Health Ombudsman v Choudhary
[2021] QCAT 351
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- Health Ombudsman v Choudhary[2021] QCAT 351
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Health Ombudsman v Choudhary[2021] QCAT 351
Health Ombudsman v Choudhary[2021] QCAT 351
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Choudhary [2021] QCAT 351 |
PARTIES: | Health Ombudsman (applicant) |
v | |
anand madhukarrao choudhary (respondent) | |
APPLICATION NO/S: | OCR269-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 27 October 2021 (ex tempore) |
HEARING DATE: | 27 October 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President Assisted by: Dr Jennifer Cavanagh Mrs Fiona Petty Dr Frederick Walden |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner specialising in psychiatry and medical administration – where the respondent stole blank prescription forms from colleagues on two occasions – where the respondent falsified a prescription in order to obtain medication – where the respondent made a further attempt to obtain medication with a falsified prescription but failed – where the respondent created a fake email from the Health Ombudsman designed to deceive his employer into thinking he had made a notification of his conduct when in fact he had not – where the respondent was convicted of related criminal offences – whether such conduct amounts to professional misconduct – what sanction should be imposed ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent was subject to salacious media coverage due to the circumstances of this case – whether a non-publication order should continue anonymising the respondent Health Ombudsman Act 2013 (Qld), s 4, s 103, s 104, s 107 Health Practitioner Regulation National Law (Queensland), s 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Health Ombudsman v Moosawi (No 2) [2020] QCAT 461 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 John Fairfax Group Pty Ltd v Local Court of New South Wales [1991] 26 NSWLR 131 Psychology Board of Australia v Wakelin [2014] QCAT 516 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M J Price of the Office of the Health Ombudsman |
Respondent: | R M O'Gorman instructed by Barry Nilsson Lawyers |
REASONS FOR DECISION
Introduction
- [1]This is the referral of a health service complaint against Anand Madhukarrao Choudhary (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).
- [2]The applicant seeks findings that the respondent has engaged in professional misconduct, and consequent orders by way of sanction. The parties are agreed as to the facts of the conduct the subject of the referral and its appropriate characterisation as professional misconduct.
- [3]The parties differ as to appropriate orders by way of sanction.
Background
- [4]The respondent is 46 years old and was aged 43 to 44 years at the time of the conduct the subject of the referral. The respondent obtained a Bachelor of Medicine and Bachelor of Surgery degree in India in 1997, and a Doctorate of Medicine and Psychiatry in India in 2002.
- [5]The respondent has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists since 2007 and a Fellow of the Royal Australian College of Medical Administrators since 2017. The respondent was first granted registration by the Medical Board of Australia in 2003 and continues to hold specialist registration as a psychiatrist. He previously held specialist registration in medical administration, but that expired in September 2020 upon its non-renewal.
- [6]The respondent has been employed for over 17 years in various capacities at the Caboolture and Kilcoy Hospitals, which are part of the Metro North Hospital and Health Service (MNHHS). At the time of the conduct, the respondent was employed as the Deputy Director of Medical Services, Caboolture and Kilcoy Hospital. He also worked as a consultant psychiatrist at the Caboolture Private Hospital and a suburban medical centre. The respondent continues to work as a psychiatrist at the Caboolture Private Hospital and Pine Rivers Private Hospital and has rooms at two suburban medical centres.
- [7]In 2018, the respondent experienced significant workplace and personal stressors, which included a diagnosis of type 2 diabetes, erectile dysfunction symptoms, marital tensions, personal financial stressors, and workplace stressors. The Tribunal accepts that such factors do provide some explanation for conduct which is otherwise out of character.
- [8]The respondent has no criminal history apart from the convictions the subject of the referral, and no prior disciplinary history of any particular significance. He has an excellent work history and continues to be highly regarded by colleagues.
Conduct
- [9]The conduct the subject of the referral comprises two types of conduct. Firstly, the theft of blank prescription forms from colleagues on two occasions in 2018 and 2019, and the obtaining of prescription medication pursuant to a falsified prescription in 2018, and the failed attempt to obtain such prescription medication in 2019. Secondly, and more seriously in the circumstances of this case, the respondent’s subsequent dishonesty in attempting to avoid the consequences of that earlier behaviour.
- [10]On 22 September 2018, the respondent stole a script from a colleague’s prescription pad at the Caloundra Private Clinic (first theft). He handwrote, dated, and signed a prescription for Madhukar Choudhary, for 48 Levitra, 20mg tablets. This is a drug used for treating erectile dysfunction. The signature used was not the respondent’s true signature and purported to be that of the colleague from whose prescription pad the prescription had been taken.
- [11]The forged prescription was used by the respondent to obtain the medication on 5 October 2018 at Terry White Chemist Caloundra (first fraud).
- [12]On 8 March 2019, the respondent stole another prescription form from a colleague’s prescription pad at the Caloundra Private Clinic (second theft). He again handwrote, dated, and signed a prescription in the name of Anand Choudhary, for 48 Levitra 20mg tablets. The signature was not the respondent’s true signature and purported to be that of the colleague from whose prescription pad the prescription had been taken.
- [13]On 11 March 2019, the respondent attended Terry White Chemists Caloundra and attempted to have the prescription filled (attempted fraud). The pharmacist telephoned the respondent’s colleague to query the prescription. The colleague of the respondent informed the pharmacist that she had not written the prescription and the medication was not dispensed to the respondent.
- [14]The colleague of the respondent spoke with the respondent regarding the prescription that had been presented on 11 March 2019. The respondent denied taking the prescription from the prescription pad, filling in the prescription, and signing the other doctor’s name. The respondent, after again being confronted by the colleague, admitted to taking the prescription, completing the details by hand, and forging the other colleague’s signature in order to attain Levitra.
- [15]On 13 March 2019, the respondent made similar admissions to the Director of Medical Services at the Caloundra Private Clinic. On 15 March 2019, the Director of Clinical Services of the Caloundra Private Clinic emailed the respondent in relation to their meeting on 13 March 2019, suggesting that it would be in his interests to contact his medical defence for advice, and to also consider a voluntary notification to the Australian Health Practitioners Regulation Agency (AHPRA).
- [16]In a reply email the same day, the respondent replied, “As the matter is not patient related, I do not believe my indemnity will be interested. I will endeavour to seek legal advice and notify OHO, over the coming week.”
- [17]The Director of Clinical Services queried the respondent as to whether he had any feedback regarding legal advice and notification of the Office of the Health Ombudsman (OHO). In an email in reply on 26 March 2019, the respondent stated, “I’m working through the process of notification to OHO as discussed.”
- [18]In an email on 4 April 2019, the Director of Clinical Services queried the respondent as follows, “Are you able to provide details on the OHO notification?”
- [19]It seems that a conversation may have occurred between the Director of Clinical Services and the respondent following his invitation by an email dated 5 April 2019. On 9 April 2019, the Director of Clinical Services queried the respondent as follows, “Following our discussions could you please arrange for a solicitors letter confirming that a report has been undertaken to the OHO.”
- [20]In an email in reply on the same date, the respondent stated:
I anticipate a notice from OHO this week or next week, which I shall forward to you. This shall satisfy you that a notification is being made.
I also wish to request discontinuation of my credentials as well as working arrangements with Caloundra private Clinic with immediate effect.
- [21]In an email from the respondent to the Director of Clinical Services on 11 April 2019, which carried the subject, “FW: Private and confidential – OHO case 201910469/AC”, the respondent stated as follows:
Please find correspondence I received from OHO.
I was away sick yesterday, hence forwarding this to you today.
I am hopeful that this will satisfy you that I’ve in fact made the notification.
As you may know, AHPRA’s processing time range is between 2 and 6months, so it will be a while before I hear from AHPRA.
I am also hoping that as I won’t be a credentialled [sic] practitioner at Caloundra, I will not need keep you informed of AHPRA’s investigation.
In that regard, I’m hopeful that this will be the last of my correspondence with you.
- [22]Attached to such email was what purported to be a forwarded message from a sender “Referrals” with email address
, with such original email addressed to the respondent’s Queensland Health email address. The email purported to being sent on 9 April 2019, and similar to the subject of the covering email, described the subject as “Private and confidential – OHO case 201910469/AC.” - [23]The email, which carried the logo of the OHO, purported to be addressed to the respondent and acknowledge his “self-notification”. It included the following statement: “On 27th March 2019 the OHO received notification about your conduct.”
- [24]It purported to inform of a decision, under section 35(1) of the HO Act, to accept the matter and take relevant action to refer the matter to AHPRA under part 9 of the HO Act. It continued as follows:
Reasons for the decision.
The delegate determined it was suitable to refer your notification to AHPRA to further deal with the issue. As required by law, I consulted with AHPRA and referred the issue, under part 9 of the Act, because AHPRA and the national boards are the most appropriate entities to deal with the matter:
- Your notification does not appear to indicate that you have behaved in a way that constitutes professional misconduct as defined by the National Law.
- Your notification does not appear to indicate any grounds for the suspension or cancellation of your registration under part 7 of the Act.
- Your notification does not appear to indicate the referral is required to be made to the Queensland Civil and Administrative Tribunal (QCAT) under part 10 of the Act.
- [25]The rest of the email included detail which lent verisimilitude to the impression that the email was, indeed, an email from the OHO to the respondent including, in addition to the logo referred to earlier, accurate references to contact details for the OHO and AHPRA, and the inclusion of a named referrals officer from OHO.
- [26]The respondent admits that the forwarded email was, in fact, falsely created by himself to give the impression that he had self-notified to OHO. The respondent had, in fact, not made any self-notification to OHO, and consequently had not received any notification from OHO in response to any self-notification. The email he forwarded to the Director of Clinical Services was a complete fiction created by the respondent.
- [27]The impressive detail of the fictitious email was later explained. On 27 March 2018, the respondent had made a notification to OHO about another practitioner. On 5 April 2018, he received an email from OHO with the subject, “Private and confidential – Notice of decision – OHO case 201803056/AC.” The email notified the respondent of the decision, under section 35(1) of the HO Act, “to accept the matter and take relevant action to refer the matter under part 9 of the Act.” The reasons for the decision which followed were in relevantly identical terms to those that were included in the respondent’s fictitious email the following year, so it is readily apparent that the respondent used the content of the actual email from OHO to himself on 5 April 2018 to base the altered email which then purported to be the email to him from OHO of 9 April 2019.
- [28]The only reasonable conclusion from the fact of the fictious email is that it was to deflect the continued inquiries by the Director of Clinical Services as to whether he had made a self-notification to OHO. It was designed to mislead the Director of Clinical Services, obviously in the hope that a referral to OHO and/or AHPRA might not result, despite his conduct admitted to date.
- [29]The respondent deposes in an affidavit filed in the Tribunal as follows:
- The email sent to the CEO on 11 April 2019 was not an email from the OHO, that was created by me on or around 9 April 2019.
- My decision to create this email was motivated by feelings of extreme shame, and a sense of panic. Due to my high levels of anxiety and clouded judgment, I did not fully appreciate the consequences of my actions and acted on a misguided desire to make the whole thing go away and move on.
- I now recognise the seriousness of this conduct and have come to understand that I have to accept the consequences of same.
- [30]The Tribunal views with some scepticism the claim that the creation of the email occurred with anything other than deliberation. The course of deception involved in creation of the fictitious email and the deliberation in forwarding it to the Director of Clinical Services is quite inconsistent with any panicked and ill-considered decision in the extremity of the moment. Furthermore, the continuing following lack of candour on the part of the respondent is inconsistent with such a contention.
- [31]On 15 May 2019, the Operations Executive Manager of the Health Care Service that oversaw the Caloundra Private Clinic wrote to AHPRA regarding the respondent as follows:
I understand Dr Choudhary has self-reported to the AHPRA and the OHO. Not being apprised for the details of the self-report, we would like to provide AHPRA with Caloundra Private Clinic’s version of events.
Dr Choudhary acquired a colleague’s blank script, forged a script for himself and then attempted to have the S4 medication dispensed. Caloundra Private Clinic understands that a further 6 of the colleague’s scripts remain unaccounted for.[1]
Ramsay Health Care views Dr Choudhary’s conduct as very serious and is therefore providing this information to AHPRA.
Dr Choudhary has voluntarily resigned his accreditation status at Caloundra Private Clinic.
- [32]It is reasonable to infer that, if not for such letter, the respondent’s conduct may not have come to the attention of regulatory authorities before him being subsequently charged with criminal offences. The letter of 15 May 2019 did trigger a process of regulatory investigation of the respondent’s conduct.
- [33]On 5 June 2019, by email and attached notice, pursuant to sections 35 and 47 of the HO Act, the OHO notified the respondent that on 15 May 2019, the OHO had received a complaint about his professional conduct at Caloundra Private Clinic. The notice identified matters that the respondent might wish to provide a written explanation about, including:
- The information received indicating you acquired a colleague’s blank prescription, forged the prescription for yourself then attempted to have the S4 medication dispensed.
- When and where, did you attempted [sic] to have the prescription dispensed.
- Details of the S4 medication written on the prescription, such as name of drug, quantity, and if any repeats.
- Whether you are in possession of further blank prescriptions acquired from your colleague.
- Whether the medication was intended for yourself or for another person.
- Whether you have made a self-notification about the incident.
- Any further information you would like to provide.
- [34]In a letter in reply dated 17 June 2019, the respondent referred to the circumstances in which he chose to self-prescribe himself Vardenafil in March 2019, and stated as follows:
Having made the decision to prescribe the Vardenafil, I realised I had not brought my own prescription pad with me on that day. I was not a patient on the computerised system, so I had to use a manual pad. I took a single script blank out of the pad of another doctor.
…
In answer to your specific questions, I can advise as follows:
- The reason I wrote the prescription is detailed above
- I attempted to have the script filled at the Terri [sic] White Chemist, Caloundra Shopping Centre. The chemist did not dispense the medication as they did not have any in stock.
- I wrote the script for Vardenafil 20 mg PRN quantity of 4 with 5 repeats.
- Other than this one prescription form, I did not take any others from the book.
- As stated above the medication was for myself.
- I did not report myself to the OHO or AHPRA as the medication had not been dispensed.
- I now know fully my obligations are not to self-prescribe and will never do so in the future. I will also ensure that I only ever use my own prescription forms when issuing manual scripts to patients.
- [35]Such statements by the respondent were, at the very least, disingenuous, if not deliberately and wilfully misleading.
- [36]The Tribunal does not accept that the theft of the prescription form on 8 March 2019 occurred for the reasons stated by the respondent in his letter to the OHO dated 17 June 2019. Indeed, the respondent has subsequently admitted that he purported to produce a prescription written by another doctor with a false signature. He did not take a prescription form from the pad of the other doctor as a mere convenience for him openly self-prescribing, but in the course of deliberate dishonesty, as admitted by his subsequent pleas of guilty to criminal charges, and his admissions in the proceedings before the Tribunal.
- [37]His statement that he did not report himself to OHO or AHPRA as the medication had not been dispensed must be regarded as disingenuous in circumstances where he had not self-reported himself to AHPRA after dishonestly obtaining the same medication on 5 October 2018.
- [38]It is notable that there is no disclosure at that time of the circumstances in which he stole a prescription form and, in fact, obtained medication by its use, the previous year. There is also no disclosure at that time of his purported self-notification to OHO by way of the falsified email correspondence he had produced in April 2019.
- [39]The correspondence can only be regarded as being less than fully frank and lacking in candour.
- [40]It would appear that the OHO subsequently became aware of the respondent’s falsification of the purported email from OHO. On 25 June 2019, an officer of the OHO emailed the Queensland Police Service reporting not only the circumstances of the second theft and attempted fraud, but also the falsified OHO email.
- [41]On 4 July 2019, the respondent emailed his superior at the MNHHS advising of the correspondence he had received from OHO dated 5 June 2019, regarding the complaint received from Ramsay Healthcare. The respondent provided an explanation in relevantly identical terms to that he had provided to the OHO regarding his self-prescription of Vardenafil in March 2019. He made no disclosure regarding his similar conduct the previous year. It would seem that that only came to light in the course of the police investigation in relation to his conduct in March 2019.
- [42]On 5 August 2019, the respondent was charged with the following offences:
- (a)Stealing on or about 22 September 2018;
- (b)Stealing on or about 8 March 2019;
- (c)Fraud on or about 5 October 2018;
- (d)Attempted fraud on or about 11 March 2019.
- (a)
- [43]The respondent promptly notified the MNHHS of that fact. On 12 August 2019, the MNHHS suspended the respondent from duty on full pay.
- [44]The respondent entered early pleas of guilty in the Magistrates Court at Maroochydore to the criminal charges and was fined a total of $1200, with no convictions recorded.
- [45]By correspondence dated 5 November 2019, the MNHHS required the respondent to show cause why a disciplinary finding should not be made against him on the grounds of his criminal conduct constituted by the offences to which he had pleaded guilty, and the additional allegation that, on 11 April 2019, he misused MNHHS information communication technology infrastructure by forwarding the falsified email purporting to be the OHO email response to his self-notification.
- [46]In a letter dated 21 November 2019, the respondent admitted all allegations, expressed his remorse and embarrassment for his conduct, and stated:
I believe that the best way for me to demonstrate my remorse is to return to work as soon as possible and to work hard to continue to serve the community and MNHHS to the best of my ability. I would be could [sic] very grateful for that opportunity.
- [47]In December 2019, the MNHHS notified the respondent of a determination that he had breached the Code of Conduct for the Queensland Public Service, advised him that serious consideration was being given to the termination of his employment, and invited his response.
- [48]The respondent subsequently notified his resignation from employment with the MNHHS by a letter dated 13 February 2020.
Characterisation of conduct
- [49]The respondent does not resist a finding that the totality of his conduct the subject of the referral should be characterised as “professional misconduct” within the meaning of that term as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [50]The theft by the respondent of prescription sheets from a colleague’s prescription pads constitutes not only criminal behaviour, but a gross betrayal of the trust of his colleagues. The forgery of prescriptions and the attaining and attempted attaining of S4 medication are serious contraventions of the criminal law and completely inconsistent with those obligations placed upon health practitioners by the regulations governing the prescription and use of scheduled medication.
- [51]That conduct alone would be sufficient to be characterised as professional misconduct. Of even more seriousness is the misconduct involved in the fabrication of the email, purportedly from the OHO, for the obvious purpose of seeking to avoid the consequences of the respondent’s earlier misconduct.
- [52]I note the observations of the Honourable JB Thomas AM QC in Psychology Board Australia v Wakelin[2]:
The respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character [than] the sexual transgression. The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned. She was prepared to misrepresent the truth to the professional body, and made unsuccessful attempts to cover up her actions.
- [53]
The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the response of practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty, and that sanctions for such conduct may well exceed that which will be imposed in this particular case.
- [54]Such comments apply equally to practitioners dealing with OHO investigations of their conduct.[4]
- [55]Such comments are also apt, by analogy, to the conduct of the respondent in this case, given that it was directed towards cutting off at the pass any investigation by OHO or AHPRA into his misconduct. It therefore involves a very serious departure from the standards expected of a practitioner of the respondent’s level of training and experience.
- [56]The Tribunal has no hesitation in finding that the totality of the respondent’s conduct should be characterised as “professional misconduct” as defined in section 5 of the National Law.
- [57]Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Sanction
- [58]The main consideration for the Tribunal when determining any orders for sanction is the health and safety of the public.[5] The purpose of sanction is protective, not punitive in nature. In the exercise of that protective jurisdiction, it is appropriate for the Tribunal to take into account the maintenance of professional standards, the preservation of public confidence in the medical profession, and the need to deter the respondent and other medical practitioners from engaging in like conduct.
- [59]Mitigating factors in favour of the respondent include his early pleas of guilty to the criminal charges and his cooperation with the proceedings before the Tribunal, including his admission of professional misconduct.
- [60]He has also taken steps towards addressing those personal factors which may have contributed to his conduct, so as to ensure that he would not engage in similar conduct in the future. He has changed his treating general practitioner so that considerations of personal embarrassment would not inhibit him from seeking a prescription of medication to address any medical issues.
- [61]He sought and obtained psychiatric treatment from Dr David Storor, consultant psychiatrist. He commenced seeing Dr Storor on 18 July 2019, and continued to see Dr Storor for counselling, cognitive behavioural therapy, and medication treatment. Dr Storor diagnosed an anxiety disorder which improved significantly with appropriate treatment, and the consequent reduction in work stressors after ceasing a medical administration role with the MNHHS.
- [62]The respondent established a formalised mentoring arrangement with another practitioner from September 2020 onwards, and his mentor has provided a statement that he is very much impressed with the respondent’s commitment to mentorship and ongoing support from his treating psychiatrist.
- [63]The respondent also completed an online ethical decision-making course. Dr David Storor expressed the opinion that there is “little or no likelihood” of the respondent engaging in such behaviour again.
- [64]As mentioned at the outset of these reasons, the respondent is highly regarded by colleagues, including by his treating psychiatrist and mentor and, amongst others, the Chief Executive Officer of the Caboolture Private Hospital, who knew the respondent in his capacity as a visiting medical officer and Deputy Director of Medical Services of that facility, and who considers his conduct generally to be “impeccable and highly professional.” The respondent actively contributes to the profession by way of mentoring and supporting students and junior practitioners.
- [65]After his appearance in the Magistrates Court Maroochydore in September 2019, the respondent suffered the embarrassment of salacious media attention in respect of his criminal convictions and their circumstances.
- [66]Given all these circumstances, both parties submit, and the Tribunal accepts, that issues of personal deterrence do not loom large in considering appropriate orders for sanction. Considerations of general deterrence, maintenance of the reputation of the profession, and public confidence in the profession are of greater significance.
- [67]It is relevant, as submitted on behalf of the respondent, that the medication obtained and sought to be obtained by the respondent was of a type that did not have any potential to impact on the respondent’s ability to safely provide treatment to patients, or lead to an addiction that might have that effect. In that sense, it is a less serious example of such conduct than quite often comes before the Tribunal, where the medication is such as to potentially have that deleterious effect. Indeed, if considered alone, the conduct associated with obtaining and attempting to obtain such medication might have potentially, in the particular circumstances of this case, been considered such as to not require any preclusion from practice. It is the subsequent more serious conduct of additional dishonesty that places this matter in a more serious category.
- [68]Both parties submit that the respondent should be reprimanded. His serious departure from professional standards certainly does require denunciation by the Tribunal by way of a reprimand.
- [69]Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
- [70]The parties differ as to whether any further order by way of sanction is required to meet the protective purposes of sanction.
- [71]The applicant submits that considerations of general deterrence, in particular, require an order for suspension of the respondent’s registration for a period of between three to six months. The applicant refers to authorities, including the matter of Wakelin referred to earlier in these reasons, and other matters where conduct involving dishonesty has resulted in periods of suspension from practice, in support of such contention.
- [72]The applicant seeks to distinguish authorities referred to on behalf of the respondent where a reprimand only was ordered because of the circumstances where those respondents had already suffered an effective preclusion from practice as a consequence of their conduct, whereas the respondent has not suffered any preclusion from practice by way of regulatory action, and has not been otherwise precluded from continuing to practise his profession. The respondent continues to practise at two private hospitals and two medical centres.
- [73]The respondent submits that a reprimand would adequately address considerations of general deterrence. The respondent points to the paramount consideration of the health and safety of the public[6] as meaning that, although by no means decisive, the fact that any preclusion from practice will have a negative impact upon those 400 to 500 patients who rely on the respondent for ongoing treatment and management of their psychiatric conditions supports orders for sanction not involving an actual preclusion from practice.
- [74]In determining appropriate orders for sanction, and in particular the question as to whether or not any suspension from practice is required to meet the protective purposes of sanction, I have had the benefit of the views expressed by all three assessors.
- [75]In my view, a reprimand alone would be insufficient to meet the protective purposes of sanction, and in particular, considerations of general deterrence, maintenance of professional standards and public confidence in the medical profession. The seriousness of the respondent’s professional misconduct, and in particular the lengths that he went to to avoid the regulatory action that would necessarily follow the notification of such conduct, is such that a period of suspension of the respondent’s registration of no less than six months is required to properly address such factors.
- [76]No doubt that may have negative consequences for the current patients of the respondent, but that will always be the case where the misconduct of a practitioner is of such seriousness as to require their preclusion from practice. So as to allow some period of time for transfer of care to ameliorate, to some extent, that negative consequence, the commencement of the suspension of registration will be delayed for a period.
- [77]Pursuant to section 107(3)(d) of the HO Act, the Tribunal suspends the respondent’s registration for a period of six months on and from 28 November 2021.
Non-publication order
- [78]On 11 December 2020, the Tribunal made an interim non-publication order pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), prohibiting publication of any material that could lead to identification of the respondent.
- [79]The order was made upon application by the respondent, unopposed by the applicant, on the grounds that it was necessary to avoid endangering the mental health of the respondent within the terms of section 66(2)(d) of the QCAT Act.
- [80]At that time, the respondent relied upon reports of his treating psychiatrist, Dr David Storor, dated 4 September 2019, 2 October 2020, and 16 October 2020.
- [81]In his report dated 2 October 2020, Dr Storor stated:
Dr Choudhary has attended me for treatment regularly this year, most recently on the 29.09.2020. Dr Choudhary’s Adjustment Disorder with Anxiety has stabilised with treatment, and he has transitioned successfully to private psychiatric practice.
Dr Choudhary’s condition this year is in stark contrast to his mental health last year, when he was charged and appeared in the Magistrates Court in Maroochydore. These latter circumstances were naturally stressful, and the stress of the Court proceedings was made much worse by the public attention surrounding his appearance and several tawdry items in the local newspaper in which he was publicly named and ridiculed. It took Dr Choudhary some time to recover from these events.
I understand that Dr Choudhary is applying for non-publication orders to be made with respect to his upcoming QCAT hearing on the grounds that publication may endanger his mental health.
I have no doubt that if Dr Choudhary’s QCAT hearing was made public, this would be enormously stressful for him, and more likely than not, lead to a relapse of his psychiatric condition. I note that Dr Choudhary has numerous patients under his direct care in his private practice. In my opinion, if Dr Choudhary’s QCAT hearing is made public, then this information will adversely affect the treating relationship between Dr Choudhary and his patients to the detriment of his patients and their therapy.
I strongly support Dr Choudhary’s application for non-publication, both on the grounds of the likely adverse effect on his mental health, and the adverse effect on the treatment he is providing to his patients.
- [82]In his report dated 16 October 2020, Dr Storor stated:
Currently, Dr Choudhary’s Adjustment Disorder with Anxiety has stabilised with treatment, and he has transitioned successfully to private psychiatric practice. His current condition is in stark contrast to his mental health late last year, in the period leading up to and following his Court appearance. The stress of the Court proceedings was made much worse by the public attention surrounding his appearance and several tawdry items in the local newspaper in which he was publicly named and ridiculed. These events caused an acute exacerbation of Dr Choudhary’s psychiatric condition, and he suffered sleep disturbance, increased anxiety, and low mood, and once again he withdrew from family and friends. His sleeping tablet Zopiclone was re-started, the dose of Chlorpromazine was increased, and the dose of Desvenlafaxine was increased from 50mg to 100mg daily. It took Dr Choudhary some time to recover from these events.
I understand that Dr Choudhary is applying for non-publication orders to be made with respect to his upcoming QCAT hearing on the grounds that publication may endanger his mental health. I have no doubt that if the proceedings of Dr Choudhary’s QCAT hearing was made public, this would be enormously stressful for him, and more likely than not, lead to a relapse of his psychiatric condition. I strongly support Dr Choudhary’s application for non-publication, on the grounds of the likely adverse effect on his mental health.
- [83]In an email to the respondent’s legal representatives yesterday, Dr Storor indicated that his concerns regarding the effect of publication of QCAT proceedings on the respondent’s mental health “remain unchanged”.
- [84]On the basis of such evidence, the respondent contends for a continuance of the non-publication order made on 11 December 2020. The respondent relies upon the opinions expressed by Dr Storor as justifying an order pursuant to section 66(2)(b) of the QCAT Act to avoid endangering the mental health of the respondent, and further, pursuant to section 66(2)(d) of the QCAT Act, in that publication of the respondent’s identity would be contrary to the public interest because of Dr Storor’s opinion as to the possible negative effect upon therapeutic relationships between the respondent and his patients.
- [85]The applicant does not oppose the continuance of the non-publication order. Such concession does not bind the Tribunal.
- [86]The discretion to make a non-publication order, pursuant to section 66 of the QCAT Act, must be informed by the paramount principle of open justice:
Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.[7]
…information may not be withheld from the public merely to save a party or witness from loss or privacy, embarrassment, distress, financial harm, or other “collateral disadvantage” …[8]
…an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for closure of courts, or the issue of suppression orders and their various alternative forms.[9]
- [87]Dealing firstly with the respondent’s contention regarding the operation of section 66(2)(d) of the QCAT Act, I am not convinced that the non-publication order sought is necessary to avoid publication of information, which publication would be contrary to the public interest.
- [88]The contention in that regard is based upon the opinion of Dr Storor that such information would adversely affect the treating relationship between the respondent and his patients to the detriment of his patients and their therapy.
- [89]I consider the notion that patients should be kept in the dark about such matters concerning their treating practitioner in their own interests to be paternalistic and quite contrary to contemporary notions of informed patient consent. To the contrary, I consider that it is in the public interests for patients to be fully informed as to such matters, and to make their decisions as to who they consult with full knowledge of such matters.
- [90]If I had considered that the contended circumstances did give rise to a discretion to make a non-publication order pursuant to section 66(2)(d) of the QCAT Act, considerations of the public interest in open justice would outweigh such contended consideration in any event.
- [91]On the other hand, I do consider that the criteria in section 66(2)(b) of the QCAT Act may well be satisfied so as to enliven a discretion to continue the non-publication order.
- [92]Taking the material relied upon by the respondent at its highest, it is reasonably arguable that such an order is necessary to avoid endangering the mental health of the respondent. I say that ascribing to the terms of the subsection an expansive meaning. The opinions expressed by Dr Storor do enable a finding that it is more likely than not that there would be some exacerbation of the respondent’s anxiety disorder if he were to again be subjected to publication of proceedings, especially if expressed in salacious terms. I accept that that is sufficient to enliven the discretion pursuant to section 66(2)(b) of the QCAT Act to continue the non-publication order.
- [93]However, that is not the end of the matter. It is for the Tribunal to consider whether that discretion should be exercised in favour of continuing the non-publication order, and that requires a balancing of the potential negative effects to the respondent with those other important public interest considerations of open justice. In carrying out that balancing exercise, I note as follows.
- [94]The publication of the Magistrates Court proceedings in 2019 caused an exacerbation of the respondent’s psychiatric condition, but that was successfully addressed by appropriate treatment. There is nothing in the material to indicate that any exacerbation of that condition was of such a severity as to prevent the respondent from nevertheless carrying out his professional practice as a psychiatrist, and its severity at that time must be considered in light of that fact.
- [95]More than two years has passed since, and during that time, the respondent has benefited from continued psychiatric treatment, and in more recent times, the support of a professional mentor including, the respondent deposes, discussions regarding the respondent’s need for ongoing support, particularly around these proceedings.
- [96]The respondent deposes that he does not currently have any significant workplace stressors, and through his support and relationship with his mentor, is well supported at work. I have no reason to suppose that he will not be able to avail himself of appropriate support, even during a period of suspension from practice.
- [97]In those circumstances, it is reasonable to infer that the respondent’s psychiatric and psychological resilience is now more robust than it would have been in 2019, or indeed, as recently as the date of Dr Storor’s most recent written report of in October 2020.
- [98]The respondent has not placed any material before the Tribunal detailing any particular exacerbation of his anxiety state leading up to, and in anticipation of, this hearing. I do not consider that the likely extent of any exacerbation in the psychiatric condition of the respondent is such as to justify an exercise of the discretion pursuant to section 66 of the QCAT Act to continue the interim non-publication order.
- [99]The interim non-publication order made on 11 December 2020 is discharged.
Footnotes
[1] The respondent was not charged with any further theft of scripts, such allegation is not the subject of the referral, and has been disregarded for the purposes of these proceedings.
[2] [2014] QCAT 516 at [21].
[3] Ibid at [27].
[4] Health Ombudsman v Moosawi (No 2) [2020] QCAT 461 at [30].
[5] HO Act, section 4.
[6] HO Act, section 4.
[7] J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 44.
[8] Ibid at 45.
[9] John Fairfax Group Pty Ltd v Local Court of New South Wales [1991] 26 NSWLR 131 at [142]-[143].