Medical Board of Australia v Nguyen
[2021] QCAT 346
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- Unreported Judgment
- Medical Board of Australia v Nguyen[2021] QCAT 346
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Medical Board of Australia v Nguyen[2021] QCAT 346
Medical Board of Australia v Nguyen[2021] QCAT 346
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Nguyen [2021] QCAT 346 |
PARTIES: | medical board of australia |
(applicant) | |
v | |
van huu anthony nguyen | |
(respondent) | |
APPLICATION NO/S: | OCR345-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 27 October 2021 |
HEARING DATE: | 15 October 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, Assisted by: Dr J Quinn, Dr B Manoharan, Ms C Elliot. |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – inappropriate prescribing – inadequate records – characterisation of conduct – sanction Health Practitioner Regulation National Law (Qld) s 193B(2). Health Care Complaints Commission v Epstein [2015] NSWCATOD 21 Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 Medical Board of Australia v Bhamjee [2013] QCAT 259 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Marzola [2020] SACAT 116 Medical Board of Australia v McCombe [2020] QCAT 511 Medical Board of Australia v Owen [2021] SACAT 9 Medical Board of Australia v Singh [2017] WASAT 33 Medical Board of Australia v Tunbridge [2020] SACAT 34 Medical Board of Australia v Zhao [2021] VCAT 1053 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 |
APPEARANCES & REPRESENTATION: | |
Applicant: | L J Marshall instructed by Minter Ellison Solicitors |
Respondent: | G W Diehm QC instructed by Avant Law |
REASONS FOR DECISION
- [1]This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). Under s 126 of the Health Ombudsman Act 2013 (“the Act”), I constitute the Tribunal, and sat with assessors Dr J Quinn, Dr B Manoharan and Ms C Elliot in accordance with the Act.[1]
- [2]The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the National Law. The applicant alleges that the respondent engaged in professional misconduct or unprofessional conduct, in that, in relation to the prescription of certain medication to one or more of seven patients, he failed to obtain properly informed consent, prescribed the medication inappropriately, maintained inadequate clinical records, and provided inadequate or inappropriate assessment, treatment, management or follow up.
- [3]The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is represented by lawyers, who have provided submissions in writing and filed three affidavits by the respondent. The parties have provided an agreed statement of facts for the proceeding, and agree in proposing findings and (save in one respect) as to the appropriate sanction to be imposed.
Background
- [4]From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows. The respondent was first registered as a medical practitioner in 1994, and practised as such for over twenty-five years, in a variety of practices, including skin cancer and general practice. At the relevant time he was working in a provincial area. More recently he has worked in a skin cancer clinic. The applicant has not alleged that, prior to this matter, the respondent has had any disciplinary matters brought against him.
- [5]Between November 2015 and May 2016 the respondent prescribed to each of seven patients compounded peptide substances and similar medications (described in detail in the annexure to the referral) in circumstances where such medication was not appropriate for the patients, and had been prescribed for them by the respondent other than as a result of his exercise of his professional judgment. This involved a total of ten prescriptions.[2] The substances were of the kind used for body-building or performance enhancing, or to mitigate adverse effects of other substances used for those purposes. He did not conduct consultations with the patients, in person or otherwise, but acted on documents including a recent pathology report and notes supposedly made by another medical practitioner, and was invited by the system under which he worked to sign a prepared prescription.[3]
- [6]The respondent did not document in the clinical records for the patients that he had informed them of the clinical rationale for using this medication, and the risks it posed, and appropriate information about alternative treatments and their risks and benefits. It appears that the patients were given, and signed, standard form documents prepared by the organisation, identifying various risks and accepting them. The substances in the compounds had no established therapeutic benefit. He did not conduct any relevant examinations or assessments of the patients, prepare any treatment or management plan for the patients, or document any rationale for the dose and duration of the medication. He prescribed these compounds not because of any diagnosed medical conditions but because he had been told that they were beneficial for the patients.[4] There was also no systematic testing to follow up the effects of these compounds on the patients, and to ascertain if they were suffering harm from them.
- [7]The organisation for which he worked appears to have been marketing these compounds to people interested in their use in body building and related activities, including injury recovery. The clinical records for the patients were focused on the prescription of these compounds, and they present as exercises in justifying the prescription of the compounds, rather than deriving a proper treatment for the conditions of the patients. More details of the allegations in relation to the specific patients, and the specific compounds prescribed, are provided in the annexure to the statement of agreed facts. That this conduct was contrary to the applicant’s Code of Conduct for Doctors in Australia, in the way identified in the referral, was also admitted.
- [8]The respondent explained in his affidavits that he came to be doing this because he was told, by a doctor he worked with at a skin cancer clinic, and her son, that these substances were safe and beneficial, and that if he acted as the prescribing doctor he would be paid generously for signing the prescriptions; the organisation arranging this would keep all necessary medical records, monitor the patients and manage any complications. He was told that the other doctor was ill, and could not keep up with the workload. Following this, he began to work with that organisation in about February 2015. That continued until the following year, but was only ever a minor part of the respondent’s work as a general practitioner.
- [9]In August 2016 the respondent was advised by the Office of the Health Ombudsman that it had received and was assessing a complaint about the health service he had provided for the seven patients. He told the doctor and her son about this, and they said they had previously assisted other doctors in his position, and that the organisation would respond to the email. He was later shown redacted documents which appeared to confirm that. Between September 2016 and April 2019 the organisation made three submissions to the Office of the Health Ombudsman or to AHPRA on his behalf. There is no evidence that he saw these submissions before they were sent, or that he was consulted about their content. There was no evidence of any further such prescribing by him after he received the advice.
- [10]In May 2019 the respondent became aware of the decision of another Tribunal in another matter involving inappropriate prescribing, through a reference in an AHPRA bulletin. He consulted his insurers who referred him to lawyers, who corresponded with AHPRA on his behalf, and severed his association with the organisation. He also moved to a different area, and practised at a different place, in a way which did not involve prescribing any peptides or hormone therapy.
- [11]The respondent’s conduct was the subject of a notification to the Office of the Health Ombudsman in July 2016. This was referred to the applicant, and an investigation was commenced. In connection with this, an independent opinion report dated 24 June 2019 was obtained from an expert endocrinologist, and an independent opinion report dated 23 December 2019 was obtained from a general practitioner. After considering these and other material, the applicant formed a reasonable belief that the respondent had behaved in a way that constituted professional misconduct, and on 8 July 2020 notified the Office of the Health Ombudsman of this pursuant to the National Law s 193(1)(a)(i). The Health Ombudsman asked the applicant to continue to deal with the matter under the National Law, and as a result the applicant referred the matter to the Tribunal on 6 November 2020.
- [12]The original referral filed by the applicant was framed on the assumption that the respondent had held consultations with the patients, albeit by telecommunication. In his response the respondent disclosed that there had been no such consultations, and the applicant later amended the referral to accommodate that. At the hearing leave was sought to correct some errors in the amended referral. That was not opposed, and leave was granted.
Medical evidence
- [13]The specialist endocrinologist concluded in his report that the respondent’s performance was unsatisfactory, and fell substantially below the standard reasonably expected of a health practitioner of an equivalent level of training or experience. He identified a number of substances which should not have been prescribed as they were by the respondent, and explained in detail problems with a number of the individual substances in the compounds which made their use inappropriate in general, or in the absence of specific conditions not revealed by the clinical records. He identified a number of adverse effects of the use of some of them, and described the prescribing of one of the substances (IGF1 – LR3) as reprehensible. He expressed the opinion that these substances were being prescribed where there was no appropriate clinical indication, or no clinical indication where benefit might outweigh risk, and after inadequate investigation. The clinical records kept were inadequate, and prescribing such substances outside a controlled clinical trial was inappropriate.
- [14]The general practitioner noted that the records contained no justification for these substances, or explanation of the risks of using them, or any rationale for them. This was described as inappropriate care. She said that there were no documented diagnoses which justified their use, or any proper management plan for the patients, and the documentation was inadequate. The respondent’s performance was said to be unsatisfactory, and below the standard reasonably expected of a medical practitioner of his experience,[5] and unduly focused on prescribing injectable peptides. She regarded a clinical practice model where the treatment – here injectable peptides – took priority over the development of a broader management strategy as fundamentally problematic.
- [15]Both of these reports were prepared on the assumption that the respondent had actually had a consultation with each patient, albeit not in person, and as a result some of their content is not relevant, and there was no direct comment on the process in fact followed by the respondent. That process was however obviously unsatisfactory, to the point that formal evidence of that is unnecessary. It must have been obvious to any intelligent person that this was not an appropriate way for a medical professional to practise.[6]
Respondent’s evidence
- [16]The respondent deposed to recognising that his conduct in question amounted to professional misconduct, because of the deficiencies alleged in the referral, and that he now regrets such conduct, and his involvement with that organisation. Since consulting his insurer, he has undertaken an education plan under the guidance of the insurer’s Risk Advisory Service. He identified the modules undertaken, which appear relevant. He said he has no intention of ever prescribing peptides in the future, and that he now always exercises his independent professional judgment in the best interests of the patient when prescribing medication. He now recognises the deficiencies in the system under which he was then prescribing.
Characterisation of conduct
- [17]In the light of the independent expert evidence, the Tribunal accepts that this conduct overall was substantially below the standard reasonably expected of a registered medical practitioner of his level of training and experience. It is therefore professional misconduct for the purposes of the National Law. Such a conclusion is consistent with the characterisation adopted in other cases involving inappropriate prescribing to which I have been referred, such as Medical Board of Australia v Tunbridge [2020] SACAT 34 and Medical Board of Australia v Singh [2017] WASAT 33. It is unnecessary to consider whether it constituted professional misconduct on any other basis, particularly in circumstances where the proposition that it amounted to professional misconduct is uncontentious.
Sanction
- [18]In imposing a sanction, the health and safety of the public are paramount.[7] Disciplinary proceedings are protective, not punitive in nature.[8] Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[9] Insight and remorse on the part of the respondent are also relevant.[10] What matters is the fitness to practise of the respondent at the time of the hearing.[11] A list of factors which may, in a particular case, be relevant was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].
- [19]Save in one respect, the parties both seek the same outcome. This is a similar situation to a joint submission as to sanction. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31]. I do not propose to depart from the outcome supported by both parties.
- [20]The remaining issue is whether the registration of the respondent should also be suspended for a period of six to nine months, as the applicant submits, or whether the respondent should be required to pay a fine of $10,000, as proposed by the respondent. The applicant relied on the features that this was a course of conduct over a number of months, that the process involved a number of failings of proper care and failure to follow good medical practice, that the focus was on justifying the proposed treatment rather than a proper exercise of professional skill and responsibility, that he did not advise patients on any disadvantages to which they were exposed, or alternative treatments, or ensure that the patients had been so advised, and that he prescribed substances having no established therapeutic benefit, and with potentially adverse effects.
- [21]The applicant stressed the importance of general deterrence, given the popularity of and demand for peptide compounds in certain quarters, and hence the financial incentives for a practitioner to engage in such misconduct. The respondent had accepted at face value what he had been told about the safety and beneficial nature of the peptide compounds by persons seeking to supply them as a business, and had initially continued to rely on these people when alerted by the Health Ombudsman to the existence of a problem with this approach. It was submitted that medical practitioners had a particular responsibility not to make available drugs for non-therapeutic purposes.[12]
- [22]The applicant also submitted that the respondent had not been frank during the investigation as to the absence of consultations with the patients, even by means of telecommunications. This was relied on as an aggravating feature, separate from the fact of not having such consultations. The responses from the organisation supported their process and hence the actions of the respondent, and did not disclose that there had been no actual consultations, or correct the assumption of AHPRA that there had been teleconsultations. It may have been naive for the respondent to rely on the organisation in that way, but in the absence of evidence that he was aware of the detail of the submissions it was making on his behalf, it should not be assumed that he was personally involved in anything misleading in those submissions, or in any failure to be frank about the process involved.
- [23]It appears that the first meaningful contact with the lawyers acting for the respondent was by a letter of 30 December 2019, which forwarded copies of the medical evidence referred to above. A careful reading of those reports would have disclosed that the doctors were under the impression that there had been consultations, albeit by telecommunications. That was incorrect, and that this error had been made was not disclosed in the letter from the solicitors in reply of 12 March 2020, which accepted the criticisms identified on those reports, and referred to a number of mitigating factors.[13] At that stage, there was no discussion of the particular content of the conduct being alleged against the respondent. The applicant wrote again on 21 August 2020 to the solicitors after deciding to refer the matter to the Tribunal, and that letter also referred to the use of telephone or Skype consultations as unsatisfactory. There was apparently no reply to that notice.
- [24]The absence of any consultations was disclosed in the response to the referral, filed in the Tribunal on 26 February 2021. It would have been open to the respondent to draw the applicant’s attention to this in response to the copies of the expert reports, or in the response to the notice of the decision to refer the matter to the Tribunal, but I do not consider that it has been shown to have been the fault of the applicant that it was not disclosed earlier in the submissions from the organisation. I regard it as being to the credit of the respondent that it was disclosed when it was, in the response to the referral, given that it amounted to a more serious deficiency in the respondent’s conduct, and I do not regard it as of particular significance that it had not been disclosed over the previous twelve months, when the respondent had the benefit of legal advice, though it may have been more to his credit had it been disclosed earlier.
Other cases
- [25]In other matters involving inappropriate prescribing a range of sanctions have been imposed. In Singh (supra) the practitioner prescribed a range of drugs for weight loss, physical conditioning or body building on a significant scale over seven years, where the drugs were not appropriate for any established medical conditions. He defended himself before the Tribunal, and showed no insight or remorse, and the Tribunal was concerned at the risk of further offending. By the time of the hearing his registration had lapsed, and a period of disqualification from applying for registration of ten years was imposed.[14] In Tunbridge (supra) the conduct extended over twenty patients and eight years, and the practitioner initially sought to defend such prescribing. His records and monitoring were inadequate. By the hearing he was no longer registered, but was reprimanded, and disqualified from registration for two years.
- [26]In Medical Board of Australia v Bhamjee [2013] QCAT 259 a doctor’s registration was cancelled, as from a date when it had been suspended, with a preclusion period of five years from that date, about half of which had already passed. There were numerous charges against him, including inappropriate prescribing of drugs for pain relief in an inappropriate way, as well as inappropriate prescribing of anabolic steroids and testosterone for non-therapeutic purposes, such as body building. He defended the proceeding, but during the hearing agreed to a mediation, and the parties then presented an amended referral with fewer charges, and he agreed with it, and supported the proposed sanction. It appeared that it was what was said by the various witnesses that led him to reflect on his conduct, and change his attitude: [40]. The reasons supporting the adoption of the proposed sanction focused on the inappropriate prescribing of pain relief drugs.
- [27]In Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 the practitioner ran a telehealth business for patients seeking to lose weight, who were prescribed injectable compounds with no established therapeutic benefit and some risks.[15] In the case of two patients, this occurred although they disclosed medical conditions which made such prescribing particularly inappropriate. Some information was gathered by unqualified persons, he exercised no oversight and largely depended on accessing computerised medical records.[16] The proceedings were contested,[17] and he was said to have an inadequate understanding of what was required. The practitioner’s registration was cancelled, and a preclusion period of twelve months was imposed. The Tribunal expressed concern about his ability to practise safely except in the field of non-surgical cosmetic medicine: [61]. His expressed insight and remorse were discounted by the Tribunal because of his lack of credibility: [63]. Overall, this was a much worse case.
- [28]In Medical Board of Australia v Owen [2021] SACAT 9 the practitioner prescribed various substances for which there was no therapeutic indication, failed to undertake sufficient clinical assessments or follow up appointments, and failed to keep adequate clinical records. This occurred over some years, and involved seven patients, and breaches of the code of conduct. The matter was initially contested, but just before the hearing the practitioner joined in an agreed statement of facts, and both parties sought the sanction which the Tribunal approved, reprimand, suspension for twelve months, then various conditions on his practice. He also had to pay the costs of the Board. There had been a previous notification to the Board, resulting in an undertaking about record-keeping which was not adhered to. The lateness of the insight and remorse of that practitioner was significant, as was the prior notification, and the Tribunal referred to personal deterrence. These factors made it a worse case.
- [29]In Medical Board of Australia v Zhao [2021] VCAT 1053 the practitioner had engaged in inappropriate prescribing for twelve patients over three years. There was evidence of adverse side effects with one patient, as well as the potential for harm from the substances prescribed. There were also basic billing irregularities. The respondent had complied with all conditions imposed through immediate action, and admitted all allegations and particulars, which were regarded as significant, but the Tribunal accepted that she had shown limited insight and remorse, and was concerned about her competence. Because of these factors and three others, the Tribunal regarded a suspension of registration as warranted, together with conditions for further education during the suspension, and conditions after her return to practice, including for quarterly audits, to operate for at least three years.
- [30]In Medical Board of Australia v Pearce (SATWA, VR53 of 2018, 27 September 2018, unreported) inappropriate prescribing of various peptides to six patients resulted in a reprimand and a suspension for four months, and the imposition of conditions. The practitioner had only spoken to the patients by telephone, and there was no therapeutic indication for such medication.[18]
- [31]On the other hand, in Health Care Complaints Commission v Epstein [2015] NSWCATOD 21, a practitioner who had engaged in inappropriate prescribing of substances including human growth hormone to forty patients without clinical indications, without physical examinations and without proper records was reprimanded, and conditions were imposed restricting his ability to prescribe certain medications, but there was no suspension.[19] In Medical Board of Australia v Xie [2019] VCAT 1924 the practitioner prescribed an excessive dose of testosterone to one patient over two years, for which a reprimand was imposed. The practitioner had already been convicted for breaches of the drugs poisons and controlled substances legislation, undertaken extensive education and undergone auditing.
- [32]In Medical Board of Australia v McCombe [2020] QCAT 511 the practitioner had been improperly prescribing substances relating to body building to nine patients over seven years,[20] and had inadequate documentation. He was reprimanded and subjected to conditions, but not suspended, in view of his early and frank admissions to the relevant conduct, and what the Tribunal described as quite exceptional steps to demonstrate insight and remorse, and to guard against further inappropriate prescribing: [3]. The practitioner had made some attempts to wean the patients off these substances, and the decisions relied on by the Board were regarded as more serious. It was said that the conduct did not involve dishonesty, and was not unlawful: [25]. This was an unusual case, as the practitioner in submissions had accepted that a suspension was appropriate, and differed only over its length: [2].
- [33]The present case has much in common with the case of Medical Board of Australia v Marzola [2020] SACAT 116, which involved prescribing a range of substances, including peptides, human growth hormone and testosterone, to eight patients over a period of years.[21] The practitioner had for some time practised in cosmetic and anti-aging treatments, and had obtained information on these substances from presentations at conferences and discussions with colleagues, which he later recognised was inadequate as the sources were not objective. There were deficiencies in his clinical records, and he had failed to provide adequate warnings of the risks of the substances. He had ceased prescribing peptides spontaneously well before he received notice of the notification, and had subsequently changed his practice so as to limit significantly the sort of work he did. He had recognised the risk of harm to his patients, although there was no evidence that any had suffered actual harm. As in this case, by the hearing the practitioner accepted that he had engaged in professional misconduct, expressed remorse and insight, and accepted a reprimand and conditions like those proposed for the respondent. The Board sought also a suspension for nine months, but the Tribunal did not suspend, imposing a reprimand, a fine of $15,000 and a number of conditions. As well, he was ordered to pay the Board’s costs.
- [34]In some respects the conduct of that practitioner was worse than that of the respondent. He was prescribing over a much longer period, at the beginning of the proceeding he sought to defend his prescribing, he was aware of potential adverse effects of high dosing or extended use of some substances, and he had moved into prescribing such substances on his own initiative, and obtained information about the substances from a wider range of sources, although not wide enough to alert him to their true nature. On the other hand, that practitioner did see the patients, arranged blood tests and other assessments prior to prescribing, and evidently received feed-back that the patients claimed positive effects from them, suggesting follow-up assessment: [32]. There is nothing in the reasons to suggest that the practitioner was just prescribing to order, or relying on other practitioners to have provided relevant safeguards, such as advice and counselling before treatment, and monitoring and complication management afterwards. The unconventional and inappropriate way in which the respondent came to sign the prescriptions make his a more serious example of professional misconduct.
Consideration
- [35]There are distinguishing details for all of those decisions, but they suggest that suspension of registration for a period of some months is within the appropriate range. The aspects of the matter that are of concern are that substances were prescribed of no therapeutic value, or without an adequate therapeutic justification, and in circumstances where there were risks involved in their use.[22] The respondent had not warned the patients of the risks, so as to obtain properly informed consent. In addition, the circumstances under which he prescribed were quite unsatisfactory, without any consultation with the patients, and in circumstances in which he was just provided with some documentation designed to justify a particular prescription drawn up by someone else, rather than determined by his own professional judgment.
- [36]The system under which he worked was said to involve other practitioners seeing the patients and attending to examinations, assessment, and advice, and being responsible for clinical records, monitoring and any complications. Even if he accepted that that was true, there was nothing in the explanation of the system offered to him which provided a logical justification for him to be signing the prescriptions, other than an apparent desire for the other practitioners not to be involved in that step. That should have alerted him that there was something wrong with such an arrangement. This unconventional system was not a factor in the other cases referred to; the closest to it was the telehealth system in Goyer (supra), which was also criticised by that Tribunal. Overall, use of such a system is an aggravating feature in this case, and a feature not present in the other cases. In both respects, there was a significant and serious departure from proper professional standards, although I accept that at the time the respondent did not have information showing the inappropriateness of the use of the substances prescribed, but was trusting what he had been told.
- [37]On the other hand, there are significant mitigating factors. Despite the unsatisfactory nature of the early responses provided by the organisation on his behalf, once he was alerted by the case note in the bulletin to the true situation he obtained appropriate advice, did not dispute the evidence gathered by the Board, and made full admissions at the earliest point in the proceeding, even disclosing the more serious features referred to above. That is an indication of remorse and insight, and I do not regard it as of any real significance that that disclosure was not made earlier. He undertook relevant further education, and changed his manner of practice such that he is unlikely to be exposed to patients possibly seeking such substances in the future. I consider he has shown good insight and remorse, and undertaken significant rehabilitation. There is no reason to think that the respondent is generally unfit to practise.
- [38]The applicant asserted a need for personal deterrence, but I do not consider that there is any proper basis for a particular concern about that in this case, or to doubt that the respondent has seen the error of his ways. Any such concern strikes me as largely speculative, and based on the proposition that there is always some risk of reoffending. To the extent that there is any substance in that, the proposed conditions are adequate protection for the public. There is however a need for general deterrence, against both inappropriate, non-therapeutic prescribing, and the use of the consultation-free, result driven prescribing under a system such as used here, and that is a significant factor. This also involves maintaining proper ethical and professional standards.
- [39]In my opinion the seriousness of the conduct, and the considerations of general deterrence and the maintenance of professional standards, mean that a period of suspension is appropriate in the present case, although the mitigating circumstances, for which the applicant did not give sufficient credit, mean that a shorter period than that sought by the applicant is appropriate. It must also be recognised that the conditions, which are uncontroversial, will operate with some rigour on the respondent. I consider that a suspension for a period of four months will appropriately balance the need for general deterrence and the maintenance of standards with recognition of the respondent’s rehabilitation. The suspension should be delayed by one month, as occurred in Owen and Zhao (supra), to minimise disruption to the patients of the respondent. In other respects, the agreed aspects of the sanction will apply. There will be no order for costs, as is usual in these matters.
Footnotes
[1] The Act s 126. For their function, see s 127.
[2] These are identified in the referral, and are the only instances of wrongful prescribing within the scope of the referral.
[3] These were then dispensed by a pharmacy in Ballina, New South Wales. None of the patients lived there, or near the respondent; most lived in Sydney or Melbourne.
[4] It appears that they were largely prescribed to treat the side effects of inappropriately used testosterone.
[5] In the case of three patients, substantially below.
[6] This is not to say that a situation might not exist where it would be unexceptional for a medical practitioner to prescribe for patients without seeing them personally. I expect an example would be a prescription for something regularly prescribed to a known patient for a chronic condition.
[7] National Law s 3A, s 4.
[8] Legal Services Commission v Madden (No 2) [2009] 1 Qd R 149 at [122]. See also Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at [29] – [31].
[9] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. See also Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553; Medical Board of Australia v Zhao [2021] VCAT 1053 at [115].
[10] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143].
[11] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].
[12] Medical Board of Australia v Grant [2012] QCAT 285 at [54].
[13] This was the first response to the allegations other than by the organisation, and at this stage there was a broad acceptance of wrongdoing on behalf of the respondent.
[14] And upheld on appeal: Singh v Medical Board of Australia [2019] WASCA 51.
[15] This involved over 400 prescriptions: [57].
[16] His mode of practice was described by the Tribunal as “inherently unsatisfactory”: [65].
[17] Although the practitioner made extensive admissions, and after extensive cross-examination of him, all allegations in a particular category were withdrawn: [18].
[18] This was a decision of the Western Australian Tribunal, but is not available on AustLII or in full on the Tribunal web site, which offers only a summery which notes that it was “by consent”. There were mitigating circumstances, but they are not stated. There is no full statement of the reasons for the decision, or a decision certified by counsel, and in the circumstances I do not regard this as a decision of any value.
[19] The outcome in Medical Board of Australia v Dolar [2012] QCAT 27 was similar.
[20] The prescribing was said to have been very limited for the first four years: [23].
[21] Human Growth Hormone from 2008, peptides from 2013 to 2016 and testosterone from 2013 to 2017.
[22] But there was no evidence that any patient suffered actual harm, and some patients reported that the treatments were apparently beneficial.