Health Ombudsman v Skala[2024] QCAT 14

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

2. [2]
   The parties have jointly filed and rely upon a Statement of Agreed and Disputed Facts. The parties agree as to the characterisation of the respondent’s conduct as constituting professional misconduct. The parties have jointly submitted agreed orders by way of sanction.

Background

3. [3]
   The respondent obtained the qualification of Batchelor of Medicine, Batchelor of Surgery from the University of Queensland in 1971.
4. [4]
   In 2009 the respondent attained fellowship with the Royal Australian College of General Practitioners.
5. [5]
   During the period of the conduct the respondent was registered as a medical practitioner holding general registration and specialist registration as a general practitioner and owned, operated and practised at the CBD 7 Day Medical Centre and Travel Clinic.
6. [6]
   The respondent was subject to the Health (Drugs and Poisons) Regulation 1996 (Regulation) and was obliged to adhere to a reasonable direction of the Chief Executive, Queensland Health (Chief Executive) or their delegate.
7. [7]
   Relevantly:

1. Alprazolam, Diazepam, Oxazepam and Temazepam were listed in Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons (Poisons Standard) as derivatives of Benzodiazepine;
2. Alprazolam, Diazepam, Oxazepam and Temazepam were listed as restricted drugs of dependency in the Regulation;
3. Oxycodone, Morphine, Methadone, Fetanyl, Methylphenidate and Dexamphetamine were listed in Schedule 8 of the Poisons Standard,
4. Oxycodone, Morphine, Methadone and Fetanyl were listed as controlled drugs in the Regulation; and
5. Methylphenidate and Dexamphetamine were listed as a specific condition drugs in the Regulation.

8. [8]
   Section 78 of the Regulation provided that the respondent could not dispense, obtain, prescribe, sell or use as a specified condition drug (including Methylphenidate and Dexamphetamine) unless:

   1. it was under approval,

2. it was for the treatment of narcolepsy, brain damage in a child of at least four years, or attention deficit disorder in a child of at least four years; or
3. the practitioner was a paediatrician or psychiatrist prescribing for treatment of brain damage or attention deficit disorder in a child.

9. [9]
   Section 122 of the Regulation provided that, where the respondent reasonably believed a person to be a drug dependent person:

   1. he could not, without an approval of the Chief Executive, dispense, prescribe, administer or supply a controlled drug to the person; or
   2. could only administer, dispense, prescribe, supply, or give the controlled drug under the terms of the approval given by the Chief Executive.
10. [10]
    Section 213 of the Regulation provided that where the respondent reasonably believed a person to be a drug dependent person:

    1. he could not, without an approval of the Chief Executive, dispense, prescribe, administer or supply a restricted drug of dependency; or
    2. he could only administer, dispense, prescribe, supply, or give a restricted drug of dependency under the approval.

Summary of conduct

11. [11]
    Between 29 January 2008 and 21 December 2011, the respondent medical practitioner, in his practice as a general practitioner, prescribed controlled drugs and restricted drugs of dependency in circumstances that were inappropriate, including:

    1. in breach of the Regulation; and

2. otherwise contrary to a direction given on behalf of the Chief Executive.

12. [12]
    Such conduct occurred in circumstances where:

1. in about 10 October 1996, the respondent had his prescribing endorsement for controlled drugs and restricted drugs of dependency cancelled by the Chief Executive due to inappropriate prescribing to 14 drug dependent patients;
2. when seeking restoration of his endorsements the respondent assured the Chief Executive that he would strictly adhere to the Regulation and exercise extreme caution when prescribing to persons who may be drug dependent;
3. in about February 2005, a delegate of the Chief Executive advised the respondent was prescribing without approval;
4. in about March 2005, the respondent assured a delegate of the Chief Executive that he was aware of his obligations under the Regulation; and
5. in about July 2006, the former Medical Board of Queensland required the respondent to undertake certain professional development as a consequence of having over prescribed to drug dependent persons.

Particulars of conduct

13. [13]
    The respondent contravened the Regulation in his treatment of 11 patients and his prescribing to them of controlled drugs and restricted drugs in a way that contravened the Regulation and which placed the patients at risk or had the potential to place them at risk of harm.
14. [14]
    The contraventions included:

1. the respondent breaching requirements to obtain approval from Queensland Health;
2. failing to obtain approval to treat drug dependent patients;

3. failing to comply with conditions of approvals or directions issued by Queensland Health; and
4. failing to comply with restrictions on the categories of patients for whom certain medicines may be prescribed.

15. [15]
    The Tribunal has noted the details of the conduct as particularised in paragraphs 1-8 and Schedules 1-13 of the Statement of Agreed and Disputed Facts and as further described in paragraphs 24-78 of the written submissions of the applicant, subject to those matters disputed by the respondent and not pressed by the applicant.^[1]

16. [16]
    The respondent breached s 122 of the Regulation by his prescribing in relation to nine patients.
17. [17]
    The respondent breached s 213 of the Regulation by his prescribing in relation to three patients.
18. [18]
    The respondent breached s 78 of the Regulation by his prescribing in relation to two patients.
19. [19]
    The respondent breached a direction of Queensland Health by his prescribing in relation to five patients.
20. [20]
    The respondent did not comply with the terms of an approval issued by Queensland Health in relation to his prescribing to one of the patients.
21. [21]
    The respondent’s breaches of the Regulation included prescription of all of the previously mentioned drugs. A large part of the conduct was constituted by the respondent’s prescription of the Schedule 8 opioid drugs, Oxycodone and Morphine, to nine patients.
22. [22]
    The respondent admits that his conduct put each of the patients concerned at risk or potential risk of harm.
23. [23]
    One of the patients died as a consequence of an overdose of drugs prescribed by the respondent on 1 September 2011. The patient was a drug dependent person. The respondent knew she was a drug dependent person on and from 28 June 2011 after receiving correspondence from Queensland Health. The respondent was aware the patient suffered from opioid dependence. The respondent prescribed Fentanyl and Alprazolam to the patient despite a direction of Queensland Health not to do so and did not refer the patient to an alcohol and other drugs service for further management as directed by Queensland Health. The patient died two days after being prescribed by the respondent 5 patches of 4.2mg Fentanyl as well as Alprazolam on 29 August 2011.

Sanction

24. [24]
    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,^[2] the imposition of a disciplinary sanction may serve one or all of the following purposes:

    1. preventing practitioners who are unfit to practise from practising;

2. securing maintenance of professional standards;

3. assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
4. bringing home to the practitioner the seriousness of their conduct;

5. deterring the practitioner from any future departures from appropriate standards;

6. deterring other members of the profession that might be minded to act in a similar way; and
7. imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.

25. [25]
    The parties jointly submit that the appropriate orders by way of sanction are that:

1. a finding that the respondent has behaved in a way that constitutes professional misconduct;
2. the respondent be reprimanded;

3. a condition be imposed on the respondent’s registration requiring him to refrain from applying for a reinstatement of his endorsements under the Regulation;
4. the respondent’s registration be suspended for a period of 3 ½ months commencing 60 days from the date of the order;
5. the respondent pay the applicant’s costs of the proceedings fixed at $5,000.

26. [26]
    I have no hesitation in finding that the respondent’s gross departure from professional standards should be characterised as professional misconduct. What I have struggled with is whether the orders for sanction, jointly proposed by the parties, adequately meet the purposes of sanction in light of the extent of the respondent’s gross departure from professional standards. Unconstrained by any joint submission of the parties, it would be open to conclude that a suspension in the order of 12 months would be required to adequately reflect the seriousness of the respondent’s misconduct. However, the Tribunal should not proceed as though so unconstrained. There are good policy reasons why the Tribunal, in a matter of some complexity for the parties and the Tribunal, would place great considerable weight upon a joint position reached after careful and extensive negotiation and consideration by the parties.^[3]

27. [27]
    One factor that now weighs in the balance is the lengthy delay since the hearing through no fault of the parties. That the respondent has been left in a state of uncertainty as to his future ability to practise during that period of delay is a mitigating factor.^[4]
28. [28]
    Whilst acknowledging that the Tribunal ultimately bears the responsibility of determining an appropriate sanction notwithstanding the agreed position of the parties^[5], after much hesitation, and with full respect of the views of the assessors to the contrary, I have concluded that the orders for sanction jointly submitted adequately meet the purposes of sanction in the particular circumstances of this matter.