Health Ombudsman v HNH[2021] QCAT 235

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against HNH (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges, in the referral filed 30 April 2020, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction.
2. [2]
   The parties have jointly filed and rely upon a Statement of Agreed Facts and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.

Background

3. [3]
   The respondent was aged in his mid-30’s at the time of the conduct the subject of the referral. He was first registered as a medical practitioner in 2007 and later obtained specialist qualifications and registration in anaesthesia.

Conduct

4. [4]
   During a period from September 2018 to February 2019, whilst the respondent was employed as an anaesthetist at a Queensland public hospital and at a Queensland private hospital, he misappropriated a total of 74 500 mcg ampoules of fentanyl from hospital stock for his own use.
5. [5]
   On 26 November 2019, the respondent pleaded guilty in the Magistrates Court to two counts of stealing fentanyl and two counts of possessing the dangerous drug, fentanyl. He was sentenced to two years’ probation and fined $2000. Convictions were not recorded.

Characterisation of conduct

1. [6]
   Both parties submit that that the respondent’s conduct should be characterised as professional misconduct.

7. [7]
   The Tribunal readily accepts that the respondent’s conduct should be characterised as “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
8. [8]
   Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Employment and regulatory action and medical treatment

9. [9]
   On 14 February 2019, the Director of Anaesthetics of the public hospital advised the respondent that an investigation was to be commenced into the respondent’s dealings with fentanyl and that he was to be suspended from employment.
10. [10]
    On 15 February 2019, the respondent advised the Office of the Health Ombudsman (OHO) that:

    1. (a)
       he had been misappropriating fentanyl for his own use;
    2. (b)
       the public hospital had suspended his employment; and
    3. (c)
       he was seeking psychiatric and psychological treatment.
11. [11]
    On 19 February 2019, the public hospital confirmed that the respondent’s employment was suspended on full pay. The respondent voluntarily stood down from his employment with the private hospital. The respondent subsequently resigned his employment with both employers.
12. [12]
    On 21 February 2019, the Medicines Compliance and Human Tissue Unit (MCHTU) cancelled the respondent’s endorsement for Schedule 4 and Schedule 8 drugs for two years.
13. [13]
    On 22 February 2019, the respondent admitted himself as an in-patient in a drug rehabilitation facility under the care of a psychiatrist.
14. [14]
    On 14 March 2019, the Medical Board of Australia (Board) accepted the respondent’s undertaking not to practise as a medical practitioner.
15. [15]
    On 26 April 2019, the respondent underwent an independent health assessment with a psychiatrist. The psychiatrist reported that the respondent had several conditions which impaired his ability to practise, including:

    1. (a)
       Opioid Use Disorder (most likely in recent remission);
    2. (b)
       Major Depressive Episode (severe without psychotic features and in partial remission); and
    3. (c)
       Generalised Anxiety Disorder (in partial remission).
16. [16]
    On 2 October 2019, the Board imposed conditions on the respondent’s registration:

    1. (a)
       The respondent may practise only in a position of practice approved by the Australian Health Practitioner Regulation Agency (AHPRA) or the Board;
    2. (b)
       The respondent may only practise between 8 am and 6 pm;
    3. (c)
       The respondent must be supervised by another registered health practitioner;
    4. (d)
       The respondent is prohibited from prescribing Schedule 8 drugs;
    5. (e)
       The respondent must undertake urine and hair drug screening; and
    6. (f)
       The respondent must undertake treatment with an Addiction Specialist (or psychiatrist experienced in addiction medicine), Psychologist and General Practitioner (the treating practitioners) and attend at a frequency determined by the treating practitioners.
17. [17]
    The respondent sought a review in this Tribunal of some of the conditions.
18. [18]
    On 24 March 2020, the Tribunal made an order inviting the Board to reconsider its decision and, on 6 May 2020, the Board decided to amend its original decision, removing the practice hours condition.
19. [19]
    On 19 May 2020, the MCHTU restored the respondent’s endorsements with respect to Schedule 4 and Schedule 8 drugs.
20. [20]
    In May 2020, the respondent returned to practice after having not practised for approximately 15 months.
21. [21]
    On 15 July 2020, the Tribunal made a further order, with the consent of the respondent and the Board, inviting the Board to reconsider its decision of 6 May 2020 and, on 12 August 2020, the Board removed the restriction which prohibited the respondent from prescribing Schedule 8 drugs, subject to a condition that the respondent be directly supervised when administering Schedule 4 and Schedule 8 drugs.
22. [22]
    On 23 October 2020, a further independent medical assessment found that the respondent’s Opiate Use Disorder, Major Depressive Episode and Generalised Anxiety Disorder were in sustained remission with the likelihood of relapse very low.

Sanction

23. [23]
    The purpose of disciplinary proceedings such as these is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[1] the imposition of a disciplinary sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
24. [24]
    The parties jointly submit that the appropriate order by way of sanction is that the respondent be reprimanded. Both parties referred to previous decisions of this Tribunal in support of such submission.^[2]
25. [25]
    The respondent’s professional misconduct was very serious. His criminal offending betrayed the trust of his employers and contravened the regulation of prescription and administration of Schedule 8 drugs that is fundamental to the practice of medical practitioners entrusted to access such drugs.
26. [26]
    The conduct must be understood in the context of the respondent’s then addiction and the respondent’s personal circumstances at the time which contributed to that addiction. The respondent was motivated to seek treatment to address such addiction and has done so successfully. He has decided to retrain in another speciality.
27. [27]
    The respondent has displayed a significant amount of insight and remorse.
28. [28]
    The respondent has suffered significant adverse professional and personal consequences as a result of his conduct.
29. [29]
    The respondent had no criminal or disciplinary history before the conduct the subject of these proceedings. The respondent has fully cooperated with both the criminal and disciplinary proceedings, enabling this matter to be decided on the papers.
30. [30]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[3] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[4]
31. [31]
    The Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.^[5] The sanction proposed by the parties is an appropriate one.
32. [32]
    Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded.

Recording of the reprimand

33. [33]
    The respondent seeks a recommendation from the Tribunal that the Board remove the recording of the reprimand against the name of the respondent after a period of two years.
34. [34]
    The respondent refers to the “AHPRA Management Policy – Regulatory Operations Operational Policy: Removal of reprimands from the national register” which provides for a default period of recording of a reprimand of at least five years in the absence of a tribunal setting an earlier publication end date. The respondent submits that publication of the reprimanding of the respondent would be unduly punitive in all the circumstances, including where:

    1. (a)
       The conduct occurred in the context of a health impairment;
    2. (b)
       The respondent has received a criminal sanction;
    3. (c)
       It has now been over 2½ years since the respondent first notified regulators of the conduct;
    4. (d)
       There is clear evidence of insight and remorse; and
    5. (e)
       The respondent has made significant and impressive steps towards his remission and re-entry to practice.
35. [35]
    I have previously expressed my grave concerns as to the potential unfairness of application of the apparent AHPRA policy^[6] and agree that application of such a policy to the respondent would be unfair.
36. [36]
    The Tribunal has no power to make any order as to how long the reprimand of the respondent remains recorded on the Register.^[7] That is a decision for the Board.^[8] However, there is no prohibition on the Tribunal expressing a view on such matter, provided it is clear that the ultimate determination of such matter remains solely a matter for the Board. The Tribunal has previously done so in appropriate cases.^[9]
37. [37]
    I recommend that the Board seriously consider whether it is necessary or appropriate for the reprimand of the respondent to be recorded on the Register for more than two years.

Non-publication order

38. [38]
    On 21 September 2020, the Tribunal made an interim order, pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), prohibiting publication of anything that could identify the respondent or any family member of the respondent. The application for that order was made jointly by both parties.
39. [39]
    The respondent seeks that such order continues to have effect. The applicant does not oppose that course but seeks amendment to accommodate notification to AHPRA of the outcome of the proceeding.
40. [40]
    The Tribunal is satisfied, on the evidence filed in the proceeding, that a non-publication order is necessary to avoid endangering the mental health of the respondent^[10] and, for the reasons expressed in Health Ombudsman v AER,^[11] to avoid the publication of confidential information or information whose publication would be contrary to the public interest.^[12] The discretion to make a non-publication order is thus enlivened.
41. [41]
    In considering whether such discretion should be exercised to prohibit publication of the identity of the respondent it is appropriate to take into account that, ordinarily, such an order would diminish the effect of a reprimand and thus diminish the considerations of deterrence and denunciation which such an order for sanction is designed to address. However, specific deterrence does not loom large in all the circumstances of this matter and publication of reasons in this matter, albeit anonymised, will depict a cautionary tale for other practitioners, and in that way go towards meeting considerations of general deterrence. Notwithstanding the importance of principles of open justice and the public interest in details of disciplinary proceedings being publicly available in this matter, in all the circumstances, I consider it appropriate to make a non-publication order in the terms sought by the parties.
42. [42]
    Pursuant to section 66 of the QCAT Act, publication is prohibited of:

(a) the contents of any document or thing produced to the Tribunal; and

(b) the orders made and reasons given by the Tribunal; and

(c) evidence before the Tribunal;

to the extent that it could identify, or lead to the identification of, the respondent or any family member of the respondent, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding.