Medical Board of Australia v YUL
[2023] QCAT 116
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- Unreported Judgment
- Medical Board of Australia v YUL[2023] QCAT 116
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Medical Board of Australia v YUL[2023] QCAT 116
Medical Board of Australia v YUL[2023] QCAT 116
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v YUL [2023] QCAT 116 |
PARTIES: | medical board of australia (applicant) v YUL (respondent) |
APPLICATION NO/S: | OCR047-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 May 2023 |
HEARING DATE: | 3 May 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: |
is prohibited to the extent that it could identify or lead to the identification of the respondent, save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and save as is necessary for the Medical Board of Australia to fulfil its statutory functions under the Health Practitioner Regulation National Law (Queensland).
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant Board has referred the respondent medical practitioner to the Tribunal seeking a finding of professional misconduct – where the respondent practitioner was convicted of several counts of fraud, forgery and uttering related to fraudulently self-prescribing medication – where the respondent admits the convictions and that it amounts to professional misconduct – where the respondent has severe medical and psychiatric health concerns – where those concerns are said to explain the convictions – where the respondent is responding well to treatment – where the respondent contends that publication of these proceedings could cause a set-back in his treatment – where the respondent contends that publication of information before the Tribunal would not be in the public interest – where the Board takes a neutral position, but urges caution – whether a non-publication order should be made Health Ombudsman Act 2013 ss 98, 273 Health Practitioner Regulation National Law (Queensland) ss 222, 225, 266 Queensland Civil and Administrative Tribunal Act 2009 s 66 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Health Ombudsman v Brown [2020] QCAT 220 Health Ombudsman v CLT (No 2) [2019] QCAT 379 Health Ombudsman v Shermer (No 2) [2019] QCAT 54 Legal Services Commissioner v CBD [2011] QCAT 401 LSC v XBV [2018] QCAT 332 Pharmacy Board of Australia v Registrant [2012] QCAT 515 |
APPEARANCES & REPRESENTATION
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- [1]The respondent medical practitioner has applied for a non-publication order to protect his identity in the terms set out in s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
- [2]The application is made, initially, on the basis that the order is necessary to avoid endangering the respondent practitioner’s physical and mental health and safety. In reply submissions, the practitioner also contends that a non-publication order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest.
Background
- [3]The underlying proceeding is a disciplinary proceeding brought by the Board. The respondent practitioner admits he was convicted over 18 months ago of criminal offending, being in excess of 20 counts of fraud, forgery and uttering. The respondent admits that the charges arose from him forging, using the name of two other medical practitioners, prescriptions for paracetamol/codeine tablets for his own use and presenting those prescriptions on numerous occasions at a pharmacy. The conduct the subject of the offences occurred over a period between 1 May 2019 and 26 February 2021.
- [4]The respondent admits he was convicted, with no conviction recorded and sentenced to 24 months’ probation and a specific condition requiring him to submit to a medical, psychiatric or psychologist assessment and treatment as directed by an authorised Corrective Services Officer.
- [5]The respondent admits that his actions in engaging in this conduct means he has engaged in professional misconduct, as that term is defined in s 5 of the Health Practitioner Regulation National Law (Queensland) and in conduct contrary to relevant codes of conduct.
- [6]In his response the respondent has contended that this conduct occurred because of, and is entirely explained by, his physical and psychiatric health conditions.
The legislative scheme
- [7]Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of:
- (a)The contents of a document or other things produced to the Tribunal;
- (b)Evidence given before the Tribunal;
- (c)Information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
- (a)
- [8]Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so, relevantly, in this case:
- (a)…; or
- (b)to avoid endangering the physical or mental health or safety of a person; or
- (c)…; or
- (d)to avoid the publication of confidential information or information whose publication would be contrary to public interest; or
- (e)….
- (a)
- [9]This provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction[1]. Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice[2].
- [10]
The practitioner’s submissions
- [11]In support of his application when it was filed, the practitioner has provided a report of his treating psychiatrist, Dr Walters, dated 16 February 2023. The key points of that report are:
- (a)The practitioner was admitted to hospital after a suicide attempt at work. He had become depressed and hopeless about severe abdominal pain and consequent issues, and had become dependent on codeine medication to treat pain and other symptoms;
- (b)During a long hospital admission, his medications were changed and he was treated for depression and anxiety;
- (c)He is now well treated and in recovery;
- (d)He is assiduous at keeping his appointments and his medications are monitored;
- (e)The practitioner has worked hard and been thoroughly reliable with respect to his treatment and supervision;
- (f)The humiliation of the publishing of his name and the circumstances giving rise to the disciplinary proceeding will, in the opinion of his psychiatrist, set back his progress considerably;
- (g)The psychiatrist opines he is likely to become acutely distressed and it will take him a long time to regain his confidence. It is possible he will become acutely demoralised and have suicidal thoughts, which cannot be known in advance;
- (h)His treating psychiatrist would lend clinical support to reasoning which would supress publication of his name.
- (a)
- [12]In reply submissions, the practitioner put further material before the Tribunal in support of his application. This was in support of submissions:
- (a)the psychiatric evidence from Dr Walters is that the practitioner’s conduct the subject of the disciplinary referral was entirely related to, and explainable by his physical and psychiatric conditions;
- (b)his treating general practitioner’s evidence was that the practitioner’s use of opioids was to control his impossible and otherwise uncontrollable symptoms. (His treating general practitioner is experienced in the treatment of persons with opioid addictions);
- (c)the Board has been dealing with the practitioner on the basis that he suffers from an impairment (with the attendant privacy considerations) from 30 June 2021, and that he has or may have an impairment from 12 October 2022;
- (d)given the additional factual material, the Tribunal should conclude that a non-publication order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest.
- (a)
The Board’s submissions
- [13]The Board stated it is content to be bound by the Tribunal’s determination having regard to the relevant law. It expresses this as, in a practical sense, adopting a neutral approach[4].
- [14]However, it made the following points in submissions:
- (a)The word ‘necessary’ dictates a need for a ‘real and substantial’ connection between the publication of material and the relevant adverse consequence or detrimental effect. A remote possibility of harm arising from an indirect or tenuous connections between a failure to make a suppression order and a detrimental consequence will not satisfy the requirement that the order is necessary;
- (b)The report of 16 February 2023 is not a full forensic report and the Tribunal should exercise some care in considering the treating psychiatrist’s evidence because:
- First, there should be an inherently cautionary aspect applied when dealing with evidence from a practitioner’s treating team, as opposed to evidence from an independent forensic team;
- Second, there is a somewhat internal inconsistency in the evidence between ‘being well treated and in recovery’ and yet at risk of significant decompensation if identified in the proceeding;
- Third, there is an element of speculation in the evidence;
- (c)The offending conduct is already a matter of public record, arising from the convictions entered in circumstances where the Court was not closed and there were no suppression orders imposed. It is unclear on the material why or how identification now would have fresh prejudicial impact which the prior criminal proceedings did not;
- (d)In disciplinary proceedings such as these, the weight to be given to a practitioner’s personal circumstances must necessarily be of less significance than questions of general deterrence and protection of the reputation of the profession, whether it be about sanction or non-publication orders. This, it is submitted, is consistent with the Board’s publications under ss 222 and 225 of the National Law to maintain a public national register for the health profession, generally requiring the publication of disciplinary outcomes.
- (a)
- [15]Given the nature of the practitioner’s reply submissions, the practitioner accepted the Board may wish the opportunity to reply, but the Board informed the Tribunal it did not wish to make a further submission.[5]
Analysis
- [16]The Tribunal has read the material put forward by the practitioner carefully but does not intend to rehearse the detail of it in this application.
- [17]Suffice it to say, the evidence put before the Tribunal by the practitioner on this application paints a picture of a practitioner who has had to grapple with horrendous physical symptoms of ill health over a number of years. His experience of those physical conditions became entangled with psychiatric conditions. Whilst he could, after some years of extreme discomfort and trialling of surgical options and other medicines, manage his physical symptoms with medication obtainable over the counter, he made extremely poor choices once that medication was available on prescription only. Those choices have led to criminal convictions and to these disciplinary proceedings. On the abyss of suicide, he self-reported to the regulatory authorities for the profession, which recognised he had an impairment. On the evidence before me at this point in the proceeding he has co-operated at every turn of the consequent legal and regulatory processes to date.
- [18]Furthermore, the practitioner has been actively obtaining treatment for over two years, which, on the evidence before the Tribunal, is successfully enabling him to continue to work towards a productive and full life. That treatment is ongoing and the psychiatric opinion is that his progress will be set back considerably if a non-publication order is not made.
- [19]In this case, the Tribunal does not accept that the treating psychiatrist’s report should be treated with care because it is a report from a treating psychiatrist rather than an independent forensic psychiatrist. Here, the medical professional can speak with considerable authority concerning the practitioner’s responsiveness to treatment and insight, having treated the respondent practitioner for more than two years from his initial, acute presentation.
- [20]Further, the Tribunal does not accept that the opinion expressed in the psychiatrist’s report of February 2023 is somewhat internally inconsistent. It is not inconsistent to say that a patient is well treated and in recovery and also to say that the humiliation of publication will set back his progress considerably and that he is likely to become acutely distressed. The first mentioned statement does not conclude that he has recovered; it indicates an ongoing process. Further, the treating practitioner’s reasons for expressing an opinion as to potential setbacks are based on observed features of his patient’s persona, which are articulated in the report.
- [21]Finally, the Tribunal observes that the convictions were imposed over 18 months ago and, whilst the criminal court was not closed, it notes the respondent’s submission that there is no evidence of any media publication concerning them and that there were no written reasons published when the criminal convictions were imposed (which, the Tribunal observes, is typical of the usual process in Queensland’s Magistrates Courts). Thus, the respondent submits that publication was effectually limited to those in and around the court precincts on the day of the plea and sentence. The respondent contrasts that position with the fact that any written reasons of the Tribunal will be accessible to any person with access to the internet, likely to be returned in any internet search of the practitioner’s name and will remain accessible for an indeterminate period. The Tribunal accepts each of those submissions.
- [22]There are a number of authorities where non-publication orders, in terms crafted to the specific proceeding, have been made where there has been evidence of psychiatric illness of the person whose conduct was the subject of the proceeding. (This case involves, of course, also physical illness). They include the following:
- (a)In Legal Services Commissioner v CBD[6] a legal practitioner had pleaded guilty to a criminal offence and been sentenced to twelve months imprisonment, wholly suspended for two years. The offence was unrelated to his work as a lawyer. He had a report from a psychiatrist which said that he had a moderate mental disorder with depression and anxiety descending, at some times, to major depression and that the publication of detailed information about the matters lying behind the disciplinary application would raise serious concerns about a deterioration in his psychiatric status, increase the risk of the development of a more severe depressive illness and be linked to an increased risk of suicide. Under the legislative scheme regulating lawyers, CBD accepted that his name and other identifying particulars and details of disciplinary orders had to be kept in a register which was public. He sought, and the Legal Services Commissioner did not oppose, the making of a non-publication order in relation to the details of the offence for which he was convicted. The Tribunal made that order where it was satisfied that the publication of information about his conviction was a matter of public record and further that further publication would serve no purpose in the disciplinary proceedings. There are parallels from this matter with the current application, in that the offences were not related to the practitioner’s work as a doctor and the Board is adopting a neutral position on the application. Most relevantly, given the particular circumstances of long-standing physical symptoms which pre-empted the conduct, together with the significant insight the practitioner shows, issues of general deterrence can be achieved without needing to humiliate the medical practitioner by his name being published with the details of his conduct;
- (b)In Pharmacy Board of Australia v Registrant[7] the Board brought proceedings against the Registrant for inadequate record keeping and issues related to stocking and dispensing PSE (which was, the Tribunal observed, a substance prone to misuse and abuse as it is used in the manufacture of methylamphetamine, known as ‘speed’ and ‘ice’). After the referral had been made, the registrant suffered severe health issues and, at the time of the disciplinary hearing, resided in an aged care facility. The terms of the non-publication order sought went to the publication of information that may enable a person who has appeared before the Tribunal to be identified. Evidence filed from the treating psychiatrist was that the registrant suffered from a major depressive disorder and had attempted to take his own life in recent months. Further evidence was to the effect that the registrant was well known in the community where he lived and publishing any information would pose a serious risk of harm to the registrant’s mental and physical health[8]. The Tribunal granted the order;
- (c)In Health Ombudsman v Brown[9] the Tribunal was dealing with final proceedings involving a nurse who had stolen schedule 8 and schedule 4 drugs from two separate employers, the first over a number of months, and who had falsified records to cover her actions. The learned tribunal member observed that her conduct involved very serious criminal behaviour (of which she had been convicted in open court). The medical evidence was that the respondent suffered from a major depressive disorder with borderline personality traits. Potentially she also had a substance abuse disorder. She sought a non-publication order at the end of the final hearing. The letter in support of the application was short and did not contain any explanation or relevant history. The judicial member was not satisfied that the doctor’s letter supporting the respondent was sufficient to satisfy the onus[10]. That can be contrasted with the medical opinion provided on this application, in two written reports from the practitioner’s treating psychiatrist of more than two year’s standing, where context and history relevant to the offending are set out and a written report from the treating general practitioner is also provided.
- (a)
- [23]Further, the practitioner referred in reply submissions to the observations of Judge Sheridan in Health Ombudsman v NLM (No 2) [2019] QCAT 366 at [10] – [13]. In those paragraphs her Honour observed, in summary:
- (a)Certain provisions of the legislation regulating health practitioners[11] indicate the legislature attaches importance to the need for privacy in matters relating to the impairment of practitioners. That approach is anchored in good social policy reasons which justify a restriction to openness in the administration of justice. Clearly, the aim is to encourage impaired practitioners to fully disclose their condition without fear that it might prejudice their otherwise good standing in the community;
- (b)In the particular circumstances in NLM (No 2), the Board exercised its discretion under the National Law and determined that there was no overriding public interest in the publication on the national register of the conditions which had been imposed on the practitioner arising from his impairment;
- (c)The references made to the conditions imposed and the health assessment report in the reasons for decision was because the practitioner’s impairment was intertwined with the misconduct. To maintain the privacy of the impairment material it is necessary to de-identify the Tribunal’s decision and reasons, and to otherwise preserve the privacy of the record of proceedings of the Tribunal;
- (d)The publication of the decision and reasons, de-identified, remains an important reminder to the profession and the public of the consequences of misconduct, even where that misconduct is intertwined with an impairment.
- (a)
- [24]
- [25]On this application, it is apparent that the practitioner has been and may still be considered by the Board to be a practitioner with an impairment, where the matters the subject of the disciplinary process are irreversibly entangled with the impairment questions. Presently, the practitioner’s conditions are not fully noted on the register, due to privacy considerations.
- [26]The Tribunal is satisfied, on the facts of this case, that there is a ‘real and substantial’ connection between the publication of material identifying the practitioner and the relevant adverse consequence or detrimental effect, in the form of endangering his physical or mental safety, such that a non-publication order is necessary. The Tribunal is also satisfied that a non-publication order is necessary on the ground that it would avoid the publication of confidential information or information whose publication would be contrary to public interest.
Footnotes
[1]LSC v XBV [2018] QCAT 332 at [26] per P Lyons QC
[2]See Health Ombudsman v Shermer (No 2) [2019] QCAT 54 at [6] per Allen DCJ and the authorities cited therein
[3]Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8] - [9].
[4][5] of its written submissions.
[5]Email dated 26 April 2023 from the Board’s solicitors to my associate.
[6][2011] QCAT 401.
[7][2012] QCAT 515.
[8]At [62] – [63].
[9][2020] QCAT 220.
[10]At [30].
[11]Section 98 of the Health Ombudsman Act (HO Act) whereby a hearing for an impairment matter is not open to the public unless otherwise ordered; section 273 of the HO Act which provides that the Health Ombudsman must not publish information that the Health Ombudsman considers it would be inappropriate to publish (and the HO Act gives as an example reference to the impairment of a health practitioner where that was a ground on which immediate action was taken); section 226 of the National Law which enables the Board not to disclose the full terms of conditions imposed following a finding of impairment.
[12][2019] QCAT 379.