Health Ombudsman v Ling[2023] QCAT 92

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent is and was at all material times a registered medical practitioner, and hence a health practitioner for the purposes of the Health Ombudsman Act 2013 (Qld) (“the Act”).    The applicant alleges that he was guilty of professional misconduct in that he failed to maintain a proper standard in the provision of clinical care, and that he deliberately or recklessly provided false and misleading information in communications with the Office of the Health Ombudsman and with the Australian Health Practitioner Regulation Agency (“AHPRA”), and in an affidavit sworn and filed in the Tribunal.  In accordance with the Act, I sat with assessors.^[1]
2. [2]
   The respondent has been legally represented in the proceeding, including by counsel at the hearing.  That there were certain deficiencies in his provision of clinical care, involving inappropriate prescribing and a failure to maintain adequate clinical records for nine patients, was not contentious, and the respondent accepted that this amounted to unprofessional conduct in respect of each patient, and collectively to professional misconduct, on his part.  Initially, the respondent accepted that certain information provided as alleged was incorrect, but claimed that this was the result of carelessness in preparing the relevant documents and in failing first to check relevant medical records, rather than a deliberate or reckless action on his part. 
3. [3]
   The respondent filed an affidavit, on which he was cross-examined.  He also relied on the affidavit of Dr Y, another doctor associated with the hospital and medical practice at the country town where the relevant issues arose, which exhibited some letters from patients.  The applicant filed an affidavit of Dr X, a doctor who was acting as a locum at that hospital and practice, who was cross-examined on that affidavit.  As well, the parties relied on statements of agreed, or agreed and disputed facts,^[2] and an agreed bundle of documents.  Each party provided initial submissions in writing. 
4. [4]
   It was the latter part of the application which was initially contentious at the hearing, but on the morning of the third day, after the respondent had been cross-examined for most of the second day, I was told that the parties would be providing joint submissions, in which the respondent would concede that the statements relied on by the applicant as false had been made recklessly, and not in good faith.  In view of this, the respondent was not cross-examined further, and the hearing was adjourned to a date to be fixed, to await receipt of the joint submissions.  They were subsequently received, and no further oral hearing has been necessary. 

Background

5. [5]
   The respondent was born in 1971 and obtained his medical degrees in New Zealand in 1998.  He obtained registration as a medical practitioner in Australia in December 2003, and worked at various places, generally in hospitals, before commencing work at a particular Queensland country town in 2011.  There he held a position at the hospital, with a right of private practice which was exercised at a clinic at the hospital.  He is currently working elsewhere, as a general practitioner. 
6. [6]
   In July 2014 the doctor in charge of that hospital, Dr Y, took long service leave for six months, although he continued to work in the private clinic.  He was replaced by Dr X, who had obtained a medical qualification in India in 1985, and had been in Australia, and a registered medical practitioner, since 1996, working initially in large public hospitals, in intensive care and emergency medicine.  He worked for a number of years at a different country town, in a number of positions, before taking up the locum position.  In that position he came into contact with the respondent.  Both said that from the start their relationship was not cordial.  Each blamed the other. 
7. [7]
   Dr X said that he quickly became concerned about prescribing practices at the practice associated with the hospital, particularly what he regarded as overuse of opioids and benzodiazepines.  He discussed this with his superior in August 2014, and another doctor who had acted as his mentor, and on 8 August 2014 made contact with Medicine Regulation and Quality, who suggested he report his concerns to AHPRA.^[3]  On 17 September 2014 his superior encouraged him to report his concerns to the applicant, and on 23 September 2014 he telephoned the Office of the Health Ombudsman and spoke to someone there.^[4]  A formal notification was completed by Dr X later in the year; that does not seem to be in the material before me.
8. [8]
   On 3 November 2014 the respondent completed a Notification Form which he sent to the applicant concerning Dr X.  In it he asserted that he had formed a reasonable belief that Dr X had behaved in a way which constituted notifiable conduct as he has an impairment, and because he practiced the profession in a significant departure from accepted professional standards.  He said that he had observed this directly, or it had come to his intention by way of the patients, but not that it had been disclosed by Dr X, and that he had discussed his concerns directly with Dr X; none of that was true.  He then listed six unidentified patients, with a sentence about each.  Four of these were presented as instances of inadequate medication. 
9. [9]
   On 10 November 2014 an official of the Health Department wrote to Dr X advising of the outcome of the Health Service investigation into allegations made by him about inappropriate prescribing at the hospital and at the associated medical practice, and other matters concerning his treatment at the hospital.  The conclusion was that there was insufficient evidence to substantiate inappropriate prescribing at the hospital, and the Health Service did not have jurisdiction over prescribing at the medical practice.  The letter referred to a notification to the applicant which was said to have been made, but this must have been a reference to the telephone conversation in September. 
10. [10]
    The applicant sent an email to Dr X on 19 November 2014 advising of the receipt of this notification.  Dr X said he did not in fact see that email until mid-December, and that he was having problems with his email at about that time.  He had other problems.  He was offered a position at a different country town, and on 9 November 2014 had resigned so as to take up that position, but on 25 November 2014 that offer was withdrawn. 
11. [11]
    Also on 19 November 2014 an official of a different health service, covering a country town where Dr X had previously worked, made a notification about Dr X to the applicant.^[5]  Under cross-examination the respondent admitted that he had spoken to this official before he made his notification, and it appears that the notifications were coordinated.  At some later point there was another notification made about Dr X, but I have not identified any details about it.  I do not need to discuss it, or the substance of the notification of 19 November 2014, because on 29 May 2017 the Queensland Notifications Committee of the Medical Board of Australia decided to take no further action on any of the three notifications.^[6]  In substance, Dr X was exonerated. 
12. [12]
    In response to an email, which unfortunately is not before me, on 3 March 2015 the respondent sent an email to someone at AHPRA which provided information on ten identified patients “I remember while working with” Dr X.  The email was also said to contain some aspects of his work ethic, and ability to function as a doctor and team member.  There was some degree of overlap with the list in the notification.^[7]  The respondent conceded that in preparing this email, he said at home, he had the patient identification stickers for each of the ten, which were the source of their names, dates of birth and home addresses, but that he made only one or two word notes about each of them, and in preparing this document relied largely on his memory. Five of these contained incorrect information.  At the end of the email there was a complaint about the attitude of Dr X to him and others, and about his changing treatment plans, including that he would cease or modify all the opioid treatment on patients.^[8]
13. [13]
    The notifications of 3 November and 19 November were relied on by the Medical Board when on 18 March 2015 it decided to place conditions on the registration of Dr X, requiring Level 1 supervision.  The practical effect of this was that Dr X was unable to work.  He applied to the Tribunal to review the decision to impose those conditions, as a result of which the Medical Board reconsidered its decision, and imposed conditions for Level 2 supervision instead. 
14. [14]
    The application did not come to a hearing, but in the course of preparing for a hearing solicitors for the Board obtained an affidavit from the respondent.  This was prepared by the solicitors after a lengthy conference with the respondent, followed by some emails and phone calls.^[9]  The respondent under cross-examination said that he swore this affidavit without reading it, on the basis that he trusted the solicitors to have prepared it properly on the basis of what he had told them.  There is no reason to doubt that they did so.^[10]  The respondent said that he was still relying on his memory at that stage, and did not examine the hospital records (which the solicitors for the Board had, and which they exhibited to the affidavit) before giving his version to the solicitors, or signing the affidavit.  This is despite that fact that one of the paragraphs of the affidavit deposed that “in preparing this affidavit, I have reviewed the records of the Hospital and the Clinic relating to each of the patients described below.”^[11]

Allegations and admissions

15. [15]
    In relation to the first part of the application, a number of facts were agreed by the parties, as set out in a Statement of Agreed and Disputed Facts filed in the Tribunal.  These included that, in respect of nine particular patients:

    1. (a)
       The respondent failed to maintain adequate clinical records.
    2. (b)
       Because of that failure, the clinical indication for prescribing and doses of drugs of dependency cannot now be ascertained and the adequacy or otherwise of the treatment cannot now be established. 
    3. (c)
       For six of these patients, the respondent did not contact MRQ when contact with it was warranted. 
    4. (d)
       As a result of these matters, the respondent has breached s 8.4 of Good Medical Practice: A Code of Conduct for Doctors in Australia, in relation to the keeping of clinical records.
    5. (e)
       The admitted conduct constituted, in respect of each of the nine patients, an instance of unprofessional conduct, by engaging in 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 peers.
16. [16]
    It was further agreed that the nine instances of unprofessional conduct, taken together, amounted to conduct substantially below the standard expected of a registered practitioner of an equivalent level of training and experience, and hence amounted to professional misconduct.^[12]
17. [17]
    The second part of the referral, the contentious part, related to the notification provided by the respondent to the applicant.  Allegation 30 in the referral alleged that the respondent provided a false and misleading notification in the absence of good faith.  The referral summarised the terms of the notification, and particularised the false and misleading information alleged to have been provided recklessly or intentionally, and not in good faith,^[13] as:

    1. (a)
       A patient committed suicide after Dr X stopped her long term medication of 30 years.
    2. (b)
       Dr X put a 92 year old lady on insulin whilst she was blind, deaf and lived alone when oral hypoglycaemic medication was working.
    3. (c)
       Dr X treated suspected urosepsis with Flagyl only when his diagnosis was diverticulitis. 
18. [18]
    In the statement of agreed and disputed facts the respondent admitted that the patient did not commit suicide, that the elderly lady was not blind or deaf, and that Dr X had continued other medication when he added Flagyl.  He said that this information was provided from memory without the benefit of medical records, that it was made honestly and in good faith, that he held the reasonable beliefs, and that the material aspects of his concerns were correct.
19. [19]
    Allegations 31 to 35 in the referral related to the email the respondent sent to AHPRA on 3 March 2015.  Each alleged that false and misleading information had been provided in the absence of good faith about a particular patient.  The relevant information about patient A was particularised as:

    1. (a)
       The patient was treated by Dr X on a Sunday afternoon for left shoulder pain.
    2. (b)
       The patient was found dead a few days later and was suspected to have died one day after presentation to Dr X. 
    3. (c)
       By inference, that the death of the patient was related to the discharge by Dr X.
    4. (d)
       By inference, that Dr X had falsified information on the death certificate.
20. [20]
    The relevant information about patient B was particularised as follows:

    1. (a)
       Dr X changed the patient’s Oxycontin to Norspan.
    2. (b)
       By inference, the decision to do so was incompetent.
21. [21]
    The relevant information about patient C was particularised as follows:

    1. (a)
       The patient was almost completely blind and deaf.
    2. (b)
       Dr X treated the patient with insulin even though she was an independent lady who was blind, deaf and not able to administer or monitor her own insulin safely. 
22. [22]
    The relevant information about patient D was particularised as follows: 

    1. (a)
       The patient suffered trigeminal neuralgia.
    2. (b)
       By inference, that the cessation of medication by Dr X caused the patient to attempt suicide.
23. [23]
    The relevant information about patient E was particularised as follows: 

    1. (a)
       The respondent had reviewed an Xray and developed a high suspicion of osteomyelitis.
    2. (b)
       The respondent asked Dr X to transfer the patient to Ipswich Hospital.
    3. (c)
       By inference, that Dr X failed to provide appropriate clinical care. 
24. [24]
    In the Statement of agreed and disputed facts, the respondent admitted that patient A was treated for right shoulder pain, and had died three days later; that Dr X had not changed the medication for patient B from Oxycontin to Norspan; that patient C was not almost completely deaf and blind; that patient D did not suffer from trigeminal neuralgia.  The respondent said that the information was provided, without checking the records, in good faith and without knowing that it was false.  In some cases he also claimed that it was based on something Dr X had said to him, and in some, that the material concern was correct. 
25. [25]
    Allegations 36 to 38 in the referral related to the affidavit the respondent swore on 26 June 2016 in relation to proceedings in the Tribunal by Dr X concerning conditions placed on his registration.  The applicant alleged that the affidavit contained false and misleading information which the respondent provided, recklessly or intentionally, about three particular patients.  The applicant particularised the relevant information about patient E as follows:   

    1. (a)
       The respondent had reviewed an Xray and suspected osteomyelitis. 
    2. (b)
       The respondent decided that the patient should be transferred to Ipswich Hospital. 
    3. (c)
       The respondent included this information in a handover to Dr X on 11 August 2014.
    4. (d)
       Dr X took over the patient’s care that day and diagnosed the patient with cellulitis.
26. [26]
    The applicant particularised the relevant information about patient C as follows:

    1. (a)
       The patient was blind and deaf and lives alone.
    2. (b)
       Dr X commenced and sought to discharge the patient on insulin despite the patient responding positively to the administration of oral hypoglycaemic.
    3. (c)
       Self-monitoring of insulin levels and self-administration of injection would be impossible. 
27. [27]
    The applicant particularised the relevant information about patient D as follows:

    1. (a)
       The patient suffered trigeminal neuralgia.
    2. (b)
       Stopping the patient’s medication would result in increased pain and anxiety, suffering from trigeminal neuralgia, suicidal ideation and self-harm.
    3. (c)
       The patient self-harmed due to the cessation of the medication by Dr X. 
28. [28]
    In the Statement of agreed and disputed facts, the respondent admitted that patient D did not have trigeminal neuralgia.  The respondent said that the affidavit was based on his recollection without checking the records, was provided in good faith, and that in respect of each of the patients, the material concern was correct.  Other parts of the statement of agreed facts were less clear. 
29. [29]
    Matters changed somewhat in the joint submissions, where it was admitted that each of the statements relied on by the applicant as false was false, and that it had been made by the respondent recklessly, not caring whether the information was true or false, and not in good faith.  It follows that the respondent is not entitled to the protection of the National Law s 237.  It was also agreed that, because the application by Dr X for which the respondent’s affidavit was prepared did not proceed to a hearing, his affidavit was not “produced at, or used for” a hearing, and the protection afforded by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 237(10) also does not apply. 

Credibility

30. [30]
    The applicant relied on an affidavit by Dr X, who was cross-examined on it for part of the first day of the hearing.  In the course of this, some attack was made on his credibility, particularly in relation to whether he had said certain things to the respondent, which the respondent had relied on as justifying some of the statements the subject of the referral, and whether before he left the hospital the respondent had said to him, as he claimed, that the respondent knew the Dr X had made a complaint about the respondent to the health service.  The respondent in oral evidence said that aspects of the relevant false information were based on things Dr X had said to him during hand-overs at the hospital, although they were not consistent with, or were inconsistent with, the content of the hospital records, and that he had not been aware of Dr X’s complaint to the health service until late November 2014, which was after he made his notification. 
31. [31]
    That there was an investigation by the Health Service, and that it occurred before late November 2014, is shown by the letter of 10 November 2014, which related to the complaints by Dr X on 23 August and 12 September.  That included a review of a sample of patient files, which would have occurred at the hospital, and a conversation with Dr Y, and these must have come to the notice of the respondent.  As well, on 11 November 2014 people from MRQ visited the private practice and spoke to the respondent and to Dr Y, who told them that there was a personality clash with Dr X (who had now moved on), and who thought their visit “was related to complaints made to the Medical Board and to MRQ about prescribing practices.”  When cross-examined about this document the respondent suggested that this was a reference to his complaint, but it was Dr X who was complaining about prescribing practices, and this shows that they knew before 11 November of complaints by Dr X.  The respondent’s evidence that he did not know about the complaint by Dr X until late in November 2014 was not correct. 
32. [32]
    Counsel for the respondent submitted that the note of the meeting on 11 November did not attribute the comment specifically to him, and that he had not endorsed the correctness of the note.  That is correct, but there is no reason to doubt that the maker of the diary note was trying to record accurately what occurred at the meeting, and the two doctors must have discussed the position before the meeting, so that their response would have been coordinated.  In those circumstances, for my purposes it does not matter much who actually said this.  This meeting was after the respondent’s complaint, but its relevance is as to the reliability of his evidence that he had not heard about the complaint about him until late November. 
33. [33]
    The respondent claimed that, apart from the information from the identification stickers for the ten patients in the email of 3 March 2015, the rest of the information was provided from memory.  Given the amount of information involved with the ten patients, and the fact that a lot of it was accurate, this is quite implausible, and I do not accept it.  The content of the email was obviously based on the hospital records, although it was not based on a careful consideration of the hospital records. 
34. [34]
    As well, the respondent presented poorly as a witness.  He was at times evasive under cross-examination, and at one point claimed not to know the difference between committing suicide and attempting suicide, falling back on the excuse that English was not his first language.  Yet he attended university in New Zealand, and had practised there and in Australia for many years, and his email of 3 March 2015 shows that he is quite competent in the English language.  At times he was unable to explain how something he had put in a document came to be there. 
35. [35]
    An example of this is what he put in the email about patient E: Dr X diagnosed cellulitis of the foot which he began to treat; when the respondent took over the patient he suspected osteomyelitis, and when he handed over to Dr X he suggested urgent transfer to Ipswich Hospital upon receipt of the radiology report; Dr X failed to transfer him; later another (locum) doctor arranged a transfer; the patient subsequently had his foot amputated.  It emerged from cross-examination of the respondent and the records that in fact Dr X diagnosed osteomyelitis and gout in the toe and treated him with antibiotics; while the respondent was responsible for the patient he was treating him for cellulitis, and although he recorded in the notes plans for the patient they did not included transfer to Ipswich hospital; that any such transfer would have to be approved by an orthopaedic registrar at Ipswich hospital, and he was not able to say that Ipswich had not said to keep the patient longer; and that what was ultimately amputated was the toe. 
36. [36]
    Practically the whole account for this patient was wrong.  The respondent could not offer a plausible explanation of how this came about, other than that he was relying on his memory at the time he wrote the email.  That does not explain how he could have ever obtained a memory which was so wrong.  As well, the opinion of an orthopaedic surgeon obtained by AHPRA was that the osteomyelitis was of some weeks standing, and although amputation was likely to be necessary, it was not urgent and if the patient was improving on antibiotics it was appropriate to pursue that course further first, in case it worked.  The surgeon endorsed the management of the patient by Dr X.  So if someone had spoken to the orthopaedic registrar, the advice may well have been to hang on to the patient if he was stable and see how he goes.  The notion that there was some urgency about transferring the patient, if that was the respondent’s attitude at the time (and if so he failed to document it, an obvious and elementary precaution for him to take) was an example of poor medical judgment on his part. 
37. [37]
    Overall I do not regard the respondent as a reliable witness.  Dr X became emotional at times under cross-examination, and was inclined to be voluble and defensive when pressed, but as he pointed out he had suffered a great deal because of the notifications against him, on which ultimately no action was taken, so it would be understandable that he would feel strongly about having to defend his position again.  As well, it seemed to me that some of the cross-examination was too focused on whether Dr X had been doing the right thing in some respect, which was generally not relevant to anything I had to decide in this proceeding.  That would also have upset him. 
38. [38]
    I do not consider that there is any reason to have any serious concerns about the reliability of Dr X as a witness.  It was submitted that he had made false statements in his affidavit in this proceeding.  The first was that he was unaware of the complaint by the respondent until he received a letter of 25 November 2014 withdrawing the offer of employment in the other town.  But in context, the point of this statement was that one of the matters raised by the letter was that he had failed to advise the health service that a report had been made to the applicant, and the writer “believed” he was aware of this.  His point in the affidavit was that he was unaware of either of the complaints to the applicant to that time, so he should not be criticised for not have disclosed them. 
39. [39]
    The other point was that an email to Dr X from another doctor to whom he said he had complained about the respondent, where it was suggested that Dr X complain to the applicant, did not refer to the respondent; neither did the reply.^[14]  That is true, but Dr X had previously said his concerns about prescribing were not confined to the respondent, and there is no particular reason why the other doctor should have named the respondent in his email.  I do not regard this as suggesting unreliability on the part of Dr X. 
40. [40]
    It was also submitted that Dr X had documented the making of the statement to him by the respondent for the first time in the affidavit of 28 October 2021.  So far as the material before the Tribunal is concerned, that is so, but there was no particular reason for this to be documented at an earlier stage.  I note that the referral, filed in the Tribunal on 15 May 2019, included in the annexure, setting out the allegations against the respondent, paragraph 30(b) which alleged that the respondent knew during the period 23 August to 3 November 2014 of the complaint made by Dr X to the Health Service about the respondent’s prescribing practices.^[15]  So the proposition that he knew is not recent, and I do not find anything suspicious in the timing of this evidence.  On the whole I accept the evidence of Dr X, and where there is a conflict between his evidence and that of the respondent, I prefer the evidence of Dr X. 
41. [41]
    It follows that I accept that, at the last hand-over before he left the hospital, the respondent told Dr X that he knew that Dr X had made a complaint about him.  I also do not accept that Dr X said to the respondent the various things, not noted in the records, which were relied on by the respondent in justifying some of the things he had put in the documents the subject of allegations.  This was implausible evidence anyway; it had Dr X saying things to the respondent (with whom he did not get on) which were not correct and which had the effect of showing Dr X in a poor light.  Most of them could be seen to be false by an examination of the records.  To the extent that the respondent relied on such statements as justifying what he wrote, it was unjustified. 

Features of the first part of the referral

42. [42]
    The main characteristic of the treatment of these nine patients was very poor record keeping, with no notes justifying the prescriptions issued, even when opioids were prescribed to known drug users.  Most of the conduct extended over a period of about five years.  In the case of patient 1 the respondent prescribed rapidly increasing doses of diazepam despite the patient’s history of drug abuse, and notes by other practitioners recording concerns about the patient’s overuse of such drugs.  The behaviour was described by an independent expert consulted by AHPRA as “demonstrating casual indifference to any precaution about prescribing addictive medications”.  Patient 2, with a history of abuse of opiates, was prescribed increasing amounts of Diazepam, Oxycodone and Fentanyl without recorded justification in notes, despite warnings from other practitioners about drug seeking behaviour.  His approach seemed to be just to give the patient whatever the patient asked for.
43. [43]
    Patient 3 was prescribed escalating doses of opiates, without recorded justification, after the patient had been off opiates for a time. Patient 4, who had established analgesia use after surgery, was given increased doses, and at times other drugs, and ended up on 720 mg of Oxycontin per day, without any justification for the increases, or plan for managing opiate usage, in the notes.  Patient 5 was prescribed Temazepam without any recorded justification, and scripts were issues at a frequency in excess of the dose prescribed, suggesting over use; Valium was prescribed without recorded justification, and one point three different hypnotics were prescribed concurrently (which was inappropriate) and other drugs were prescribed (or doses increased) without recorded justification, and in one case after recording intolerance to that drug. 
44. [44]
    Patient 6 had a variety of medical problems, and was managed on Imovane when first seen by the respondent in 2010.  In the following year, diazepam, temazepam, fentanyl, Endone and Oxazepam were all added, without any clinical justification recorded.  In October 2011 the respondent recorded “? Addicted” but continued to prescribe addictive drugs.  By January 2015 the patient was taking ten Valium a day and showing drug seeking behaviour but the respondent’s prescribing was unchanged despite concerns documented by other practitioners. 
45. [45]
    Patient 7, who had chronic pain, was regularly prescribed Oxycodone with rapid escalation of dose at times and in combination with other opiates, which was inappropriate and not explained in any records he kept.  Patient 8, who also had chronic pain, was prescribed pain-killers in escalating amounts and inappropriate combinations, such as a combination of Oxycontin, Fentanyl and Targin.  As well Diazepam was prescribed without recorded justification.  Patient 9, with chronic pain, was given a rapid escalation of doses of opiates with inadequate documentation.  

Features of the second part of the referral

46. [46]
    In relation to the brief case summaries in the notification, the applicant took issue with three of these, which contained a number of errors: number (1)^[16] did not die by suicide, and the implication that this was linked to Dr X’s stopping her medication was unjustified.  This patient was also referred to in the email of 3 March, which contained the errors that she suffered trigeminal neuralgia, and by inference that her suicide attempt was caused by the cessation of her medication.  She was also referred to in the affidavit, which contained the same errors as the email, and that stopping the medication would result in increased pain and anxiety, suffering from her trigeminal neuralgia, suicidal ideation and self harm. 
47. [47]
    At the time Dr X saw her she was being over-medicated.  He discontinued one drug which increased her risk of falling, and another for which there was no clinical indication, and sought to modify her pain management.  Initially her condition improved.  An independent expert consulted by the Medical Board considered that the medication changes Dr X made were reasonable, and there was no causal linkage between them and the later suicidal actions.  Another independent expert also supported Dr X’s actions as appropriate. 
48. [48]
    Patient No (3) in the notification^[17] was said to have been put on insulin when she was 92, blind and deaf and lived alone, when alternative oral medication was working.  Almost all of this was wrong: she did live alone, but was not blind or deaf, was 95, and was on oral medication by the time she was discharged.  The respondent under cross-examination sought to justify this by claiming that he was told by Dr X that he intended to send her home on insulin; Dr X denied this, there was nothing in the records to support it, and I do not accept it.  The practicality of administering insulin to her at home was investigated by an appropriate person while she was still in hospital, which was what I would expect if the fact that she was getting insulin was the reason she was still in hospital. 
49. [49]
    In the email of 3 March this had become “almost completely blind and deaf”, which was almost as inaccurate, and said that Dr X changed her medication to insulin which she would not be able to administer properly.  It was true that Dr X put her on insulin while she was in the hospital, but she did not have to self-administer there.  In the affidavit she was again “blind and deaf” and it was said that Dr X sought to discharge her on insulin although self-monitoring and self-administration of insulin would be impossible.  Dr X admitted he put her on insulin, and that he investigated the practicality of sending her home on insulin and arranged for a diabetes educator review, but by 11 August he did not consider that she needed to be on insulin, and he said as much to the respondent. 
50. [50]
    Two independent reviewers who reported to the Medical Board about Dr X’s treatment of this patient supported it as appropriate and in accordance with accepted medical standards.  They noted that the diabetes educator found that the patient was able to self-test for blood sugar levels using the hospital meter. 
51. [51]
    Patient No (4) in the notification, suspected of urosepsis, was said to have been treated by Dr X “with Flagyl only when his diagnosis was diverticulitis.”  The sting of this lies in the word “only”.  In fact Dr X had not discontinued the other medication the respondent had ordered for suspected urosepsis, but added treatment for diverticulitis as that was consistent with his symptoms and he had a previous history of diverticulitis. 
52. [52]
    This error was repeated in the email of 3 March, not relied on in the referral, but by the time of the affidavit the reference to ceasing the medication he had initiated was dropped, and the complaint became simply a criticism of the diagnosis of diverticulitis.  The opinion of the independent expert reporting to the Medical Board, which was accepted by the Board, was that Dr X’s treatment and management of the patient was appropriate and did not deviate from accepted professional standards. 
53. [53]
    Under cross-examination the respondent could not explain how he came to think that there was a problem with this patient. Perhaps he was simply annoyed that Dr X had identified a plausible diagnosis which he had overlooked.  He agreed that the treatment Dr X had started was appropriate for diverticulitis, and would not do any harm if that  diagnosis were wrong, or how he came to think that other medication had been stopped.  He admitted that Dr X did not say that he had stopped the other medication.  Eventually he said that he put this in the notification, not because it was something that Dr X had done, but because it was the type of thing that he might do.  In effect, that this complaint was fabricated. 
54. [54]
    In the email of 3 March the respondent said of Patient A that he presented to the hospital with left shoulder and arm pain which was treated by Dr X as of muscular origin, and the patient was found dead a few days later, suspected to have died the day after presentation.  The true position was that he presented with right shoulder pain, and died three days later.  The significance of this mistake is that left shoulder and arm pain could be caused by heart trouble, and should be investigated to exclude that.  Right shoulder and arm pain are not treated the same way.  The report of the independent expert supported the management of the patient by Dr X, and said that, if it had been left shoulder and arm pain, this would have significantly changed the differential diagnosis, the standard of care, and the rigor of history, examination and investigation.  It follows that the crucial feature of the complaint about the treatment of this patient was wrong. 
55. [55]
    Patient B suffered from longstanding arthritis in the knees.  In the email of 3 March the respondent said that Dr X had changed the medication of Patient A from Oxycontin to Norspan patch, although she needed the former because she had a high-set house.  This was said to be a manifestation of Dr X’s “severe anti-opioid attitude.”  Patient B did not feature in the notification or in the affidavit, and the Oxycontin had not been discontinued by Dr X. 
56. [56]
    What was said in the email about Patient E has been discussed earlier, where I said that practically the whole account for this patient was wrong.  Yet it was largely repeated in the affidavit, except that the amputation of the foot had become the amputation of a toe. 

Characterisation of conduct. 

57. [57]
    The applicant alleged that the conduct of the respondent, in making the false and misleading statements relied on, amounted to professional misconduct, being conduct substantially below the standard which might be reasonably expected of a registered health practitioner of an equivalent level of training and experience.  This was contentious, but in view of the admissions originally made, and the further admissions in the Joint Submissions on Findings dated 2 December 2022, it is clear that the respondent’s behaviour in this respect was a significant departure from the standard of conduct expected of a registered medical practitioner.  Indeed, it is arguably also within paragraph (c) of the definition of professional misconduct in the National Law s 5, but that has not been alleged and I have not received submissions on it, nor have I received submissions as to sanction. 

Conclusion

58. [58]
    I accept the admissions made in both of the earlier statements of agreed facts, and in the Joint Submission on Findings of 2 December 2022.  I regard them as consistent with the evidence before the Tribunal.  The Tribunal finds that the facts admitted in those documents have been proved.  The Tribunal also accepts, and agrees with, the concession that the allegations established in the first part of the referral, about prescribing and record keeping, amounted to professional misconduct, and finds that the allegations in the second part of the referral, admitted or found as set out earlier, amounted to professional misconduct. 
59. [59]
    The further hearing of the referral is adjourned until after the parties have provided submissions as to sanction.  I will give the parties the opportunity to provide joint submissions on sanction, otherwise directions will be made for submissions.