Health Ombudsman v SWB[2022] QCAT 267

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The disciplinary proceeding before the Tribunal proceed on the basis of an amended referral filed by the applicant on the 30th of November 2020 and the respondent’s amended response filed on 1 March 2021.  The parties have filed a statement of agreed facts.  There are no relevant facts in dispute, and they are agreed as to the appropriate characterisation of the respondent’s admitted conduct and the disciplinary response by way of sanction.
2. [2]
   The referral concerns the prescribing of controlled and restricted drugs to the respondent’s then-wife (LW) and his two stepsons (JS and LS), the performance of two surgeries on LW, and inadequate record-keeping in relation to that prescribing and surgery.
3. [3]
   The respondent is a registered medical practitioner with the Medical Board of Australia (the Board) holding specialist registration in surgery and plastic surgery. 
4. [4]
   Over the relevant period from August 2006 to July 2019, he was registered with the National Board or with the former Medical Board of Queensland (Queensland Board). 
5. [5]
   The respondent was born on the 30th of January 1952, so is presently 70 years of age.  At the time of the conduct, save for the surgery on LW in July of 2019, he was aged between 59 and 63 years of age.  He was 67 when he performed the surgery on LW in breach of conditions imposed on his registration. 
6. [6]
   He is separated with five children, two of whom are biological children to his first wife and three are his stepchildren with LW. He maintains regular contact with all of his children. 
7. [7]
   He was married to LW in 1999 and they divorced on the 8th of June 2021.  He graduated in 1975 from the University of Otago with a Bachelor of Medicine and a Bachelor of Surgery.  He initially practiced in New Zealand in the field of general medicine, before specialising in plastic and reconstructive surgery. 
8. [8]
   On the 29th of October 1985, the respondent obtained registration with the Medical Board of Queensland.  On the 20th of January 1999, he commenced practice as a specialist surgeon in plastic surgery in Queensland.  He has maintained registration in Queensland since the 19th of October 1985. 

Background

9. [9]
   On the 1st of June 2016, the Health Ombudsman received a notification from Medicines Regulation and Quality (MRQ) of Queensland Health.  The notification concerned the respondent’s prescribing of Schedule 8 drugs to LW (commencing in 2003) and also to JS and LS 
10. [10]
    On the 7th of July 2016, the Health Ombudsman took immediate registration action by way of placing conditions on the respondent’s registration.  The conditions (which remain in place) were to the effect that the respondent could not provide health services to anyone with whom he had a close personal relationship, including, but not limited to, his wife and stepsons. 
11. [11]
    The Health Ombudsman commenced an investigation into the respondent’s prescribing of Schedule 8 drugs to LW, J.S and LS. In March 2018, the Health Ombudsman referred the matter to the Director of Proceedings for consideration, and on the 28th of June 2019, the Director of Proceedings referred the matter to the Tribunal.
12. [12]
    On the 30th of July 2020, the Health Ombudsman received a complaint from LW in relation to surgery on her eyelid performed by the respondent in 2019.  This complaint was referred to the Director of Proceedings on the 28th of August 2020 and the surgery included in the amended referral filed on the 30th of November 2020. 

The Relevant Conduct

13. [13]
    The agreed conduct is set out in the statement of agreed facts.  The respondent at all relevant times was subject to and bound by a number of Codes that are applicable in these proceedings, including the Good Medical Practice:  A Code of Conduct for Doctors in Australia and the Royal Australian College of Surgeons (RACS) Code of Conduct in their relevant renditions over the relevant period. 
14. [14]
    Of particular relevance, those Codes require medical practitioners like the respondent to avoid providing medical care to anyone with whom he had a close personal relationship, and not to undertake a procedure on a family member, except in a life-threatening emergency when no other appropriately trained surgeon was available;  and to maintain clear and accurate records for the continuing good care of all patients; including the reporting relevant details of clinical history/findings/investigations, information given to patients, and  medications and patient management records.
15. [15]
    The respondent was also subject to the requirements of the Health (Drugs and Poisons) Regulation 1996 (the Regulation). 
16. [16]
    The following sections of the Regulation are relevant.  Under section 58, doctors are authorised to supply/administer/dispense controlled drugs to patients to the extent necessary to practice medicine and where therapeutically required.  Section 120 provides that if a doctor supplies/administer/dispenses/prescribes controlled drugs to patients for more than two months, a written report must be provided to the Chief Health Officer about the circumstances of the patient’s treatment.  Sections 122 (2) and (3) require the doctor obtain approval from the Chief Health Officer to supply, administer, dispense and/or prescribe a controlled drug, a restricted drug of dependency, to a person the doctor reasonably believes is a drug-dependent person.
17. [17]
    The respondent prescribed Schedule 4 and Schedule 8 drugs of dependence to his then-wife LW over a period of years, particularly from July 2011 to November 2014, including pethidine, oxycodone, morphine sulphate, hydro morphine, codeine and benzodiazepine.
18. [18]
    He accepts that in doing so he prescribed controlled drugs in contravention of the Regulation and caused or contributed to LW becoming a drug-dependent person and thereby contravened the Code of Conduct. 
19. [19]
    The applicant accepts that the only reason the respondent ever prescribed pain-relief medication (drugs of dependence) to LW was for pain relief.
20. [20]
    The respondent also performed surgeries on LW in September 2013 (to revise scars on her breasts and chin and perform a chemical peel and bilateral lipectomy on her arms), and in July of 2019 (to excise two cysts lateral to her left eye).
21. [21]
    The respondent accepts that in so doing he breached the Code of Conduct and, in respect of the surgery in July 2019, the conditions imposed on his registration.
22. [22]
    He also prescribed various drugs of dependence to LWs sons, his stepsons – to LS between February 2015 and October 2015, and to JS between July 2010 and January 2016.  The respondent accepts these prescriptions were also in breach of the Code of Conduct and the Regulations. 
23. [23]
    The applicant accepts that the provision of the medication for LS and JS occurred when they complained of debilitating pain and when the respondent assessed pain relief to be clinically indicated. 
24. [24]
    In relation to the prescribing to LW, LS and JS, and the surgery on LW in September 2013, the respondent accepts he failed to keep accurate medical records.  His records for LW and JS did not record any consultation or discussion regarding the prescriptions.  The respondent kept no clinical records for LS at all.
25. [25]
    As his counsel points out in his submission, there are a number of allegations which are disputed by the respondent.  He denies prescribing controlled drugs to JS, intending some or all of them to be used by LW;  and he denies he failed to keep medical records in relation to the surgery on LW on the 5th of July 2019. 
26. [26]
    The applicant does not press these allegations.  The applicant accepts that they are not established on the material before the Tribunal. 
27. [27]
    There are also issues in the material relating to allegations of domestic violence in the relationship between the respondent and LW. At paragraph 18 of the statement of agreed facts, it is stated:

1. 18.The respondent says he performed the procedure on LW because of coercive control and domestic violence occasioned on him by LW.  This is not able to be an agreed fact, because the applicant is unable to verify it and also because LW alleges the respondent occasioned domestic violence on her.  The applicant agrees the relationship between the respondent and LW involved domestic violence and that there is evidence regarding protection orders being obtained by each of them – by each member of the relationship. 

Characterisation

28. [28]
    The applicant alleges that the agreed conduct by the respondent constitutes professional misconduct as defined in section 5(a) of the National Law.
29. [29]
    As his counsel concedes in his submission, the respondent concedes that the impugned conduct could properly be characterised as professional misconduct, given the following factors:

    1. (a)
       the lengthy period of time in which the impugned conduct occurred; 
    2. (b)
       the consequences suffered by LW as a result of the impugned conduct;
    3. (c)
       the multiple breaches of the governing regulations;
    4. (d)
       the performance of surgery on LW in contravention of the conditions imposed on his registration by the Health Ombudsmen; and
    5. (e)
       the aggregation of the instances of unprofessional conduct in considering the respondent’s acts with respect to LW, L.S and JS
30. [30]
    The case law supports the joint proposition of the parties that the proved conduct of the respondent constitutes professional misconduct. 
31. [31]
    Medical Board of Australia v Griffiths (Griffiths) [2017] VCAT 822 concerned an experienced general practitioner’s treatment of nine patients with whom he had a close personal or family relationship.  The referral alleged inadequate record-keeping, prescribing of drugs of dependence when the practitioner knew or ought to have known that the patient was a drug-dependent person, and breaches of Schedule 8 prescribing authority and permit obligations (prescribing without a permit, after expiry of a permit, and in excess of maximum doses).
32. [32]
    In relation to treating those with whom practitioners had a close personal relationship, the Tribunal observed, other than in the most benign circumstances:^[1] 

…the closeness of the personal relationship is likely to interfere with the therapeutic relationship, potentially clouding the practitioner’s judgment, and introduce competing concerns to the detriment of the patient’s welfare and best interests.  This is obvious, in our view, where the proposed treatment includes opioids, benzodiazepines or other drugs of dependence or where there may be mental health concerns…

Dr Griffiths acknowledges that in the circumstances here it was not appropriate for him to treat the patients concerned, he accepts that his treatment may not have been in their best interests, and he no longer treats those persons. 

An additional risk is that, particularly if the doctor sees the patient out of hours or on weekends or away from his or her medical practitioner, the records of the consultation may be inadequate, as they were in this case.

33. [33]
    In Medical Board of Australia v Sevdalis (Sevdalis) (Review and Regulation) [2018] VCAT 1931, a medical practitioner was referred to the Tribunal in relation to medical care provided to close members of his family in circumstances that were avoidable.  The practitioner treated one family member on 81 occasions and the other on 60 occasions over a period just under a year.  The details of treating in the decision are limited, but the second patient had clinical needs, including but not limited to drug addiction and/or poor mental health.  There was also an allegation concerning clinical management of other patients by the practitioner, which was not clinically justified (involving the intravenous injection of antibiotics).
34. [34]
    Medical Board of Australia v Lang & Lang (Lang & Lang) [2017] SAHPT 5 concerned the conduct of two experienced medical practitioners with respective specialties in anaesthetics and plastic surgery.  The referrals were on the basis of;

    1. (a)
       prescribing a drug of dependence (oxycodone) to a spouse and family friend for a period of over two months without authority; 
    2. (b)
       failing to comply with the Code of Conduct; 
    3. (c)
       failing to comply with record-keeping obligations; and
    4. (d)
       failing to conduct physical examinations before prescribing oxycodone. 
35. [35]
    Both respondents agree, and the Tribunal found, their conduct constituted professional misconduct under section 5 of the National Law.  The Tribunal endorsed submissions from the parties in relation to the seriousness of prescribing drugs of dependence without authority.^[2] 
36. [36]
    The applicant also refers to Health Ombudsmen v Alinia (Alinia) [2021] QCAT 43.  That case concerned a general practitioner’s treatment of a patient over a period of five years, in particular his inappropriate prescribing of various controlled and restricted drugs of dependence in breach of the Regulation (relating to a patient who was drug dependent), and his inadequate medical records.
37. [37]
    The practitioner conceded he was not aware of his obligations under the Regulation (which he agreed he did not comply with), that his prescribing had put the patient at risk of harm, that he failed to maintain adequate clinical records, and his conduct was in breach of the Code of Conduct.
38. [38]
    The Tribunal found his inappropriate prescribing, inappropriate clinical observations and failure to keep proper records over many years to clearly constitute professional misconduct.  The Tribunal noted:^[3]

A failure to comply with the Regulation, of itself, can lead to professional misconduct… similarly, on many occasions this Tribunal, and its equivalent in other jurisdictions, has emphasised the importance of proper record-keeping as an aspect of public safety and risk to patients.

39. [39]
    The Tribunal also cited the decision of Medical Board v Evans (Evans) [2013] QCAT 217 at [19 – 20] in relation to failures by practitioners to comply with the Regulation when prescribing controlled and restricted drugs of dependency.  In Evans, the then Deputy President of the Tribunal, Judge Horneman-Wren SC said at 34:

Failures of [that]:  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 a 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.

40. [40]
    As the respondent properly concedes, the performance of surgeries on his then-wife, and the prescribing of drugs of dependence to her and stepsons, over the extended periods involved, was entirely inconsistent with his professional obligations under the Code of Conduct.
41. [41]
    He accepts the surgery performed in July 2019 also breached the conditions on his registration.  That breach constitutes unprofessional conduct of itself.  As described in the Code of Conduct and in the cases referred to above, the potential risks to patients associated with such behaviour are well known, and should have been well known to the respondent. 
42. [42]
    The seriousness of his prescribing of drugs of dependence in contravention of the Regulation is discussed above.  The requirements for reporting and obtaining authorisation for the prolonged prescribing of such drugs, or prescribing to those who are drug dependent, are fundamental to the system put in place to protect the public.
43. [43]
    The respondent failed to act in accordance with the Regulation, by prescribing to LW, LS and JS for periods longer than two months without reporting.  His conduct put them at risk of harm.  Indeed, the respondent now accepts his prescribing to LW over the relevant period, contributed to her becoming dependent on opioids. 
44. [44]
    The respondent asserts coercive control by his then-wife, and that she would become verbally and/or physically aggressive if he did not provide pain relief.  In his affidavit filed in the proceedings on 23 October 2021, he deposes to verbal and physical abuse commencing around 2012, 2013 with particular incidents referred to over the period 2016 to 2019.
45. [45]
    The Tribunal notes that while there is some overlap, the prescribing to LW commenced prior to this time. 
46. [46]
    As indicated in the agreed facts, the applicant accepts it was a relationship involving domestic violence, and that protection orders were obtained by both the respondent and LW with respect to the other.  In any event, irrespective of the nature and dynamic of the family relationship, the respondent had professional obligations as a medical practitioner, including to act in accordance with the Codes of Conduct and the requirements of the Regulation.  It is not sufficient or appropriate for the respondent to absolve himself of personal accountability on the basis of domestic circumstances, and Mr Wilson on his behalf does not contend otherwise. 
47. [47]
    Rather, he submits that the reality of the domestic relationship, to some extent, places the respondent’s misconduct towards his former wife and her children in context.  In his affidavit, the respondent details many examples of domestic violence, including providing photographs of injuries he alleges occurred during some of the incidents.
48. [48]
    The Tribunal is satisfied to the requisite standard the respondent has behaved in a way that constitutes professional misconduct.

Sanction

49. [49]
    As is well established in the authorities, the purpose of disciplinary proceedings of this nature is to protect and not to punish.  The Tribunal in exercising its power to discipline practitioners that have engaged in unprofessional conduct is informed by the main principle for administering the HO Act and that is that the health and safety of the public is paramount.^[4]
50. [50]
    As set out in the relevant case law,^[5] the imposition of sanction may serve one or more of various purposes including:

    1. (a)
       preventing practitioners who are are unfit to practice from practicing;
    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 relevant 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 of restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
51. [51]
    In deciding the appropriate sanction in a particular case, the Tribunal will consider factors including the nature and seriousness of the practitioner’s conduct, insight and remorse shown by him, the need for specific deterrence or general deterrence, evidence of rehabilitation and/or steps taken by the practitioner to prevent reoccurrence of the conduct;  mitigating factors giving context to and/or explanation for the conduct, and other matters including character evidence, delay and effluxion in time and cooperation in the disciplinary proceedings.
52. [52]
    The admitted conduct is serious.  It was not isolated.  It involved three members of the respondent’s family and occurred over a period of years.  The surgeries on his then-wife, contravened the Code of Conduct, and in relation to the July 2019 surgery, were contrary to conditions imposed on him by the regulator.  His prescribing of potentially dangerous controlled and restricted drugs in contravention of important and protective mechanisms in the Regulation, and his prescribing to LS, and approximately half of the prescribing to JS, occurred after he’d been advised by MRQ of Ahpra’s position that it was inappropriate to prescribe to family members or anyone with whom he had a close relationship.
53. [53]
    As against that, this very experienced practitioner had never engaged in conduct like this outside the parameters of what was clearly a dysfunctional domestic relationship with his then-wife.
54. [54]
    The applicant, by reference to the respondent’s affidavit, submits that despite the very long delay in finalising these proceedings, the respondent does not demonstrate comprehensive insight into his conduct and remorse for it.  At odds with that submission is that on the facts accepted by both parties, there can be no doubt that the misconduct did occur in the context of a dysfunctional relationship.
55. [55]
    The applicant acknowledges the respondent has demonstrated insight by cooperating in the finalisation of these proceedings, and in undertaking further education, including in relation to prescribing opioids, professional boundaries, record keeping and treating family members and friends.
56. [56]
    The respondent also relies on a report from a clinical psychologist, Dr James Champion, who has, since the 16th of March 2019] had 16 psychotherapy sessions with the respondent.  He opined that the respondent presented with reactionary depression and anxiety occurring in the context of an escalating pattern of marital dysfunction over a period of approximately eight years.  Dr Champion described him as having an empathetic and compassionate nature, which he said made him especially vulnerable to his wife’s emotional coercion, including her repeated requests for prescription medication and surgical procedures.  Although the respondent has not been required for cross-examination, the Tribunal prefers to rely on the summary as set out in the statement of agreed facts referred to earlier.
57. [57]
    Dr Champion says that the respondent engaged in psychological therapy, incorporating cognitive behaviour therapy, with an emphasis on assertiveness training and boundary setting. 
58. [58]
    The applicant’s original submission does not refer to delay, however, in response to the submission by Mr Wilson, the applicant in its reply submissions^[6] acknowledges that there has been unacceptable delay in the circumstances of this case.  It acknowledges that the three-year period the subject of the original referral – that is, between July 2019 and June 2019 - arose from a significant backlog of referrals at the time with the Health Ombudsman and the Director of Proceedings,  is relevant and is regrettable.
59. [59]
    The applicant notes that the Office has made significant gains in clearing the backlog of referrals, a circumstance this Tribunal has previously acknowledged. 
60. [60]
    The applicant notes since the original Referral, the parties have engaged in two compulsory conferences, and considerable negotiation of a statement of agreed facts and agreed material and incorporated an additional complaint against the respondent as a result of the July 2019 surgery into an amended referral and amended response.  The applicant agrees that the stress and anxiety associated with unresolved proceedings is a factor which the Tribunal may take into account on sanction.  I agree with the applicant that the passage of time does not diminish the seriousness of the respondent’s conduct or the need for protective sanctions.
61. [61]
    In this case, as in Health Ombudsman v Veltmeyer [2021] QCAT 77, the applicant fairly accepted its responsibility for the delays in progressing the matter through the investigative phase and the filing of the first referral essentially for the same reasons as now accepted in the reply submissions. 
62. [62]
    The matter of Health Ombudsman v ORC [2020] QCAT 181 to which Mr Wilson refers involved delay that was not explained, in particular a delay of some years between the referral to the applicant and the referral to the Tribunal.  In my experience, as noted earlier, these issues have largely been addressed now by the Health Ombudsman’s Office and the applicant.  I respectfully adopt what was said by the Tribunal in ORC;^[7]

The mitigating effect of the delay in the resolution of this matter, not attributable to any fault of the respondent, is significant.  Not only has it led to the stress and anxiety of the respondent of unresolved proceedings, but it has given the respondent the opportunity to demonstrate his full rehabilitation. 

63. [63]
    As Mr Wilson notes, it has now been about seven years since the matter was first brought to the attention of MRQ, and five and a-half years since the applicant received the initial notification.
64. [64]
    Whilst the respondent here does not have the mitigating factor of demonstrated full rehabilitation due to the operation he conducted on LW in 2019, he still has had to endure the stress and anxiety of these unresolved proceedings for many years.  It is appropriate to take that into account when considering the appropriate sanction.
65. [65]
    In reality, the issues do not loom large here, because the parties have reached an agreement in relation to sanction.  It is well established that this Tribunal should not go behind the agreement reached by parties, particularly when they are represented by lawyers experienced in this jurisdiction, unless the proposed orders fall outside the appropriate range or for some other exceptional circumstance.
66. [66]
    Through the character references annexed to the respondent’s solicitors affidavit, he has demonstrated not only an absence of any ongoing risk, which is not asserted in any event, but also insight and remorse for his conduct.  Specific deterrence therefore has little relevance.  General deterrence, that is a sanction that will discourage like-minded health practitioners from behaving in a similar way is important in this case to uphold the proper standards of behaviour for medical practitioners and the reputation of the profession in the public mind.
67. [67]
    When one has regard to the comparable cases referred to by the applicant, given the particular circumstances of this case, an appropriate disciplinary response would range between a reprimand with a relatively short period of suspension to a reprimand with a significant fine.  Given the circumstances under which the respondent’s misconduct occurred, it is highly unlikely that he will transgress again, and the joint submission of a reprimand and a significant fine is well within the appropriate disciplinary response to the proved misconduct in this case.  As has often been stated, a reprimand is not a trivial penalty for health practitioners.  It counts as a public denouncement of his misconduct.

Orders

68. [68]
    In those circumstances, the Tribunal makes the following orders and findings:

    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(3)(c) of the HO Act, the respondent is required to pay a fine in the amount of $25,000 to the Health Ombudsman within six months of the date of this order; and
    4. (d)
       each party must bear their own costs of the proceedings.