Health Ombudsman v Cheong[2022] QCAT 181

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent is a medical practitioner.  He was first registered with the Medical Board of Queensland on the 4th of January 1988, and from July 2019, he was registered with the Medical Board of Australia (the Board) holding general registration and specialist registration as a general practitioner. 
2. [2]
   The proceedings today proceed on the basis of a further amended referral filed by the applicant with the Tribunal on the 8th of February 2021, and the respondent’s further amended response filed on the 24th of February 2021.  The referral relates to the respondent’s treatment of six patients at various times over the years 2003 to 2015.  To say that the matter has a long and protracted history would be an understatement. 
3. [3]
   The parties have filed an amended statement of agreed facts (ASOAF), and agree on the characterisation of the respondent’s conduct as professional misconduct, and the sanction (a reprimand); with the caveat that the respondent now submits that the further conditions relating to mentoring and an audit sought by the applicant are no longer necessary. 
4. [4]
   Attached to the applicants’ submissions and marked annexure C, is a document described as a “chronology of proceeding”.  It is sufficient at this point to note that the first notification about the respondent’s conduct was from a colleague in the respondent’s workplace on the 3rd of March 2015.  At all material times he practiced at a practice on the south side of Brisbane (the practice). 
5. [5]
   Following upon the first notification and an investigation, conditions were imposed upon his registration by way of immediate registration action,^[1] which (inter alia) prohibited him from dealing with any controlled drug (unless prescribed to him by another doctor for a genuine therapeutic purpose), which included administering or prescribing controlled drugs, being those containing any active ingredient of Schedule 8 in the relevant Poisons Standard. 
6. [6]
   The respondent was, at all relevant times, subject to registration standards, codes and guidelines developed by the State Board and the Board to govern what is appropriate professional conduct for the profession, including the Good Medical Practice (Code of Good Practice) developed by the State Board as about 2004; and the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct), which are admissible in proceedings such as this as evidence of what constitutes appropriate professional conduct for the health profession.^[2]

Background

7. [7]
   The respondent graduated with a Bachelor of Medicine, Bachelor of Surgery from the University of Queensland in 1986.  He commenced general practice training in 1993 and was awarded a fellowship with the Royal Australian College of General Practitioners in 1999. 
8. [8]
   The respondent has been a GP principal and director of the practice since 2003.  He usually consults 3.5 days a week at the practice. 
9. [9]
   As referred to earlier, a complaint was made on the 1^st March 2015 to the OHO by a colleague within the practice, concerning the respondent’s alleged prescribing of high-dose opiates to patients outside of general accepted practice who had not been reviewed by a pain management specialist or colleague. 
10. [10]
    As noted earlier, the Health Ombudsman took immediate action on the 9th of June 2015 and imposed conditions on the respondent’s registration.  As well as the prescribing conditions referred to earlier, the respondent was required to complete education regarding, inter alia, safe and effective opioid prescribing. 
11. [11]
    The conditions were amended on the 11th of July 2019 but not so that the prohibition on prescribing schedule 8 drugs was affected.  Those conditions are still imposed on the respondent’s registration. 

The Relevant Conduct

12. [12]
    There remain factual disputes between the parties but, in effect, the matter has been compromised after lengthy negotiations, and a succinct summary of the factual basis on which the Tribunal is now to proceed is set out in the submission of Ms Robb, Counsel for the respondent.^[3] I respectfully adopt that summary.
13. [13]
    In relation to patient RO, and in accordance with the ASOAF, the respondent accepts that:

    1. (a)
       he prescribed restricted drugs of dependency and controlled drugs to patient RO on various dates between the 18th of January 2012 and the 1st of June 2015;
    2. (b)
       by March 2012, he believed that patient RO was drug-dependent and in those circumstances he made contact with Medicines Regulation Quality (MRQ) regarding patient RO;
    3. (c)
       between March 2012 and the 3rd of September 2014, he failed to comply with his obligation under section 122 of the Health (Drugs and Poisons) Regulation 1996 (the Regulation) to give the Chief Executive a report in the approved form about the circumstances of patient ROs treatment in circumstances where he believed patient RO was drug-dependent; 
    4. (d)
       by a letter faxed to the practice on or about the 31st of July 2014, the delegate of the Chief Executive of MRQ requested the respondent contact MRQ and provide information with respect to patient RO by 22nd of August 2014, and asked that the respondent contact MRQ prior to prescribing any controlled drugs to patient RO;
    5. (e)
       he prescribed controlled drugs to patient RO on the 8th of August 2014 and the 20th of August 2014 without first contacting MRQ, contrary to the delegate of the Chief Executive’s request; 
    6. (f)
       he contacted MRQ regarding patient RO on the 3rd of September 2014 and provided a report regarding patient RO on the 17th of September 2014, so that there was a period in which he failed to comply with the request of the delegate of the Chief Executive that he communicate with MRQ regarding patient RO by 22nd of August 2014, in contravention of section 122 of the Regulation; and
    7. (g)
       he, on occasions, allowed for early prescriptions and the escalation of the prescribed dose over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct.
14. [14]
    In relation to patient NH, and in accordance with paragraph 59 of the ASOAF:

    1. (a)
       he prescribed a controlled drug to patient NH on various dates between 12 February 2014 and 25 October 2014;
    2. (b)
       he prescribed restricted drugs of dependency to patient NH on various dates between 26 February 2014 and 3 May 2017;
    3. (c)
       by February 2014, he believed that patient NH was drug-dependent;
    4. (d)
       from February 2014 until 3 October 2014, when he sent MRQ a copy of the correspondence sent to ATODS dated 11 September 2014, which MRQ accepted as a report, he failed to comply with his obligations under sections 122 and 213 of the Regulation to give the Chief Executive a report about the circumstances of patient NH’s treatment in circumstances where he believed patient NH was drug dependent;
    5. (e)
       on dates between February 2014 and 11 September 2014, he failed to comply with his obligations under section 122 of the Regulation to obtain treatment approval from MRQ prior to prescribing a controlled drug to patient NH who he believed was drug dependent;
    6. (f)
       on dates between February 2014 and 7 October 2014, he failed to comply with his obligations under section 213 of the Regulation to obtain treatment approval from MRQ prior to prescribing a restricted drug of dependency to patient NH who he believed was drug dependent;
    7. (g)
       by letter faxed to the practice on or about 30 July 2014, MRQ advised that a doctor is not permitted to prescribe controlled or restricted drugs to patient NH without approval and requested that the practice contact MRQ or refer the patient to ATODS if patient NH consulted with the practice again;
    8. (h)
       he prescribed controlled drugs and/or restricted drugs of dependency to patient NH without first consulting MRQ, or referring the patient to ATODS, on 13 August 2014, 20 August 2014, 27 August 2014 and 10 September 2014, contrary to the delegate of the Chief Executive’s request; and
    9. (i)
       he, on occasions, allowed for early prescriptions and the escalation of the prescribed dose over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct. 
15. [15]
    In relation to patient SR, in accordance with the ASOAF:

    1. (a)
       he prescribed controlled drugs and restricted drugs of dependency to patient SR on various dates between 22nd March 2010 and 1 June 2015; 
    2. (b)
       he believed that patient SR was drug dependent when he commenced treating patient SR in 2010; 
    3. (c)
       from March 2010 until on or about 17 September 2014, he failed to comply with his obligations under section 122 of the Regulation to obtain treatment approval from MRQ prior to prescribing a controlled drug to patient SR who he reasonably believed was drug dependent; 
    4. (d)
       between March 2010 and 17 September 2014, he failed to comply with his obligation under section 122 of the Regulation to give the Chief Executive a report in the approved form about the circumstances of patient SR’s treatment in circumstances where he believed patient SR was drug dependent; 
    5. (e)
       from March 2010 until on or about 11 March 2015, he failed to comply with his obligations under section 213 of the Regulation to obtain treatment approval from MRQ prior to prescribing a restricted drug of dependency to patient SR who he believed was drug dependent; 
    6. (f)
       by letter faxed to the practice on or about 31 July 2014, the delegate of the Chief Executive of MRQ requested the respondent contact MRQ and provide information with respect to patient SR by 22nd August 2014; 
    7. (g)
       he provide a report regarding patient SR to MRQ on the 17th of September 2014, so that there was a period in which he failed to comply with the request of the delegate of the Chief Executive that he communicate with MRQ regarding patient SR by 22nd August 2014; and
    8. (h)
       he, on occasions, allowed for early prescriptions and the escalation of the prescribed dose over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct.
16. [16]
    In relation to patient PF and in accordance with the ASOAF; 

    1. (a)
       he prescribed controlled drugs to patient PF on various dates between 17 September 2012 and 11 May 2015; 
    2. (b)
       he believed that patient PF was drug dependent at the time patient PF became his patient; 
    3. (c)
       between around September 2012 and 8 August 2014, he failed to comply with his obligations under section 122 of the Regulation to obtain treatment approval from MRQ prior to prescribing controlled drugs to patient PF who he reasonably believed was drug dependent;
    4. (d)
       between September 2012 and 17 September 2014, he failed to comply with his obligation under section 122 of the Regulation to give the Chief Executive a report in the approved form about the circumstances of patient PFs treatment in circumstances where he believed patient PF was drug dependent; and
    5. (e)
       he, on occasions, allowed for early prescriptions over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct.
17. [17]
    In relation to patient AL and in accordance with the ASOAF; 

    1. (a)
       between 12 March 23 2003 and 5 June 2015, the respondent prescribed controlled drugs and, on four occasions, administered a controlled drug to patient AL;
    2. (b)
       he knew patient AL had been on long-term treatment with controlled drugs and restricted drugs of dependency, and he believed that patient AL was drug dependent from the time patient AL became his patient;
    3. (c)
       by letter dated 6 September 2004, the delegate of the chief executive requested he advise MRQ if the patient’s analgesic requirements significantly escalated; 
    4. (d)
       patient ALs analgesic requirements significantly escalated from November 2005; 
    5. (e)
       despite the escalation, the respondent did not advise MRQ of this until providing his report dated 10 September 2014, so that he failed to comply with the request of the delegate of the Chief Executive that he advise MRQ if patient ALs analgesic requirements significantly escalated between November 2004 and September 2014, in contravention of section 122 of the Regulation; and
    6. (f)
       he, on occasions, allowed for early prescriptions and the escalations of the prescribed dose over what some of his peers would consider acceptable, which was inappropriate and/or in breach of the Code of Conduct. 
18. [18]
    The final allegation in relation to which admissions are made concerns patient GR, and it is accepted by reference to the ASOAF, that the respondent inadvertently prescribed a controlled drug in circumstances where the respondent was prohibited from prescribing controlled drugs by the immediate registration action conditions placed on his registration.  He did not realise that the drug he had prescribed was a controlled drug; he had prescribed the drug in accordance with the patient’s stable long-term medical prescription plan developed by the patient’s treating psychiatrist;  and the respondent notified the applicant through his solicitors by email dated the 25th of August 2015 of his prescribing error. 
19. [19]
    In early 2017 another colleague in the practice complained to the Office of the Health Ombudsman and it was not until 2019 that the applicant filed its first referral with the Tribunal.  That notification related to prescribing of schedule 4 drugs and immediate registration action was taken, but was lifted within a very short period after the Office had conducted an investigation. 
20. [20]
    Subsequently to the filing of the first referral, the parties filed what could be called competing expert medical opinions from a number of doctors, leading to the filing on the 20th of December 2021 of the ASOAF. 
21. [21]
    As noted, there are still factual disputes between the parties, but given that the applicant bears the onus of proof, and has elected as a model litigant to proceed on the basis of the facts set out in the ASOAF, that is the relevant conduct that the Tribunal has to consider.  The Tribunal is satisfied that the compromised outcome conforms with the objects of the QCAT Act for proceedings to be dealt with fairly, efficiently and economically.  It also conforms with the objects of the HO Act and the National Law to protect the health and safety of the public and to ensure the maintenance of public confidence in, and maintenance of appropriate ethical standards of, the medical profession. 
22. [22]
    The applicant indicates in its submissions that the applicant does not seek findings in relation to matters alleged in the further amended referral that are outside those matters admitted to in the ASOAF.  The applicant notes that the matters it does not press include allegations that the respondent failed to make adequate inquiries before prescribing; failed to monitor the patient’s use of the drug; failed to form a diagnosis; and failed to maintain adequate medical records. 
23. [23]
    The applicant submits that while the respondent’s conduct should be assessed globally, the elements of the conduct for consideration are the breach of conditions (in relation to patient GR only and admitted to be inadvertent), a failure to adhere to the directives and/or request of MRQ, failure to comply with the Regulations, and the appropriateness of the prescribing. 
24. [24]
    These elements as identified by the applicant; can be cross-referenced to the admissions the respondent makes with respect to his conduct in treating each of the patients RO, NH, SR, PF and AL.
25. [25]
    As Ms Robb notes in her submission, there may appear to be some crossover between the matters that the applicant says it does not press – such as not pressing allegations that the respondent failed to make adequate inquiries before prescribing, failure to monitor the patient’s use of drugs and failure to form a diagnosis – and the question of the appropriateness of the prescribing.  However, when regard is had to the ASOAF, it is apparent that the applicant’s reference to inappropriate prescribing is a reference to the respondent’s concession that on occasions he allowed for early prescriptions and the escalation of the prescribed dose above what some of his peers would consider acceptable, which he admits was inappropriate and/or in breach of the Code of Conduct. 
26. [26]
    While the matter has been compromised on the basis of the admissions in the ASOAF, the applicant in its written submission has referred to other information contained in the documents filed with the Tribunal.  That information includes expert evidence in reports exhibited to affidavits sworn by Dr Nigel Pryor, a clinical psychiatrist, and Dr Murray, an expert GP, and non-expert evidence in affidavits sworn by the  respondent’s colleagues who made the notifications, which affidavits were sworn and filed this year. 
27. [27]
    By reference to the competing expert medical reports filed by the parties in the years leading up to the filing of the ASOAF on the 20th of December 2021, the primary focus for both parties in relation to those reports is on the reports of the expert general practitioners, Dr Simon Murray, dated the 1st of September 2020, filed by the applicant, and Dr Christopher Pitt, whose report is dated the 20th of April 2021 and which was filed by the respondent.
28. [28]
    In light of the compromise reached in the ASOAF, it is unnecessary for the Tribunal to resolve what really are quite significant differences between these two acknowledged experts about the respondent’s prescribing practices in the relevant period. 
29. [29]
    As Ms Robb articulates in her submission, with respect to the characterisation of the respondent’s conduct, the opinions of those two experts are difficult to reconcile.  Because of the concessions made by the respondent in the ASOAF and the basis on which the respondent has agreed to compromise the matter, it is not necessary to have recourse to the expert opinions to resolve disputes of fact in the matter, and it is, therefore, not necessary to resolve the disputes as between the experts.  That said, the expert opinions as to the level of care provided by the respondent to the patients the subject of the referral, have some relevance when it comes to determining the appropriate sanctions.
30. [30]
    I agree with Ms Robb that the affidavits of the two notifiers, the respondent’s colleagues, both filed on the 31st of February 2022, cannot be regarded as expert reports, and, to be fair to Mr Forbes, he does not present them as such.  Both had very poor opinions of their former colleague’s prescribing practices, and in relation to the complaint made in 2017, following a short period of immediate registration action which prohibited the respondent from prescribing schedule 4 drugs, that immediate registration action was lifted by the OHO, and there is no allegation of this kind pursued against the respondent in relation to patient NH.
31. [31]
    I accept Mr Forbes submission, however, that the unchallenged evidence of those two colleagues about the respondent’s inability to accept collegiate advice, or criticism or clinical advice from colleagues about matters relating to these very complex patients, are relevant to the issue of insight, although that has to be read down in light of the overall compromise.
32. [32]
    The same or similar observation can be made (in light of the ASOAF) about many of the criticisms made in clinical advice to the Health Ombudsman by Dr Nigel Pryor on the 14th of September 2020;  Associate Professor Harold Jacobs in his report, dated the 7th of August 2016;  and Dr Brown in his reports, dated the 1st of April 2017 and the 6th of September 2017, which are annexed to an affidavit filed on the 31st of January 2022 under the hand of Mr Forbes. 
33. [33]
    In light of the compromise represented by the ASOAF, many of the substantial criticisms made by those experts relating to failing to take proper histories, failing to monitor patients in their use of prescribed controlled drugs, and failing to make a proper diagnosis and to keep adequate medical records, are no longer pursued by the applicant. 

Characterisation

34. [34]
    I agree that, in isolation, the prescribing of medication to patient GR, as initiated by the patient’s psychiatrist, would properly be characterised as an inadvertent breach of the conditions imposed on his registration by the HO, but that admitted conduct, together with his admitted conduct in relation to patients RO, NH, SR, PF, and AL, is an admission of persistent contravention of the Regulation, and of allowing for early prescriptions and the escalation of prescribing doses for these complex patients who were drug-dependent, which was inappropriate and in breach of the relevant Code of Conduct.
35. [35]
    The respondent accepts that the persistent disregard of his professional obligations is invariably and properly deemed professional misconduct.  It is not alleged in any case that there was no proper therapeutic basis for the prescribing;  rather, his admitted conduct is that set out in the ASOAF. 
36. [36]
    In Medical Board of Australia v Evans [2013] QCAT 217 at [19]-[20], the then Deputy President of this Tribunal, his Honour Judge Hornemann-Wren SC, observed:

Failings of (breaching Regulations)… are not to be seen to be mere technical breaches of Regulations.  The systems of controls established by the Regulation are integral to the protection of members of the community from potentially harmful drugs.  The privilege of an endorsed medical practitioner to prescribe such drugs brings with it the burden of responsibility of doing so only in compliance with the regulatory regime.  This is particularly so when the persons for whom the drugs are being prescribed may be drug dependent. 

…

Quite clearly, prescribing controlled and/or certain drugs of dependency on a regular basis to persons known by the medical practitioner to be drug dependent  … in the absence of a sufficient medical reason, or otherwise inappropriately, is unsatisfactory professional conduct.

37. [37]
    The respondent’s conduct, when viewed globally, is appropriately characterised as professional misconduct, and the Tribunal so finds.

Sanction

38. [38]
    The main principle for administering the HO Act is that the health and safety of the public is paramount.  The objects of the Act are to promote professional, safe and competent practice by health practitioners.
39. [39]
    The purpose of disciplinary proceeding is to protect the public, maintain proper professional standards, and to assure the public that proper standards are being maintained in the particular profession.  This in turn assists in upholding the public trust and confidence in the profession.  Proceedings of this kind are protective and not punitive. 
40. [40]
    In Health Ombudsman v Duggirala [2021] QCAT 326 at [43], by reference to Craig v the Medical Board of South Australia (2001) 79 SASR 545 at 533, the Tribunal adopted the following general statement of a principle:

…the imposition of disciplinary action 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 who 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.

41. [41]
    In framing an appropriate disciplinary response, the Tribunal may consider such matters that arise in the particular case, such as, the seriousness of the relevant conduct; and the degree to which the practitioner has acquired insight into his or her conduct; which may be reflected in a variety of ways, such as the practitioner demonstrating that he or she understands the nature of the conduct and accepts that the conduct was wrong, and has an appreciation of why he or she engaged in that conduct. 
42. [42]
    It has been said in this Tribunal and in other State Tribunals exercising a similar jurisdiction that a very relevant factor in determining the seriousness of the conduct is whether the practitioner has breached any Regulations or guidelines or Codes of Conduct, and whether the practitioner has done so knowingly. 
43. [43]
    The respondent has no prior (or subsequent) disciplinary history.  There is considerable focus in the submissions on the degree to which the respondent here does now appreciate the serious nature of his conduct and have relevant insight into, and remorse for the conduct. 
44. [44]
    As noted earlier, the chronology annexed to the applicant’s submission indicates that there has been very significant delay in bringing this matter to this point.  The delay can be seen as having a number of components, namely, the delay between the original notification and the taking of immediate registration action and the filing of the first referral, and the delay between the filing of the first referral and the response and todays date, the final determination by the Tribunal. 
45. [45]
    Mr Forbes’ written submission on the issue of delay, as I understood from the submission filed with the Tribunal,  was to the effect that, from the perspective of his client, the delay is not such as to provide any mitigation in assessing sanction, but it is relevant to the question of insight.  His written submission referred to the well-known case of HCCC v Litchfield [1997] NSC 297, and the frequently quoted passages from the judgment to the effect that delay may be relevant to indicate that the respondent – to use the terminology of the case – has become a changed person since the last incident of proved misconduct. 
46. [46]
    I do not understand the applicant to be submitting that the complaint made in February 2017 is really a factor that protracted the investigation, given how quickly it was resolved.  I agree with Ms Robb that it could not be seen as a “variable that protracted the investigation in any material way.”  It could not be because, as a result of the compromise, the notification in 2017, as well as being resolved quickly, has not led to any proved allegations of misconduct.
47. [47]
    The applicant’s chronology does not include the reference to the immediate registration action taken as a result of that notification on the 15th of May 2017 which led to conditions being imposed prohibiting the respondent from prescribing schedule 4 restricted drugs.  That immediate registration action and the conditions imposed as a result were lifted only a month later on 16 June 2017. 
48. [48]
    The first referral to the Tribunal was on the 20th of June 2019, four years after the immediate action on the 9th of June 2015.  In the applicant’s written submission, there was no concession to the effect that either the applicant or the OHO had contributed to that delay. 
49. [49]
    Today, and in response to a question from me, Mr Forbes very fairly said, by reference to  Health Ombudsman v Veltmeyer [2021] QCAT 77, that the period of time between the immediate registration action and the filing of the first referral was too long.  Veltmeyer was a quite different case, but, nevertheless, the issue of delay was regarded as important (in relation to mitigation) by the Tribunal in that case.  It was a case involving allegations of boundary violations by a doctor in relation to a female patient.  In a general sense, the factual basis was less complex than the factual basis here.  However, the delay was in the same general timeframe.  Notification was made in 2015, the respondent was not notified of it until 18 months later, and, when interviewed in 2017, he made full and frank admissions, and the matter was not referred to the Tribunal until June 2019. 
50. [50]
    In that case, the applicant acknowledged that there had been “some” delay and expressed its regret.  The Tribunal was advised that the delay was attributed to “significant backlogs of matters in the Office of the Health Ombudsman and the Director of Proceedings.”  In answer to further questions from me today, after his comment about the process being “too long,” Mr Forbes fairly made a similar concession in this case.
51. [51]
    On the other hand, he submits that the applicant’s failure to make the admissions he now makes contributed to the delay.  In my view, the significant delay is neutral in the peculiar circumstances of this case, as the compromise came after extensive negotiations between the parties leading up to the final amended statement of agreed facts.  The delay after the filing of the first referral should be regarded as the responsibility of both parties in all the circumstances.  In saying that, I do not mean to reflect in a pejorative way on either party. Each party has given ground to effect a compromise.
52. [52]
    In view of the significant commonality between the parties as to sanction, it is not necessary for me to take this issue of delay any further.  As I have noted, it is a different case to Veltmeyer, and, having regard to the chronology, I can comfortably infer that it was the filing of the competing expert reports after the filing of the first referral in 2019, which reports were filed in 2020 and 2021, that led to negotiations and the compromise now reflected in the ASOAF.  On all the evidence, it could not be said, in my opinion, that the long delay, once the referral was filed, was attributable, in a critical sense, to the actions of either party.  In relation to the respondent, as a result of the compromise, many of his original concerns about the allegations made against him have been justified by the compromise now reached. 
53. [53]
    It is common ground and supported by many authorities that what the practitioner does during a period of long delay can be very relevant to issues such as insight, remorse and whether the respondent presents as any on-going risk.  The applicant does not now suggest (nor could it) that the respondent now presents as an on-going risk. He has continued to practice with the immediate registration conditions in place, without complaint.
54. [54]
    The respondent filed an affidavit in these proceedings on the 15th of February 2022, and he has not been required for cross-examination.  He did submit voluntarily to some brief questioning from the two professional assessors and myself, for which I am grateful.
55. [55]
    In that affidavit, he says a number of things.  At paragraphs 3 to 6, he affirms:

3. As a clinician with a special interest in chronic pain, complex problems, psychological trauma and mental illness, I am acutely aware of how challenging patients with such comorbidities can be.  Management of such patients is never straightforward, and during the period of treatment of the patients the subject of this referral, the clinical guidelines for chronic pain management were still evolving.

4. I note that the comments of Drs Murray and Pitt – that the patients the subject of this referral were extremely complex with, in Dr Pitt’s words, “multiple layers of biological, psychological and social dysfunction in combination with limited access to idea treatments and reinforced by a chaotic lifestyle which caused poor health.  The poor health often caused further psychosocial dysfunction, resulting in an entrenched cycle of poverty and illness.”

5. Dr Pitt also expresses a view that I tried my best to assist these very complex patients, often with multiple comorbidities.  Both Drs Pitt and Murray comment on the fact that I do develop rapport with my patients.  As a practitioner, I have always tried to – I have always tried to make endeavours to ensure that I’m up to date in the field, that I engage with other professionals and exchange views, and that I try my very best to assist my patients.  I search the literature to test what I’m thinking.  I am careful to ensure that I don’t continually adhere to past decisions if, on reflection, they appear not to be working.  I do genuinely care for the welfare of my patients.

6. It is very distressing to me to find myself in this position where, in respect of this handful of patients, where I’ve tried so very hard to help them better their health and their lives, my efforts were not good enough, and I was unable to reduce their opiate intake on a long-term basis as I had hoped.  This has caused me to engage in a significant amount of self-reflection, and, as will be seen below, I have undertaken further, extensive education and made changes to my practice, to ensure that I continue to provide my patients with the best possible care.

56. [56]
    At paragraph 17 of his affidavit, he notes that these proceedings have caused him to reflect on his practice with a view to identifying areas of improvement.  On page 5 of his affidavit, under the heading “changing my practice policy”, he states as follows:

26. Well prior to the immediate action conditions being imposed in 2015, I made a personal decision to change my personal opioid prescribing policy, in that I would no longer agree to prescribe opioids at any patient’s first consultation with me. 

…

28. Moving forward, I do not intend to prescribe opioids to inherent patients who are already taking opioids.  I will be advising such patients that they will need to continue to seek opioid prescriptions from an alternative practitioner,  and I will help them in all other ways available to me.  I note the implementation of QScript, has made it easier to police doctor shopping, however I will be implementing this change in practice nevertheless.

29. Further, moving forward, I have no intention of prescribing more than 100 milligrams of oral morphine equivalents per day for any patient.  The patients who require increased dosages of opioid analgesia, such as cancer patients, I will refer those patients to other practitioners to manage their opioid analgesia.

57. [57]
    Annexed to his affidavit is a table indicating courses he has undertaken since the first notification, which comprise four courses, two of which were for one hour each online, and two of which were for two hours online, addressing directly the conditions imposed by the Health Ombudsman on the 11th of June 2015. 
58. [58]
    Apart from the prescribing of a controlled drug to patient GR on two occasions in July 2015, which, is accepted by the applicant was inadvertent, as he did not know that the drug flunitrazepam was a controlled drug, and that he was prohibited by the conditions from prescribing it to GR, he has not breached those conditions in the nearly seven years since they were imposed.  As stated in the ASOAF, it was the respondent who self-notified the prescribing error to the OHO on the 25th of August 2015.
59. [59]
    In Dr Pitt’s report, although he was critical in some respects of the respondent’s practice in relation to these patients, he notes that the respondent has been compliant with the various statutory bodies involved since, and has demonstrated a high level of self-reflection, insight and self-motivation by voluntarily undertaking extensive further education. 
60. [60]
    The applicant’s expert, Dr Murray, despite being very critical of the respondent, acknowledges in the conclusion of his report that he has a degree of empathy for the respondent.  He notes “it appears that he cares for his patients, he spends adequate time with them and appears to have a good rapport with them.  A good doctor-patient relationship is important for optimal outcomes in managing patients with complex issues such as … (the) patients in this brief.”
61. [61]
    As Ms Robb notes, the respondent, by his admissions in the ASOAF, accepts his shortcomings in his engagement with MRQ and his failures to comply with the Regulation.  In her submission she refers to a letter to the Health Ombudsman from the relevant delegate of the Chief Executive of the MCQ, dated the 4th of February 2016.  That letter is not in the brief, but I understand there is no objection to the Tribunal having regard to it.  In her submission, Ms Robb notes the delegate’s comments that “MRQ’s long-term position with regard to enforcing section 121(a) is that this is burdensome for GPs and effectively redundant.  Reporting of long-term  treatment adds no value and does not assist in identifying these persons at most risk of harm.”
62. [62]
    The attitude of the applicant is to acknowledge that these steps which are set out in the respondent’s affidavit, are indicative of some remorse and relevant to the safety and health of his patients.  The applicant acknowledges that in its submission, but refers to the long delay in the respondent finally conceding his shortcomings.
63. [63]
    I think criticisms of that nature overlook the fact that the applicant now does not pursue many of the allegations relating to the respondent’s conduct which were set out in the first referral.
64. [64]
    In my view, the circumstances which the respondent now admits, which amount to professional misconduct, are less serious than the case originally presented by the applicant in the first referral filed in 2019.  As I have noted, even the most serious aspect of his admitted conduct, involving breaches of the Regulation, were described indirectly by the delegate of the  Chief Executive of the MRQ in 2016 as being of no value and not assisting in identifying persons most at risk of harm.
65. [65]
    I do not accept that this case, in the quite unusual circumstances that pertain, has any parallels to the finding made by the South Australian Tribunal in Medical Board of Australia v Hydemann [2020] SACAT 106. 
66. [66]
    In relation to the respondent’s expressed intention about not prescribing opioids in the future, the applicant submits that since he has been prohibited from prescribing schedule 8 drugs since June 2015, the Medicines and Poisons Act 2019 and the Medicines and Poisons (Regulations) 2021 have been introduced, and that because of the conditions, the respondent has no practical experience as what are now defined as “high-risk medicines” or “monitored medicines.” 
67. [67]
    As the respondent notes in his affidavit, on the 21st of September 2021 he completed the compulsory QScript Learning statement now required of all practitioners, which relates specifically to understanding key differences between the present legislation and the previous legislation, and identifying and classifying what used to be referred to as controlled drugs under the new legislation, and understanding the requirements now on general practitioners who are prescribing either high risk medicines or monitored medicines.
68. [68]
    As Ms Robb submits, all Schedule 8 medications now come within the definition of high risk medicines and monitored medicines in the new legislation, and Schedule 4 medications are also regulated under the new legislation.  QScript is a real-time prescription monitoring service established under the new legislation, and, as a medical practitioner, prior to prescribing a monitored medicine, the respondent is registered to access and check QScript to see whether the patient has previously been prescribed, dispensed or given any monitored medicine.  Queensland Health Monitors, QScript, “checking if prescribers and pharmacists have checked QScript when required,” so that the respondent’s prescribing of monitored medicines is already monitored by virtue of the new statutory regime and QScript.
69. [69]
    Although there was no evidence before the Tribunal in the HB to this effect, at the time Ms Robb wrote those submissions, the respondent had instructed her that the relevant patient management software had been installed in his practice, and today he confirmed that it had been installed, and he explained its operation and its effect on his prescribing practices. 
70. [70]
    I agree with her that there is no evidence to suggest the respondent does not now comprehend his professional obligations with respect to prescribing controlled and restricted drugs, and his associated obligations under the new legislation.  Indeed, Mr Forbes very fairly acknowledges that this is the right time to lift those conditions, however, he submits for the conditions which are in dispute. 
71. [71]
    Character evidence has also been led from a patient and from a highly qualified professional colleague.  The respondent’s patient speaks of his ability to listen and to involve her in decision making, and his colleague talks of his interest in taking advice with a view to managing more complex patients rather than referring them elsewhere.  There still remains a concern relating to the evidence of his colleagues who made the notifications, about his ability to take advice from other professionals.
72. [72]
    In circumstances in which the parties agree on sanction, I don’t intend to canvass all of the authorities referred to in the submissions.  Medical Board v Watts [2019] VCAT 1471 involved a practitioner who prescribed opioids and benzodiazepines to patients over an extended period, a number of whom were drug dependent or became drug dependent as a consequence of the prescribing.   The Tribunal was satisfied in that case that the practitioner had shown appropriate insight.  The Tribunal suspended the practitioner’s registration for six months and imposed conditions, noting it achieved an appropriate balance in terms of general deterrence, specific deterrence and rehabilitation. 
73. [73]
    Ms Robb refers to the South Australian case of Medical Board of Australia v Marzola [2020] SACAT 116 where the respondent practitioner had prescribed one or more medications to eight patients between 2005 and 2017 without consulting with the patients, exposing them to risk; failing to obtain informed consent before prescribing medication which was experimental or not approved; failing to keep adequate records and breaching the relevant Code of Conduct.  The conduct was found to be professional misconduct, and the practitioner was reprimanded and conditions placed on his registration confining his practice and prohibiting him from prescribing drugs the subject of the referral.  Dr Marzola he did not oppose the finding of professional misconduct.  He resisted, successfully, the Board’s contention that a period of suspension be imposed.  In that case, there was no appreciable delay, and the impugned conduct included placing patients at risk and engaging in conduct that is not alleged or proved against the respondent here.
74. [74]
    Mr Forbes advised the Tribunal that he was involved in that case and another case of the Medical Board of Australia v Moschou [2020] SACAT 110, which involved a doctor engaging in similar practices which related to the administration of experimental drugs known as peptides, but also benzodiazepines connected with a drug scandal involving the football club Essendon.
75. [75]
    Dr Moschou was suspended for a period of nine months, as a result of a general agreement as to sanction between the parties.  The difference in outcomes, Mr Forbes submits, was that Dr Marzola had filed in the Tribunal a reflective report which the Tribunal regarded as strong evidence of insight, remorse and prevention of future risk. 
76. [76]
    Both parties referred Health Ombudsman v Wabersinke [2019] QCAT 156, in which the referral related to a general practitioner who accepted that her conduct in prescribing benzodiazepines for two years to two patients who were both drug-dependent was inadequate and potentially put the patients at risk.  It was also conduct in contravention of the Regulation.  Her conduct was classified as professional misconduct and she was reprimanded but, in the circumstances there, no further conditions were imposed on her registration. 
77. [77]
    The parties agree that a reprimand is an appropriate sanction in this case.  A reprimand is not a trivial penalty.  It serves as a public denouncement of the respondent’s conduct.  The applicant also contends for mentoring and auditing conditions^[4].  The respondent submits that such conditions are not necessary, because of his understanding of the new legislative scheme, his sworn statement that he does not intend to prescribe Schedule 8 drugs, his efforts to reflect on his prescribing practices, and his engagement in education programmes.
78. [78]
    In relation to his present level of insight, mentoring and audit type conditions of the type now proposed by the applicant, were unnecessary subsequent to the imposition of the immediate registration conditions in 2015 because of the other restrictions on his practice, particularly the conditions that prevented him prescribing schedule 8 medication drugs to drug-dependent patients.  The issue of the imposition of conditions is finely balanced, and I have to say I have been greatly assisted by the professional assessors in this aspect of the Tribunal’s disciplinary response.  As a result of today’s orders, the immediate registration conditions will be lifted.  The respondent in his affidavit states that he is willing to undertake mentoring and audit conditions if ordered by the Tribunal.
79. [79]
    Acting on the advice of the professional assessors, in particular, I am satisfied that the mentoring conditions and auditing conditions, with a significant amendment, are an appropriate disciplinary response in the circumstances in addition to the reprimand.  The conditions, as I intend to amend them, are not onerous, and the respondent agrees to comply with them, and I think, overall, they will assist him to transition from the present restrictions back into unrestricted practice.  This must be a good thing for the health and safety of his patients and for him personally. Condition 2 of the suite of conditions set out at page 339-341 of the HB will be amended to read:

2. The mentoring must comprise a minimum of eight sessions with each session being a minimum of our hour duration over a period of a 12-month period. 

Orders

80. [80]
    The Tribunal makes the following findings and orders:

    1. (a)
       pursuant to 107(2)(b)(iii) of the Health Ombudsman Act 2013 (QLD) (the Act), in respect of the proved allegations against the respondent, the respondent engaged in conduct amounting to professional misconduct within the meaning of section 5 of the National Law;
    2. (b)
       pursuant to section 107(3)(a) of the Act, the respondent is reprimanded;
    3. (c)
       pursuant to section 107(3)(b) of the Act conditions are imposed on the practitioner’s registration in accordance with the amended conditions set out at pages 339 to 341 of the hearing brief;
    4. (d)
       pursuant to section 62(2)(a)(ii) of the Act, the immediate registration action taken by the Health Ombudsman on the 9th of June 2015 to impose conditions on the respondent’s registration, and amended on the 11th of July 2019, is set aside; and
    5. (e)
       Costs reserved.