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Health Ombudsman v Heath; Medical Board of Australia v Heath[2024] QCAT 303

Health Ombudsman v Heath; Medical Board of Australia v Heath[2024] QCAT 303

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

PARTIES:

HEALTH OMBUDSMAN

(applicant in proceeding number OCR 168 of 2021)

MEDICAL BOARD OF AUSTRALIA

(applicant in proceeding number OCR 90 of 2022)

v

RICHARD JOHN HEATH

(respondent)

APPLICATION NO/S:

OCR 168 of 2021 OCR 90 of 2022

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 August 2024

HEARING DATE:

24 July 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson Assisted by:

Professor S Brun, Medical Practitioner Panel Member

Dr J Cavanagh, Medical Practitioner Panel Member

Mr P Davies, Public Panel Member

ORDERS:

  1. In relation to proceeding number OCR 90 of 2022:
  1. 1.
    Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
  1. 2.
    Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  1. 3.
    Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’ to this decision.
  1. 4.
    Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is 12 months.
  1. 5.
    Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
  1. 6.
    Pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law (Queensland), the respondent’s registration is suspended for a period of six (6) months, commencing 60 days from the date of this decision.
  1. In relation to proceeding number OCR 168 of 2021:
  1. 1.
    The parties are to inform the Tribunal whether their position in relation to the agreed sanction in proceeding number OCR 168 of 2021 has changed, by email to the associate to the Deputy President at [email protected] and the Registry at [email protected], by 4:00pm on 30 August 2024.
  1. 2.
    In the event that the parties are no longer agreed as to sanction, the parties must provide directions by consent to the Tribunal for the filing and service of submissions, by email to the associate to the Deputy President at [email protected] and the Registry at [email protected], by 4:00pm on 30 August 2024. Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303 In the event the parties either:
  1. (a)
    advise that their position on sanction remains as agreed; or
  1. (b)
    fail to advise by 4:00pm on 30 August 2024 that their position on sanction has changed;
  1. the matter will be heard and determined on the papers without oral hearing, pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), as soon as practicable after 30 August 2024.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent is subject to two disciplinary referrals heard in sequence – where the referrals relate to, inter alia, breach of conditions, prescribing issues regarding drugs of dependence and inadequate record keeping – where the practitioner has earlier been subject to immediate registration action – where the immediate registration action was set aside by the Tribunal – where the immediate registration action related to conduct not the subject of the referrals – whether the time spent out of practice ought to be taken into account in determining sanction

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law

(Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Dental Board of Australia v Nairn [2022] WASAT 86

Health Ombudsman v Barber [2017] QCAT 431

Health Ombudsman v Brown [2019] QCAT 218

Heath v Medical Board of Australia [2024] QCAT 163

Legal Services Commission v Jackson [2017] QCAT 449

Legal Services Commissioner v Munt [2019] QCAT 160

APPEARANCES & REPRESENTATION:

Applicant:

N J Townsend, legal officer in the Office of the Health Ombudsman for the Health Ombudsman (OCR168-21)

S Robb KC instructed by Piper Alderman for the Medical Board of Australia (OCR090-22)

Respondent:

J R Jones instructed by Moray & Agnew Lawyers

  1. REASONS FOR DECISION
  1. [1]
    There are two referrals before the Tribunal.
  1. Proceeding number OCR 168 of 2021 — Health Ombudsman v Heath
  1. [2]
    The first filed referral in time is Health Ombudsman (HO) v Heath. It relates to admitted conduct on one occasion on 21 September 2020 when the respondent, an experienced medical practitioner with over four decades in general practice, treated a patient in a clinical setting in breach of a condition then on his registration that he was “not to practice in any General Practice role requiring direct or indirect clinical patient contact”. 
  1. [3]
    He was then subject to a suite of registration conditions and was working in an administrative capacity in one of his practices, when, in the temporary absence of other doctors, he treated a patient with a finger injury knowing that he could not because of the conditions. There is no criticism of his clinical skills or decision making, just that he breached a condition imposed on his registration which is of course, serious conduct by someone so experienced.
  1. [4]
    The parties agree as to the factual context, the characterisation of the conduct, and the proposed sanction. However, for reasons relating to the other referral before the Tribunal, final determination of the first referral should be deferred until the Tribunal has reached a decision on the second referral which was, until very recently, also subject to complete agreement as to facts, characterization, and sanction. I assume that is why both matters were listed for the one day.
  1. Proceeding number OCR 90 of 2022 — Medical Board of Australia v Heath
  1. [5]
    The other, later referral is by the Medical Board of Australia (Board) and proceeds on the basis of a further amended referral filed 12 April 2023, and a second further amended response filed on behalf of Dr Heath on 22 December 2023.
  1. [6]
    On 22 May 2024, the parties filed a further amended statement of agreed facts, findings and determinations (FASOFAD).[1]
  1. [7]
    The admitted conduct concerns Dr Heath’s prescribing of drugs then classified as S 4, S 8 or specified condition drugs under the Health (Drugs and Poisons) Regulation 1996 (Qld) (Drugs Regulation), to 19 individual patients at various times between at least 2011 and 2019.
  1. [8]
    The allegations relate to conduct including:
  1. (a)
    failing to keep adequate clinical records, including to document the clinical indication for prescribing S 4 and S 8 and specified condition drugs; 
  1. (b)
    failing to report as required, or to obtain approvals as required, by the Drugs Regulation; 
  1. (c)
    in relation to some persons who the respondent knew or ought to have known were drug dependent; 
  1. (i)
    conducting the assessment, management and diagnosis of patients in a way below the standard expected of a general practitioner with the respondent’s training and experience; and
  1. (ii)
    prescribing outside the advice of consultantsor in a way inconsistent with the relevant product information.
  1. [9]
    Aspects of the respondent’s accepted conduct was variously:
  1. (a)
    contrary to parts of the Board’s 2010 or 2014 Codes of Conduct; 
  1. (b)
    inconsistent with the requirements of either ss 78, 120, 122 or 213 of the Drugs Regulation. 
  1. [10]
    The parties agreed that:
  1. (a)
    the accepted conduct constitutes professional misconduct within the meaning of the definition at (a) and (b) of the Health Practitioner Regulation National Law (Queensland) (National Law);[2]
  1. (b)
    the respondent should be reprimanded;
  1. (c)
    the respondent’s registration should be suspended for six months;
  1. (d)
    that specified conditions should be imposed on the respondent’s registration, with a 12 month review period, and an order that Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions.
  1. [11]
    Paragraph 209 of the FASOFAD is in these terms:
  1. The parties agree that the Tribunal should:

209.1

make a finding that the Respondent has engaged in professional misconduct pursuant to section 196(1)(b)(iii) of the National Law;

209.2

reprimand the Respondent pursuant to section 196(2)(a) of the National Law;

209.3

suspend the Respondent's registration for 6 months pursuant to section 196(2)(d) of the National Law;

209.4

impose the conditions attached at ‘Annexure A’, pursuant to section 196(2)(b) of the National Law;

209.5

impose a 12 month review period for the conditions, pursuant to section 196(3) of the National Law;

209.6

order that Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions.[3]

  1. The immediate action review — Heath v Medical Board of Australia
  1. [12]
    On 2 May, 2024, that is some weeks prior to the filing of the FASOFAD, the Tribunal published its reasons in Heath v Medical Board of Australia.[4]
  1. [13]
    The reasons relate to a review application by Dr Heath to challenge immediate action taken by the Board in relation to conduct that could be described as relating to issues of maintaining appropriate professional boundaries with female patients in consultations concerning contraception.
  1. [14]
    On 12 October 2023, the Board took immediate action to suspend the respondent’s registration. On 11 March 2024, and having sought to have the Tribunal invite it to reconsider the original immediate action decision, the Board revoked the decision to suspend the respondent’s registration and imposed conditions on the respondent’s registration, including a gender-based condition. In the result the respondent’s registration was suspended for a number of  months, which suspension was removed by the Board. There was no concession by the Board that the suspension of the respondent’s registration at the relevant time it was imposed was not reasonable.
  1. [15]
    It is not in dispute that as part of its amended immediate action, the Board imposed a practice location condition on his registration, and, until the Tribunal made another decision on 2 May, the Board had not approved any practice location for Dr Heath, and he did not return to work until 23 May, so the period out of practice was approximately 7 months.
  1. [16]
    The review proceeding was not concerned with whether immediate action could or should have been taken at the time the Board took the action in October 2023 or March 2024, but rather with whether it should be taken as at the time of the review on the material before the Tribunal, sitting with assessors.[5]
  1. [17]
    On the review, the Tribunal found that the respondent posed a relevant risk such that immediate action ought be taken, and conditions were imposed. The Tribunal did not maintain the gender- based condition on review. No finding was made that suspension imposed by way of immediate action between 12 October 2023 and 11 March 2024 was a disproportionate regulatory response to the respondent’s conduct.
  1. The effect on the referral proceedings
  1. [18]
    Dr Heath argues that to impose a period of 6 months suspension now would be punitive, and he argues that the time out of practice relating to the review proceedings should be counted in the Tribunal’s present exercise of discretion. In other words, he wishes to resile from his agreed position on 22 May when the FASOFAD was filed, but only in relation to the period of suspension.
  1. [19]
    The question as framed by Mr Jones at the hearing is whether in light of the period out of practice as a result of immediate action taken by the Board in relation to what is accepted by Dr Heath to be completely unrelated (and as yet unproved) conduct, it would be fair for the Tribunal, in the exercise of its independent discretion, to impose sanctions for admitted professional misconduct the subject of the FASOFAD, which would include a period of suspension.
  1. [20]
    Neither party has been able to find any decision, from this Tribunal or any equivalent Tribunal throughout the country, which deals with this discrete point. 
  1. [21]
    The parties accept that notwithstanding the parties proposing an agreed position on sanction, determining the appropriate sanction requires an exercise of the Tribunal’s independent discretion having regard to the relevant matters.  Where the parties jointly propose a position that fact is “plainly a relevant and important matter”.  Where the Tribunal is satisfied that an agreed position is appropriate, it is highly desirable that the Tribunal accept it.
  1. The Board’s Position
  1. [22]
    The Board submits that  the agreed position as agreed by the parties, after lengthy negotiations between their lawyers all highly skilled in this area of law, should be maintained by the Tribunal.  By reference to such cases as Legal Services Commission v Jackson,[6] the Board submits that there is no “collateral oppression” (in that case arising out of delay) that would require the Tribunal , in appropriately exercising its discretion , to take into account periods out of practice that relate to unrelated conduct, that may or may not lead to disciplinary proceedings in this Tribunal in the future. 
  1. [23]
    The Board further submits that having regard to the structure and purpose of the National Law, it would be an inappropriate exercise of the Tribunal’s discretion in these proceedings to take into account consequences (a period out of practice) to Dr Heath as a result of immediate action taken by it using a different power than that for which sanction is imposed[7] in relation to unrelated conduct.
  1. [24]
    By reference to what Mr Jones describes in his brief two-page written submission as the “yardstick cases”,[8] Ms Robb KC submits that these cases demonstrate that the agreed position as at 22 May is well within the bounds of an appropriate disciplinary response to the serious admitted conduct the subject of this referral.
  1. Dr Heath’s amended position
  1. [25]
    As noted earlier, Mr Jones relied on a short, written submissions filed 22 July.  He submits:
  1. …the final orders should not include a suspension.  This is because of a combination of matters, which include that:
  1. (a)
    on 12 October 2023, the Applicant took immediate action in relation to unrelated matters;
  1. (b)
    the effect of that immediate action was to prevent the Respondent from working between 12 October 2023 and 2 May 2024 (almost seven months);
  1. (c)
    the immediate action was set aside by the Tribunal; and
  1. (d)
    the almost seven months during which the Respondent was unable to work was not considered when the parties arrived at the joint position. Considering:
  1. (a)
    the respondent’s personal circumstances including the almost seven months that the Respondent could not work in the latter part of last year and the earlier part of this year;
  1. (b)
    the delay;
  1. (c)
    the objectives of the National Law;
  1. (d)
    the purpose of disciplinary proceedings; and
  1. (e)
    the yardstick cases;
  1. it is respectfully submitted that the previously agreed sanction would be punitive and the final orders in the matter should not include a suspension.[9]
  1. [26]
    In his oral submissions, Mr Jones essentially repeated his written submissions but conceded (as he had to) that all the factual matters set out in [3] of those submissions were known to his client and the lawyers at the time of the filing of the FASOFAD. As the transcript reveals, he did not resile from the position that the “yardstick cases” did support the sanction proposed at that time.
  1. Discussion
  1. [27]
    At [2(d)] of  his submissions, Mr Jones submits that “the almost seven months during which the respondent was unable to work was not considered by the parties when they arrived at the joint submission”.  Ms Robb submits that is because it was then accepted (at least by implication) that it was not relevant to the agreed outcome. In the submission, there is a footnote after the word “considered”, “because some had not yet occurred, and the cumulative effect had not yet been appreciated”.[10] 
  1. [28]
    I assume this is a reference to the fact that with the Tribunal publishing its reasons in the review matter on 2 May, the practice and gender-based conditions were removed. Dr Heath states in his affidavit filed on 22 July that he did not in fact return to work until 23 May.  He and his advisors must have been aware of his inability to work because of the conditions as at the day of the filing of the FASOFAD, that is, the day before he returned to work. 
  1. [29]
    In that affidavit, Dr Heath states that he has suffered severe financial hardship as a result of the Board’s immediate action, including having to relinquish the lease on the Sunshine Beach Medical Centre.  He refers to receiving a notice to remedy breach dated 22 December 2023 from the lessor’s solicitor on 9 January 2024.  He was not cross-examined on that affidavit, but it is clear from the notice itself,[11] that he had not paid rent and outgoings on the premises since October 2023. It follows that when the FASOFAD was filed, both he and his advisors must have appreciated that the lease was in jeopardy.
  1. [30]
    As Mr Jones appropriately concedes, all the cases cited by him in his additional written submission dated 24 July[12] related to periods out of practice which are directly referrable to the impugned conduct the subject of the disciplinary  proceedings to which the sanction imposed relates.
  1. [31]
    For these reasons, the principled approach is for the Tribunal to consider all the circumstances of the referral taking into account the relevant legislative scheme and the decided cases, and to exercise its independent discretion in that light.
  1. [32]
    Section 4 of the National Law provides that:
  1. An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.
  1. [33]
    Section 3A of the National Law provides, relevantly:
  1. (1)
    The main guiding principle of the national registration and accreditation scheme is that the following are paramount—
  1. (a)
    protection of the public;
  1. (b)
    public confidence in the safety of services provided by registered health practitioners and students.
  1. (2)
    The other guiding principles of the national registration and accreditation scheme are as follows—
  1. (a)
    the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
  1. …
  1. (e)
    restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
  1. [34]
    In Health Ombudsman v Brown,[13] the then-Deputy President of this Tribunal, Allen KC DCJ, by reference to the general principles that are relevant when a Tribunal is considering an  appropriate disciplinary response to admitted professional misconduct by a health care provider, said:
  1. With respect to the purposes of sanction, it is convenient to cite the reasons of the Tribunal in Barber, at paragraphs [34] to [36]:
  1. In considering the appropriate sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. The jurisdiction being exercised by the Tribunal is protective, not punitive.
  1. It has been accepted that protection of the public has various aspects. In Craig v Medical Board of South Australia, it was said,
  1. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable.
  1. The order may be directed to remind the practitioner as to the seriousness of their departure from professional standards and so as to deter them from any further departure.18 It is however, not just confined to the erring practitioner, but extends to orders to secure the maintenance by other members of the profession of proper professional standards and to emphasise to them that certain types of behaviour are not acceptable professional conduct. Such orders also act to assure the public that appropriate standards are being maintained within the profession so as to maintain the confidence of the public in the high standard of the profession.[14]
  1. [35]
    As in the other “yardstick cases” referred to in Mr Jones’ submission, in Brown, the respondent registered nurse was given the benefit of over four years out of practice as a result of conditions imposed on his registration but referrable to the conduct the subject of the disciplinary referral.
  1. [36]
    The conduct admitted by Dr Heath in the FASOFAD is undoubtedly very serious misconduct. It involved multiple failures by a very experienced doctor to comply with the law, namely the Drug Regulation, in relation to a large number of patients over a period of years, and it involved many breaches of the Boards’ Codes of Conduct in 2010 and 2014. In his affidavit filed 15 January 2024, he states:
  1. As a result of my experiences during the investigation of this matter and the further education I have completed, I have come to properly appreciate that my failure to keep detailed consultation records and comply with my obligations under the Drugs Regulations created an untenable risk to my patients that their care would be compromised.  My lack of proper record keeping has also placed me in an unenviable position from a medico-legal perspective, in that when asked to justify my clinical decision making, I have needed to rely upon my memory of events, usual practice and other documentation on the clinical file, rather than being able to refer to my own detailed consultation note.[15]
  1. [37]
    Having regard to the general principles applicable to sanction, in this case, the Tribunal regards the following principles and factors as being of more importance in this case:
  1. (a)
    making clear by its orders that the Tribunal denounces the conduct to secure the maintenance by other members of the profession of proper professional standards and to emphasize to them that certain types of behaviour are not acceptable professional conduct; and
  1. (b)
    to assure the public that appropriate standards are being maintained within the profession so as to maintain the confidence of the public in the high standards of the profession.
  1. [38]
    These are particularly important principles in almost every case, bearing on the protection of the public and public confidence in the safety of services provided by registered health practitioners.
  1. [39]
    Given the many educational and training courses undertaken by Dr Heath evidenced by both affidavits and the annexures thereto, specific deterrence does not loom large in this case. He has shown remorse and insight, and it is not submitted that by taking this discrete legal point, his insight and remorse should be found to be reduced.
  1. [40]
    Undoubtedly, Dr Heath’s regulatory history was considered by the parties in formulating the agreed position on sanction in the FASOFAD.[16]
  1. [41]
    The parties would also have considered the significant financial detriment suffered by Dr Heath following on from the notification from the Medicines Compliance Human Tissue Unit of the Queensland Health Department to the HO on 4 December 2018, which lead to an investigation and the filing of these proceeding in the Tribunal. Dr Heath refers to these “significant financial losses” in his first affidavit.[17]
  1. [42]
    I agree with the submission made by Ms Robb to this effect:
  1. The outcome of the review proceeding was known to the parties at the time the matters in the Agreed facts were negotiated and agreed (the Agreed facts were settled between the parties on 22 May 2024; the decision in the review proceeding was delivered by the Tribunal on 2 May 2024: Heath v Medical Board of Australia [2024] QCAT 163).  The review decision is under appeal by the Board.
  1. The regulatory action taken in relation to the conduct the subject of the review proceeding, pending appeal, may be relevant to any future consideration of sanction in relation to the conduct that it is relates to [sic], by virtue of the factual nexus.[18]
  1. There is no factual, legal or rational connection between the sanction to be imposed in this matter and the suspension imposed by the Board to protect public health or safety under s 156 of the National Law.  The power to impose a sanction following a finding of professional misconduct in s 196(2) of the National Law is different from and unrelated to the power to take immediate action.  The immediate action to suspend was taken in relation to conduct that
  1. occurred after and that is of a different nature to the conduct the subject of this referral.  Any risk mitigation it was intended to effect and occasioned was not related to the facts and circumstances of the respondent’s prescribing conduct.  Any deterrent effect it carried does not attach to the conduct the subject of this referral.[19]
  1. The outcome of the review proceeding and the five months that the respondent was precluded from practising by virtue of the Board taking immediate action were not matters taken into account in settling on the six months suspension that appropriately attaches to the misconduct the subject of this referral because, other than as matters of fact, they are not relevant to the determination of the appropriate sanction in this matter.[20]
  1. [43]
    I am not prepared to hold that periods out of practice which are not related to conduct the subject of disciplinary proceedings can never be taken into account by the Tribunal; however, in the circumstances of this case, it would not be appropriate to depart from the agreed position of the parties as at the date of the filing of the FASOFAD.  With the agreed sanction of a reprimand and conditions, together with a 6 month suspension from practice, the Tribunal, in the exercise of its discretion, is satisfied that those orders represent an appropriate response to the admitted professional misconduct in this case.  As requested by Dr Heath, I will defer the operation of the suspension period for a period of 60 days from the date of these orders (the Board submitted for 30 days), to enable him to get his affairs in order.
  1. Orders
  1. In relation to proceeding number OCR 90 of 2022:
  1. 1.
    Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes professional misconduct.
  1. 2.
    Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded.
  1. 3.
    Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’ to this decision.
  1. 4.
    Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the review period for the conditions is 12 months.
  1. 5.
    Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
  1. 6.
    Pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law (Queensland), the respondent’s registration is suspended for a period of six (6) months, commencing 60 days from the date of this decision.
  1. In relation to proceeding number OCR 168 of 2021:
  1. 1.
    The parties are to inform the Tribunal whether their position in relation to the agree sanction in proceeding number OCR 168 of 2021 has changed, by email to the associate to the Deputy President at [email protected] and the Registry at [email protected], by 4:00pm on 30 August 2024.
  1. 2.
    In the event that the parties are no longer agreed as to sanction, the parties must provide directions by consent to the Tribunal for the filing and service of submissions, by email to the associate to the Deputy President at [email protected] and the Registry at [email protected], by 4:00pm on 30 August 2024.
  1. 3.
    In the event the parties either:
  1. (a)
    advise that their position on sanction remains as agreed; or
  1. (b)
    fail to advise by 4:00pm on 30 August 2024 that their position on sanction has changed;
  1. the matter will be heard and determined on the papers without oral hearing, pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), as soon as practicable after 30 August 2024.
  1. Annexure A — Schedule of Conditions
  1. Supervision for prescribing of drugs of dependence and record-keeping
  1. 1.
    The Practitioner must be supervised by another registered health practitioner (the supervisor) with respect to his prescribing of drugs of dependence and record keeping with respect to patients being prescribed drugs of dependence.
  1. For the purpose of this condition, ‘drugs of dependence’ are defined as:
  1. Any monitored medicines, drugs of dependence or substance subject to misuse howsoever named or referred to, scheduled or otherwise regulated by law in any state or territory in which they may practise, including but not limited to those contained within Schedule 8 and Schedule 4 of the Uniform Schedule of Medicines and Poisons (the SUSPMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp; and/or  pharmaceutical items containing any active ingredient listed that is a monitored medicine, drug of dependence or substances subject to misuse.
  1. For the purposes of this condition, ‘supervised’ is defined as:
  1. The Practitioner must consult with the supervisor, who is to be accessible by telephone or other means of telecommunication and available to attend the workplace to observe and discuss the management of patients and/or the performance of the Practitioner with respect to his prescribing of drugs of dependence, when necessary and otherwise at weekly intervals for the first 6 months, progressing to fortnightly intervals thereafter.
  1. 2.
    Within 14 days of the notice of imposition of this condition, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board. Each of these supervisors shall be recognised by Ahpra as having specialist registration within general practice.
  1. 3.
    The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
  1. 4.
    TIf no approved supervisor is willing or able to provide the supervision required, the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
  1. 5.
    Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HP10) acknowledgement that Ahpra may:
  1. (a)
    obtain information from relevant authorities (such as but not limited to Medicare);
  1. Annexure A — Schedule of Conditions
  1. (b)
    obtain information and/or a report from the senior person (Director of Medical Services, Practice Manager, Owner, Proprietor (senior person) at each place of practice on a quarterly basis; and
  1. (c)
    obtain a report from the approved supervisor on a monthly basis.
  1. 6.
    Within 21 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that Ahpra may seek reports from them.
  1. Education
  1. 7.
    The Practitioner must undertake and successfully complete a program of education, approved by the Medical Board of Australia (Board) and including a reflective practice report, in relation to the following:
  1. (a)
    clinical record-keeping; and
  1. (b)
    prescribing of drugs of dependence
  1. 8.
    Within 14 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure:
  1. (a)
    the nomination includes a copy of the curriculum of the education; and
  1. (b)
    the education consists of a minimum of 2 hours for clinical record-keeping including:
  1. (i)
    clinical management including history taking, examination, diagnosis and treatment planning;
  1. (ii)
    prescribing; and
  1. (iii)
    coordination of care including referral for specialist review; and
  1. (c)
    the education consists of a minimum of 2 hours for prescribing drugs of dependence including:
  1. (i)
    the legislative framework for prescribing drugs of dependence;
  1. (ii)
    compliance with professional standards and approved clinical guidelines for prescribing drugs of dependence; and 
  1. (iii)
    identifying patients with known or apparent drug dependence.
  1. Annexure A — Schedule of Conditions
  1. 9.
    The Practitioner must complete the education within 6 months of the notice of the Board's approval of the education.
  1. 10.
    Within 21 days of the completion of the education, the Practitioner must provide to Ahpra:
  1. (a)
    evidence of successful completion of the education; and
  1. (b)
    a reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.
  1. General
  1. 11.
    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 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. (a)
    within seven days of the commencement of practice at each subsequent p lace of practice; and
  1. (b)
    within seven days of each and every notice of any subsequent alteration of these conditions.
  1. 12.
    All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

  1. Appendix 1 — Further Amended Statement of Agreed Facts, Findings and Determinations filed by 22 May 2024

Health Ombudsman v Heath; Medical Board of Australia v Heath [2024] QCAT 303

Footnotes

[1]  A copy of the FASOFAD is reproduced in Appendix 1 of these reasons.

[2]  National Law s 5 (definition of ‘professional misconduct’).

[3]  FASOFAD, [209]; Hearing Bundle filed 19 July 2024 (HB) pp 115–116.

[4]  [2024] QCAT 163 (Heath review decision). The decision has been taken on appeal to the Court of Appeal.

[5]  Ibid, [15]–[17].

[6]  [2017] QCAT 449, [89]-[90] (Thomas J).

[7]  Under s 156 as opposed to s 196.

[8]  Outline of submissions on behalf of the applicant filed 19 July 2024 (Board’s submissions), [14]– [21]; HB pp 970–971.

[9]  Outline on behalf of the respondent filed 22 July 2024 (respondent’s submissions), [2]–[3] (footnotes omitted).

[10]  Transcript of proceedings, 24 July 2024, p 1-14, lines 4–8.

[11]  Affidavit of Richard John Heath filed 22 July 2024 (second Heath affidavit), Exhibit ‘RJH-16’, p 70.

[12]  MFI-B — “Comparatives” Summary prepared by Mr Jones dated 24 July 2024, received by email from the respondent’s solicitors after the hearing.

[13]  [2019] QCAT 218 (‘Brown’).

[14]  Ibid, [22], quoting Health Ombudsman v Barber [2017] QCAT 431 (Sheridan DCJ) (footnotes omitted in original).

[15]  Affidavit of Richard John Heath filed 15 January 2024 (first Heath affidavit), [254(j)], HB p 893.

[16]  See the discussion at [133]–[154] of the Heath review decision (n 4) and Board’s submissions (n 8), [11]–[12] at HB pp 969–970.

[17]  First Heath affidavit (n 15), [247]; HB pp 891–892.

[18]Dental Board of Australia v Nairn [2022] WASAT 86, [182].

[19]  Ibid, [180]–[181]; Legal Services Commissioner v Munt [2019] QCAT 160, [59] (Daubney J).

[20]  Board’s submission (n 8), [41]–[44] (footnotes reproduced).

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Heath; Medical Board of Australia v Heath

  • Shortened Case Name:

    Health Ombudsman v Heath; Medical Board of Australia v Heath

  • MNC:

    [2024] QCAT 303

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Robertson

  • Date:

    21 Aug 2024

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
Dental Board of Australia v Nairn [2022] WASAT 86
2 citations
Jump To
Cite 1 - [2022] WASAT 86
Cite 2 - [2022] WASAT 86
Health Ombudsman v Barber [2017] QCAT 431
2 citations
Jump To
Cite 1 - [2017] QCAT 431
Cite 2 - [2017] QCAT 431
Health Ombudsman v Brown [2019] QCAT 218
2 citations
Jump To
Cite 1 - [2019] QCAT 218
Cite 2 - [2019] QCAT 218
Heath v Medical Board of Australia [2024] QCAT 163
3 citations
Jump To
Cite 1 - [2024] QCAT 163
Cite 2 - [2024] QCAT 163
Cite 3 - [2024] QCAT 163
Legal Services Commissioner v Jackson [2017] QCAT 449
2 citations
Jump To
Cite 1 - [2017] QCAT 449
Cite 2 - [2017] QCAT 449
Legal Services Commissioner v Munt [2019] QCAT 160
2 citations
Jump To
Cite 1 - [2019] QCAT 160
Cite 2 - [2019] QCAT 160

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Heath [2024] QCAT 5312 citations
1

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