Medical Board of Australia v YOS
[2023] QCAT 164
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- Medical Board of Australia v YOS[2023] QCAT 164
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Medical Board of Australia v YOS[2023] QCAT 164
Medical Board of Australia v YOS[2023] QCAT 164
[2023] QCAT 164
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
ROBERTSON, Judicial Member
Assisted by:
MS ASHCROFT
DR CAVANAGH
DR QUINN
No OCR 099 of 2022
MEDICAL BOARD OF AUSTRALIA Applicant
v
YOS Respondent
BRISBANE
TUESDAY, 11 APRIL 2023 JUDGMENT
JUDICIAL MEMBER: The Tribunal is dealing with a disciplinary referral, filed by the Medical Board of Australia (the Board) on the 13th of May 2022, concerning the respondent, who is a registered medical practitioner.
On the same day that the Board filed its referral, the respondent applied for an interim non-publication order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act (the QCAT Act). That application was supported by a large number of affidavits, including medical reports from a number of doctors who had treated the respondent over the years for a number of significant and distressing medical conditions. The application was supported by a comprehensive submission by the respondent’s counsel. The Board took what could be described as a neutral position, referring appropriately to the principles that apply when an application of this kind is made, which are well known. Primarily, the application focused on the discretionary matters covered by section 66(2)(b) and (d) of the QCAT Act. The Deputy President of QCAT made a non-publication order on the 3rd of June 2022, which order is to have effect “until further order”.
The Disciplinary Proceeding
The parties are agreed that the conduct alleged in the referral constitutes professional misconduct, as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (the National Law). The parties are also agreed as to the appropriate response by way of sanction.
The parties have filed a statement of agreed facts. There are no factual issues in dispute and the matter is being heard on the papers. It is accepted that notwithstanding the agreement, it is for the Board to prove that the admitted conduct constitutes professional misconduct, and it is for the Tribunal to decide in the exercise of discretion if the Board has satisfied that requirement, and the appropriate disciplinary response by way of sanction. The Tribunal would not ordinarily depart from the proposed sanction agreed between the parties who are both legally represented by lawyers with extensive experience in this area of law, unless the agreed sanction falls outside the permissible range.
Background
The respondent is presently in her late twenties. She graduated in 2017 and was first registered as a medical practitioner with the Board in early 2018. To say that she has been beset with a number of serious medical conditions, particularly since 2017, just prior to completion of her degrees, would be an understatement. I am satisfied that her health issues were a significant contributing factor to the conduct the subject of the referral.
The Relevant Conduct
On a date in 2020, in the Brisbane Magistrates Court, the respondent pleaded guilty to one charge of forgery on 14 occasions in late 2019 to early to mid-2020, one charge of uttering on those same occasions between the same dates, one charge of fraud on those same occasions between the same dates, and one charge of unlawful possession of a controlled drug on the date on which a search warrant was executed on her home.
The respondent was charged with these offences in 2020. On the date she was charged, police executed a search warrant at her home. The respondent cooperated throughout that process and made admissions to police. Five days after being charged, she notified the Australian Health Practitioner Regulation Agency (Ahpra) about the charges, as required by section 130(3)(a)(i) of the National Law.
The respondent pleaded guilty to the charges at the first available opportunity. For all offences, the Magistrate imposed a $1500 fine and exercised his discretion not to record a conviction.
In short, on 14 occasions between late 2019 and early to mid-2020, the respondent took blank scripts from a hospital and dishonestly filled them out for the pain medication tapentadol, and presented the forged prescriptions at the a local chemist (charges 1, 2 and 3). When police executed the search warrant, the respondent was in possession of 57 tapentadol tablets (charge 4).
Having read the learned Magistrates sentencing remarks, the respondent’s conduct in committing these offences was, in my opinion, demonstrative of an extremely unsophisticated course of criminal conduct. She filled the forged scripts at the same pharmacy near her home, and used her own driver’s licence as identification and, despite being denied the drug on a number of occasions, she continued to return to the same pharmacy, which ultimately led to her conduct being uncovered. This behaviour is suggestive of the actions of a significantly desperate and impaired person, which proved to be the case.
Characterisation
Clearly, the conduct of the respondent was very serious. As the Board notes in its submission, dishonesty and/or fraud, particularly relating to obtaining schedule 8 (controlled) medication is almost always characterised by this Tribunal and Tribunals in other jurisdictions in Australia as professional misconduct. The conduct (as she accepts) breached a number of relevant provisions of the code of conduct for doctors in place at the time of the offending, and at the time of the hearing in the Magistrates Court. Such codes are admissible in proceedings of this nature, as evidence of what constitutes appropriate professional conduct of practice for the health profession.
The Tribunal is satisfied, to the relevant standard, that the admitted conduct constitutes professional misconduct, as defined by section 5 of the National Law.
Sanction
As noted by the Board in its submission, the general considerations applicable to the Tribunal’s exercise of its disciplinary powers are now well established. In Medical Board of Australia v Nguyen [2021] QCAT 346, Judicial Member McGill SC conveniently summarised such considerations (at [18]):
[18] In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant. What matters is the fitness to practise of the respondent at the time of the hearing.
Health Impairment and/or Conditions
The respondent has diagnoses of serious digestive disease, and serious sleep, mental health and addiction disorders. The co-existence those conditions is extremely rare and there is little medical guidance as to how the conditions ought to be simultaneously managed.
In early 2019, the respondent began seeing a psychiatrist for treatment of a mental health disorder. She was diagnosed with a digestive disease approximately a month later. Initially, she was treated with a course of steroids, which were tapered over six months and then ceased. Following multiple flare ups of her symptoms, the respondent’s steroid dose was doubled in late 2019, in a bid to control her symptoms.
The steroid treatment for the respondent’s digestive symptoms interacted poorly with one of her other medications and led to a hypnopompic hallucination in late 2019. Around this time, she also started to experience debilitating lower back pain, resulting in an admission to the hospital for seven days.
Having experienced no reduction in her lower back pain, she had an MRI at the hospital towards the end of 2019. While the results of the MRI were uploaded to the hospital data base shortly thereafter, they were not communicated to the respondent, despite several attempts by her to follow up with a hospital registrar.
It was eventually discovered that the respondent had been suffering from atraumatic spinal fractures that were attributable to the high dosages of steroid medication. However, the fractures were only discovered after the respondent checked her own Queensland Health Hospital records some weeks later (having had access to the portal through her employment at the hospital). The hospital had not onforwarded the MRI results to any of the respondent’s treating specialists or her general practitioner.
Upon learning of her spinal fractures, the respondent sought assistance from an orthopaedic spinal specialist and an endocrinologist, though it was some months before the next available appointment.
It was against this background of serious medical conditions, and medical mismanagement of her back pain in particular, that the respondent commenced self-prescribing opioid medication to treat her significant pain. Although the conduct was not limited to a single incident, it was limited to a short and distressing period in the respondent’s life and explained (but not excused), by significant pain and a sense of hopelessness, brought about by the lack of improvement of her circumstances, despite medical intervention. These circumstances provide context and a level of mitigation for the respondent’s conduct.
It is to her credit that she continued to seek assistance from her treating practitioners during the period of her offending and afterwards. Since the conclusion of the criminal proceedings, she has continued to engage with her treatment, as outlined in the various medical reports of her treating practitioners, including her psychologist and psychiatrist. She remains compliant with her suboxone treatment and undergoes regular testing for substances, as required by the Board. As is plain from her own affidavit, the opinions of the respondent’s treating practitioners and Dr Bassett and Dr Simmons’ observations of her, the respondent is genuinely remorseful for her conduct.
In addition to the support provided by her treating medical practitioners and psychologist, the respondent also continues to be supported by friends and family. This is apparent from the positive letters of support that have been provided to the Tribunal by various people, including neighbours who have known the respondent all her life. The Board accepts that she is genuinely remorseful and has considerable insight into her conduct.
Her compliance with her treating regime and the continued support she enjoys from her treating practitioners and family and friends, is reflective of significant insight, and strongly suggests a repetition of the conduct the subject of these proceedings is most unlikely to occur.
I accept the submission made by the respondent’s counsel, that the respondent was suffering from a health impairment at the time of the conduct, which impairment was complex, multifaceted and overwhelming for her. I accept that her impairment is now well managed by her treating practitioners, and that she is compliant with her treatment and well supported by her treating team, her friends and her family. It is common ground that in all respects, the respondent has cooperated fully with the Board and Ahpra, her employer, the police, the Court system, and in the efficient and timely resolution of these disciplinary proceedings.
I accept that at the time of her Court hearing, she was subjected to significant media coverage, which caused (and still causes) her great shame, and humiliation, and which, as is confirmed by a treating specialist, constituted (and may constitute now) a serious and potentially dangerous setback to her mental health.
As her counsel notes, and as is accepted by the Board, from July 2020 to January 2022, the respondent was unable to practice, having given an undertaking to the Board to that effect, which was lifted by the Board in January 2022. Since that time, she has been able to practice, subject to conditions imposed by the Board, including quite onerous conditions relating to testing.
Notwithstanding all these challenges, in the period that she was out of practice, she completed a master’s degree in public health. She has indicated that she wants her career to proceed in that direction. She has also completed a significant number of education programs, provided through her professional indemnity insurer, designed to address the issues that underly her conduct.
As noted, she is deeply remorseful and has demonstrated very significant insight, which leads me to conclude that she is presently fit to practice and that it is highly unlikely that she will behave in this way again.
Specific deterrence, therefore, does not arise here. General deterrence is, however, particularly relevant, as her counsel accepts on her behalf.
The parties agree that a reprimand is an appropriate disciplinary response to the admitted conduct. A reprimand is not a trivial penalty. It serves as a public denunciation of the respondent’s conduct. The cases cited by the Board, in its comprehensive and helpful submission, support the joint submission made by the parties. I order that the respondent be reprimanded.
As to the non-publication order, it will continue, unless this Tribunal sets it aside.
The respondent seeks that it be continued, subject to a minor amendment. The Board, again, has adopted a neutral position which is appropriate. In my view, the factual matters relevant to the exercise of discretion by the Deputy President on the 3rd of June 2022, particularly arising under section 66(2)(b) and (d) that the QCAT Act, still pertain. I therefore order that the non-publication order made by the Deputy President on the 3rd of June 2022 be amended so that the last phrase will read:
to the extent that it could identify, or lead to the identification of, the respondent or any family member of the respondent, save as is necessary for the parties to engage in and progress this proceeding or any appeal arising therefrom.
The final matter relates to the publication of the reprimand on the National Register. This occurs automatically with the making of the order today. Section 226(3) of the National Law gives the Board a discretion to remove the fact of a reprimand from the National Register “if it considers it is no longer necessary or appropriate.” There is some dissonance between this statutory provision and an applicable Ahpra policy, which was the subject of some criticism by the then Deputy President of QCAT, his Honour Judge Allen KC, in Health Ombudsman v Gillespie [2021] QCAT 54 in [50]. I am satisfied that this is an appropriate case for the Tribunal to recommend to the Board that the reprimand be removed from the National Register after two years.
The findings and orders of the Tribunal are as follows:
- Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
- Pursuant to s 66(1) of the QCAT Act, the Non-Publication Order made by the Deputy President of the Tribunal on 3 June is amended to read as follows:
- Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:
- a.the contents of a document or thing produced to the Tribunal, or order made or reasons given by the Tribunal;
- b.evidence given before the Tribunal;
- c.information that may enable the respondent or any family member of the respondent to be identified;
- a.
to the extent that it could identify, or lead to the identification of, the respondent or any family member of the respondent, save as is necessary for the parties to engage in and progress this proceeding or any appeal arising therefrom.
- It is recommended that the reprimand be removed from the National Register after a period of two (2) years from the date of this order.
- No order as to costs.
MATTER CONCLUDED