Health Ombudsman v RMJ[2023] QCAT 539

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   I gave an ex-tempore judgement in this matter on the 13th of October 2022. Since then, it has become apparent that one of the assessors appointed to assist the Tribunal was not properly qualified and consequently, the Tribunal lacked jurisdiction to deal with the matter. Today the Tribunal, properly constituted, convenes to deal with the matter.
2. [2]
   Between 26 June and 29 August 2019, the respondent (both a medical practitioner and a registered nurse) engaged in 15 instances of stealing blank prescriptions from her workplace, fraudulently writing a prescription in the name of a patient for an opioid pain relief medication and either using her details or that of a colleague as the prescribing doctor and later presenting the prescription to a pharmacy and obtaining the medication. The respondent was convicted in the Magistrates Court of 60 criminal offences relating to this conduct.  She was fined $5,000 and no convictions were recorded.

Agreed statement of facts

3. [3]
   The parties have jointly signed a statement of agreed facts which are largely what I have set out under the heading Background.

Decisions on orders of the substantive application

4. [4]
   Both parties submit that the appropriate decision and orders, in this case, are as follows: 

2. 1.pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;
3. 2.pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be reprimanded; and
4. 3.each party to the proceeding is to bear their own costs for the proceedings.

The Role of the Tribunal

5. [5]
   The making of findings and orders under section 107 of the Health Ombudsman Act 2013 (Qld), requires an exercise of the Tribunal’s discretion. The applicant’s submissions on characterisation of conduct are as follows: the applicant submits that the respondent, by virtue of the alleged conduct engaged in “professional misconduct” as defined in limbs (a) and (e) of the definition of professional misconduct in section 5 of the National Law.
6. [6]
   Alternatively, the applicant submits that the respondent engaged in unprofessional conduct, as that term is defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). The respondent accepts that the characterisation of the impugned conduct constitutes professional misconduct within the meaning of the national law. That is, it amounts to conduct that is substantially below the standard reasonably expected of a registered health professional of an equivalent standing of training or experience.

Relevant principles on sanction

7. [7]
   The main principle for administering the Health Ombudsman Act and the main principle for the Tribunal when deciding a matter, is that the health and safety of the public are paramount. That is, the occupational regulation as it relates to health practitioners is protective rather than punitive. The appropriate sanction is to be considered at the time of the determination, not at the date of the conduct. The sanction should be no more severe than is required to adequately meet the protective purpose for which it is imposed.

What factors should the Tribunal consider?

8. [8]
   A review of the cases suggests, as the applicant submits, that there are a number of relevant submissions 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 general and specific deterrence;
4. (d)
   matters giving context/or an explanation for the conduct;
5. (e)
   evidence of rehabilitation or steps taken to avoid a recurrence of the conduct; and
6. (f)
   other matters in mitigation or aggravation. 

8. [9]
   In McBride v Walton,^[1] the following factors were mentioned: 

1. (a)
   whether the conduct can satisfactorily be explained as an error of judgment rather than a defect of character;
2. (b)
   the intrinsic seriousness of the misconduct qua fitness to practice;
3. (c)
   whether the misconduct should be viewed as an isolated incident;
4. (d)
   the motivation which may have given rise to the misconduct;
5. (e)
   the underlying qualities of character shown by previous or other conduct; and
6. (f)
   the practitioner’s conduct post the misconduct and whether it demonstrates that public and professional confidence may be reposed in (her).

Discussion

10. [10]
    The applicant accepts her misconduct is serious. The applicant has co-operated in the police investigation and during the course of multiple proceedings. Her treating psychologist and GP have spoken to her statements of remorse. Specific deterrence and the need for it is diminished in this case because of the particular circumstances in which the offending occurred. That is, she was suffering from substance abuse disorder and post-traumatic stress disorder (PTSD).
11. [11]
    General deterrence is important but is mitigated once again by the applicant’s mental health at the time of the conduct. There is distinct evidence of rehabilitation for all aspects of her mental and physical health and her treating clinicians speak of good progress.

Sanction

12. [12]
    The Tribunal will not ordinarily depart from orders jointly submitted by the parties.  In this case, those suggested orders are consistent with the comparable cases and authorities. The orders of the Tribunal are as follows: 

2. 1.pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
3. 2.pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and
4. 3.each party to the proceeding is to bear their own costs of all the proceeding. 

Non-Publication Order Application

13. [13]
    I dealt with an application for a non-publication order on 13 October 2022. At that time, I made a non-publication order. That order remains undisturbed despite the irregular constitution of the Tribunal when it was made. These are my reasons for the making a non-publication order.
14. [14]
    Pursuant to section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal may make non-publication orders, relevantly, if the Tribunal considers the order is necessary:

1. (b)
   to avoid endangering the physical or mental health or safety of a person.

…

1. (d)
   to avoid the publication of confidential information…

15. [15]
    As Judicial Member McGill SC noted in Health Ombudsman v JLK,^[2] the starting point is that the Tribunal operates in public and the power to conduct all or part of the hearing in private is strictly regulated.  In Health Ombudsman v CLT (No 2),^[3] Judge Sheridan noted that, the making of a non-publication order is appropriate in circumstances where there is a close connection between the offending conduct and the respondent’s impairment.
16. [16]
    That is the case here. As to (d) above, the evidence in the proceedings includes confidential clinical information about the respondent. In addition, in relation to (b) above, the opinions of the respondent’s treating clinicians are that the publication of her identity would negatively impact her mental health.  Dr Mc Dermott opines:

this would manifest as increased levels of anxiety and risk of recurrent depressed mood….

17. [17]
    Ms Copeland, treating psychologist, opines:

publication … would very likely have a detrimental effect (on the respondent’s) health and wellbeing.

18. [18]
    There is no evidence to the contrary of these opinions. In those circumstances I ordered that, pursuant to section 66 of the QCAT Act, publication of: 

1. (a)
   the contents of any document or thing produced to the Tribunal;
2. (b)
   evidence before the Tribunal; and
3. (c)
   the orders made, and reasons given by the Tribunal

is prohibited to the extent that it could identify, or lead to the identification of, the respondent, any patient or former patient of the respondent, any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or on any appeal therefrom, or save as is necessary for the applicant to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013.