Health Ombudsman v Maish[2024] QCAT 431

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The applicant Director referred this disciplinary referral to the Tribunal on 30 November 2023.  The respondent, by his response to the referral, admitted the matters the subject of the allegations contained in the referral. There is a statement of agreed facts signed by the parties’ legal representative dated 16 May 2024.
2. [2]
   The parties requested by email dated 13 September 2024 that the Tribunal consider dealing with the matter on the papers. As the parties have agreed the facts, and made joint submissions as to characterisation and sanction, the Tribunal proceeds to deal with the matter on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).  
3. [3]
   However, notwithstanding the parties’ agreed position, it is for the Tribunal to determine the appropriate characterisation of the conduct and the sanction to be imposed.  The Tribunal ought not readily depart from an agreed position unless the sanction falls outside a permissible range.^[1]

What are the relevant facts?

4. [4]
   The respondent was employed at Health Hub Morayfield and at Releaf Clincs and Dispensaries at the time of the conduct. He no longer works for either entity.
5. [5]
   On 11 June 2022 the respondent worked a shift as a doctor at Health Hub Doctors, Morayfield in the respiratory clinic. That same day Patient A also worked a shift as an enrolled nurse at Health Hub Doctors, Morayfield in the respiratory clinic. The respondent is not Patient A’s usual treating doctor and was a work colleague and friend.
6. [6]
   During the shift Patient A told the respondent that she was developing medical symptoms that were consistent with symptomatic Influenza A. Influenza A can be either an upper or lower respiratory tract illness, however it is most commonly as upper respiratory illness. The associated symptoms include a runny nose, sore throat, dry eyes and itchy eyes. The respondent performed a short visual assessment of Patient A by looking at her eyes and her nose after she removed her face mask and assessed that her symptoms were consistent with symptomatic Influenza A.
7. [7]
   Health Hub Doctors has a policy that medical practitioners are not to treat other staff members however they were able to provide immediate Covid testing.
8. [8]
   The respondent did not:

   1. provide or perform a Covid test on Patient A or undertake a swab of Patient A to test for Influenza A; and
   2. make any contemporaneous records of his assessment of Patient A in a patient record at Morayfield Health Hub; and
   3. did not prepare a Morayfield Health Hub medical certificate for Patient A.
9. [9]
   The respondent and Patient A both finished their shifts and left. They continued to text each other throughout the balance of the day. When the respondent arrived home after finishing his shift, he:

   1. made a handwritten record on a notepad of Patient A’s symptoms and medical history; and
   2. prepared a medical certificate for Patient A on Releaf Clinic and Dispensaries letterhead. The medical certificate gave Patient A one week off work.
10. [10]
    Patient A is not a patient of Releaf Clinic and Dispensaries.
11. [11]
    The respondent did not:

    1. provide a copy of his handwritten record to Patient A’s usual treating practitioner or to Patient A for inclusion in her medical records with her usual treating practitioner; and
    2. incorporate the handwritten notes or the medical certificate in any medical record for Patient A at either Releaf Clinics and Dispensary or Morayfield Health Hub.
12. [12]
    At 9:27pm on 11 June 2022 the respondent emailed the medical certificate from his personal email address to Patient A’s personal email address and at 11:30pm, Patient A attended the respondent’s home for a social visit. During the visit the respondent and Patient A talked and consumed cocktails together.
13. [13]
    At approximately 12:45am on 12 June 2022 the respondent prepared a cannister of medicinal cannabis and proceeded to smoked it from a vape. The respondent had been prescribed medicinal cannabis for chronic neuropathic pain and his possession of this was lawful and in accordance with prescription.
14. [14]
    The respondent was aware that Patient A had previously suffered a psychogenic nonepileptic seizure (PNES) after ingestion of alcohol and cannabis. A PNES is a type of seizure that is not harmful and rarely requires medical treatment. Someone suffering from a PNES requires the same treatment during the seizure as someone suffering from an epileptic seizure.
15. [15]
    The respondent offered the medicinal cannabis to Patient A to try which she declined at this time.
16. [16]
    The respondent, after he had smoked some of the medicinal cannabis, placed the vape on the coffee table.
17. [17]
    Sometime later, after having previously declined, Patient A picked the vape up from the coffee table and smoked some of the respondent’s medicinal cannabis. The respondent did not stop Patient A from picking up the vape and smoking the medicinal cannabis.
18. [18]
    At approximately 1:30am on 12 June 2022, after Patient A had smoked the medicinal cannabis, she suffered the first of a series of PNES while sitting on the couch.
19. [19]
    On 24 June 2022, Patient A attended the police station and reported the respondent’s  conduct.
20. [20]
    During a pre-text telephone conversation with Patient A, the respondent admitted that he had provided cannabis to her.
21. [21]
    On 9 September 2022 the respondent was charged with supplying dangerous drugs pursuant to s 6 of the Drugs Misuse Act 1986 (Qld) (DMA).
22. [22]
    On 14 October 2022 the respondent was convicted on his plea of guilty in the Magistrates Court at Maroochydore of one count of supplying dangerous drugs pursuant to s 6(1) of the DMA. He was fined $1,000.00 with no conviction recorded.
23. [23]
    Arising from these events are three referred allegations which are admitted:

    1. that on or about 14 October 2022 the respondent was convicted in the Magistrates Court at Maroochydore of one criminal offence (being the count of supplying dangerous drugs pursuant to s 6(1) of the DMA);
    2. that on or about 11 June 2022 the respondent inappropriately produced a medical certificate for Patient A; and
    3. that the respondent failed to keep or maintain adequate medical records of his assessment of Patient A on 11 June 2022.

What is the respondent’s professional and disciplinary history?

24. [24]
    The respondent was, at all times material to the allegation the subject of the referral, a medical practitioner, holding registration with the Medical Board of Australia (Board).
25. [25]
    The respondent obtained the qualifications of Doctor of Medicine and Surgery from the Australian National University in 2019. He was first granted registration by the Board  in January 2020 and holds general registration as a medical practitioner.
26. [26]
    He also holds a Bachelor of Exercise and Nutrition Sciences from the University of Queensland (obtained in 2013), a Fellowship from the Higher Education Academy in the United Kingdom in 2019 and a Master of Business Administration and a Master of Public Health (Dual degree) from Torrens University, Australia in 2023.
27. [27]
    He was 29 at the time of the events the subject of the referral and is now 32.
28. [28]
    The respondent has no prior disciplinary history. 

Discussion and Sanction

29. [29]
    Whilst the parties have agreed that the admitted conduct constitutes professional misconduct, it is necessary for the Tribunal to determine, pursuant to s 107 of the Health Ombudsman Act 2013 (Qld) (HO Act):

    1. whether the respondent’s conduct constitutes ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’; and
    2. the appropriate disciplinary sanction.
30. [30]
    The applicant submits and the Tribunal accepts that the respondent’s actions which gave rise to his criminal conviction constitutes conduct which is substantially below the standard which might reasonably be expected of a registered health practitioner in circumstances where:

    1. his conduct in supplying the medicinal cannabis to Patient A was unlawful; and further
    2. he knew that Patient A had previously suffered a seizure from the combined effect of cannabis and alcohol and still offered her the medicinal cannabis, and Patient A then went on to suffer a pseudo seizure in his living room.
31. [31]
    As to the supply of the medical certificate and the failure to maintain records, the Tribunal accepts that, taken individually, each is properly considered as unprofessional conduct and that, taken together, they constitute conduct which is substantially below the standard which might reasonably be expected of a registered health practitioner.
32. [32]
    The Tribunal finds that the respondent’s conduct contained in agreed facts constitutes professional misconduct.
33. [33]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.^[2]
34. [34]
    The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public. The sanction in a particular case must be considered based on the peculiar facts and something crafted which best achieves these purposes.
35. [35]
    Relevant factors for the Tribunal to consider when determining what sanction is appropriate include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence, insight and remorse of the practitioner and the fitness of the practitioner to practice at the time of the hearing.^[3]
36. [36]
    Other considerations may include a practitioner’s disciplinary history before or after the conduct, delay from the time the investigation started to finalisation in the Tribunal and any other mitigating matters specific to the particular circumstances.^[4] 
37. [37]
    In, this case, the applicant submits that the respondent has gained insight into his conduct, which the Tribunal accepts, having read the respondent’s affidavit and the reflective material which the respondent has put before the Tribunal. The Tribunal accepts the respondent is genuinely remorseful for his conduct. This is evidenced, in addition to his expressions of regret and remorse contained in his extensive and thoughtful affidavit, in each of his early plea of guilty in the criminal proceedings (relevant to allegation one)^[5] and his early admission of the allegations in the referral (all three allegations). 
38. [38]
    Aspects of the respondent’s personal background, which led to him lawfully possessing medicinal cannabis to treat his ongoing persistent pain provide relevant context to how the circumstances arose which bring the respondent before the Tribunal.
39. [39]
    The affidavits of several colleagues attaching character references, in full knowledge of this proceeding, speak to both his insight and remorse, and also to his competence as a practitioner, his kindness and concern for his patients and his love of the profession. For two of the character referees, who have known him for some time, the conduct giving rise to the referral was expressed to be out of character. Accepting those matters, which are not challenged, the Tribunal accepts the respondent is unlikely to transgress again.
40. [40]
    Taking all these matters into account, the Tribunal determines that specific deterrence is not a consideration significantly affecting the determination of an appropriate sanction in this particular referral.
41. [41]
    However, general deterrence is always an important aspect of disciplinary proceedings such as this because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in what is properly to be considered a noble and essential profession.
42. [42]
    The respondent’s conduct was serious, with Patient A suffering immediate ill consequences, such that an ambulance had to be called, upon her imbibing, unlawfully, his medicinal cannabis.
43. [43]
    Additionally, in a number of respects, the respondent’s conduct did not accord with the standards expected of a medical practitioner. Inadequate records were maintained,^[6] in respect of an inadequate assessment^[7] of the practitioner’s colleague.^[8]   Whilst the medical certificate was not issued fraudulently or dishonestly,^[9] the Tribunal accepts that the issuing of the medical certificate to Patient A, who was a colleague, in the circumstances in which it was issued was contrary to the foundational obligation of a medical practitioner to act ethically and with integrity. Medical certification of illness by an objective and qualified third party, which is then provided to others, such as employers, carries a legal status on which other decisions are made. Any conduct which calls that system into question is inappropriate and must be discouraged.
44. [44]
    The Tribunal notes the parties have agreed a reprimand, which the authorities recognise is a serious matter for a professional person and is not a trivial penalty.^[10]  A reprimand marks the clear inappropriateness of such conduct to the profession and the broader community.  It is, as the respondent submits, a public denunciation of him.
45. [45]
    The Tribunal accepts the parties’ position that in view of the substantial education which the respondent has undertaken, the insight he has shown and that he does not present ongoing risk, that a period of  suspension would lack utility and is not required to protect the public.^[11] 
46. [46]
    Having regard to comparators put before the Tribunal^[12] which the Tribunal has read but does not need to rehearse in this case, the Tribunal is satisfied that the parties’ agreed penalty falls within the permissible range.
47. [47]
    The respondent accepts that the Tribunal has no power to order a date on which the reprimand should cease to be recorded on the National Register.^[13]  That is a matter for the National Board. It is consistent with authority, however, that the Tribunal can express a view on the duration of the reprimand on the National Register, acknowledging clearly that the ultimate determination of this question is for the National Board.^[14]
48. [48]
    In this case, the respondent submits the Tribunal should recommend that the National Board seriously consider whether it is necessary or appropriate for the reprimand to continue to be recorded on the National Register for more than two years from the date of this decision, by reason of the insight shown by the respondent and the steps taken in response to his conduct. The Tribunal accepts that this is an appropriate case to make such a recommendation, where:

    1. the respondent’s insight, remorse and regret are very well evolved;
    2. the respondent has undertaken significant education to assist him in his reflective consideration of what occurred;
    3. the respondent has deposed to receiving mentoring in his current workplace.  The professional assessors regard this as important in providing the respondent with professional support as he develops experience and expertise and continues to navigate his own personal health issues;
    4. the respondent has been very co-operative with the legal processes; and
    5. representatives of the respondent’s current employer, where he has worked since July 2022, speak to the excellence of his clinical care.^[15]  
49. [49]
    The Tribunal thanks the assessors for their thoughtful engagement and assistance.

Orders

50. [50]
    The Tribunal makes the following orders:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld) the respondent is reprimanded.
3. No order as to costs.