Medical Board of Australia v Torres
[2024] QCAT 459
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- Unreported Judgment
- Medical Board of Australia v Torres[2024] QCAT 459
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Medical Board of Australia v Torres[2024] QCAT 459
Medical Board of Australia v Torres[2024] QCAT 459
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Torres [2024] QCAT 459 |
PARTIES: | Medical board of australia (applicant) v Ceasar Sarsoza Torres (respondent) |
APPLICATION NO/S: | OCR 123 of 2023 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 September 2024 (decision) 28 October 2024 (reasons) |
HEARING DATE: | 9 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Murphy SC Dr M Byrne, Medical Practitioner Panel Assessor Dr J Cavanagh, Medical Practitioner Panel Assessor Mr M Halliday, Public Panel Assessor |
ORDERS: | The Tribunal orders that:
is prohibited to the extent that it could identify or lead to the identification of any of the following persons:
It is the decision of the Tribunal that:
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where the respondent inappropriately prescribed drugs of dependence and other medications – where the respondent’s clinical documentation was inadequate – where the parties have agreed as to characterisation – whether the proposed sanction is appropriate Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Healthcare Complaints Commission v West [2017] NSWCATOD 39 Health Ombudsman v Alinia [2021] QCAT 43 Medical Board of Australia v Alroe [2014] QCAT 677 Medical Board of Australia v Atlaf [2019] VR 4 Medical Board of Australia v Bahalla [2015] QCAT 555 Medical Board of Australia v Singh [2022] VR 72 |
APPEARANCES & REPRESENTATION: | |
Applicant: | R M de Luchi instructed by Piper Alderman |
Respondent: | D Callaghan instructed by Avant Law |
REASONS FOR DECISION
- [1]On 9 September 2024, the Tribunal heard a referral by the Medical Board of Australia (Board) alleging four grounds of misconduct against Dr Torres.
- [2]At the hearing, the parties submitted draft orders which they agreed should be made if the Tribunal made a finding, as they agreed it should, that the conduct the subject of the referral was ‘professional misconduct’ within the meaning of the Health Practitioner Regulation National Law (Queensland) (National Law).[1]
- [3]The draft orders also reflected an agreed position with respect to sanction, namely that Dr Torres be:
- reprimanded;
- suspended from practice for three months; and
- subject to supervision conditions on his registration. Those conditions were also agreed.
- [4]Despite the parties’ agreement as to the classification of the conduct, it is for the Tribunal to reach its own conclusion that the statutory definition is satisfied. Similarly, the parties’ agreement as to sanction cannot fetter the Tribunal’s discretion, although good reason should usually be shown to depart from that agreement.
- [5]At the hearing, the Tribunal indicated that a finding of professional misconduct should be made and that the sanctions proposed in the draft order were considered appropriate. The Tribunal indicated that reasons for each of those conclusions would be delivered subsequently. These are those reasons.
How did the referral arise?
- [6]Dr Torres practises as a GP in a regional area of Queensland. MD was his patient for about five years and was being treated for multiple health issues. MD’s complex health needs resulted in him consulting Dr Torres frequently.
- [7]MD had been prescribed various drugs, including diazepam, targin, paracetamol and codeine, duromine, mirtazapine, duloxetine and risperidone.
- [8]MD also had a significant mental health history that had resulted in angry and abusive behaviour, including towards treating clinicians. MD had been treated by a psychiatrist who had prescribed various drugs but passed on MD's care to Dr Torres.
- [9]The complexity of MD's mental health needs was exacerbated by multiple significant mental health issues including psychosis/post-traumatic stress disorder, agoraphobia and an emotionally unstable personality disorder.
- [10]The referral documentation noted that MD was at chronic risk of self-harm/suicide and violence as part of his maladaptive coping in response to crisis and demands not being met. Past threats and violence included incidents directed to treating clinicians.
- [11]MD died on 16 or 17 February 2021. The Coroner’s report reveals that a range of prescribed medications were in his bloodstream at the time of his death. Of most significance was the level of oxycodone. The Coroner concluded that MD’s:
… underlying conditions of obstructive sleep apnoea and obesity, … meant that the level of drugs detected caused central nervous system depression and these underlying medical conditions he had then further compromised his respiration, which along with his cardiac disease, exposed him to a risk of death.[2]
What conduct is the subject of the referral?
- [12]There are four grounds in the Referral which can be summarised as follows:
- the nature and level of Dr T’s prescribing of certain medications (ground 1);
- the absence of the required permit to prescribe Schedule 4 and Schedule 8 drugs (ground 2). It is accepted those drugs were prescribed without the appropriate approval having been received;
- the failure to maintain adequate clinical records during the period between September 2016 and February 2021, when MD was his patient (ground 3).
- the inadequacy of a treatment assessment and management plan are for MD (ground 4).
- [13]The Board obtained an expert opinion from a Dr Jacobs. Dr Jacob opines that Dr Torres did not:
- perform adequate new patient assessment or clinical assessment of presenting problems;
- perform adequate handover of care;
- action appropriate specialist referrals (such as drug and alcohol or mental health services) which were required as the practitioner was unable to adequately manage these aspects of the patient's care;
- adequately assess or monitor continued medication use or give consideration to medication reviews;
- comply with accepted guidelines for management of non-cancer pain in the prescribing of drugs of dependence;
- cease prescribing opioids and benzodiazepines in spite of numerous warnings that the problem was substance use disorder;
- consider medication review including drug interactions or side-effects of drugs that may have explained the patient's symptoms;
- develop, in accordance with the GPMP a pain management program, weight loss and exercise program;
- act to control aberrant behaviour and ignored signs of drug dependence even after two chemists reported concerns about an addiction problem (in 2019 and 2020);
- adequately manage the patient's chronic diseases;
- assess before prescribing medications or document informed consent;
- document discussions and progress notes about ongoing monitoring, escalation in opioid use, reduction of dose, precautions, development of a pain management program, development of a weight loss and exercise program or suicide risk assessment; or
- maintain adequate medical records.
- [14]The unchallenged report from Dr Jacobs leaves little doubt that, as is admitted, Dr Torres’ conduct constitutes ‘unprofessional conduct’ as defined in s 5 of the National Law, namely:
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 professional peers.
- [15]A finding of ‘unprofessional conduct’ should plainly be made.
- [16]The Board submits that, together with the factors enumerated by Dr Jacobs, the conduct should be seen as particularly serious given that MD was a patient over a period of four years or more and engaged in over 70 consultations with Dr Torres. It is also submitted that Dr Torres’ conduct is directly connected to his practice as a general practitioner and concerns fundamental aspects of the practice of that specialty.[3] Additionally, the Board’s submissions refer to the conduct falling below standards set out in the Code of Ethics, Code of Conduct and Standards of Practice.
- [17]A finding should be made, as Dr Torres admits, that his:
unprofessional conduct […] amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[4]
- [18]Consequently, a finding of professional misconduct should be made.
Is the proposed sanction appropriate?
- [19]
- [20]The submissions on behalf of Dr Torres that the particular circumstances in this case are very similar to Alinia should be accepted. A fine was ordered in that case. It should though be said that the decisions referred to indicate a wide disparity in sanctions for conduct of relatively similar kind.
- [21]An affidavit filed by Dr Torres deposes to a number of circumstances which the Tribunal regards as relevant.
- [22]Dr Torres works in a very busy bulk billing practice in regional Queensland. The demands on general practitioners working in regional areas, particularly in bulk billing practices, is notorious and confirmed by the professional members of the Tribunal.
- [23]Dr Torres was seeing approximately 40 patients per day. Their health needs were often complex and often complicated by exacerbating non-medical factors - many of the patients were indigenous or migrants, and many were elderly and reliant on government benefits. The particular difficulties and complications presented by MD as a patient have already been noted.
- [24]Dr Torres deposes:
[MD] was far and away the most complex and difficult patient of my career. When I look back at my treatment of him, I can now clearly see that I was out of my depth and should have, at many points, recognised this and either sought specialist assistance, or referred him onto another general practitioner specialising in patients with extremely complex care needs.
My failure to do this may become a little more explicable with further information I provide, but I accept that this information will not take away from the gravity of my errors, nor does any of the information change the fact that [MD] did not receive the standard of care which he was entitled. It was my responsibility.
- [25]The Tribunal accepts that Dr Torres is a committed and sincere general practitioner seeking to do the best for his patients.
- [26]The Tribunal also accepts that Dr Torres has shown significant remorse and taken a number of steps in order to address the issues the subject of the referral grounds, and to improve his practice in that respect. Notably, the Board acknowledges the efforts by Dr Torres to ‘self-reflect and self-educate’. So, too, do the personal and professional references produced by Dr Torres.
- [27]Since the investigation by the Board, Dr Torres has significantly reduced the number of patients he is seeing to between 25 and 27 per day, permitting him to spend additional time with each of them and to ensuring that his “clinical records are maintained at a high standard."[11]
- [28]The conditions agreed to between the parties are appropriate and seek to further underscore the process already commenced by Dr Torres. A delay in the commencement of the period of suspension is sought by Dr Torres to make appropriate clinical arrangements for numerous patients. The Tribunal considers that appropriate.
- [29]In its submissions, the Board refers in particular to aspects of general deterrence and highlights the seriousness of the conduct and the gravity of the ultimate outcome for MD. In seeking to underscore the importance of that aspect of sanction, the Board submits that Dr Torres’ conduct:
goes to the heart of the practice of general medicine, and practitioners must not be in any doubt about the importance of appropriate and considered prescription of drugs of dependence, and proper management of patients with and chronic, complex health issues.
- [30]Obviously enough, the submissions emphasise the divergence from the relevant Codes of Conduct, Standards of Practice and Code of Ethics and the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions.
- [31]Taking all matters considered relevant into consideration the Tribunal considers that the agreed suspension of three months is entirely appropriate, as is a reprimand (and its consequential recording on the public register). So too the conditions agreed to by the parties put in place a period of supervision for Dr Torres with a review period of 12 months. The Tribunal also considers this appropriate.
Footnotes
[1] National Law s 5.
[2] Coroner’s findings and notice of completion of coronial investigation, 24 February 2022, [1].
[3] Applicant’s written submissions filed 21 May 2024, [11].
[4] National Law s 5 (definition of ‘professional misconduct’, limb (a)).
[5] [2022] VR 72.
[6] [2019] VR 4.
[7] [2017] NSWCATOD 39.
[8] [2021] QCAT 43 (‘Alina’).
[9] [2015] QCAT 555.
[10] [2014] QCAT 677.
[11] Affidavit of Dr Torres dated 4 April 2024, [14].