Health Ombudsman v Grigg[2022] QCAT 266

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The referral to the Tribunal filed on the 29th of June 2021 concerns the admitted conduct of the respondent, an experienced general practitioner practising in Ipswich, that between 2005 and 2017 he prescribed to patients controlled and restricted drugs, in circumstances and in quantities which were clinically inappropriate, placing the patients at risk of harm and in breach of the Health (Drugs and Poisons) Regulation 1996 (the Regulation). 
2. [2]
   Allegation 1 concerns the respondent’s contravention of the Regulation in respect of 29 patients between January 2014 and November 2016, as a result of which his prescribing endorsements were cancelled by Queensland Health. 
3. [3]
   Allegation 2  concerns the respondent’s prescribing to seven of those patients over the period from 2005 to 2017, in circumstances and in quantities which were clinically inappropriate, which placed the patients at risk of harm and in contravention of the Regulation. 
4. [4]
   The respondent admits the allegations, and that his conduct constitutes professional misconduct.
5. [5]
   The referral relates to a decision made on the 26th of April 2017 by the Delegate of the Chief Executive, Queensland Health, to cancel the respondent’s endorsements as a general practitioner to prescribe or otherwise deal in schedule 8 and schedule 4 controlled and restricted drugs.  The notice related to the 29 patients referred to in allegation 1 of the referral.
6. [6]
   The respondent did not seek to review that decision before this Tribunal, as he was entitled to do.  His only response to a notice to cancel his prescribing credentials given prior to the decision, was a letter to the Delegate on the 30th of March 2017 from his solicitors in which it was relevantly stated:

Dr Grigg acknowledges that he has failed to comply with the regulation and accepts that his endorsement to prescribe schedule 8 controlled drugs and schedule 4 restricted drugs of dependency will be cancelled.

Dr Grigg has reflected on his management of the patients the subject of the notice and the circumstances in which he prescribed certain medication without the requisite approval of the chief executive.  Dr Grigg regrets that he failed to give sufficient attention to his obligations under the Regulation.  The only reason Dr Grigg can provide is the pressure of work and the volume of paperwork involved.

Dr Grigg views the notice as an opportunity to review the way in which he practices and make necessary changes.  Dr Grigg proposes to undergo relevant education with respect to appropriate prescribing practices.  He has also sought risk management advice from his insurer.  He proposes to obtain advice about appropriate protocols that he can implement in his practice to ensure that the requirements of the Regulation are not overlooked.

In view of the above, Dr Grigg requests that he be permitted to apply to the Chief Executive under section 26A of the Regulation one year after the cancellation of his endorsement, in order to provide evidence of his suitability to hold the relevant endorsements.

7. [7]
   Dr Grigg did, in fact re-apply, which in the circumstances, did not show an appropriate degree of insight into the seriousness of his conduct in relation to those 29 patients.
8. [8]
   The matter was referred to the Health Ombudsman by Queensland Health on the 5th of May 2017.  On the 14th of December 2020, his new solicitors wrote to the Health Ombudsman investigator enclosing a schedule of undertakings given to Ahpra and the Medical Board of Australia, and signed by the respondent, which provides inter alia:

I, Dr Alan Grigg …

Prohibition on access to medication.

I agree that I will not prescribe / possess / supply / administer / handle / dispense / access / check (hereafter referred to as access), including as emergency treatment supplies or doctor’s bag stock; 

any substances listed in schedule A of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at (the appropriate government website);

any restricted drug of dependence, including but not limited to schedule 4 restricted drugs of dependence contained within the SUSMP;  and/or any restricted drug of dependence, however so named or referred to, scheduled or otherwise regulated by law in any state or territory in which the practitioner may practice, and/or;

pharmaceutical items containing any active ingredient listed within schedule 8 of the SUSMP, and/or containing any active ingredients that is a restricted drug of dependence, however so named or referred to, scheduled or otherwise regulated by law in any state or territory in which the practitioner may practice.

9. [9]
   These undertakings were never accepted by Ahpra or by the Board.  The respondent agrees to a condition being attached to his registration today as part of the disciplinary response in these terms:

2. 2.1.
   The respondent is permanently prohibited from applying to Queensland Health for the return of his endorsements / authority to prescribe high-risk medicines under schedule 2, part 2 of the Medicines and Poisons (Medicines) Regulation 2021.

10. [10]
    There are no factual disputes between the parties.  A statement of agreed facts has not been filed, but that is not necessary because in his response to the referral filed on the 6th of August 2021, the respondent admits all of the facts and circumstances alleged against him in the two allegations. 
11. [11]
    The second allegation, which relates to several of the patients referred to in allegation 1, arises out of the opinions expressed by Dr Samuel Stephens, an expert who was commissioned by the OHO to review the respondent’s treatment of these patients.  His expertise and opinions are not challenged in any way by the respondent.

Background

12. [12]
    The respondent is presently 72 years of age. 
13. [13]
    I was told today by his Counsel that he practices in a medical practice at Ipswich as one of five general practitioners and has a patient cohort of approximately 700. 
14. [14]
    He holds a Bachelor of Medicine and a Bachelor of Surgery from the University of Sydney, awarded in 1997, and he first obtained general registration with the Medical Board of Queensland (as it then was) as a medical practitioner in January 1998.  On the 1st of July 2010, he held registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) (National Law).
15. [15]
    He accepts that he was therefore a health service provider as defined in the Health Ombudsman Act 2013 (the Act); practised at the Ipswich Medical Centre; held an endorsement to deal with controlled and restricted drugs, pursuant to section 58 of the Regulation until cancellation of that endorsement on the 26th of April 2017; and was bound to comply with the Regulation.

The Relevant Conduct

16. [16]
    It is not necessary to set out in detail the factual allegations set out in paragraphs 8 – 60 of the referral, which are admitted by the respondent.  His treatment of the 29 patients the subject of allegation 1 between January 2014 and November 2016 involved repeated breaches of various sections of the Regulation, in particular sections 213(1) and 122(1), in prescribing controlled and restricted drugs to vulnerable and often drug-dependent patients (to his knowledge) without the prior approval of the Chief Executive.
17. [17]
    Although more relevant to the issue of characterisation, in relation to the seven patients the subject of allegation 2, it is worth repeating the concluding remarks of  Dr Stephens, in his report to OHO:^[1]

I acknowledge the fact that these seven patients would have been considered by our colleagues to be extremely difficult to manage due to their demanding and manipulating personalities.  As documented in textbooks, these are our “heart-sink” patients – (i.e., when you see them in the appointment list, your heart sinks) – for they are unfortunately consistently marginalised by our profession and often do not receive the complex interventions that they require for their addictions or chronic pain syndrome.  These patients often know each other through the street network and have often formed relationships in jail or on various opioid treatment programs.  Word spreads quickly, and it was likely identified that Dr Grigg was an “easy target” for them to access schedule 8 and restricted schedule 4 medications.

However, readily prescribing at face value and acquiescing to demands from these patients is completely inappropriate and often dangerous treatment.  Two scenarios ensue:

1. (a)
   the patient actually takes their prescribed medications and is consistently at risk of death from misadventure; or
2. (b)
   these medications make it to the “black market” and put members of the wider community at risk of death due to misadventure. 

Strong boundaries, firm expectations, unwavering commitment to a goal of health and healing, with a multi-disciplinary treatment team, is what these patients require. Dr Grigg did not facilitate this in any of the seven patients that I reviewed.  It is admirable that Dr Grigg consulted these patients when often they were dismissed by other members of the same practice.  However, in each case, these patients were inappropriately and unsafely treated and not referred for specialist care when Dr Grigg noted aberrant behaviour.

Dr Grigg combined medications in a dangerous fashion leading me to believe that he was not fully aware of the indicators, contraindications and interactions between opiates and other medications.  Many medication errors occurred.  Prescribed quantities lacked oversight and were excessive.  The drugs of dependence unit was consistently ignored, and most prescriptions issued to these patients were illegal.

General practice is busy, and we have a demanding workload.  This often leads us to writing short and concise notes.  However, Dr Grigg provided minimal clinical documentation of history, examination, plans and clinical reasoning and was not to a standard expected by our profession. 

The vast majority of clinical actions taken by Dr Grigg that I have gleaned from these seven cases is not to a standard accepted by myself and other general practitioners.

Characterisation

18. [18]
    The applicant submits, and the respondent agrees, that the respondent’s proved conduct amounts to unprofessional conduct and professional misconduct as defined in all limbs of the definition of professional misconduct as defined in section 5 of the National Law. 
19. [19]
    The respondent accepts, as he must, that his conduct contravened a number of the provisions of the relevant Codes (Good Medical Practice:  A Code of Conduct for Doctors in Australia) (the Code of Conduct); in particular (and by way of example), fundamental requirement to provide good care to these patients and to comply with the law. These Codes promulgated by the Board from time to time are admissible in proceedings of this nature as evidence of what constitutes appropriate professional conduct or practice for the medical profession.^[2]
20. [20]
    The comparable decisions referred to by the applicant in its written submission clearly establish that the conduct admitted here constitutes professional misconduct. 
21. [21]
    In Medical Board of Australia v Evans [2013] QCAT 217 (Evans), the Tribunal considered a general practitioner’s prescribing of drugs of dependency to 18 patients who he knew, or ought to have known, were drug-dependent, and without the requisite approvals of, or notifications to Queensland Health. 
22. [22]
    In respect of these failures to comply with the Regulation, the Tribunal said [at 19-20]:

Failings of the kind to which Mr Evans admits are not to be seen to be mere technical beaches 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.

The Health Act 1937 defines a drug-dependent person to be a person who, as a result of repeated administration of controlled or restricted drugs or poisons, demonstrates impaired control, or exhibits drug-seeking behaviour that suggests impaired control, over the person’s continued use of controlled or restricted drugs and who, when the administration of those drugs ceases, suffers, or is likely to suffer, mental or physical distress or disorder.  The vulnerability of each patient is patent.  For these reasons, such failures are serious matters indeed.

23. [23]
    Medical Board of Australia v Alroe [2014] QCAT 677 (Alroe) considered a general practitioner’s prescribing of controlled drugs of dependency in breach of the Regulation.  The practitioner prescribed to two patients beyond the period of authority, to three patients in excess of the approved dosage, and to a number of patients without reporting to Queensland Health.  The referral did not allege issues regarding clinical practice.  The Tribunal agreed with the parties’ submission that the breach of each aspect of the Regulation constituted unprofessional conduct and together, professional misconduct.
24. [24]
    Similar conduct and issues were considered by the New South Wales Tribunal in Health Care Complaints Commission v Arreza [2017] NSWCATOD 119 (Arreza) and Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157 (Asar). 
25. [25]
    Arreza concerned inappropriate prescribing of opioids and benzodiazepines by a general practitioner to 13 patients.  The relevant consultation periods ranged from several months to approximately two years.  The practitioners’ failings were in similar terms to the matter of Health Care Complaints Commission v West [2000] NSWCATOD 39.  The Tribunal found unsatisfactory professional conduct in relation to each patient and professional misconduct when considered together.
26. [26]
    Asar concerned the inappropriate prescribing of narcotics and benzodiazepines by a general practitioner to 26 patients.  Again, the Tribunal found the practitioner’s conduct constituted professional misconduct. 
27. [27]
    The Victorian decision of Medical Board of Australia v Bajpe (Review and Regulation) [2014] VCAT 1162 (Bajpe) concerned a general practitioner’s inappropriate prescribing of opioid analgesics and benzodiazepines to drug-dependent patients, his failures to involve appropriate pain addiction and pain management specialists, and his prescribing of schedule 8 drugs without the relevant statutory approvals (for which the practitioner was criminally convicted).  The conduct occurred over a period of some four years and involved 18 patients.
28. [28]
    The Tribunal found that Mr Bajpe should have known, or quickly become aware, that the relevant patients were drug-dependent.  Despite this, he continued to prescribe higher escalating doses and quantities (which was likely to have created further dependency).  The Tribunal said:

Members of the medical profession are entrusted to adopt standards of professional conduct, which ensure the community is not placed at risk.  When prescribing drugs of dependence, medical practitioners need to exercise particular caution.  Mr Bajpe did not do so.  He ignored cues and warnings from other health professionals and other assistance proffered by the (regulator). 

29. [29]
    The decisions above highlight professional obligations upon medical practitioners to exercise particular care and caution in their handling and prescribing of drugs of dependence, which is fundamental to both patient safety and fitness to practice.  The cases also indicate that practitioners must comply with regulatory regimes for the use of control of drugs of dependence, which have been developed and implemented to protect the public.  Failures to adhere to notification and approval requirements in respect of drug dependent patients, and those to whom drugs are prescribed for prolonged periods, undermine these regimes and puts vulnerable patients at risk. 
30. [30]
    Medical practitioners are required to take all necessary steps to ensure that appropriate clinical management of patients of this type, including appropriate assessment, including investigation and referral to specialists, and be aware of, and remain alert to, drug-seeking behaviour by patients and those who may be potentially drug-dependent, also obtaining collateral information in undertaking that clinical assessment.  They must also ensure that drugs are prescribed in clinically appropriate quantities and combinations and maintain adequate medical records to ensure proper patient care.
31. [31]
    As the respondent accepts, he failed to fulfil these professional obligations.
32. [32]
    Of particular concern in this case are the following features of the conduct:

    1. (a)
       the respondent’s significant experience as a general practitioner;
    2. (b)
       his knowledge of his obligation under the Regulation (reinforced by ongoing notifications from, and information provided by Queensland Health);
    3. (c)
       the extent of the breaches, by reason of which his endorsements were cancelled;
    4. (d)
       the extent of his disregard for those obligations during his management of the seven subject patients, undermining the regulatory framework;
    5. (e)
       the serious nature of his clinical failures in managing these patients;
    6. (f)
       the number of patients involved and the extended period of time during which the subject conduct occurred;
    7. (g)
       the category of patients being drug-dependent, and his knowledge of this dependency;
    8. (h)
       the significant risk posed to patients by his continued and escalating prescribing practices and the dangerous combinations of the drugs he prescribed;
    9. (i)
       the failure to recognise, and/or act appropriately in response to, obvious drug-seeking behaviour from his patients; and
    10. (j)
        the significant risk posed to the community by the nature of his conduct and the potential for abuse of the subject drugs.
33. [33]
    In the circumstances, the Tribunal has no hesitation in finding the proved conduct amounts to professional misconduct.

Sanction

34. [34]
    As is well established, the purposes of disciplinary proceedings such as these is to protect, not to punish.  The main principle for administering the Act and consideration for the Tribunal in deciding the matter, is that the health and safety of the public are paramount.  The appropriate sanction is to be considered at the time of determination and not the date of the conduct. 
35. [35]
    In deciding the appropriate sanction in a particular case, the Tribunal can consider factors including the nature and seriousness of the practitioner’s conduct;  insight and remorse shown by the practitioner;  the need for specific or general deterrence;  evidence of rehabilitation/steps taken by the practitioner to prevent reoccurrence of the conduct;  matters giving context to/explanation for conduct, for example, mental health issues;  and other matters, including past disciplinary history;  character  reference;  periods of preclusion or non-practice;  delay and the effluxion of time;  and cooperation during disciplinary proceedings. 
36. [36]
    As set out in the relevant case law, any sanction then may serve one or more various purposes, including preventing practitioners who are unfit to practice from practising;  securing maintenance of professional standards;  assuring members of the public and the profession that appropriate standards are being maintained, and that professional misconduct will not be tolerated;  bringing home to the practitioner the seriousness of their conduct;  deterring the practitioner from any future departures from appropriate standards;  deterring other members of the profession who may be minded to act in a similar way;  and imposing restrictions on the practitioner’s right of practice so as to ensure that the public is protected. 
37. [37]
    The respondent’s conduct here was serious and protracted for the reasons set out above.  The matter was referred to the OHO on the 3rd of May 2017.  At that point, the Office would have had the notice of cancellation, which essentially comprises the basis of allegation 1.  It is not clear when Dr Stephens was commissioned to provide a report, but his report is dated the 10th of October 2020. 
38. [38]
    To be fair to the applicant, it acknowledges that delay here has some relevance.  The respondent contends that it has a mitigatory effect because for many years the respondent has had the disciplinary process hanging over his head.  As against that, he has not had any period of exclusion from practice, and he has not filed any up-to-date material relating to any alleged distress as a result of the ongoing proceedings.
39. [39]
    Health Ombudsman v Veltmeyer [2021] QCAT 77 involved quite different misconduct, but delay was an issue.  In that case, the notification to the OHO was made in March 2015, and Dr Veltmeyer was not notified of the complaint until August 2016 and made full admissions to an investigator from the office soon after.
40. [40]
    The matter was not referred to the Tribunal until June 2019.  In that case, the applicant conceded that there had been significant delay, which it regretted, which arose out of “a significant backlog of matters in the OHO and the Office of the Director of Proceedings”.  Obviously, the notification and investigation of this matter is in the same general time period. 
41. [41]
    In this case (unlike Veltmeyer), the respondent has not filed an affidavit deposing to any distress or frustration from the delay, and as I noted before, he has not suffered any period of exclusion from practice. 
42. [42]
    In my opinion, the delay does have some mitigatory effect here but is not a “significant” mitigating factor, as it was in Veltmeyer.
43. [43]
    The applicant contends that although in some respects the respondent has demonstrated insight into and remorse for his conduct, it is not comprehensive.  He has undertaken some further education (however, Ms Feeney points out that that was required as part of his practice as a general practitioner).  However, the protection of the public is now significantly supported by the cancellation of his endorsements and his undertakings.  He has cooperated with these proceedings fully, which in itself is evidence of remorse.
44. [44]
    I agree with the applicant that in the absence of up-to-date material concerning the respondent’s understanding of the seriousness of his conduct, it is difficult to conclude that he does presently fully understand the seriousness of his conduct.  However, the time of that  has passed, and the conditions that will be placed on his registration make this feature less significant than in the usual case.
45. [45]
    The cases discussed by the applicant in its submission, including Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408;  Asar;  Medical Board of Australia v Sayeed [2020] VCAT 332;  Arreza;  and Evans, do support the proposition that the conduct of the type proved here would ordinarily warrant a period of preclusion from practice of up to two years. 
46. [46]
    As Dr Stephens notes in his report, the patients that the respondent was dealing with are very difficult to manage.  However, their safety and health has to be the focus of the treating doctor, and in that respect, the respondent failed to a significant degree.  The parties agree on a reprimand and a suspension of between six months (the respondent) and 12 months (the applicant), and conditions, including the one referred to earlier.
47. [47]
    By reference to Medical Board of Australia v Ridings [2021] SACAT 18 counsel for the respondent submits that it is relevant in relation to the period of suspension, to take into account the respondent’s age and to the likelihood of a longer period of suspension being potentially a factor that would end his practice.  I do take judicial notice of the fact that general practitioners are in short supply and in demand in our State. 
48. [48]
    Ridings is referred to in Ms Feeney’s written submissions.  He was found to engage in conduct involving inappropriate prescribing of drugs of dependence, such as oxycodone, methadone, morphine, buprenorphine and alprazolam to seven patients over a period of five years.  He was a general practitioner.  He prescribed without the relevant authorities, to patients he knew or ought to have known were drug-dependent, and despite advice, and on occasion, direction from the relevant regulator. 
49. [49]
    In that case, the Tribunal reprimanded the practitioner, imposed prescribing and other conditions on his registration, and fined him $25,000.  The prescribing conditions maintained immediate action restrictions, which had been in place for more than five years prior to the decision. 
50. [50]
    The decision specifically indicated that the misconduct was such that it would commonly lead to a substantial suspension or disqualification but for the extraordinary circumstances of the case and the delay since the notification.  The Tribunal accepted the practitioner had had to cope with a number of extraordinarily difficult personal and family circumstances over the relevant period, and took into account the impacts of a delay of more than five years since the notification.  The Tribunal, however, went onto say:

More significantly, the respondent’s circumstances have changed, and he has demonstrated a degree of insight and contrition.  He appears to be practising successfully in a very different environment.  Given that he is 80 years of age, a suspension would disrupt the twilight of his career and the treatment of his patients.  It appears to us that the complainant has recognised the force of these considerations by seeking a period of suspension which is shorter then might otherwise have been suggested.

51. [51]
    Clearly, the circumstances in Dr Ridings’ case are markedly distinguishable from the period here, but I do feel that some mitigation should be permitted for the delay in the circumstances of this case.
52. [52]
    Ultimately, for the reasons expressed above, I have concluded that a nine-month suspension is warranted, particularly having regard to the need for general deterrence; and the importance of maintaining the reputation of the profession in the mind of the public.   As Ms Feeney said today, which I accept, the factor of delay has been taken into account in her contention that the suspension be for 12 months.  Having said that, the present legislative system which provides compulsory and real-time legislative controls over such activities by a doctor, will largely prevent the respondent from ever engaging in such conduct again, along with the condition which he accepts should be imposed on his registration.

Orders

53. [53]
    In those circumstances, the findings and orders of the Tribunal are as follows:

    1. (a)
       pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
    2. (b)
       pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded; 
    3. (c)
       pursuant to section 107(4)(b) of the HO Act, conditions are imposed on the respondent’s registration in accordance with attachment A to this order; 
    4. (d)
       pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of nine months to commence from a date two weeks from the date of this order;
    5. (e)
       each party must bear their own costs of the proceedings.