Health Ombudsman v Ting[2022] QCAT 349

REASONS FOR DECISION

1. [1]
   The Director of Proceedings (the applicant), on behalf of the Health Ombudsman, filed a referral in the Tribunal on 18 June 2021, seeking findings that the respondent, a registered medical practitioner whose registration is presently suspended, engaged in professional misconduct and orders by way of disciplinary sanction. The referral contains five discrete (but some interrelated) allegations. The referral was amended by consent at the start of the trial to slightly alter the particulars of allegation three.

Background

2. [2]
   It is not in issue that all relevant times, the respondent was; registered under the National Law as a medical practitioner with the Medical Board of Australia (the Board); a health service provider as defined in section 8(a)(i) of the Health Ombudsman Act 2013 (the Act); and subject to the standards and codes approved by the Board as to what constitutes appropriate professional conduct or practice for the medical profession, including Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct) published by the Board in 2014.
3. [3]
   The respondent was awarded a Bachelor of Medicine and a Bachelor of Surgery by the University of Queensland in 1989. He was accepted as a fellow of the Royal Australian College of General Practitioners in 1994, and as a fellow in advanced rural general practice in 2015.
4. [4]
   He was first granted general registration as a medical practitioner on 21 December 1990.
5. [5]
   At all times relevant to this referral, he practised at the Marendy Medical Services in 2017 and the Woody Point Medical Centre (the Clinic) from the end of 2017 until 7 March 2019.

Registration History

6. [6]
   In January 1996, the respondent applied for registration in the Northern Territory. This application was refused on the basis that the respondent, in his application, was found to have made statements that were materially false or misleading. The respondent accepted in cross-examination that he did not inform the registration body in the Northern Territory that he was then facing serious criminal charges relating to Medicare fraud in Queensland.
7. [7]
   In September 1996, he entered a plea of guilty in the District Court of Queensland and was sentenced to 12 months imprisonment for defrauding the Commonwealth with respect to claims under the Medicare bulk billing scheme. Over a period of 14 months, he submitted some 400 claims to the health insurance commission under the bulk billing scheme then in place, in which he forged signatures of alleged patients on some 400 occasions. He received monies to which he was not entitled in the sum of $11,216.60.^[1]
8. [8]
   On 3 March 1997, the Medicare Participation Review Committee disqualified the respondent from participating in the Medicare scheme for a period of five years. On 2 June 1997, the Queensland Medical Assessment Tribunal (QMAT) found the respondent guilty of misconduct in a professional respect and ordered that his name be erased from the register of medical practitioners.
9. [9]
   On 18 May 1999, the QMAT gave leave to the respondent to be re-registered as a medical practitioner. His application was not opposed by the Medical Board of Queensland.
10. [10]
    On 30 November 2017, the Board issued a caution to the respondent and imposed conditions on his registration following a finding of unsatisfactory professional performance.
11. [11]
    On 28 December 2018, the Board imposed the following conditions on the respondent’s registration:

    1. (a)
       limiting the number of patients with whom he could consult to 4 per hour;
    2. (b)
       requiring direct supervision; and
    3. (c)
       directing him to keep a log of his contact with every patient.
12. [12]
    On 8 February 2019, the Medicines Compliance and Human Tissue Unit of Queensland Health (MCHTU) issued the respondent with a Notice cancelling his  Endorsement to prescribe  Schedule 8 drugs.
13. [13]
    As will be discussed later in these reasons, allegation 4 in the referral is that the respondent (having knowledge of the cancellation from 3:00pm on 12 February 2019) nevertheless continued to prescribe schedule 4 and schedule 8 drugs to patients. The respondent (as is his right) sought a review of the cancellation in this Tribunal. The decision to cancel was upheld by the then Deputy President of the Tribunal, his honour Judge Allen KC on 28 July 2020.^[2] The respondent did not seek to appeal that decision. The cancellation notice is annexed to the referral,^[3] as it provides essential background factual information in support of allegation 4.
14. [14]
    The respondent in these proceedings has filed two affidavits,^[4] an outline of argument on 18 April 2022, and a response to the referral on 29 July 2021.
15. [15]
    He tended some documents during the hearing to which some reference will be made later in these reasons. Ms Feeney, counsel for the applicant, reasonably anticipated,^[5] that the respondent would attempt to relitigate the reasons behind the cancellation notice.
16. [16]
    For that purpose, she referred me to Walton v Gardiner^[6] at the start of the hearing (without submissions). I expressed the view, with which she agreed, that given provisions such as section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), the better course would be to let the proceedings run and that I would deal with any attempt by the self-represented respondent to relitigate the cancellation issue in my reasons.
17. [17]
    On 7 March 2019, the Board took immediate action to suspend the respondent’s registration. He remains suspended. The respondent also challenged this decision before the Tribunal,^[7] which upheld the Board’s decision. As in these proceedings, and in the proceedings before His Honour Judge Allen KC, the respondent has represented himself.
18. [18]
    As Ms Feeney submits in her written Aide Memoire to Issues in Evidence handed up during her final oral submissions, the details of his registration history set out above were only admitted by him in cross-examination.

The allegations

19. [19]
    For reasons that I hope will become obvious, I have elected to commence with allegation 2.
20. [20]
    Allegation 2 is in these terms:

3. 2.0
   On 11 March 2018, the respondent was subject to a performance assessment as directed by the Board and the respondent’s professional performance was unsatisfactory.

Particulars

3. 2.1
   On 5 October 2018, pursuant to section 170 of the National Law, the Board directed the respondent to undergo a performance assessment.
4. 2.2
   On 11 March 2018, at the instruction of the Board a performance assessment was conducted into the general standard of the respondent’s clinical practice.
5. 2.3
   Pursuant to sections 175 and 176 of the National Law a performance assessment report dated 15 December 2018 was prepared and a copy provided to the respondent (the assessment report).
6. 2.4
   The conclusions drawn as a result of the assessment and recorded in the assessment report were that the overall professional performance of the respondent was unsatisfactory, particulars of which are that the respondent:

1. (a)
   failed to appropriately or adequately examine patients;
2. (b)
   failed to appropriately or adequately obtain clinical history from patients;
3. (c)
   provided inadequate, inappropriate or excessive treatment to patients;
4. (d)
   failed to arrange appropriate reviews so as to undertake follow-up of investigations, test results or treatment;
5. (e)
   failed to make or keep any or any adequate clinical records; and
6. (f)
   made inappropriate claims for Medicare payment.

3. 2.5
   The applicant repeats and relies on the content of the assessment report in support of the particulars in paragraph 2.4. A copy of the assessment report is attachment A to this notice of referral.

21. [21]
    The performance assessment referred to in allegation 2 was conducted by Dr David King and Dr Harold Jacobs at the respondent’s then practice address at the Clinic on 11 December 2018. Insofar as it is possible to understand, the respondent seems to challenge the expertise of both assessors, at least in his material filed in the Tribunal.
22. [22]
    It was a feature of the respondent’s approach to cross-examination of witnesses during the hearing, that he seemed unable to frame questions that were comprehensible; rather he constantly resorted to making speeches and submissions when questioning witnesses, despite my attempts to explain the nature and limits of cross-examination, and to get him to understand that if you want to propose a contrary opinion to a witness that proposition should be framed in a comprehensible manner, and then  the particular witness be given  a fair opportunity to respond. His questioning of Dr King at times was incomprehensible, as Dr King himself observed on a number of occasions.
23. [23]
    On the second day of the hearing, his questioning of Dr Jacobs was in complete contrast to his questioning of Dr King on the previous day, although he still reverted to expressing opinions, making speeches and not asking questions.
24. [24]
    The respondent’s submissions and his response (and/or evidence in his affidavits) as to Dr King and Dr Jacobs’ expertise are, as I have noted, very difficult to comprehend. He did not suggest in his very brief closing submissions that either doctor was not qualified as an expert to express the opinions they did in their report, the subject of allegation 2.
25. [25]
    Dr King was not challenged about these statements in his trial affidavit:

3. 2.
   I hold a Bachelor of Medicine and a Bachelor of Surgery from the University of Queensland, graduating in 1982.
4. 3.
   I am a fellow of the Royal Australian College of General practitioners (RACGP).
5. 4.
   I have been actively involved in clinical work as a GP in metropolitan and rural practices since 1985. My primary position is as an academic GP with the University of Queensland, and I have been the course coordinator of the GP clinical rotation on three separate occasions since 1999. I have a long history as a senior examiner for the AMC, and a clinical examiner for the RACGP. For over a decade I undertook Practice Based assessments for RACGP by visiting candidate GPs and their practices around the State of Queensland, and other tasks as a medical educator of GP registrars on various occasions.
6. 5.
   I have also provided services to AHPRA in completing performance assessments for the Medical Board.

26. [26]
    Similarly, Dr Jacobs was not challenged about these statements in his affidavit:

3. 2.
   I hold a Bachelor of Medicine and a Bachelor of Surgery from the University of Queensland, graduating in 1975.
4. 3.
   I am a life fellow of the Royal Australian College of General practitioners.
5. 4.
   I was a GP in Mackay for 32 years until moving to the Sunshine Coast in 2011. Between 2011 and 2022, I provided GP locum services on the Sunshine Coast and at times in Mackay, Maryborough, Kingaroy and Cloncurry.
6. 5.
   I was responsible for delivering GP training in Mackay for two decades from 1988 and for almost 10 years as Head of the James Cook University, Mackay Clinical School.
7. 6.
   In 2015 I retired from my employment at the James Cook University, however I continued my appointment as Adjunct Associate Professor.
8. 7.
   Since 1999 I provided services as an accreditation surveyor for GP practices accreditation and completed over 880 practice visits.
9. 8.
   I have also provided services to the Office of the Health Ombudsman as an independent clinical advisor to Ahpra in completing performance assessments for the Medical Board, and independent medico legal work as required. Over the last year alone I have provided approximately 28 performance assessments for the Medical Board.

27. [27]
    In his evidence in chief, Dr Jacobs told the Tribunal that in 2022 he was about to undertake his 12th performance assessment for this year. I do not intend to canvas the whole of the respondent’s written material, but on this issue (the expertise of Dr King and Dr Jacobs) I set out a number of paragraphs from his pre-trial outline of argument:^[8]

3. 16.
   The respondent asserts that he is reasonably satisfied that the two assessors Dr D. King and Dr H. Jacobs [like Dr J. Levy] simply do not possess significant QOTP and chronic pain management experiences or qualifications; and now submits that the Tribunal will find the following passages from the assessors’ conclusions instructive in that, in effect, they confirm the assessors themselves lacking insight into the effects” “en masse / domino / synergistic grossly-increased-Clinical-Plus-Prescribing (+ implemented Preventative Hep C treatment, etc) due to the direct consequences of Mr Clay Butler’s unlawful behaviour. Viz, any reasonable Queensland Health employee holding a position of trust would common-sensibly and promptly issue relevant S4/S8 Notifications to the Respondent in order to minimize vulnerable patients potentially coming to harm and NOT intentionally cause the large “back-log” of inappropriate high Breach: Patient ratio of > 8 weeks S8 use reports for the Respondent to rapidly and dutifully deal with in order to comply with regulatory body requirements / [resultant inappropriate heavy clinical worker-load to rapidly] “off-load” a large number of QOTP patients, etc circa Dr King and Dr Jacobs assessment time towards the end of 2018. This is best explained in the following very “indirect” manner [with difficulty]: “The Applicant or Assessors asserts that the Respondent blame open {versus explain} Mr Butler’s unlawful behaviour to be the cause of his S4/S8 breaches…”, “The Applicant or Assessors asserts that the respondent is to {somehow} be appropriately blamed for causing Mr Butler to unlawfully create a fabricated [email protected] email address that then resulted in Dr Ting’s S4/S8 breaches due to overwhelming-arising-effects…”, “… explain versus blame busyness as contributing to Dr Ting causing Ms McDowall’s Monday 19/3/2018 complication…” In any event, the relevant [satisfactory] 12 February 2019 to 7 March 2019 Work Progress / Supervision Report provided by GP Dr Obi (AHPRA-approved/nominated supervisor) and Practice Manager Ms Briffa (AHPRA-approved/nominated senior person) AFTER MANY MORE DAYS of complying with strict AHPRA conditions DID NOT reveal any short-comings in the Respondent Dr Ting WHEN he “diligently” stick to seeing maximum 4 patients per hour.

28. [28]
    In that passage he refers to conclusions in the assessment report which will be quoted in full later in these reasons. The text and style exemplify his approach, both in the written and spoken word, and understandably, lead to confusion.
29. [29]
    Neither Dr King or Dr Jacobs had ever been registered (or wished to be registered) on the Queensland Opioid Treatment Program (the QOTP), but both demonstrated a high degree of skill and understanding in chronic pain management and understanding of pain medication. In this regard, I have been greatly assisted by the advice of the professional assessors, Dr Phipps and Associate Professor Senator.
30. [30]
    Both of the assessors are eminently qualified to conduct a performance assessment of this nature; and qualified as experts to express opinions in their report.

Discussion – allegation 2

31. [31]
    The performance assessment was the focus of Judicial Member McGill SC’s reasons for judgment in Ting 2021, and I respectfully adopt his summary of the consultations observed by the two assessors with one exception.^[9]
32. [32]
    I do not rely on any of His Honours’ comments to the extent to which he was referring to documents and/or evidence that was not before this Tribunal.
33. [33]
    Dr Jacobs observed 13 patient consultations in two hours. These are the patients described in [12] – [21] of the reasons in Ting 2021. Dr King observed 10 patient consultations in just under two hours and these are described in [22]– [31] of the Ting 2021 reasons. In those reasons, patient 19 (see [27]) was, according to Dr King, charged as item 36 when the consultation took less than 15 minutes. After Dr Ting’s evidence before me had concluded, he produced an email to him from the Practice Manager at the Clinic dated 28 December 2018 in which she said that this patient was billed as an item 23 and not a 36.^[10] This email was clearly in the possession of the respondent, or under his control, when he cross-examined Dr King. As Dr King was not cross-examined about it and the practice manager was not called to give evidence by the respondent, I can reach no conclusions on this issue, except to note that I will disregard this item as evidence of Medicare fraud out of an abundance of caution.
34. [34]
    While one assessor was observing patient consultations, the other was reviewing patient records. Dr King chose to review patient notes including previous attendances for patients whose consultations he had observed earlier. Dr Jacobs reviewed other patients randomly. In the report,^[11] Dr Jacobs writes:

The software used (at the Clinic) is Best Practice with 15-minute appointments. Dr Ting does not take any breaks in bookings between 9am-5pm. Dr Ting is most often double booked, sometimes triple booked and on occasions quadruple booked. The appointments schedule confirms that no other doctors in the clinic routinely overbooked their appointments. On Monday 3/12/18 Dr Ting saw 61 patients between 9am and 5pm; Friday 6/12/18 he saw 53 patients between 9am and 4pm and on Monday 10/12/18 he saw 74 patients between 9am and 5pm. As an example, I chose the 9.15-9.30 time slot on Monday 10/12. There were four patients (patients 1-4] booked at that time.

35. [35]
    In his evidence in chief, he was asked by Ms Feeney if he had a memory of this particular performance assessment. His response was to the effect that of all the performance assessments he had done over the past decade, he could recall this one above all others. Although not pleaded as a particular in allegation 2, the issue he raised is very relevant to all of the six particulars set out in 2.4 of the referral, and, significantly to the respondent’s insight into the nature of his practice. Dr Jacob said that he had never before come across a case of such serious overbooking of patients. He said that it may be appropriate on occasions to book two patients in a 15-minute timeslot; for example, in the case of an emergency, but he had never seen an occasion when four patients were booked into a 15-minute timeslot. He described himself as a very experienced general practitioner, seeing 28 to 30 patients during a day as “enough to be competent”.
36. [36]
    In his analysis of the records, Dr Jacobs reviewed^[12] the records of patient five. He wrote:^[13]

Further analysis of the patient Mrs ST attendance:

Further analysis of patient billing for the 12:30-12:45pm time slot on Monday 18/12/18 including patients 5,6,7,8.

This data reveals a clear pattern of over service and Medicare fraud.

37. [37]
    The respondent did not challenge Dr Jacobs’ evidence in relation to this entry in the report.
38. [38]
    Subsequent to the receipt of the report, the Board gave the respondent notice of its intention to take immediate registration action. The respondent made a number of submissions,^[14] which made reference to the assessment report. Both Dr King and Dr Jacobs had read this material, and in their affidavits said the material did not alter the opinions expressed in their report in any way. As the report notes, at the conclusion of the observation of patient consultations and records, the assessors engaged in a structured clinical practice interview with the respondent to give him a chance to respond to the myriad of criticisms that both assessors had of him as a result of their observations of the consultations and examinations of the records.
39. [39]
    The assessors also conducted interviews with the practice RN (who was new and not able to contribute much), and the practice manager who was of significant assistance. As a result of all this information, the assessors concluded as follows:^[15]

Summary and discussion

Dr Ting lacks insight into his deficiencies and appears to be unprepared to do anything to correct the issue. He appears to judge his performances as a doctor more highly than we do after a day of observation and questioning. He has a tendency to blame other people or ‘time pressure’ for errors and complications. In his preassessment summary he wrote “Yes, I fail in providing proper IV Ferrinject to KM on Monday 19/3/2018 due to “time pressure” to finish clinical and non-clinical work-loads.

When we questioned him about time pressure, he blamed his current busyness on the loss of his MRQ licence, which meant helping these patients find other doctors to take over their prescribing. Then he blamed the principal being on holidays for his busyness, but we highlighted that he was just as busy in the few weeks prior to this. Despite doing research in the area of mathematics he was unable to tell us how his weekly numbers had changed over the last few months. His preassessment summary states that he sees 150 patients per week in the clinic, about 15 in the hour that he spends at the nursing home. From evidence gathered during our visit, this figure of 150 has seemingly been “plucked out of the air”.

His interaction with patients and staff appears to be satisfactory. Many of the patients are very happy with his service. The consultations observed today are dysfunctional and erratic and do not justify billing any more than a standard consultation. Many would be brief consultations. Dr J Ting does not initially familiarise himself with a case before starting a consultation. He is most comfortable with quick visits requesting repeat medication. Any new symptoms are dealt with by a very brief assessment and then over investigation. His manner expresses uncertainty and hesitancy but perhaps this was his usual style being interupted by an observer. His diagnostic problem-solving skills are unsatisfactory because he does not apply clinical skills such as history taking, physical examination and diagnostic thinking in a logical manner.

Additionally, he seems to have a rigid, narrow approach to complex information. For example, his interpretation of iron deficiency in needing ferritin level up to 100, without being able to recognise this was only applicable to those with below normal haemoglobin, particularly in the presence of inflammation or heart failure, not in all patients. Ironically, he even sent us a number of documents to back up his view, despite the document actually making clear that the proviso of only those with sub- normal haemoglobin. There were a number of instances where he focused on a single piece of information and could not put it in context in light of the overall pattern of information.

He has a large chronic pain management workload but there is evidence his prescribing of drugs of dependence is unsatisfactory, including a letter from Queensland MRQ withdrawing his prescribing rights for QOTP.

Dr Ting’s record keeping is unsatisfactory, but the consultations today demonstrate that if he slows down and sees fewer patients, he is able to complete the task of recording medical records. There is ample evidence from today’s visit that Dr Ting conducts widespread Medicare fraud.

Conclusion and recommendations

40. [40]
    Dr Jacobs and Dr King find the overall performance of Dr Ting to be unsatisfactory:

We believe the minimum required of Ahpra is to impose conditions on the registration of Dr Ting. We would recommend Ahpra impose level 2 supervision on Dr Ting. This should include an undertaking that he see fewer patients per hour e.g., a maximum of four per hour. This should also include regular weekly medical record review by Dr Ting and his supervisor. We would recommend obtaining documentation from Queensland MRQ if our concerns are confirmed and restrict Dr Tings prescribing of S8 and S4 drugs of dependence and medicinal cannabis.

The erratic and dysfunctional nature of the consultations as well, lack of insight into addressing workload problems, and comments by the practice manager that Dr Ting is “hyperactive” made us consider the prospect of other mental health issues being present such as bipolar disorder. There was a hint of grandiose, tangential, and vague thinking expressed in his written Ahpra preassessment summary document (especially in the general practice goals and experience page). We would recommend Dr Ting be required to undertake mental health assessment by a psychiatrist experienced in assessment and treatment of medical colleagues.

41. [41]
    As I have noted, there was a stark difference between the way in which the respondent “cross-examined” Dr King, and later Associate Professor Levy in relation to allegation five, and his approach to Dr Jacobs. The questioning was disjointed, often very difficult to follow, and, as I observed earlier, a confusing mixture of submissions and his own opinions which he did not express as a question. He took Dr King through a number of the patients that he (Dr King) had observed on 11 December 2018, and seemingly tried to explain to Dr King why he acted as he did; or endeavour to rationalise his performance. Not surprisingly, Dr King became frustrated with the respondent and observed at one point to him that, his behaviour towards him in court simply confirms the impression he had gained in the performance assessment, and the opinions expressed in the report of a practitioner who is rigid in his own opinions, unfocused (I infer on medical decision-making in practice), with grandiose, tangential and vague thinking, who always blames someone or something else when he gets into trouble.
42. [42]
    I do not intend to canvass all of Dr King’s evidence. I accept his opinions expressed in the report and confirmed in his oral evidence. I accept his observations set out above about the respondent’s presentation to him during his questioning.
43. [43]
    Demonstrative of the assessor’s conclusions about the respondent’s total lack of insight into his failings as a doctor, is a small piece of evidence from Dr Jacobs to which reference is made in the report:^[16]

Due to the layout of the surgery it was possible to overhear the waiting room while reviewing the medical records. Dr H Jacobs overheard a patient’s discussion of Dr John Ting’s current predicament. The patient was clearly heard to say Dr Ting is “fast paced but gets the job done”, “he asked me to come today to help out” as he is in danger of “losing his license”. If he goes, there is “nothing on the north side [sub Brisbane] for drug addicts”.

44. [44]
    It was established in evidence that the patient was almost certainly patient six (referred to in [27] Ting 2021), who Dr King noted had been seen the day before for a routine appointment,^[17] and who “spoke in glowing terms of the care received from Dr Ting”.
45. [45]
    What is remarkable is that the respondent well knew what the purpose of the performance assessment was, and yet he was unable or unwilling to adapt his practice to endeavour to perform to proper standards while the assessors were present.
46. [46]
    In his oral evidence, Dr Jacobs observed that on many occasions over the years that he had done performance assessments, he suspected that the practitioner had invited supportive patients to come in on the day of the assessment, but this was the very first time he had heard actual evidence of what is deceptive and unethical conduct.
47. [47]
    As with his cross-examination of Dr King, and perhaps even more so, the respondent’s cross-examination of Dr Jacobs could be described as disastrous, if the intention of the respondent was to undermine the credibility of the witness and to improve the respondent’s case. I warned him on a number of occasions that he appeared to be eliciting evidence from Dr Jacobs that was not in his interests. There is no question that he is highly intelligent, but, as yet another example of a health practitioner with absolutely no insight into his failings, he continued to elicit responses from Dr Jacobs which simply confirmed the evidence of both assessors.
48. [48]
    I will mention only a few examples. He referred Dr Jacobs to patient seven.^[18] As far as I could ascertain, the respondent was challenging Dr Jacobs criticism of him in the report for prescribing Celecoxib which is a nonsteroidal anti-inflammatory drug, for the patient who reported “paraesthesiae in his right hand and forearm discomfit after working as a fencer.”  The questioning merely strengthened Dr Jacob’s opinion that there was no evidence that prescribing the drug in the circumstances complied with PBS restrictions on its use. Dr Jacobs referred to the PBS restrictions on prescribing this drug as being for osteoarthritic arthritis or rheumatoid arthritis. In the opinion of Dr Jacobs, to prescribe it for the condition reported by patient seven was not in accordance with PBS requirements and regarded as fraud.
49. [49]
    The respondent talked about “off-label” prescribing, which I think means, prescribing drugs that are not covered by the PBS scheme. In those circumstances, as Dr Jacobs observed, the patient would not get the PBS benefit, and would have to pay in full if he or she filled the prescription. In those circumstances Dr Jacobs observed informed consent would have to be obtained, which it was not in this case.
50. [50]
    Another example relates to patient six.^[19] The criticism here of the assessors was that the consultation was “dysfunctional”, and the respondent’s uncertainty about how to proceed with cardiovascular risk management for this patient. The respondent’s position seemed to be that as this patient was another doctor’s patient, that somehow reduced his responsibility for appropriate clinical decision-making. Dr Jacobs strongly refuted any such proposition, a view strongly supported by both professional assessors.
51. [51]
    As with his “questioning” of Dr King, the respondent’s interaction with Dr Jacobs did not challenge his recorded recollection of what happened during the observed patient consultation.
52. [52]
    One of the assessors asked Dr Jacobs about one of the patient’s records reviewed by him during the performance assessment.^[20] The assessors criticised the respondent for his clinical performance in a consultation with this highly vulnerable patient on 6 December 2018, when he administered Largactil and Maxolon intravenously in the surgery. As is noted in the report, the nursing notes from that visit “were made by Jo”:

“Two hours post-treatment and still very unsteady, had three falls in clinic, father came to sit with her, father help to transfer to her home and will monitor her tonight.…” It would appear that there was no indication for such IV therapy. Subsequently patient monitoring was inadequately supervised by Dr Ting. This is unacceptable management.^[21]

53. [53]
    Dr Jacobs described this treatment as “highly dangerous stuff”; completely off the path for treatment of acute pain, and there was no indicator (in the respondent’s notes) for this IV therapy.
54. [54]
    The respondent has, in various responses to the Office of the Health Ombudsman (OHO), and in questions to Dr Jacobs and Dr King, proposed that he would be safe to practice in a rural hospital setting. Both experts comprehensively rejected such a proposal for this respondent.
55. [55]
    Apart from the fact that he has been out of practice now for some 3 and a half years, Dr Jacobs described rural general practice as the most difficult of all forms of primary health care. Both doctors now agree that any future practice, to ensure the public health and safety, would have to involve Level 1, which both said would be almost impossible in remote or regional hospital settings. Dr King said he worked as a regional GP in Mount Isa for a year. He observed that a doctor in that setting has to be highly competent, and that the respondent was not suitable (for the reasons expressed in the report) for such a position.
56. [56]
    I accept the evidence of Dr Jacobs, and his opinions as to the respondent’s competency as expressed in the report and his evidence.
57. [57]
    A fair summary of the deficiencies in the respondent’s clinical practice, as a result of the report and the evidence of both assessors, is that the respondent:

    1. (a)
       did not review patient records prior to consultations to refresh his memory regarding the patient’s history;
    2. (b)
       failed to ask fundamental questions of the patient to obtain necessary information, for example, inquiring about the nature and severity of pain when a patient presented for pain relief;
    3. (c)
       omitted to conduct physical examinations;
    4. (d)
       failed to follow-up on abnormal findings, commonly in relation to abnormal blood pressure readings; and
    5. (e)
       had a chaotic and, at times, inappropriate method of communicating with patients, in particular, by demonstrating indecision and uncertainty in his advice and treatment plans.^[22]
58. [58]
    Their evidence, and in particular that of Dr Jacobs, establishes that the respondent made inappropriate claims on Medicare, and failed to comply with PBS guidelines. The examination of past records indicates highly inappropriate booking practices, of a kind never before observed in many such assessments conducted by Dr Jacobs over the past decade.
59. [59]
    As is accepted, the applicant has the responsibility of proving the allegations, and the characterisation of any proved conduct in accordance with the standard established in Briginshaw v Briginshaw.^[23] Applying that standard here, and bearing in mind the potential seriousness of the allegation to the respondent, I am satisfied that the facts and circumstances set out in allegation 2 are proved.
60. [60]
    I will deal with characterisation globally after dealing with the other allegations. I have dealt with allegation 2 first, as I regarded it as the most serious, striking fundamentally at the fitness to practice of the respondent now, and the overriding and paramount principle relating to the health and safety of the public.

Allegation 1

61. [61]
    Allegation 1 is expressed in the referral in these terms.^[24]

Allegation 1A

3. 1.
   On 19 March 2018 the respondent performed a Ferinject (iron injection) on a patient, KM (the procedure) which was not in accordance with accepted medical practice and was below the standard to be expected of a general practitioner.

Particulars

3. 1.1
   In performing the procedure the respondent failed to inform the patient of:

1. (a)
   the risks associated with the procedure; and

2. (b)
   alternative methods of treatment for iron deficiency.

3. 1.2
   The respondent performed the procedure in a manner which was inconsistent with accepted medical practice in that he proceeded:

1. (a)
   without a tourniquet; and

2. (b)
   without flushing the cannula with saline solution.

3. 1.3
   The respondent performed the procedure at a time when it was not safe to do so as:

1. (a)
   no tourniquet was present in the clinic; and

2. (b)
   no normal saline solution ampoules were available in the clinic.

3. 1.4
   The respondent performed the procedure in such a manner as to cause extravasation of fluid resulting in the patient experiencing:

1. (a)
   pain and discomfort; and

2. (b)
   disfigurement.

3. 1.5
   The respondent breached clause 8 of the Code of Conduct in that he failed to make any or any adequate clinical notes of:

1. (a)
   his consultation with (KM);

2. (b)
   his performance of the procedure; and

3. (c)
   the adverse outcome experienced by (KM).

62. [62]
    The respondent admitted this allegation in his response to the referral,^[25] but contends that his conduct amounts to unprofessional conduct rather than professional misconduct as defined in section 5(a) of the definition of “professional misconduct” in the National Law.
63. [63]
    I was told by Ms Feeney during the hearing that KM was no longer required by the respondent for cross-examination although it is not apparent from the material before the Tribunal that he had given notice that he did require her for cross-examination. I am satisfied that this allegation is proved.

Allegation 3

64. [64]
    The allegation as set out in the referral and amended on the morning of the hearing is in these terms:^[26]

3. 3.
   Between 12 February 2019 and 21 February 2019, the respondent breached conditions imposed on his registration by the Board on 28 December 2018.

Particulars

3. 3.1
   On 28 December 2018, pursuant to section 178(2)(c) of the National Law, the Board imposed conditions on the respondent’s registrations requiring him to:

1. (a)
   limit the number of patients with whom he consulted to four per hour.

2. (b)
   practice under direct supervision; and

3. (c)
   to keep a log of details of his contact with each of the patients with whom he consulted (the conditions).

3. 3.2
   The respondent breached the conditions restricting him consulting the four patients per hour, as follows:

1. (a)
   on 14 February 2019 the respondent consulted with:

3. (iii)
   six patients between 2:00pm and 3:00pm.

2. (b)
   on 15 February 2019 the respondent consulted with:

1. (i)
   at least six patients between 10:00am and 11:00am; and

2. (ii)
   at least five patients between 11:00am and 12 noon.

3. (c)
   on 19 February 2019 the respondent consulted with:

2. (ii)
   five patients between 10:00am and 11:00am;

3. (iii)
   five patients between 12 noon and 1:00pm; and

4. (iv)
   five patients between 2:00pm and 3:00pm.

4. (d)
   on 21 February 2019 the respondent consulted with:

1. (i)
   five patients between 9:00am and 10:00am.

3. 3.3
   The respondent breached the condition regarding maintenance of a logbook detailing his contact with patients, as follows:

1. (a)
   on 12 February 2019 the respondent consulted with patient MR and prescribed oxycodone which is not recorded in logbook;

2. (b)
   on 12 February 2019 the respondent consulted with patient BO and prescribed temazepam which is not recorded in logbook; and

3. (c)
   on 12 February 2019 the respondent consulted with patient CF and prescribed paracetamol and codeine which is not recorded in the logbook.

65. [65]
    Paragraph 3.2 in the referral was amended to accord with the uncontested records contained in the hearing brief.
66. [66]
    The conditions imposed by the Board on 28 December 2018 were clearly in part in response to the performance assessment conducted by Dr King and Dr Jacobs on 11 December 2018.
67. [67]
    As Ms Feeney notes in her Aid Memoir to Issues and Evidence, the respondent made a qualified admission to this allegation in his response.^[27] His response (like most of his written material filed in the Tribunal) is very difficult to follow. He did not address this issue in his final submissions, nor did he make any submissions at that time about any of the allegations.
68. [68]
    In his response, he seems to submit that any breaches of the conditions were “unintentional” which I reject given the number of breaches. In his written material in the hearing brief, in evidence, and under cross-examination by Ms Feeney he attempted to justify why for example he breached condition 3.1(a). He accepted that none of the conditions were qualified. He accepted, as he had to, that his own logbook for 14 February 2019,^[28] indicates that he consulted with six patients between 2:00pm and 3:00pm on that day. The clinical notes for the relevant patients prove the same fact.^[29]
69. [69]
    As to 3.2(b), he accepted that his own logbook,^[30] establishes that he consulted with at least six patients between 10:00am and 11:00am on 15 February 2019, and at least five patients between 11:00am and 12 noon. His clinical notes establish the same facts.
70. [70]
    In accordance with condition 3.1(b) Dr Obi (who I infer was the principal at the Clinic) was his supervisor. Allegation 4 relates to the respondent prescribing Schedule 8 and Schedule 4 restricted drugs during the period 14 February 2019 and 26 February 2019, in circumstances in which his endorsements to do so had been cancelled by the MCHTU on 8 February 2019. This was the decision that was the subject of the failed review by the respondent referred to earlier.^[31]
71. [71]
    It is convenient here to refer to one example of a number where on 15 February 2019 the respondent breached condition 3.1 (a) by seeing at least six patients between 10:00am and 11:00am. One of those patients was DC, who he saw at 11:29am on that day. The clinical notes for that consultation,^[32] and the logbook indicate that the patient was prescribed Kapanol (morphine) which is a Schedule 8 drug. The clinical note records “Dr Obi approval”. The respondent did not call Dr Obi to give evidence, but he admitted in cross-examination that he had never informed Dr Obi of the cancellation of his endorsements to prescribe Schedule 4 and Schedule 8 drugs. There are a number of similar examples, but it is necessary only to refer to this one as demonstrating deceitful, deliberate and potentially dangerous conduct by the respondent.
72. [72]
    Similarly, allegation 3(c) is proved by referral to the respondent’s clinical notes and relevant logbook as is allegation 3(d).^[33]
73. [73]
    Allegation 3.3 relates to the respondent’s breach of the logbook condition imposed by the Board on 28 December 2018. A theme that runs through the respondent’s response to this allegation is that although he states in his response,^[34] “I confirm that these oversights were not intentional” i.e., the “oversights” referred to in 3.3, which appears to be an admission that he did breach that condition as alleged, he complains that the condition was “genuinely tedious and time-consuming”.^[35]
74. [74]
    It is yet another example of a health practitioner who has absolutely no insight into the significance and importance of these conditions, and the fundamental importance of strictly adhering to them. At this time, he was aware of the cancellation notice issued on 8 February 2019. Although in his material, he seeks impermissibly to dispute details of the cancellation notice,^[36] the sheer scale of his failure to comply with multiple provisions of the then Health (Drugs and Poisons) Regulation 1996 (the Regulations), should have been in the mind of any competent ethical doctor when it came to strictly complying with conditions on his registration, imposed in part, as a result of the highly critical performance assessment which he had at the time he committed these breaches. I reject his assertion that the breaches were unintentional. His attitude to the logbook condition is absolutely consistent with his past conduct. He has difficulty in accepting fault. He blames others. In my opinion, his overall attitude is consistent with someone who does not understand or accept the significance of such conditions. I find allegation 3 proved.

Allegation 4^[37]

75. [75]
    Allegation 4 is in these terms:

Allegation 4

3. 4.
   Between 14 February 2019 and 26 February 2019, the respondent prescribed Schedule 8 controlled drugs and Schedule 4 restricted drugs without holding the requisite endorsement under the Regulations.

Particulars

3. 4.1
   On 8 February 2019, pursuant to section 24 of the Regulations, the MCHTU issued the respondent with a cancellation of endorsement to prescribed Schedule 4 restrict drugs of dependency and Schedule 8 controlled drugs (the cancellation notice), issued in response to the respondent’s repeated breaches of the Regulations.

3. 4.2
   Grounds for issuing the cancellation notice were that the respondent:

1. (a)
   exceeded the approved number of Queensland opioid treatment program patients, in breach of section 21 of the Regulation.

2. (b)
   prescribed specified condition drugs without approval, in breach of section 78 of the Regulation.

3. (c)
   failed to provide a hard copy prescription within 24 hours following a verbal instruction to a pharmacy, in breach of section 81(2) of the Regulation.

4. (d)
   failed to provide a hard copy prescription within seven days of giving a verbal order to a pharmacy, in breach of section 81(3) of the Regulation.

5. (e)
   prescribed Schedule 8 controlled drugs for more than two months without the provision of a report to the Chief Executive, in breach of section 120 of the Regulation.

6. (f)
   prescribed to drug dependent patients without the requisite approval, in breach of section 122(1) of the Regulation.

7. (g)
   prescribed outside of the conditions specified in the approval, in breach of section 122(8) of the Regulation; and

8. (h)
   prescribed Schedule 4 restricted drugs of dependency to drug dependent patients without the requisite approval, in breach of section 213 of the Regulation.

3. 4.3
   The applicant repeats and relies on the contents of the cancellation notice in support of the particulars in paragraph 4.2. The cancellation notice is attachment B to this notice of referral.

3. 4.4
   The cancellation notice was received by the respondent on or about 3:00pm on 12 February 2019.

3. 4.5
   The decision to issue the cancellation notice was upheld by this honourable Tribunal on 28 July 2020 in Ting v Chief Executive Queensland Health [2020] QCAT 265.

3. 4.6
   The respondent breached section 51 of the Regulations by prescribing Schedule 8 controlled drugs when he was not endorsed to do so and after he received the cancellation notice as follows:

1. (a)
   on 14 February 2019 prescribed dependent adult Tapentadol to patient TS;

2. (b)
   on 15 February 2019:

2. (i)
   prescribed Methadone to patient BG; and
3. (ii)
   prescribed Kapanol (morphine) to patient DC.

3. (c)
   On 19 February 2019:

2. (i)
   prescribed Oxycontin to patient LG;
3. (ii)
   prescribed Endone to patient LG;
4. (iii)
   prescribed Jasper Oil .25ml to patient KC; and
5. (iv)
   prescribed Oxycontin 20mg to patient DM.

3. 4.7
   The respondent breached section 146 of the Regulations by prescribing Schedule 4 restricted drugs of dependency when he was not endorsed to do so and after he receive the cancellation notice, as follows:

1. (a)
   on 14 February 2019:

2. (i)
   prescribed Panadeine Forte (Codeine) to patient DJ;
3. (ii)
   prescribed Panadeine Forte (Codeine) to patient TJ;
4. (iii)
   prescribed Panadeine Forte (Codeine) to patient ACM; and
5. (iv)
   prescribed Panadeine Forte (Codeine) to patient JM;

2. (b)
   on 15 February 2019, prescribed Mersyndol Forte (Codeine) to patient LML.

3. (c)
   on 19 February 2019:

2. (i)
   prescribed Diazepam 5mg to patient LG;
3. (ii)
   prescribed Panadeine Forte (Codeine) to patient KS;
4. (iii)
   prescribed Panadeine Forte (Codeine) to patient CF;
5. (iv)
   prescribed Duromine (Phentermine) to patient GP; and
6. (v)
   prescribed Codeine to patient TJ.

4. (d)
   on 26 February 2019, prescribed Panadeine Forte (Codeine) to patient AF.

76. [76]
    In paragraph 12 of the respondent’s response, he states:^[38]

In relation to matters which have already been adjudicated by the Tribunal (Ting v Chief Executive, Queensland Health [2020] QCAT 265, the respondent requires the use of paragraphs 7 to 13 inclusive of his affidavit sworn 16 March 2022 on the grounds that the contents are all relevant to the issues in this referral whereby the current Tribunal has the responsibility to make the correct and fair decision whether to deregister the respondent versus immediately lift the respondent suspension [and reinstate his S4/S8 endorsement plus/minus provide monetary compensation as outlined by .6 P, page P3 in his 16/3/2022 – dated affidavit PROVIDED the respondent is not deregistered by this Tribunal at the final hearing]. In this regard, Mr Clay Butler’s unacceptable and unlawful serious professional misdemeanour/misconduct act (sic) of creating a fake email address [email protected], not dutifully providing and/or emailing the required Notifications to this fake email address during the review period 1 June 2018 to 24 of October 2018, and intentionally email the 8/2/2019 S4/S8 endorsement cancellation to the fabricated [email protected] email address with resulting involving (maximum 123 QOTP and 50 Chronic Pain patients). “en masse/domino/synergistic grossly – increased – Clinical– Plus – Prescribing – Worked load affects” and NEGATIVE financial/mental impacts suffered by him, and his family simply cannot be ignored by the Tribunal. This will then confirm procedural fairness and/or allow the Tribunal to punish or take jurisdictional errors into proportionate consideration. The respondent is completely satisfied that Mr Clay Butler, holding a position of trust in Queensland Health, intentionally decided NOT to log into his unlawfully created jcti[email protected] fake email address to dutifully obtain and supply “the [3:47:41pm 8/2/2022] notification email from [email protected] that the [3:45:00pm 8/2/2019] email to Dr Ting had been delivered” to the hearing at the previous Ting v Chief Executive, Queensland Health [2022] QCAT 265.

77. [77]
    Mr Butler provided an affidavit in support of the applicant’s case in relation to allegation 4.^[39] He was required for cross-examination by the respondent. A particularly concerning theme (to the Tribunal regarding the respondent’s insight and current fitness to practice) in his filed material, relates to the timing of receipt of an email dated 8 February 2019 to which was attached the cancellation notice.^[40] At paragraph 8 of his affidavit Mr Butler states:

On 8 February 2019, I also sent Dr Ting an email ([email protected]) advising him of the notice and that the notice had also been sent via registered post to the dental and medical surgery, Albany Creek and the Woody Point Medical Centre, Woody Point. The email included a scanned copy of the notice (minus the appendices). I received a notification email from post[email protected] that the email to Dr Ting had been delivered.

78. [78]
    The respondent’s filed written material suggests that the use of an incorrect email address by Mr Butler was deliberate and in some way, apparently because she witnessed Mr Butler’s signature to his affidavit, Ms Feeney’s instructing solicitor, Ms Reibelt from the OHO, was involved in what he described as “a serious misdemeanour”. The respondent had given notice that he required Ms Reibelt for cross-examination although she had provided no affidavit in support of the applicant’s case. The respondent did not pursue the application before me which would have been futile given that fact. It is sufficient to refer to one example of this theme.^[41]
79. [79]
    Paragraph 13 of his trial submission^[42] is in these terms:

The respondent is also completely satisfied that Mr Clay Butler [holding a position of trust in Queensland Health] in collaboration with Miss Lauren Reibelt, while drafting his 9/3/2022 - dated Affidavit have both noticed the respondent John Tings confirmed forward/backward computer – laptop – hotmail time asynchrony as indication of [now–refuted] respondent’s “potential character flaws” outlined by page with P6, .13 Table (LEFT-HAND SIDE) of respondent 16-3-2022 affidavit. This has enticed Mr Butler to finally log into his fake mailto:[email protected] email to supply the [3:47:41pm 8/2/2022] notification email from [email protected] that the [3:45:00pm 8/2/2019] email to Dr Ting had been delivered to the current Tribunal. Of grave concern is the questionable if not unethical conflict – of – interest behaviour shown by the Health Ombudsman’s appointed Ms Lauren Reibelt while acting as witness to Mr Butler’s 9/3/2022 Affidavit incorporating the relevant received Wednesday, 3 November 2021 3:40 pm email obtained from her own [email protected] work email into Mr Butler’s Affidavit [CRB – 12, page 191 partially reproduced below). This action by Ms Reibelt ultimately indicate (sic) a severe lack – of – insight judgement +/- breaching impartiality +/- inappropriate Reibelt – Butler influence by the Health Ombudsman [via Miss Reibelt and/or Ms Feeney] in regards to the need to recognise/acknowledge [advocated via obtaining a formal official apology from Queensland Health] the repugnancy of Mr Butler’s unlawful conduct in creating the false [email protected] email address in the first place. The respondent advocate (sic) that it is now simply the applicant’s duty to assist the Tribunal “to deal with this matter as much as possible” via their final Submissions in Reply. Miss Reibelt and/or Ms Feeney is (sic) also requested by the respondent for cross-examination at the final hearing regarding this matter.

80. [80]
    There are many other examples in the respondent’s written material, but this suffices to make the point that apart from showing the same chaotic, grandiose and tangential thought processes observed by Dr King in his evidence, at no time did the respondent suggest to Mr Butler in his cross-examination of him that he had done anything untoward.
81. [81]
    Before his final address, I reminded the respondent that he had made serious allegations against both Mr Butler and Ms Reibelt but had not asked Mr Butler anything about the issue. He made no submissions to me about this issue, reflecting once again a serious problem with his character in that he inevitably looks to blame others for his own conduct, often (as in this example) without any basis whatsoever.
82. [82]
    The applicant admits that the email address referred to in paragraph 8 of Mr Butler’s affidavit was incorrect in that it left out one letter, obviously an innocent error. In any event, the applicant has proceeded on the basis of the respondent’s own admission that he received a hard copy of the cancellation notice at the Clinic at around 3:00 pm on 12 February 2019. It would make no sense for Mr Butler to deliberately alter the email address, where is it is accepted that around the same time he sent copies of the cancellation notice by registered mail to all known working addresses of the respondent including the Clinic.
83. [83]
    Annexed to the respondent’s signed affidavit is a document which was (in part) created during confidential negotiations between the parties in an attempt (as required by law) to resolve the matter. The document (which I will describe as “the respondent’s document”) contains a number of admitted and disputed facts which have never been accepted by the applicant, but nevertheless, the applicant relies on some of the insertions marked in red which were made by the respondent and the document is signed by him. The document contains reference to a lot of irrelevant material including his version of confidential discussions with Ms Reibelt which I have ignored.
84. [84]
    In the respondent’s document he admits: prescribing Schedule 8 controlled drugs on 14, 15 and 19 February 2019;^[43] prescribing Schedule 4 restricted drugs of dependency on 14, 19 and 26 February 2019;^[44] and that he “fails (sic) his medico – legal duty to check Phentermine is a Schedule 4 restricted drugs (sic) of dependency on 19 February 2019”.^[45]
85. [85]
    The respondent has admitted to prescribing without his endorsement on other occasions. In a lengthy email to compliance officers and Ahpra,^[46] the respondent repeatedly states that he prescribed Schedule 8 controlled drugs and Schedule 4 restricted drugs of addiction. He said in that document:

Thus, I openly submit and admit that I intermittently (unlawfully) use some S4/S8 drugs after the 3:00 pm 12/2/2019 endorsement “effective” cancellation for a while variety of “deep” reasons as further elaborated below.

86. [86]
    There follows in that email a prolonged and abstruse explanation of his conduct. As demonstrated earlier the applicant constantly attempts to rationalise his unprofessional behaviour.
87. [87]
    I adopt with approval what His Honour Judge Allen KC observed in Ting 2020:^[47]

I find that the applicant has not satisfactorily explained his continuing to prescribe schedule 8 controlled drugs and schedule 4 restricted drugs of dependency after receiving notice of the cancellation of his endorsements to do so. I conclude that the applicant chose to deliberately contravene the Regulation by doing so, rather than make suitable arrangements for the transfer of care of the patients. The applicant should reasonably have contemplated the need to do so at the latest when required to show cause on 29 October 2018. Even had he laboured under an unrealistic belief as to his prospects of showing cause, the applicant should have immediately made such arrangements on and from 12 February 2019. His decision not to do so is further evidence of his deliberate contraventions of the Regulation. They add to a picture of the applicant deliberately defying restrictions on his prescribing practices where he believed such restrictions were not required.

88. [88]
    In relation to 4.6 of the Referral (with the exception of 4.6(b)(i) which the applicant does not pursue), and 4.7 of the Referral, I find the facts proved, and that the conduct amounts to professional misconduct.
89. [89]
    The respondent’s breaches of section 51 and 146 of the Regulation, confirms and even exceeds Judge Allen KC’s sceptical expectations expressed in his judgement:^[48]

To the contrary, the Tribunal is satisfied that the applicant is likely to contravene the Regulation if his endorsements (and registration) are restored. That is because of his attitude to regulatory compliance as evidenced by his past contraventions and in his conduct of these proceedings. Whilst at times in his submissions the applicant did pay lip service to the importance of regulatory compliance, particular aspects of, and the general tenor of, the applicant’s submissions left me with the strong impression that the applicant is, in fact, ambivalent as the need for strict regulatory compliance. He impressed me as a person who lacked insight as to the seriousness of his course of contravening conduct. He is likely to contravene restrictions on his prescribing of schedule 8 controlled drugs and schedule 4 restricted drugs of dependency in circumstances where his clinical assessment of a patient leads him to believe that such limitations are unnecessary.

Allegation 5^[49]

90. [90]
    Allegation 5 is in these terms:

Allegation 5

3. 5.
   The respondent’s clinical management of the patient AL on 30 November 2017 was not consistent with accepted medical practice and fell below the standard expected of a general practitioner.

Particulars

3. 5.1
   On 30 November 2017 the patient AL:

1. (a)
   consulted with the respondent at the Marendy Medical Service.
2. (b)
   was registered with the Queensland Opioid Treatment Program and provided with a prescription of Suboxone 8mg by the respondent;
3. (c)
   attended at a local pharmacy where he had the prescription for Suboxone filled and consumed the medication in the presence of pharmacy staff;
4. (d)
   returned to his home where he was later found unresponsive and could not be revived; and was declared deceased.

3. 5.2
   On 30 November 2017, in consulting with patient AL, the respondent:

1. (a)
   failed to take any or any adequate clinical history of the patient AL;
2. (b)
   failed to make any or any adequate physical examination of the patient AL;
3. (c)
   failed to make any or any adequate examination and assessment of the patient AL’s mental health;
4. (d)
   failed to elicit or adequately elicit the complete drug use of the patient AL;
5. (e)
   failed to make any or any adequate diagnosis of the patient AL;
6. (f)
   failed to make any or any adequate treatment plan for patient AL;
7. (g)
   failed to counsel or adequately counsel the patient AL with respect to his drug use;
8. (h)
   failed to consider or adequately consider the patient AL’s recent period of opioid abstinence when prescribing the Suboxone;
9. (i)
   failed to advise or adequately advise the patient AL in relation to the risks and benefits of Suboxone;
10. (j)
    prescribed dose of Suboxone which was excessive in the circumstances.

3. 5.3
   On 17 July 2019 the Deputy State Coroner found that the cause of death of patient AL was misadventure by multiple drug toxicity.

91. [91]
    The applicant relies on the evidence of Associate Professor Levy who provided an affidavit^[50] and gave oral evidence and was cross-examined by the respondent. The respondent does not rely upon any evidence (opinion or otherwise) apart from his own, to contest the conclusions and opinions expressed by Associate Professor Levy.
92. [92]
    Despite there really being no controversy about the facts referred to in 5.2 of the referral, the respondent nevertheless denies these particulars in his response.^[51]
93. [93]
    Associate Professor Levy had a number of documents before him provided by the OHO:

3. 10.
   In preparing my affidavit I reviewed the following:

1. (a)
   my advice to the OHO, dated 12 January 2021.^[52]
2. (b)
   police report of death to coroner.
3. (c)
   coroners findings.
4. (d)
   autopsy report.
5. (e)
   Marendy Medical Service – Patient records.
6. (f)
   Southern Downs Mental Health Service – Clinical Review.
7. (g)
   Queensland Opioid Treatment Program admission form.
8. (h)
   complaint by Mrs (KL).
9. (i)
   submissions from Dr Ting, dated:

1. (ii)
   15 January 2020.
2. (iii)
   6 February 2020.
3. (iv)
   19 March 2020.
4. (v)
   21 April 2020.
5. (vi)
   22 April 2020.
6. (vii)
   27 April 2020.
7. (viii)
   29 April 2020.
8. (ix)
   14 May 2020.
9. (x)
   16 May 2020.
10. (xi)
    18 May 2020.
11. (xii)
    23 May 2020.
12. (xiii)
    15 June 2020.
13. (xiv)
    23 June 2020.

94. [94]
    The Coroner’s findings^[53] and autopsy report^[54] established that AL was 34 years of age at the time of his death. The circumstances leading to his death were that he had a medical history which included depression and anxiety, schizophrenia and polysubstance abuse. He had been incarcerated at Rockhampton prison and released on 21 November 2019. At that time, he was prescribed Diazepam, Lyrica (Pregabalin) and Olanzapine.
95. [95]
    On 30 November 2017, AL attended the respondent at Marendy Medical Services. This was the first time the respondent had seen the patient. The respondent prescribed 8 mg of Suboxone and lodged an application for AL with the Queensland Opioid Treatment Program. AL attended at the Bailey Road pharmacy at Deception Bay where he was observed to consume the medication. He arrived home at approximately 5:00 pm and fell asleep on the couch and was found unresponsive and with vomitus omitting from his mouth. Ambulance officers attended but he could not be resuscitated.
96. [96]
    The Coroner, dealing with the matter on the papers, concluded that AL died from the combined effects of a number of prescribed medications and made a finding of misadventure.
97. [97]
    The applicant does not contend that the respondent’s conduct was the direct cause of AL’s death. The applicant’s contention is that the respondent’s clinical management of AL did not meet the requisite standard expected of a general practitioner.
98. [98]
    Associate Professor Levy states in his affidavit:^[55]

3. 11.
   Suboxone is a brand name for buprenorphine. It is classified as a Schedule 8 drug of addiction. It is used to reduce intoxication and cravings from opiates/opioids and help a patient transition from opioid drugs of dependence to non-addiction. It binds to the same brain receptors as opiates and shares some of their side-effects. Of most note, these include central nervous system and respiratory depression which can lead to disorientation, confusion, loss of consciousness and – in the worst-case scenario – respiratory arrest (cessation of breathing) and death.
4. 12.
   Given the potential dangers of Suboxone use, a practitioner performing to the expected standard would seek to be as sure as possible that they are fully aware of the patient’s current drug use. In the case of AL, this would provide the practitioner with:

3. (a)
   a full understanding of the risk of polypharmacy (by which one means the concurrent use of multiple medications) and, thus, inadvertent overdose. Such overdoses may occur due to the cumulative effects – or side-effects – of the pharmacologically active substances been taken by the patient. These include both prescribed medications and non-prescribed drugs or substances being taken at that time.

In this case, there is known to be a pharmacological overlap between the drugs found in AL’s post-mortem toxicology assay and their effects on the nervous and respiratory systems.

It is not contended – and, in fact, is considered exceedingly unlikely – that Suboxone alone led to AL’s death. However, its combination with the other drugs found in the toxicology assay may have contributed to AL’s demise

3. (b)
   a full-on understanding of the volume of drugs available to AL and, alongside a mental health assessment, and evaluation of the risk of deliberate self-harm/suicide; and
4. (c)
   an inference of AL’s likely tolerance to opioids and, thus, inform Dr Ting whether – and how much – Suboxone to prescribe.

3. 13.
   At the very least, the consultation by Dr Ting with AL needed to effectively assess the risk versus benefits of prescribing Suboxone to AL at that time. Dr Ting did not adequately do so.

99. [99]
    Associate Professor Levy’s affidavit and evidence is critical of the respondent’s clinical approach to AL, who was clearly a highly vulnerable person. He states that the respondent did not take a proper history from the patient, particularly in relation to “the patients then current drug use”.^[56]
100. [100]
     Associate Professor Levy was critical of the fact that despite the respondent knowing that the patient was a user of prescribed and… illicit dangerous drugs, such as opioids, olanzapine (used to treat schizophrenia) and pregabalin (used to treat seizures), he made no effort to ascertain the actual dosages of the prescribed medications such as olanzapine which, on autopsy, was found in toxic quantities in the patient’s body.
101. [101]
     Although I do not have a transcript of the proceedings, my recollection is that it was the respondent himself who suggested to Associate Professor Levy that he could have asked AL to go home and get his prescriptions and drugs which would reveal the dosages, a suggestion with which Associate Professor Levy agreed.
102. [102]
     Associate Professor Levy is also critical of the respondent for not putting a general treatment plan in place. Associate Professor Levy opines that “this is vitally important as (AL) was known to be addicted to drugs in a social situation...”.

…Simply supplying medication – without a robust plan for regular review with a view to reducing and eventually ceasing (AL’s) drug usage – would obviously be a recipe for disaster, simply feeding an addiction or providing drugs with known ‘street value’ that may encourage criminal activity. A plan of action that is formulated and adhered to is vital to avoid an unwanted outcome.^[57]

103. [103]
     At the time he saw AL, the respondent was working at the Marendy Medical Services at Margate. This is the practice referred to by Judge McGill in his reasons:

103. [62]
     … It is significant that the sort of practice the applicant had in 1995, with many drug addicts, which led to extensive fraud and his deregistration, was the sort of practice he developed again when he returned to general practice in 2017. He not only did not take steps to rid himself of such patients, he continued to take them on even as his authority to admit patients to the QOTP was drawing to a close, and at the new practice in Redcliffe he took on new patients who were chronic users of narcotic drugs…^[58]

104. [104]
     The respondent also blames the alleged owner of the Marendy Medical Services practice who he says was 83 years old and looking to retire with a large cohort of patients like AL for his subsequent problems with the MCTHU of Queensland Health.
105. [105]
     His notes^[59] (which Associate Professor Levy opines are completely inadequate), do not record any physical examination, or counselling of the patient with respect to his drug use. There is no evidence in the notes that the respondent sought, or had access to, any prison medical records, despite him recording that AL was “five days out of jail”. Given this was the first time the respondent had seen AL, and because of his drug addiction past, and the dangers of reduced drug tolerance because he had been in prison, Associate Professor Levy opines that ensuring that he had proper knowledge of the dosages of drug’s being taken by AL and having a proper plan were essential for good medical practice.
106. [106]
     It is common ground that the respondent prescribed 8 mg of Suboxone and enrolled AL on the Opioid Treatment Program.^[60] In all his material filed in the Tribunal, the respondent fundamentally misinterprets the gravamen of allegation 5. It is enough to set out some of the passages from the respondent’s trial outline: after referring to the Coroner’s report he notes that the evidence before the Coroner was that only ‘a trace’ level of Buprenorphine was found at autopsy, thus confirming Suboxone to definitely not be the cause of death especially in the context that he (referring to AL) is definitely NOT an opioid naive person.
107. [107]
     At [42] the respondent states:^[61]

3. 42.
   The Coroner, dealing with the matter on the papers without securing prison discharge summary [if this summary was ever authored in the first place], concluded that (AL) died from the combined effects of a number of prescribed medications and made a finding of misadventure.
4. 43.
   The respondent contends that his conduct was SIMPLY not the direct cause of (AL’s) death….

108. [108]
     It has never been part of the applicant’s case that the respondent’s prescribing of 8 mg of Suboxone caused or contributed to the death of AL. The gravamen of allegation 5 is neatly summarised in paragraphs 32 to 33 of Associate Professor Levy’s affidavit:

3. 32.
   The opinions expressed in this affidavit concerned the issue of whether Dr Ting’s consultation with (AL) was at the standard required, and not whether Dr Ting was fully/partially/not responsible for (AL’s) death. In providing the opinions expressed in this affidavit, I am conscious of not holding Dr Ting to an unreasonably high standard based solely on the tragic outcome of the death of AL. However, I also note that the investigation into Dr Ting’s performance concerning (AL) would not have occurred, but for (AL’s) death.
4. 33.
   Based on review of the documents listed at paragraphs 10 and Dr Ting’s submissions at paragraph 31, it is my opinion the Dr Ting did not have a full appreciation of the drugs and medications that (AL) was taking – whether prescribed medications, over-the-counter medications or street drugs. I do not consider Dr Ting took adequate steps in his consultation with (AL) to avoid danger to the patient. The appropriate course should have been for Dr Ting to decline to prescribe anything to (AL) until he had a full picture, and – if choosing to prescribe – certainly the very minimum dose of anything chosen, most especially medication that might deleteriously interact with opioids and benzodiazepines.^[62]

109. [109]
     The cross-examination of Associate Professor Levy by the respondent was beset with the same problems encountered with the questioning of the previous expert witnesses. Ultimately, Associate Professor Levy’s position was that in all the circumstances of this particular patient (as outlined above), it was poor practice to prescribe the maximum dose of Suboxone. At the very least, he accepted that because the respondent did not know (from sources independent of AL) what he was taking and in what quantity, he should have limited the dosage to the bare minimum. Associate Professor Levy did not resile from his opinion expressed in his affidavit that:^[63]

3. 35.
   On balance, I consider that Dr Ting’s clinical management of (AL) was substantially below the standard reasonably expected of a medical practitioner of equipment level of training or experience for the reasons set out below.

110. [110]
     I accept Associate Professor Levy’s evidence and opinions. I reject the respondent’s opinions to the contrary. In that finding I am supported by both professional assessors. I find allegation 5 proved.

Characterisation

111. [111]
     As a matter of convenience, I intend to deal with this issue on a global basis.
112. [112]
     Professional misconduct is defined as follows in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law):

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being unfit and proper person to hold registration in the profession.

113. [113]
     Unprofessional conduct is defined as:

professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes –

1. (a)
   a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
2. (b)
   a contravention by the practitioner of—

1. (i)
   a condition to which the practitioner’s registration was subject.

…

4. (d)
   providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being.

114. [114]
     By virtue of section 41 of the National Law, the Code of Practice is admissible in proceedings of this kind “as evidence of what constitutes appropriate professional conduct or practice for the health profession”.
115. [115]
     By the proved conduct, the respondent has breached multiple provisions of the Code. Indeed, in my experience, I have never encountered a case of such manifest and obvious disregard for the Code of Conduct and the proper practice and ethical standards it expects of doctors.
116. [116]
     It is appropriate to refer to 1.4 of the Code which forms part of its introduction:^[64]

Professional values and qualities of doctors

While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice.

Doctors have a duty to make the care of patients their first concern and to practice medicine safely and effectively. They must be ethical and trustworthy.

Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on the doctors to protect their confidentiality

Doctors have a responsibility to protect and promote the health of individuals and the community.

Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient.…

Good communication underpins every aspect of good medical practice.

Professionalism embodies all the qualities described here, and include self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and well-being. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.

117. [117]
     The respondent’s conduct fails to meet almost all of these professional values and qualities. His conduct has breached many of the other standards set out in the Code.^[65]
118. [118]
     The seriousness of the respondent’s proved conduct can be summarised as follows:

1. (a)
   acting unethically and unlawfully (e.g., engaging in Medicare fraud, and again breaching the Regulations (allegation 4), a penal provision, in circumstances in which while being an authorised person under the Regulations to prescribe Schedule 8 and 4 drugs, both generally and to persons on the QOTT, the respondent had committed multiple breaches of various sections of the same Regulation;^[66]
2. (b)
   acting in a way that was substandard and (sometimes) dangerous to patient safety (see reasons in relation to allegation 2, allegation 1, and allegation 5).
3. (c)
   acting deliberately to contravene conditions imposed by the Board designed to protect patient health and safety (allegation 4).

119. [119]
     I have no hesitation in finding to the required standard that the proved conduct amounts to professional misconduct as defined in all limbs of the definition of that concept in section 5 of the National Law.

Sanction

120. [120]
     As is well established, the purpose of disciplinary proceedings is to protect, not punish. The principle that informs this Tribunal’s discretionary power to sanction health professionals who have engaged in professional misconduct, is that the health and safety of the public are paramount.^[67]
121. [121]
     In deciding the appropriate sanction in a particular case, the Tribunal will consider factors including:

     1. (a)
        the nature and seriousness of the practitioner’s conduct;
     2. (b)
        insight and remorse shown by the practitioner;
     3. (c)
        the need for specific deterrence or general deterrence;
     4. (d)
        evidence of rehabilitation/steps taken by the practitioner to prevent recurrence of the conduct;
     5. (e)
        matters giving context to/explanation for conduct, for example a mental health issues; and
     6. (f)
        other matters, including past disciplinary history, periods of preclusion/non-practice, delay and effluxion of time, and cooperation during the disciplinary proceedings.
122. [122]
     In relation to the seriousness of the conduct, I repeat and rely on what I wrote above. In relation to insight and remorse, for the reasons articulated above in relation to the allegations (and in particular allegation 2), I am satisfied that the respondent has very little insight into the seriousness of his conduct, or remorse for it. Some recognition should be given for his admissions, although many were qualified and, despite there being clear documentary proof of some of the allegations (e.g., allegations 3 and 4), still the respondent behaved in a way that gives the Tribunal grave concerns about his insight and remorse and his present fitness to practice e.g., his entirely unwarranted allegations against Mr Butler and Ms Reibelt.
123. [123]
     Even in circumstances in which he knew he was being assessed by Dr King and Dr Jacobs as to his professional performance, particularly evidenced by their structured interview with him after viewing consultations and records, he still behaved in a rigid, grandiose, tangential manner and expressed vague and wrong thinking, along with an almost complete inability to accept that his opinions about clinical practice and decision-making may be wrong or misguided.
124. [124]
     As noted earlier, both experienced assessors thought he may have had mental health issues, such as bipolar disorder, but there is no evidence that the respondent suffers from any health impairment, psychiatric, psychological or otherwise, that would explain or mitigate his erratic and dysfunctional behaviour observed by the assessors and observed by the Tribunal and its assessors during the hearing.
125. [125]
     Having said that, although he did not follow my frequent advice (about expressing opinions and arguments rather than asking questions, pursuing topics that seem to be contrary to his own interests by way of example); he remained courteous to the Tribunal and assessors throughout, despite the slightly paranoid and baseless attacks on the reputations and competency of many of the witnesses and the lawyers involved in the case.
126. [126]
     As to the need for specific and general deterrence, not surprisingly, there appears to be no analogous cases to this matter that could act as guidance to the Tribunal. The respondent has been given many chances to practice his profession, but he has demonstrated a complete inability to address his failings and to abide by conditions imposed by Queensland Health and the Board designed to protect public health and safety.
127. [127]
     His lawyers at the time filed an affidavit sworn by him in the proceedings before the Medical Assessment Tribunal which led to him being re-registered as a medical practitioner with the support of the then Medical Board.^[68]
128. [128]
     A number of the paragraphs in that affidavit were drawn to the respondent’s attention by Ms Feeney in cross-examination:

3. 15.
   My behaviour in relation to my actions was inexcusable, however, my actions were in part brought about because of the difficulties I experienced when I went into private practice.
4. 16.
   I admit and generally accept that I am not suited for private practice as it was in private practice that I experienced real difficulties.

…

3. 23.
   I acknowledge the sentencing remarks of his Honour Judge Newton in that I am unlikely to offend again as long as I stay away from the stresses of private practice to which I acknowledge I am unsuited

129. [129]
     Despite these protestations, he returned to the same type of general practice, with many complex drug addicted patients in 2017, which led to the observations in Ting 2021 quoted above,^[69] which I adopt. The need for specific deterrence here is very high. General deterrence is also an important principle in this case, although, as I have noted, cases involving such extensive manifest professional misconduct across a very wide range of ethical and competency issues are very rare.
130. [130]
     As to evidence of rehabilitation and steps taken by the practitioner to prevent recurrence of the conduct, as I have noted, by reference to the evidence, apart from his admissions, many qualified, the respondent has done nothing to address the underlying causes of his gross misconduct.
131. [131]
     Quite the contrary, the results of these performance assessments show little or no understanding of his failures. That lack of understanding continued during the hearing, although by the end he seemed to be accepting that the chances of him ever practising again are very slim.
132. [132]
     In relation to matters that may explain the conduct, the Board followed the advice of the assessors and directed the respondent to be assessed by Dr Nigel Prior. Dr Prior is well-known in this jurisdiction as a clinical psychiatrist with considerable skills in assessing and assisting impaired healthcare practitioners. There is no report from Dr Prior before the Tribunal. There was no evidence of any mental illness or impairment that would explain the respondent’s misconduct.
133. [133]
     The respondent himself asserts that he has no mental or other health issues that would explain his conduct. In the earlier proceedings^[70] information about his interactions (I infer) with Dr Prior were set out:

129. [51]
     Under cross-examination he admitted that, when speaking to the psychiatrist who prepared the health assessment on him, he did not disclose that at one stage he had self-prescribed Prozac in 1996, that he had been prosecuted for fraud and served time in prison, or that his registration had been cancelled as a result; he said this was because he was ashamed of his past.

134. [134]
     At the time of the criminal proceedings in 1996,^[71] and the then Medical Assessment Tribunal proceedings in 1997,^[72] reports from consultant clinical psychiatrist Dr Ian Curtis were available. These reports are not before the Tribunal, however from the reasons of Judge Newton and the Tribunal, essentially Dr Curtis attributed the respondent’s criminal behaviour to immaturity and naivety and, “deprivations that you suffered in your childhood…which has resulted in your lacking the self-confidence and skills to cope with running a professional practice”.^[73]
135. [135]
     The transcript before the Medical Assessment Tribunal on 2 June 1997, which resulted in the erasure of the respondent’s name from the Register of Medical Practitioners is not before the Tribunal. However, the transcript of the proceedings before that Tribunal (constituted by Fryberg J and assessors) on 10 May 1999, which led to the reinstatement of the respondent’s registration subject to conditions is in evidence.^[74] Fryberg J refers to a report from Dr Curtis before the 1997 Tribunal in which he reported:

…The then practitioner was a person of immature personality and a naive person. He regarded him as having dependent and overly complicated personality features which put him at risk of distress and eccentric practice as a solely unsupervised doctor. At that time the practitioner was in his early 30s.

Dr Curtis reported that the practitioner showed general clumsiness and a lack of discriminating judgement at the time of his offences and thought that this probably reflected in his global poor personality functioning as a person and a doctor. He thought that aspects of mitigation were psychosocial and related to his personality and cultural problems.

136. [136]
     At the 1999 hearing, the Tribunal had a supplementary report from Dr Curtis. Fryberg J referred to some of its contents in his reasons:

Dr Curtis has prepared a supplementary report on the applicant, in which he confirms that the applicant has kept in touch with him, utilising him as a psychiatric clinician. Quite how that was done while the applicant was overseas, it is difficult to see, however Dr Curtis says that he has been able to observe that manifest growth and maturation of the applicant since his deregistration has occurred.

He also expressed the view that he did not perceive sufficiently clearly in his original report the underlying talent, energy and commitment of the applicant. It may be that those factors were of less importance at the time of his original report. His current certificate is generally supportive of the present application. There has been no challenge to the applicant’s skill, and competence, either previously or at the present time.

137. [137]
     The respondent asserts now that he has matured, and, as I have noted he does not assert any health impairment at all. In my view, the misconduct of the respondent as proved; his egregious lack of insight and remorse, and the opinions expressed by the assessors about his attitude and clinical competency and lack of ethical understanding, lead to an inevitable conclusion that the respondent’s character is completely unsuited to the practice of medicine.

Other matters

138. [138]
     In addition to his registration history set out above, which contains a number of disciplinary matters, the respondent was questioned about other issues which directly relate to his fitness to practice. He was asked about his time in Brunei in 1998 while he was deregistered. In Ting 2021, Judicial Member McGill SC observed at [8]:

In evidence he said that in 1998 he went to Brunei and worked in a hospital, but conceded that he probably did not tell authorities there that he had been deregistered in Australia.

139. [139]
     The transcript of the respondent’s evidence before that Tribunal is not before the present Tribunal. The respondent, before me, asserts that Judicial Member McGill SC “misinterpreted” his evidence, because although he agrees he never told the Brunei authorities of his Australian registration status, he did not “work” in a hospital, rather he assisted in preparing some sort of clinical guidelines, and was involved in research in the hospital for which he was not paid. I find it very difficult to accept that a Judicial Member as experienced as Judge McGill SC could have “misinterpreted” the respondent’s evidence before him. The respondent was questioned closely by Dr Phipps about this and agreed that in undertaking the “research” he did see patients in the hospital.
140. [140]
     Ms Feeney questioned him about a number of complaints made by patients when he was working in New South Wales in 2014 and subsequently, when he returned to general practice in 2017 in Queensland. It is not suggested that any of these complaints led to any proved misconduct, but the point Ms Feeney made is, he had an unusually high rate of complaints against him which he would not accept on the basis that he asserted that it is one of the realities of being a doctor that you will receive complaints.
141. [141]
     In relation to the Northern Territory in January 1996, he agreed that what he failed to disclose to the registration authorities was the pending charges of Medicare fraud in Queensland. He agreed that he had positively asserted in his application that he was not aware of any charges pending against him.
142. [142]
     He was questioned about the caution issued by the Board on 30 November 2017, and the imposition of conditions on his registration following a finding of unsatisfactory professional performance. In many of his documents, the respondent refers to his completion of the Australian and New Zealand College of Anaesthetics primary fellowship examination in 2009, and 11/12 of the College required modules including in pain management and paediatric anaesthesia in 2012.^[75] Insofar as it is possible to understand the significance of this (he did not complete the final exams he says for family reasons), I infer that he therefore regards himself as more qualified than, for example, Dr King and Dr Jacobs, to express opinions about pain medication. His cross-examination of them and their responses referred to earlier indicate that this is not the case. He also obtained a fellowship in Advanced Rural Practice in 2015.
143. [143]
     This action by the Board related to the unsatisfactory management of a 20-month-old female child at the Charleville hospital on 24 February 2016. The conditions required him to undergo mentoring in relation to: clinical scope of practice, referral to and obtaining advice from specialists, informed consent, and documentation in patient records.
144. [144]
     Dr Phipps asked the respondent a number of searching questions about the issue of “scope of practice”, and by particular reference to this issue. As with his answers to Ms Feeney, in most of his responses to Dr Phipps, the respondent rambled, and the responses were difficult to comprehend, and he quickly moved away from the point of the question. He frankly admitted on this occasion moving outside his scope of practice, intubating the child before inserting a cannula, which he describes as something done commonly with children. Both professional assessors (with a view to assisting me on questions of fact) strongly disputed this, suggesting that such a practice was potentially dangerous. The respondent characteristically blamed others – the flying doctor, some unnamed acting Director in Toowoomba, for his decision to proceed as he did.
145. [145]
     Ms Feeney asked him about reports sent under cover of a letter to the Medical Board of Queensland concerning the respondent on 7 December 1999,^[76] under the hand of Dr Gregory Comadira, Director of the Emergency Department for the Toowoomba Health Service District. Dr Ting had been assigned to that Department at the request of that Board, as part of the conditions imposed by the Medical Assessment Tribunal. It is instructive to quote from Dr Comadira’s report dated 6 December 1999.^[77]

3. 1.
   During that time, he has proven to be reliable in relation to attending the workplace. However, although he was employed at the level of a Resident, he repeatedly failed to comply with the restrictions placed upon his practice. Each member of the senior medical staff in the Department had occasion to bring him to task in relation to the management of patients. This produced a situation wherein the nursing staff in the Department failed to trust his judgement and management.

…

Attitude

3. 2.
   The impression gained in relation to Dr Ting’s attitude to direction, in relation to the management of patients, was that he had trouble taking direction from nursing staff in particular. Two of my senior medical staff, females, believed he may also have difficulty in taking direction from female staff members.

On a personal level, I found that given a short leash and specific directions, Dr Ting would perform adequately.

…

Supervision

3. 4.
   I would have great difficulty supporting a proposal wherein Dr Ting was granted the ability to act independently.

The impression gleaned in the months he worked in this Department, by all of the senior medical staff, was one of general unease in relation to Dr Ting practising in an independent manner. In short, one always has the feeling one is not quite told the whole truth. To put this in perspective, I made it a point to visually see each patient he presented to me to confirm in my mind his presentation. I am aware of examples wherein he has gone ahead and ordered investigations, i.e., ultrasound, wherein the senior staff member has quizzed him in relation to who gave authority for same. He reply (sic) being “it’s obvious the patient needs it.” When reminded he was to asked permission to obtain an ultrasound, he continued to order same in spite of that direction. This behaviour contributing to the unease that the senior staff in the Department felt in relation Dr Ting.

…

Summary

3. 5.
   In summary, Dr Ting is a hard-working obviously very intelligent doctor. However, his attitude to direction and the constraints placed upon him by his past indiscretions (the substance of which are unknown to me) make it impossible for me to recommend that he work in any setting other than one in which he can be visually supervised at all times. I do not believe he should practice independently at this junction.

146. [146]
     Dr Comadira’s report summary back in 1999 sounds very much like the level 1 supervision proposed by Dr King and Dr Jacobs in their evidence if the respondent was allowed ever again to practice. It is cogent evidence that establishes that in reality, the respondent has not changed much over the many years since Dr Comadira wrote his report. He still resents direction, preferring his opinions over other medical colleagues. He is still prepared to act unethically and/or unlawfully, and contrary to proper medical practice. In addition, he has shown himself to be contemptuous of important laws (the Regulation) designed to protect the health and safety of an extremely complex and vulnerable patient cohort. He has shown that he is prepared to disregard conditions imposed on him by the Board as he sees fit.
147. [147]
     In short I am satisfied that at this time, on the basis of the whole of the evidence, the respondent is not a fit and proper person to practice medicine. The evidence suggests that that position is unlikely to change, but that will be a matter for others.
148. [148]
     Medical Board of Australia v DAP [2018] QCA 44 involved a successful appeal from an order made by the Health Practitioners Tribunal. The factual scenario underpinning the finding of what was then described as “unsatisfactory professional conduct” is completely different to the facts here. The respondent medical practitioner admitted that he had been convicted and imprisoned for indecently dealing with one daughter and having sexual intercourse with the other when the children were aged 11 and 10 respectively at the time of the offending. That respondent had a very bad disciplinary history involving having sexual relationships with patients (now euphemistically referred to as boundary violations), and had a health impairment, in that he suffered from an organic brain disorder and/or temporal lobe epilepsy. Of course, the legislative and regulatory framework at that time was quite different to what applies to this respondent.

What is instructive to me is that the Tribunal cancelled the respondent’s registration and decided that he should be disqualified from applying for registration for a minimum period of five years. It also made a limited costs order. It was found by the Court of Appeal to have made errors of law. The cancellation and non-registration orders have their analogue in section 107(3)(e) and (4)(a) of the Act.

149. [149]
     As in this case, the Tribunal found that the practitioner was not fit to be registered as a medical practitioner at the time of the hearing before it.
150. [150]
     Although not applicable to the facts here, the expressions of opinion by Keane JA (as his Honour then was) with whom Muir JA and Atkinson J agreed, are apposite in this case. His Honour wrote at [30]:

149. [30]
     The Tribunal’s reasons, and the evidence, reveal no grounds for believing that the respondent may “get better”. On the evidence, there was no reason to expect a spontaneous cure of the respondent’s disorder, or the implementation of a successful remedial strategy. The respondent’s harmful proclivities are so powerful that even his daughters were not safe from harm by him. The nature of the respondent’s disorder together with his record of misconduct over more than 10 years means that there is no practical possibility that he will, one day, be entitled to practice medicine with the compliments of the public.

151. [151]
     For the reasons set out above, the findings and orders of the Tribunal are as follows:

2. 1.Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the practitioner has behaved in a way that constitutes professional misconduct.
3. 2.Pursuant to section 107(3)(b)(e) of the Health Ombudsman Act 2013 (Qld), the practitioner’s registration is cancelled.
4. 3.Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the practitioner is disqualified from applying for registration as a registered medical health practitioner indefinitely.
5. 4.Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action taken by the Board on 7 March 2019 is set aside
6. 5.Unless written submissions by a party seeking an order for costs are filed in the Tribunal and served within 14 days from the date of this decision, the parties bear their own costs of the proceeding.
7. 6.If such submissions are filed and served, the other party may file and serve any submissions in response within 14 days thereafter.
8. 7.Any such application will be determined by the Tribunal on the papers subject to any written submissions to the contrary by either of the parties.