Health Ombudsman v Hills[2020] QCAT 516

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 28 September 2018, the applicant Director referred these disciplinary proceedings to the Tribunal, pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (the Act). Today’s proceedings are on the basis of an amended referral filed on 20 February 2019, following a compulsory conference and directions by a Senior Member. The respondent participated in the compulsory conference but since then has not engaged further in these proceedings, has not appeared today, has not responded to attempted contact at known email addresses and telephone numbers from the solicitors for the applicant, nor has he responded to attempted contact from the Tribunal’s administrative officers.
2. [2]
   The referral contains three separate allegations. The first is that he engaged in professional misconduct as defined by section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), as a consequence of his conviction in the Maroochydore Magistrates Court on 7 October 2016 on his pleas of guilty to four breaches of the Drugs Misuse Act 1986 (Qld). Allegation 2 is that the respondent engaged in unprofessional conduct as defined by section 5 of the National Law in that he failed to give notice pursuant to section 130 of the National Law to the Dental Board of Australia (the Board) when he was charged and when he was convicted. Allegation 3 alleges that the respondent engaged in unprofessional conduct by providing false information to the Board in his application for renewal of his registration.

Background

3. [3]
   The respondent was born on 15 April 1958, so he was 58 at the time of his criminal conduct in 2016 and he is 62 now. 
4. [4]
   At all relevant times, the respondent was a registered dental practitioner and worked as a dental prosthetist from 2010. On 22 March 2018, the Board imposed conditions on his registration. On 4 June 2019, the respondent surrendered his registration. As a consequence, he is now a “former” registered health practitioner, and pursuant to section 21(2) of the Act, the referral can be dealt with today by the Tribunal as if the respondent was still a registered health practitioner.

The Relevant Conduct

5. [5]
   On 18 August 2016, police executed a search warrant at the respondent’s place of residence. The respondent was not home when police arrived but arrived shortly thereafter. Police located a small but reasonably sophisticated hydroponic cannabis production set-up, including grow tents, lights and filters and other equipment used to produce cannabis hydroponically.
6. [6]
   Police located and seized 52 plants, ranging from seedlings to a number that were approximately 1 metre high and mature. Police also located 1.2 kilograms of dried cannabis buds and smoking pipes and a laptop computer. The respondent admitted that all the equipment and cannabis was his and for his personal use, and that he had used the computer to purchase seeds from overseas on eBay. He told police that he was using cannabis to assist his sleep apnoea and it was not alleged that his conduct involved commerciality.
7. [7]
   On 20 October 2016, the respondent pleaded guilty to four charges relating to the material found at the search, namely aggravated possession of cannabis, possession of equipment used in connection with the commission of a crime, possession of pipes used by him to smoke cannabis, and one count of producing cannabis. The Magistrate imposed a three-year good behaviour bond in relation to the production charge and recorded a conviction. In relation to the other three charges, he imposed fines but did not record convictions.
8. [8]
   Although not part of the referral, or the subject of any allegation of misconduct, the Magistrate was provided with a copy of the respondent’s criminal history^[1]. Its only relevance in these proceedings is to sanction, in the sense that it places the offending, the subject of the referral, in context and is relevant marginally to issues such as insight and remorse and ongoing risk.
9. [9]
   He had two quite dated convictions in 2008 and 2011, for offences including dangerous driving which attracted a wholly suspended sentence of 12 months in the Brisbane District Court and enter premises and commit offences in 2004. No detail was recorded in the Court proceedings relating to the offences the subject of his criminal history. The 2008 offences also involved him pleading guilty to two offences under the Drugs Misuse Act 1986 (Qld). 
10. [10]
    Although the respondent has not formally admitted allegations 2 and 3, the Tribunal is satisfied that contrary to section 130 of the National Law, the respondent did not notify the Australia Health Practitioner Regulation Agency (AHPRA) within the prescribed time of seven days that he had been charged with the four drugs, and then later convicted on his own pleas of guilty.
11. [11]
    In relation to the criminal convictions, they are proved by the Verdict and judgment record for the four offences is in the Hearing Brief^[2] by virtue of section 79 of the Evidence Act 1977 (Qld). The applicant has proved to the relevant standard^[3] that the four offences, the subject of the allegation, were committed by the respondent. I am also satisfied that allegation 3 is proved by reference to the material in the hearing brief.

Characterisation of the Conduct

12. [12]
    The respondent’s conviction for the four drugs offences clearly satisfies the definition of “professional misconduct” in section 5(a) of the National Law. The Tribunal intends to characterise all proved conduct as “more than one instance of unprofessional conduct”, that:

…together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

13. [13]
    The Tribunal is satisfied that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

14. [14]
    Proceedings of this nature are protective and not punitive in nature. The paramount principle that informs the exercise of the Tribunal’s discretion to make orders by way of sanction against a health practitioner who has behaved in a way that constitutes professional misconduct is the health and safety of the public. The respondent surrendered his registration and has not reapplied for registration. If the respondent decides to apply for re-registration, he will have to satisfy the Board that he is “a fit and proper person” to hold registration before he can be registered.
15. [15]
    Relevantly, the Board and AHPRA (in its regulatory capacity) obtained a medical report from consulting psychiatrist Dr Nigel Prior^[4]. Dr Prior was asked to look at issues relating to the respondent’s health, including physical and mental impairment, that may detrimentally affect his capacity to safely practice his profession. As Dr Prior notes, the respondent told police he started using cannabis to assist his sleep apnoea as, according to him, conventional treatments were not working.
16. [16]
    He told Dr Prior that on a number of occasions during his life, as a response to life stressors, he abused heroin and was briefly on a methadone program. He also said that over the past 10 to 12 years (Dr Prior saw him on 4 October 2017), he had been taking excessive amounts of over-the-counter codeine-based products. As a consequence, his general practitioner, who had skills in addictive behaviours, prescribed Suboxone which he was still using at the time he saw Dr Prior and had been codeine-free for 18 months. The respondent appears to have been frank with Dr Prior, who concluded that despite his substance use disorder and social anxiety disorder, he was fit to practice his profession subject to a number of conditions that were set out in the report.
17. [17]
    As a consequence of this report and the respondent’s convictions, AHPRA gave notice to him on 2 February 2018 of its intention to impose conditions,^[5] and gave him an opportunity to make written or oral submissions to the relevant committee. The respondent responded by email on 15 February 2018. The only condition he objected to was the monitoring condition. The relevant Committee of the Board made its decision on 22 March 2018 and notified the respondent. It did not impose a monitoring condition. As noted earlier, the respondent surrendered his registration in 2019.
18. [18]
    In his response to the committee on 15 February 2018, the respondent advised of quite severe financial consequences following upon his convictions in the Magistrates Court. The Tribunal is satisfied (as was the committee in 2018) that until he stopped engaging, the respondent was actively addressing his self-impairment issues and showing insight.
19. [19]
    In the circumstances, the Tribunal orders:

1. The respondent has engaged in professional misconduct.
2. The respondent is reprimanded.
3. Each party is to bear their own costs of the proceedings.