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Medical Board of Australia v Hogben[2023] QCAT 143

Medical Board of Australia v Hogben[2023] QCAT 143

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Hogben [2023] QCAT 143

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

RICHARD HOGBEN

(respondent)

APPLICATION NO/S:

OCR346-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

DECISION OF:

Judge Allen KC

Assisted by:

Dr F Walden

Dr D Bodnar

Ms S Harrop

ORDERS:

  1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  3. Pursuant to section 196(2)(d) of the Health Practitioner Regulation National Law (Queensland), the respondent is suspended from practising as a registered medical practitioner for a period of three (3) months, commencing 30 days after the date of the delivery of this decision.
  4. Pursuant to section 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), upon the respondent’s resumption of practice following the period of suspension, the respondent’s registration is to be subject to the conditions set out at Annexure A to the Tribunal’s orders and reasons.
  5. Pursuant to section 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is 12 months from the date the conditions take effect.
  6. For the purposes of section 127(3)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a registered medical practitioner – where the respondent failed to obtain informed consent from one or more patients when prescribing them with medications – where the respondent inappropriately prescribed medications to patients – where the respondent inappropriately  prescribed  medications  to  a  family member – where the respondent failed to keep adequate records in relation to one or more patients – where the respondent’s assessment, treatment, management and/or follow up of one or more patients was inadequate and/or inappropriate – where the parties agree on characterisation of the conduct and sanction

Legislation

Health  Practitioner  Regulation  National  Law (Queensland), s 5, s 127, s 193, s 193B, s 196

Cases

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36

Medical Board of Australia v Arulanandarajah [2021] VCAT 85

Medical Board of Australia v Martin [2013] QCAT 37

Medical Board of Australia v Marzola [2020] SACAT 116

Medical Board of Australia v McCombe [2020] QCAT 511

Medical Board of Australia v Tunbridge [2020] SACAT 34

Psychology Board of Australia v Cameron [2015] QCAT 227

SOLICITORS:

Minter Ellison for the applicant

Avant Law for the respondent

REASONS FOR DECISION

Introduction

  1. [1]
    This is a referral of a health service complaint against Richard Hogben (respondent), pursuant to section 193B(2) of the Health Practitioner Regulation National Law (Queensland) (National Law), by the Medical Board of Australia (applicant).
  1. [2]
    In the referral filed 6 November 2020, the applicant alleges the following:
  1. (a)
    that the respondent failed to obtain informed consent (including inadequate or inappropriate counselling, information and/or advice) from one or more patients when prescribing them with compounded peptide substances and similar medications during 2015 and 2016 (ground 1);
  2. (b)
    that the respondent inappropriately prescribed medications to patients in 2015 and 2016 (ground 2);
  3. (c)
    that the respondent inappropriately prescribed medications to a family member in 2016 (ground 3);
  4. (d)
    that the respondent failed to keep adequate records in relation to one or more patients during 2016 (ground 4); and
  5. (e)
    that the respondent’s assessment, treatment, management and/or follow up of one or more patients during 2015 and 2016 was inadequate and/or inappropriate (ground 5).
  1. [3]
    The parties have jointly filed and rely upon an Amended Agreed Statement of Facts, Findings and Proposed Determinations. The parties are in agreement as to appropriate orders by way of sanction.

Background

The respondent obtained registration as a medical practitioner on 22 January 1999. At the time of the conduct the subject of this proceeding, he held general registration and specialist registration as a General Practitioner and practised in Mackay.

Conduct

  1. [4]
    From 17 March 2014 to 30 September 2020, the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ (‘the Code’), published by the Medical Board of Australia, provided the relevant code of conduct for medical practitioners.
  1. [5]
    The respondent’s conduct in question concerns 6 patients: CH, DD, JA, AD, RM and GH.
  1. [6]
    The applicant alleges, and the respondent admits, that he:
  1. (a)
    consulted with Patient CH on 3 occasions, prescribing him with SARMS S22 and CJC1295 + GHRP-6;
  2. (b)
    consulted with Patient DD on 4 occasions, prescribing her with AOD 9604;
  1. (c)
    consulted with Patient JA on one occasion and prescribed him with SARMS S22;
  2. (d)
    consulted with Patient AD on 3 occasions, prescribing him with CJC 1295 + GHRP-6, BPC-157, SARMS S22 and Thymosin Beta 4;
  3. (e)
    consulted with Patient RM on 2 occasions, prescribing him with CJC1295 and GHRP-6; and
  4. (f)
    consulted with Patient GH on 26 occasions and, during the course of one or more of these consultations, prescribed her with AOD 9604, HCG(A) and Melanotan II.

Ground 1 – Failure to obtain informed consent

  1. [7]
    The respondent admits that, with respect to the medications he prescribed to Patients CH, DD, JA, AD, RM and GH, identified above, there is no evidence in the respondent's clinical records or otherwise to demonstrate that the respondent provided 5 sufficient and appropriate information to any of the Patients regarding treatment options and their benefits and associated risks.
  1. [8]
    The Code provides that good practice involves:
  1. (a)
    providing information to patients in a way that they can understand before asking for their consent (clause 3.5.1); and
  2. (b)
    obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency) or before involving patients in teaching or research (clause 3.5.2);
  1. [9]
    The respondent admits that his conduct above, taken collectively, is in contravention of these provisions of the Code and that he failed to obtain informed consent (including inadequate or inappropriate counselling, information and/or advice) from one or more patients when prescribing them with medications during 2015 and 2016.

Ground 2 – Inappropriate prescription of medication to patients

  1. [10]
    The applicant alleges, and the respondent admits, that he:
  1. (a)
    prescribed Patient CH with SARMS S22, CJC 1295 and GHRP-6, in circumstances where:
    1. there were no clinical indications for any of the prescribed medications, or any reason for the respondent or any medical practitioner to prescribe the medications outside of a carefully controlled clinical trial;
    2. there are no benefits of the prescribed medication that could outweigh the potential risks;
    3. SARMS S 22 is not approved for clinical use outside of rigorously controlled clinical trials;
    4. there is no therapeutic application for CJC 1295; and
    5. there is no known clinical indication for prescribing GHRP-6.
  1. (b)
    prescribed Patient DD with AOD 9604, in circumstances where:
  1. (i)
    there were no clinical indications for any of the prescribed medication, or any reason for the respondent or any medical practitioner to prescribe the medication outside of a carefully controlled clinical trial;
  2. (ii)
    there are no benefits of the prescribed medication that could outweigh the potential risks; and
  3. (iii)
    there is no credible evidence of the efficacy or safety of AOD 9604 for soft tissue repair and muscle growth and repair, and its effects on pain have not been the subject of a clinical trial.
  1. (c)
    prescribed Patient JA with SARMS S22, in circumstances where:
  1. (i)
    there were no clinical indications for any of the prescribed medication, or any reason for the respondent or any medical practitioner to prescribe the medication outside of a carefully controlled clinical trial;
  2. (ii)
    there are no benefits of the prescribed medication that could outweigh the potential risks; and
  3. (iii)
    SARMS S22 is not approved for clinical use outside of rigorously controlled clinical trials.
  1. (d)
    prescribed Patient AD with CJC 1295 + GHRP-6, BPC-157, SARMS S22 and Thymosin Beta 4, in circumstances where:
    1. there were no clinical indications for any of the prescribed medications, or any reason for the respondent or any medical practitioner to prescribe the medications outside of a carefully controlled clinical trial;
    2. there are no benefits of the prescribed medications that could outweigh the potential risks;
    3. there is no therapeutic application for CJC 1295;
  1. (iv)
    there is no known clinical indication for prescribing GHRP-6;
  1. (v)
    there is only limited animal data and no safety nor efficiency data with respect to the use of BPC-157 in humans;
  2. (vi)
    SARMS S22 is not approved for clinical use outside of rigorously controlled clinical trials; and
  1. (vii)
    the use of Thymosin Beta 4 is still considered investigational and there is no safety data beyond topical use for ophthalmological indications and a phase 1 clinical trial of parenteral administration where there was no safety concerns.
  1. (e)
    prescribed Patient RM with CJC 1295 + GHRP-6, in circumstances where:
  1. (i)
    there were no clinical indications for any of the prescribed medications, or any reason for the respondent or any medical practitioner to prescribe the medications outside of a carefully controlled clinical trial;
  2. (ii)
    there are no benefits of the prescribed medications that could outweigh the potential risks;
  3. (iii)
    there is no therapeutic application for CJC 1295; and
  1. (iv)
    there is no known clinical indication for prescribing GHRP-6.
  1. (f)
    prescribed Patient GH with AOD 9604, HCG(A) and Melanotan II[1], in circumstances where:
    1. there were no clinical indications for any of the prescribed medications, and other than for HCG there is not any reason for the respondent or any medical practitioner to prescribe the medications outside of a carefully controlled clinical trial;
    2. there are no benefits of the prescribed medications that could outweigh the potential risks;
    3. there is no credible evidence of the efficacy or safety of AOD 9604 for soft tissue repair and muscle growth and repair, and its effects on pain have not been the subject of a clinical trial;
    4. the adverse effects of HCG include increased risk of stroke, coronary artery dissection due to fibromuscular hyperplasia, lower extremity DVT and pulmonary embolism and the induction of psychosis;
  1. (v)
    it is not appropriate to prescribe HCG for weight loss and there is no evidence the HCG was prescribed to GH for any of its approved clinical indications;
  2. (vi)
    Melanotan has not been assessed by the Australian Registry of Therapeutic Goods as safe and effective, and is not registered for use in Australia; and
  3. (vii)
    the adverse effects of Melanotan include excessively darkened skin, moles and freckles, nausea, vomiting, loss of appetite, flushing of the face and involuntary stretching and yawning.
  1. [11]
    The Code provides that good practice involves:
  1. (a)
    recognising and working within the limits of your competence and scope of practice (clause 2.2.1);
  2. (b)
    considering the balance of benefit and harm in all clinical-management decisions (clause 2.2.4);
  3. (c)
    providing treatment options based on the best available information (clause 2.2.6);
  4. (d)
    making responsible and effective use of the resources available to you (clause 2.2.10); and
  5. (e)
    ensuring that the services you provide are necessary and likely to benefit the patient (clause 5.2.1).
  1. [12]
    The respondent admits that his conduct, taken collectively was inconsistent with the Code and that the prescription of the medications to patients in 2015 and 2016 was inappropriate.

Ground 3 – Inappropriately prescribing medication to family members

  1. [13]
    The applicant alleges, and the respondent admits, that:
  1. (a)
    at all material times, Patient GH was the respondent’s wife;
  1. (b)
    that the prescriptions he wrote for Patient GH, including both short-course and long-course medications, indicates a pattern of routine prescribing rather than exceptional prescribing or repeat prescriptions only; and
  2. (c)
    there was a risk the respondent provided his wife with care that lacked objectivity, increased discontinuity in her care and created risk for the respondent and his wife.
  1. [14]
    The Code provides:

3.14 Personal relationships

Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues.

  1. [15]
    The respondent admits that his conduct, taken collectively, was inconsistent with the Code and that the prescription of medications to Patient GH was inappropriate.

Ground 4 – Failure to keep adequate records

  1. [16]
    The applicant alleges, and the respondent admits, the following:
  1. (a)
    that the respondent consulted with Patient CH and prescribed him with SARMS-S22 and CJC1295 + GHRP-6, in circumstances where:
    1. the respondent's clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
      1. clinical history;
      2. clinical findings;
      3. investigations;
      4. information given to patients;
      5. other management;
  1. (ii)
    there is no evidence the respondent made a record of the consultation on 27 April 2016;
  1. (iii)
    there was no documentation in the clinical records of discussions with Patient CH about the prescribed medications with respect to:
    1. risks and adverse side effects; or
    2. alternative treatment options;
  1. (b)
    that the respondent consulted with Patient DD and prescribed her with ADD 9604 in circumstances where:
    1. the respondent's clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
      1. clinical history, including height and weight, in circumstances where the respondent was prescribing medications for weight loss;
      2. clinical findings;
      3. investigations;
      4. information given to patients;
      5. other management;
  1. (ii)
    there was no documentation in the clinical records of discussions with Patient DD about the prescribed medications with respect to:
    1. risks and adverse side effects; or
    2. alternative treatment options;
  1. (c)
    that the respondent consulted with Patient JA and prescribed him with SARMS S22 in circumstances where:
    1. the respondent’s clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
      1. clinical history, including smoking history, alcohol history, occupational history or social history, which would have been relevant to Patient JA's widespread chronic muscle pain which he presented with;
      2. clinical findings;
      3. investigations;
      4. information given to patients;
  1. other management;
  1. (ii)
    there was no documentation in the clinical records of discussions with Patient JA about the prescribed medications with respect to:
    1. risks and adverse side effects; or
    2. alternative treatment options;
  1. (d)
    that the respondent consulted with Patient AD and prescribed him with CJC 1295 + GHRP-6, BPC-157, SARMS-S22 and Thymosin Beta 4, in circumstances where:
    1. the respondent's clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
      1. clinical history;
      2. clinical findings;
      3. investigations;
      4. information given to patients;
      5. other management;
  1. (ii)
    there was no documentation in the clinical records of discussions with Patient AD about the prescribed medications with respect to:
    1. risks and adverse side effects; or
    2. alternative treatment options;
    3. the record of the consultation on 11 May 2016 does not record Patient AD's relevant history, or assessments or investigations, including functional impairments or severity of muscle weakness, whether there were any associated symptoms such as pain, what treatments had previously been tried or how the diagnosis was confirmed;
    4. the record of the consultation on 13 May 2016 does not contain any record of whether there was any improvement in Patient AD's condition or whether Patient AD was suffering any side effects from the medications prescribed;
    5. the record of the consultation on 12 August 2016 contains no entry apart from the dosage change and prescription data that is automatically recorded by the medical software when a prescription is generated;
  1. (e)
    that the respondent consulted with Patient RM and prescribed him with CJC1295 and GHRP-6, in circumstances where:
    1. the respondent’s clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
      1. clinical history;
      2. clinical findings;
      3. investigations;
      4. information given to patients;
      5. other management;
  1. (ii)
    there was no documentation in the clinical records of discussions with Patient RM about the prescribed medications with respect to:
    1. risks and adverse side effects; or
    2. alternative treatment options;
  1. (f)
    that the respondent consulted with Patient GH and prescribed her with AOD 9604, HCG(A) and Melanotan II in circumstances where:
    1. there was no documentation in the clinical records of discussions with Patient GH about the prescribed medications with respect to:
      1. risks and adverse side effects; or
      2. alternative treatment options;
  1. (ii)
    the respondent’s clinical records failed to record (or failed to record in a form that can be understood by other health practitioners) relevant details of:
    1. clinical history, including weight, in circumstances where the respondent was prescribing medications for weight loss;
    2. clinical findings;
    3. investigations;
    4. information given to patients;
    5. other management;
  1. [17]
    The Code provides that good practice involves:
  1. (a)
    keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners (clause 8.4.1);
  2. (b)
    ensuring that the records are sufficient to facilitate continuity of patient care (clause 8.4.4);
  3. (c)
    making records at the time of the events, or as soon as possible afterwards (clause 8.4.5); and
  1. [18]
    The respondent admits that his conduct was, taken collectively, inconsistent with the Code and that his clinical records were inadequate in relation to one or more patients during 2016.

Ground 5 – Inadequate and/or inappropriate assessment, treatment, management and/or follow up

  1. [19]
    The applicant alleges, and the respondent admits the following:
  1. (a)
    the particulars described in Ground 1;
  1. (b)
    the particulars described in Ground 2;
  1. (c)
    the particulars described in Ground 3;
  1. (d)
    that the respondent prescribed consulted with Patient CH and prescribed him with SARMS-S22 and CJC1295 + GHRP-6, in circumstances where:
    1. the respondent failed to perform relevant assessment, including obtaining and recording Patient CH's weight and height which were clinically indicated as Patient CH presented with weight concerns, or ordering any other necessary investigations;
    2. the respondent failed to form a diagnosis or any alternative diagnosis:
  1. (iii)
    the respondent failed to implement a suitable management plan for Patient CH, and omitted sensible health advice involving balancing exercise in terms of work, gym and sport;
  1. (iv)
    the respondent entered a recall into Patient CH's clinical records but there is no evidence of any follow-up appointments or notes recording further contact with Patient CH;
  2. (v)
    the respondent’s assessment may have resulted in potentially serious underlying causes of Patient CH's fatigue and inability to gain weight being missed;
  1. (e)
    that the respondent consulted with Patient DD and prescribed her with AOD 9604, in circumstances where:
    1. the respondent failed to run baseline blood tests to exclude any sinister causes for Patient DD's presenting weight issues;
    2. there is no clinical record of the respondent taking Patient DD's weight or Body Mass Index (BMI);
    3. the respondent’s follow-up of Patient DD was unsatisfactory as he failed to assess and record her weight;[2]
  2. (f)
    that the respondent consulted with Patient JA and prescribed him with SARMS S22, in circumstances where:
    1. the respondent’s only consultation with Patient JA was by phone, which prevented the respondent from:
      1. performing an adequate and comprehensive assessment of Patient JA's presenting complaints;
      2. objectively verifying the information self-reported by Patient JA;
  1. performing a physical assessment, in circumstances where Patient JA presented with a complaint of muscle injuries;
  1. (ii)
    the respondent failed to order appropriate investigations to assess Patient JA's presenting complaint and reported symptoms;
  2. (iii)
    the respondent failed to form a diagnosis or any alternative diagnoses;
  1. (iv)
    the respondent failed to implement a suitable management plan for Patient JA, and there is no evidence that the basic principles for treating muscle injuries such as rest, physiotherapy or a supervised rehabilitation program were discussed, recommended or implemented;
  2. (v)
    on 27 May 2016, the respondent entered a recall into Patient JA's clinical records but there is no evidence of any follow-up in Patient JA's clinical records;
  1. (g)
    that the respondent consulted with Patient AD and prescribed him with CJC 1295 + GHRP-6, BPC-157, SARMS-S22 and Thymosin Beta 4, in circumstances where:
    1. the respondent failed to obtain a comprehensive history regarding Patient AD's diagnosis of syringomyelia or information about Patient AD's functional limitations;
    2. the consultations were all held by phone, which prevented Dr Hogben from:
      1. performing a physical assessment (including a baseline assessment of Patient AD's muscle weakness), in circumstances where Patient AD's complaints were physical in nature;
      2. performing an adequate and comprehensive assessment of Patient AD's presenting complaints;
      3. objectively verifying the information self-reported by Patient AD;
  1. (iii)
    the respondent failed to order relevant testing and/or investigations or access copies of relevant investigations regarding Patient AD's condition;
  2. (iv)
    the respondent’s management plan for Patient AD's treatment singularly focused on the prescription of injectable peptides;
  3. (v)
    on 9 September 2016, the respondent entered a recall into Patient AD's clinical records but there is no evidence of any follow-up action or efforts to contact Patient AD;
  1. (h)
    that the respondent consulted with Patient RM and prescribed him with CJC1295 and GHRP-6, in circumstances where:
  2. (i)
    the consultations were all held by phone, which prevented the respondent from;
  1. performing a physical assessment, in circumstances where Patient RM reported being underweight;
  2. performing an adequate and comprehensive assessment of Patient RM's presenting complaints;
  3. objectively verifying the information self-reported by Patient RM;
  1. (ii)
    the respondent failed to contact, or obtain information from, Patient RM's previous treating Endocrinologist and General Practitioners regarding:
    1. previous treatments Patient RM had trialed and their results;
  1. the fact that Patient RM had previously been prescribed Primoteston Depot, which may have adversely interacted with the medications the respondent prescribed Patient RM;
  1. (iii)
    the respondent’s management plan for Patient RM was unsatisfactory, in circumstances where:
    1. Patient RM's reported weight was within a healthy range;
  1. the respondent should have reassured Patient RM or obtained a more detailed history, including an assessment of why Patient RM wanted to gain weight,
  1. (iv)
    the respondent failed to undertake an assessment of side-effects or any improvement prior to issuing another prescription;
  2. (v)
    a recall was entered into Patient RM's clinical records but there were no follow-up appointments made or notes recording further contact with Patient RM;
  1. (i)
    that the respondent consulted with Patient GH and prescribed her with AOD 9604, FICG(A) and Melanotan II in circumstances where:
  1. (i)
    during the course of these consultations, the respondent also prescribed benzodiazepines and phentermine, which have a risk of diversion, misuse and addiction;
  2. (ii)
    on 5 September 2016:
  1. the respondent’s records that Patient GH reported "LUQ pain, epigastric pain tender, niddmi"-,
  2. there is no evidence of the respondent recording any relevant history or examination;
  1. (iii)
    on 30 September 2016:
  1. the respondent’s records that Patient GH reported “RUG pain melan for 2 days”;
  2. there is no evidence of the respondent recording any relevant history or examination;[3]
  1. (iv)
    the respondent ordered investigations of Patient GH and there is no record of any discussion of the results or follow-up testing;
  2. (v)
    the respondent ordered investigation of Patient GH while she was in hospital in circumstances where:
    1. the respondent should have communicated with her admitting practitioner and allowed that practitioner to manage her;
    2. the respondent should not have ordered the investigations without the treating practitioner’s knowledge;[4]
  1. [20]
    The Code provides that good practice involves:
  1. (a)
    assessing the patient, taking into account the history, the patient’s views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects (2.1.1);
  1. (b)
    formulating and implementing a suitable management plan (including arranging investigations and providing information, treatment and advice) (2.1.2);
  2. (c)
    recognising and working within the limits of your competence and scope of practice (2.2,1);
  3. (d)
    ensuring that you have adequate knowledge and skills to provide safe clinical care (2.2.2);
  4. (e)
    considering the balance of benefit and harm in all clinical-management decisions (2.2.4);
  5. (f)
    providing treatment options based on the best available information (2.2.6);
  1. (g)
    making responsible and effective use of the resources available to you (see Section 5.2) (2.2.10); and
  2. (h)
    ensuring that the services you provide are necessary and likely to benefit the patient (5.2.1);
  1. [21]
    The respondent admits that his conduct described above is inconsistent with the Code and that his assessment, treatment, management and/or follow up of one or more of the patients during 2015 and 2016 was inadequate and/or inappropriate.

Characterisation of the conduct

  1. [22]
    Both parties in this matter submit that the respondent has behaved in a way that constitutes professional misconduct.
  1. [23]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

  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
  1. (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 a fit and proper person to hold registration in the profession.
  1. [24]
    The respondent’s conduct was multifaceted, extensive and repetitive. It spanned approximately eight months and six patients. The respondent had been practising medicine since 1999; he was an experienced medical practitioner of over fifteen years’ experience who ought to have well understood his obligations to upholding the standards of the medical profession. His conduct was both irresponsible and reckless. As mentioned above, the respondent’s conduct represents a significant departure from various sections of the Code. It undermines public confidence in the ability and integrity of medical practitioners.
  1. [25]
    The Tribunal readily accepts the joint submission of the parties that the respondent’s conduct should be characterised as professional misconduct.
  1. [26]
    Pursuant to section 196(1)(b)(iii) of the National Law, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

  1. [27]
    The purpose of disciplinary proceedings such as these is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,[5] the imposition of a disciplinary sanction may serve one or all of the following purposes:
    1. (a)
      preventing practitioners who are unfit to practise from practising;
  1. (b)
    securing maintenance of professional standards;
  1. (c)
    assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
  2. (d)
    bringing home to the practitioner the seriousness of their conduct;
  1. (e)
    deterring the practitioner from any future departures from appropriate standards;
  1. (f)
    deterring other members of the profession that might be minded to act in a similar way; and
  2. (g)
    imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
  1. [28]
    The parties jointly submit that the following orders by way of sanction are appropriate:
    1. (a)
      that the respondent be reprimanded pursuant to section 196(2)(a) of the National Law;
    2. (b)
      that the respondent be suspended from practising as a registered medical practitioner for a period of three months, which shall commence thirty (30) days from the date of the Tribunal’s orders, pursuant to section 196(2)(d) of the National Law;
    3. (c)
      that the respondent’s registration be subject to the conditions set out at Annexure B (of the parties’ Amended Agreed Statement of Facts, Findings and Determinations), pursuant to section 196(2)(b) of the National Law, which will take effect from the date of the Tribunal’s orders;
    4. (d)
      The review period for the condition set out at (c) above be 12 months (from the date that the conditions take effect); and
    5. (e)
      For the purposes of section 127(3)(b) of the National Law, Subdivision 2, Division 11, Part 7 of the National Law applies.
  1. [29]
    The Tribunal will not ordinarily depart from orders agreed between the parties unless they fall outside of the permissible range of sanction.[6]
  2. [30]
    Consideration of cases referred to by the parties including Medical Board of Australia v McCombe,[7] Medical Board of Australia v Tunbridge,[8] Medical Board of Australia v Marzola,[9] Health Care Complaints Commission v Epstein (No 2),[10] and Health Ombudsman v Veltmeyer[11]confirms that the proposed orders fall within an appropriate range and adequately meet the purposes of sanction.
  1. [31]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.[12] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.[13]
  2. [32]
    The three month period of suspension is appropriate to address considerations of personal and general deterrence for the ultimate purposes of protection of the health and safety of the public[14] and public confidence in the medical profession.
  3. [33]
    The conditions on the respondent’s registration upon return to practice after suspension will provide further for protection of the health and safety of the public.
  1. [34]
    The Tribunal will make orders in the terms jointly submitted by the parties.

ANNEXURE A

Schedule of Conditions

Limitations on practice

  1. The Practitioner may practise only in place(s) of practice approved by the Medical Board of Australia (Board).

For the purposes of this condition, ‘practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical industry.

For the purposes of this condition, the following practice locations have been approved:

Allure Laser and Skin Studio, Mackay, Queensland

  1. Within 21 days of the commencement of these conditions, the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
    1. Seek reports from the Director of Medical Services/Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/partner in ownership pharmacist/other as appropriate (the senior person) at each place of practice on at least a three monthly basis or as otherwise required.
    2. Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
    3. Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
  2. Within 21 days of the notice of the commencement of these conditions the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware Ahpra will seek reports from them.

Prohibition on prescribing and access to medication

  1. The Practitioner must not prescribe/possess/supply/administer/handle/dispense/access/check (hereafter referred to as access), including as emergency treatment supplies or doctor’s bag stock, the following:
    1. any substances or registered medicines outside of the indications, dose, route of administration or patient group set out in the TGA-approved Product Information (PI) ('off- label prescribing1 );
    2. injectable peptide compounded substances;
    3. steroid hormones or medications which impact upon steroid hormones;
    4. without limiting the above, with AOD 9604, HCG(A), Melanotan II CJC 1295 + GHRP-6, BPC-157, SARMS S22, Thymosin Beta 4 and AOD 9604.
  2. Within 21 days of the commencement of these conditions, the Practitioner must provide to Ahpra:
    1. Acknowledgement, on the approved form (HP1), that Ahpra may obtain reports from the Director of Medical Services/Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/other as appropriate (a senior person) at each and every place of practice on a three monthly basis or as otherwise required by the Board or Ahpra.
    2. Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to medication, Ahpra may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories.
  1. Confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware Ahpra will seek reports from them.

Undertake an audit of practice

  1. The Practitioner must submit to an audit of their practice (the audit), including any supporting records, within three four months of the commencement of these conditions and thereafter on a three monthly basis, by permitting an auditor (the auditor) approved by the Board to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the matters the subject of the Referral Notice and these conditions and must include, at a minimum, a random selection of 20 patient clinical records (including pathology results, prescribing records, patient billing, and appointment records).
  1. Within 21 days of the commencement of these conditions, the Practitioner must provide to Ahpra:
    1. nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Board/Ahpra
    2. acknowledgement, on the approved form (HPN12), that Ahpra will seek reports from the approved auditor at the conclusion of each audit, and
    3. acknowledgement, on the approved form (HPNA12), from the nominated auditor.
  2. Within 21 days of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the area of concerns for the Board will be addressed. The audit(s) will take the form determined by the auditor

General

  1. 9.
    Within 21 days’ notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
  1. within seven days of the commencement of practice at each subsequent place of practice, and
  2. within seven days of each and every notice of any subsequent alteration of these conditions.
  1. 10.
    All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Review of conditions

  1. 11.
    The review period for clauses 1 - 10 of these conditions is 12 months.

Text on the public register

As above.

Footnotes

[1]The respondent asserts that Melanotan II was not administered to Patient GH because further research indicated it was not appropriate.

[2]The respondent asserts that he did assess and record Patient DD’s weight and BMI in the past but did not document same at the particularised consultations.

[3]The respondent asserts that he recorded that a gastroscopy in April 2016 had shown Barret’s oesophagus and Patient GH had a duodenal adenoma for which she was awaiting surgical resection.

[4]The respondent asserts that these investigations were ordered b him at the suggestion of Patient GH’s treating practitioner.

[5](2001) 79 SASR 545, 553-555.

[6]Medical Board of Australia v Martin [2013] QCAT 376, [91].

[7][2020] QCAT 511

[8][2020] SACAT 34.

[9][2020] SACAT 116.

[10][2015] NSWCATOD 36

[11][2021] QCAT 77.

[12]Psychology Board of Australia v Cameron [2015] QCAT 227, [25].

[13]Health Practitioner Regulation National Law (Queensland), s 226(3).

[14]Health Practitioner Regulation National Law (Queensland), s 3A.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Hogben

  • Shortened Case Name:

    Medical Board of Australia v Hogben

  • MNC:

    [2023] QCAT 143

  • Court:

    QCAT

  • Judge(s):

    Allen KC

  • Date:

    16 May 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Craig v Medical Board of South Australia (2001) 79 SASR 545
2 citations
Jump To
Cite 1 - (2001) 79 SASR 545
Cite 2 - (2001) 79 SASR 545
Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36
2 citations
Jump To
Cite 1 - [2015] NSWCATOD 36
Cite 2 - [2015] NSWCATOD 36
Health Ombudsman v Veltmeyer [2021] QCAT 77
1 citation
Jump To
Cite 1 - [2021] QCAT 77
Medical Board of Australia v Arulanandorajah (Review and Regulation) [2021] VCAT 85
1 citation
Jump To
Cite 1 - [2021] VCAT 85
Medical Board of Australia v Martin [2013] QCAT 376
1 citation
Jump To
Cite 1 - [2013] QCAT 376
Medical Board of Australia v Martin [2013] QCAT 37
1 citation
Jump To
Cite 1 - [2013] QCAT 37
Medical Board of Australia v Marzola [2020] SACAT 116
2 citations
Jump To
Cite 1 - [2020] SACAT 116
Cite 2 - [2020] SACAT 116
Medical Board of Australia v McCombe [2020] QCAT 511
2 citations
Jump To
Cite 1 - [2020] QCAT 511
Cite 2 - [2020] QCAT 511
Medical Board of Australia v Tunbridge [2020] SACAT 34
2 citations
Jump To
Cite 1 - [2020] SACAT 34
Cite 2 - [2020] SACAT 34
Psychology Board of Australia v Cameron [2015] QCAT 227
2 citations
Jump To
Cite 1 - [2015] QCAT 227
Cite 2 - [2015] QCAT 227

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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