forged document, and then committed fraud by obtaining the medication from the chemist. This offending occurred on a number of dates: 7 April 2016, 15 April 2016, 19 May 2016, 10 June 2016, 14 June 2016, 28 July 2016 and 3 August 2016 (with that script filled on 5 August 2016).
- Charges 22-23 concern offending on 8 August 2016 by uttering a forged prescription for morphine, and attempted fraud because the script was not filled. There was no corresponding forgery charge on this occasion.
- Some of the offending occurred before the respondent was sentenced for the first convictions, including on the day before that sentencing hearing, and it continued thereafter. It therefore in part occurred while the respondent was on probation. The sentencing Magistrate described the offending as follows:
You took items in the context of your job as a radiographer, which is a position of trust. You breached that trust, and you have let down the entire medical profession, as well as the community who relies on the professional abilities of the medical profession for everyone’s benefit...
- Convictions were recorded, and the respondent was, most significantly, sentenced to imprisonment for six months wholly suspended for a period of two years.
- Although not a basis for the allegation of professional misconduct, the respondent’s criminal history both prior to and subsequent to the offending the subject of allegation 1 provides relevant context and is directly relevant to issues such as insight, remorse and future risk.
- On 10 March 2014, the respondent was convicted on his own plea of guilty of an offence of using a carriage service to menace, harass or cause offence. The offending involved sending offensive text messages to another person in September 2013. A conviction was recorded, and the respondent was fined $1,000.
- On 2 August 2017, after the offending the subject of the referral, the respondent was convicted of seven counts of fraud, apparently resulting in 84 transactions. The nature of the offending is not described in detail in the sentencing remarks, but involved the respondent “... hanging around Bunnings stores, hanging around rubbish bins in order to wait for people to discard their receipts so that you could commit your offences”. The respondent described his offending to Dr Frank New, consultant psychiatrist, who recorded it in a report dated 26 January 2018, as follows:
When specifically asked, he described the situation in relation to Bunnings. He said that he used to search for, find, and then use discarded receipts to claim a refund as if he had returned the item. However, he said he actually went into the shop, took a similar unsold item from the shelf, and presented to the returns counter, dishonestly presenting it as if he had bought the item. He said that he had done this on many occasions during the previous 12 months...
- The offending was described by the sentencing Magistrate as protracted and well planned. A number of the offences occurred while the respondent was serving a suspended term of imprisonment imposed in relation to the offending subject to the referral. The respondent was sentenced to six months imprisonment on the Bunnings fraud charges. The suspended prison sentences imposed on 8 November 2016 were all fully activated. A parole release date was fixed on 2 September 2017 after one month of actual imprisonment.
- On 18 October 2018, the respondent pleaded guilty to stealing a packet of Codral Cold and Flu tablets on 19 September 2018 from a chemist at Toowong. He was sentenced on that occasion to perform 40 hours of unpaid community service and ordered to make restitution of $26.50.
Characterisation of the Conduct
- The respondent’s conduct in the opinion of the Tribunal falls within all three limbs of the definition of “professional misconduct” as defined in section 5 of the National Law. The Medical Radiation Practice Board of Australia has promulgated a Code of Conduct for medical radiation practitioners, which by virtue of section 41 of the National Law is admissible as evidence of what constitutes appropriate professional conduct or practice.
- The respondent’s criminal conduct, the subject of the referral, offends a number of the provisions of that code. The Tribunal is satisfied to the appropriate standard that the respondent has engaged in professional misconduct. Acts of stealing, forging and obtaining drugs by dishonest means is conduct that is totally unacceptable to any registered health practitioner, and is conduct that is disgraceful and substantially below the standard reasonably expected of a health practitioner. The seriousness of the respondent’s conduct here is compounded by the fact that he committed further offending whilst suspended, and subsequently, while subject to court orders.
- As the respondent is no longer registered, the Tribunal’s powers to sanction are limited to caution, or reprimanding the respondent, imposing a fine, disqualifying the respondent from applying for registration for a period, and prohibiting him from providing a stated health service or using a title.
- The purpose of these proceedings is protective in nature and not punitive. The paramount guiding principle that informs the Tribunal’s exercise of its jurisdiction to sanction health practitioners for professional misconduct is the health and safety of the public. Deterrence both personal in this case and general are relevant, and are designed through the Tribunal’s orders, to uphold and maintain proper professional standards and the public’s confidence in our health service and to denounce conduct of this nature and hopefully to discourage likeminded professionals from engaging in such conduct.
- The respondent certainly should be reprimanded for his conduct. I agree with the submission made by Mr Templeton that a fine is not appropriate here because there is evidence of the respondent’s strained financial circumstances although not recent evidence. The real questions are whether the Tribunal ought to impose a further period of disqualification, and whether there ought to be an order prohibiting the respondent from providing a stated health service.
- The cases relied on by the applicant in Mr Templeton’s written submission support his argument that the conduct would have warranted cancellation of the respondent’s registration had he still been registered.
- The applicant, in Mr Templeton’s submission, fairly notes the respondent has entered early pleas of guilty to his offending the subject of allegation 1 and by reference to various medical reports he appears to have had a very traumatic childhood and has become addicted to opioids after being prescribed morphine for back pain. Dr New (a consultant psychiatrist), has provided a number of reports. In his first report in May of 2016 he opined that the respondent was then impaired by severe substance abuse disorder which was in remission, but by his 2018 report his opinion was much more guarded. There is no evidence of the respondent’s present state of health and given the severity of his disorder, coupled with a gambling addiction and his continued offending in relation to the Bunnings fraud offences, the Tribunal cannot have much confidence that he has much insight into the nature of his health issues and the underlying causes of his criminal conduct, nor that he reflects in his behaviour much remorse for that conduct.
- The Tribunal, in relation to its protective function, can, however, be assured that before the respondent could be registered again, he would have to satisfy all the requirements of Part 7 of the National Law, including satisfying the relevant Board that he is a “suitable person” to hold registration. The process mandated by the National Law provides adequate protection to the public should the respondent decide to apply for registration as a health practitioner.
- In effect, the respondent has been suspended or unregistered for approximately 4.5 years. The Tribunal agrees therefore with the applicant that a reprimand is an appropriate response. In addition, it is appropriate, given the very guarded nature of the most recent evidence about the respondent’s impairment in 2018, and the lack of evidence about his present situation, that a prohibition order be made pursuant to section 107(4)(b) of the Act.
- The very lack of up-to-date evidence and the guarded nature of the most recent medical evidence would make the prohibition order for a fixed term arbitrary and undesirable.
- In Health Ombudsman v Drinkwater  QCAT 203, Judicial Member McGill SC sitting as a Tribunal remarked of the power under section 107:
The power to make a prohibition order under the former s 113 has been considered by the Tribunal in a number of cases, but the present power [section 107] is not subject to the same limitation. Nevertheless, the cases suggest that there must be a good reason for making such an order, and it remains subject to the overriding requirement that the act be implemented in a way that best supports the health and safety of the public.
- In that case the Judicial Member coupled the duration of the prohibition order to the obtaining of registration with a Board under the National Law and the Tribunal is satisfied that that is an appropriate course here.
- The Tribunal orders that:
- The respondent has behaved in a way which constituted professional misconduct;
- The respondent is reprimanded;
- The respondent is prohibited from providing any health service until such time as the respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or corresponding law of another State or Territory of Australia; and
- There be no order as to costs.
Pursuant to section 156 of the National Law.
Tab 5 Hearing Brief (HB) page 21 (first set of convictions); and Tab 5 HB page 32 (second set of convictions).
Health Ombudsman v ADV  QCAT 364; Health Ombudsman v Corocher  QCAT 47.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Health Ombudsman v Antley  QCAT 472 at .
Health Ombudsman v CLT  QCAT 378 at -; Health Ombudsman v Joy  QCAT 202 and Health Ombudsman v Martin  QCAT 350.
For example Dr New (30.5.16) Tab 10 HB, page 7.
- Published Case Name:
Health Ombudsman v CJJ
- Shortened Case Name:
Health Ombudsman v CJJ
 QCAT 513
Member J Robertson, Mr Peter Caldwell, Ms Kathleene Dower, Dr Anne Fitzgerald
02 Dec 2020