Director of Proceedings on Behalf of the Health Ombudsman v TIW [2025] QCAT 215

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director of Proceedings on Behalf of the Health Ombudsman v TIW [2025] QCAT 215 PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN (applicant) v TIW (respondent) APPLICATION NO/S: OCR048-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 6 May 2025 (ex tempore) HEARING DATE: 6 May 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Robertson Assisted by: Prof P Baker Dr J Cavanagh Ms C Elliot ORDERS: THE TRIBUNAL ORDERS THAT: The non-publication order made by the Deputy President on 16 December 2024 is affirmed on a permanent basis. IT IS THE DECISION OF THE TRIBUNAL THAT: Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), with respect to allegation 1, the respondent has behaved in a way that constitutes professional misconduct. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded. Pursuant to s 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of three (3) months to commence on 6 June 2025. Each party must bear their own costs of the proceeding. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DOCTORS – DISCIPLINARY PROCEEDINGS – where respondent is a specialist psychiatrist in private practice – where over a period of 21 -- 1 of 6 -- 2 months he self- prescribed Schedule 8 medication for his own use using another person’s name on 22 occasions – where respondent has made full admissions and co-operated with the regulator and the Tribunal – whether a period out of practice is called for to reflect principles of general deterrence and for the maintenance of professional standards Health Practitioner Regulation National Law (Queensland) s 5 Health Ombudsman Act 2013 (Qld) ss 107(2)(b)(iii), 107(3)(a), 107(3)(d) Medical Board of Australia v Ballekere (Corrected) (Review and Regulation) [2022] VCAT 645 APPEARANCES & REPRESENTATION: Applicant: M Lucey, solicitor of McCullough Robertson Respondent: A Luchich instructed by HWL Ebsworth Lawyers REASONS FOR DECISION [1] The respondent is a registered medical practitioner holding specialist registration as a psychiatrist. He works in private practice and is a joint owner of a consulting practice in south-east Queensland with another registered specialist psychiatrist. [2] In March 2022, the Office of the Health Ombudsman (‘OHO’) received a notification from the Risk Identification Section, Compliance Assessment Branch, Benefits Integrity and Digital Health Division of the Department of Health that the respondent was self-prescribing schedule 8 medication using the identity of another person. [3] At an early stage of the investigation that followed, the respondent made full and frank admissions to the OHO investigators to the effect that on 22 occasions between 30 July 2019 and 28 April 2021 he self-prescribed schedule 8 drugs, being controlled drugs, using the identity of another person. [4] The respondent has cooperated fully with the OHO investigation and with the applicant in these disciplinary proceedings. The disciplinary proceeding referral filed by the applicant on 29 February 2024 (‘initiating application’) particularises the respondent’s inappropriate self-prescribing in this way: 1.1. Between July 2019 and April 2021, on 22 occasions, the respondent self- prescribed schedule 8 drugs using the identify of another person, in circumstances where: 1.1.1. the person/s is not the respondent’s patient/s; 1.1.2. the respondent used his own date of birth and address details, on some of the prescriptions; 1.1.3. the drugs were dispensed by the various pharmacies and collected by the respondent for his own personal use. [5] The dates prescribed and dispensed, description of drugs, quantity and the dispensing pharmacy are set out in Annexure A to the initiating application and Annexure to the -- 2 of 6 -- 3 Statement of Agreed Facts filed by the applicant on behalf of the parties on 6 August 2024 (‘Statement of Agreed Facts’). [6] In the Statement of Agreed Facts there were admissions made to the particulars in the initiating application. [7] The respondent admits that the conduct constitutes professional misconduct and is in breach of a number of sections of the applicable codes of conduct, guidelines and standards for doctors in Australia, namely: (a) sections 9.2.2 and 9.2.4 of the Board’s ‘Good medical practice: a code of conduct for doctors in Australia’ dated March 2014 to 30 September 2020 and sections 11.2.2 and 11.2.5 of that Code as amended and effective from 1 October 2020; and (b) principle 10.1 of the Royal Australian and New Zealand College of Psychiatrists ‘Code of Ethics’. [8] His comprehensive admissions in the record of interview with investigators at the OHO on 10 February 2023 are succinctly summarised in the Statement of Agreed Facts:1 In summary, the respondent: (a) admitted that the prescribed medication in the name of KA, which was a random name; (b) admitted increasing the dosage of the medications prescribed by his psychiatrist; (c) explained the situation where he was embarrassed waiting for his medication and the pharmacist calling out his name in circumstances where his patients were looking at him; and (d) acknowledged that it was unprofessional to self-prescribe, it was misjudgement on his part and something he wouldn’t do again. [9] The Tribunal is comfortably satisfied that the admitted conduct constitutes professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’): professional misconduct, of a registered health practitioner, includes— (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and … Sanction 1 Statement of Agreed Facts filed on 6 August 2024 [16] (‘SOAF’). -- 3 of 6 -- 4 [10] The principles applicable to the exercise of the Tribunal’s discretion to sanction a health practitioner for professional misconduct are well known and need not be repeated. [11] The parties agree that a reprimand is appropriate. [12] They diverge however in relation to other orders specifically sought by the applicant relating to important principles surrounding general deterrence and maintaining professional standards and public confidence in the medical profession. [13] The applicant submits that an order suspending the respondent’s medical registration for six months is appropriate. The respondent submits that an appropriate protective response consists of a combination of a substantial fine with or without a short period of suspension. [14] The applicant refers to a number of decisions in respect to their submissions.2 [15] It can be accepted, and indeed it is not disputed that the respondent’s misconduct was unprofessional. The respondent had received a diagnosis from another psychiatrist for which the relevant medication may have been suitable to administer. However, he commenced to self-prescribe some months before he attended another psychiatrist who is presently his treating doctor, and he did not tell his treating psychiatrist that he was self-prescribing. [16] His conduct in self-prescribing using the identity of another person was fundamentally wrong. It undoubtedly caused embarrassment and distress to this other person, himself a medical practitioner, particularly in relation to the respondent self- prescribing dexamphetamine. Dexamphetamine is a highly regulated schedule 8 drug that must be prescribed by a psychiatrist for an adult diagnosis of Attention Deficit Hyperactivity Disorder. The respondent thereby avoided the stringent approval process which is subject to a mandatory real-time digital reporting system. [17] The respondent has showed significant insight into the nature of his conduct which he admitted in his interview was unprofessional.3 In that interview he did appear to suggest that there were exceptional circumstances at the time and this behaviour constituted a lack of judgment. He also referred to the embarrassment he felt in originally picking up medicines prescribed for his medical conditions when his name was called out. He was concerned that his patients would think he was unwell. [18] As I understand his position, the respondent does not put forward his belief at the time he engaged in the relevant conduct, that is over a period of 21 months, as an excuse for his conduct. Rather, he says this was how he thought at the time, which he now recognises as seriously wrong. [19] The respondent has engaged in two periods of education through his medical professional insurer, the first in January 2023 and second in November 2024.4 The applicant fairly acknowledges that he demonstrates insight and remorse for his conduct and its professional implications. 2 Submissions of the applicant filed on 23 December 2024; submissions of the applicant filed on 21 February 2025. 3 SOAF (n 1) p 3; Hearing Brief filed on 4 March 2025 p 115 (‘HB’). 4 Hearing brief filed on 4 March 2025 pp 118–135. -- 4 of 6 -- 5 [20] The respondent continues to receive care from his treating psychiatrist and, since 9 November 2022, has been treated by a clinical psychologist for treatment for depression and adjustment disorder primarily through counselling services and cognitive behaviour therapies. This is evident in the material before the Tribunal through reports from his treating psychiatrist and psychologist.5 [21] The applicant does not suggest therefore that there is a real need for specific deterrence, as the risk of the respondent doing this again is greatly reduced. [22] Both parties acknowledge that although no two cases are exactly the same, their circumstances may be comparable. Comparable cases discussed in the submissions of the parties provide guidance to the Tribunal. It is an aspect of public policy that similar cases in the medical disciplinary space should attract similar sanctions. In this way the objectives of the National Law can be more readily realised and public confidence in the medical and legal profession enhanced. [23] Medical Board of Australia v Ballekere (Corrected) (Review and Regulation) (‘Ballekere‘)6 is an analogous case. Over a similar period from January 2017 to August 2018, on 38 separate occasions, Dr Ballekere self-prescribed for the purposes of self-administrating, 13 different schedule 4 drugs in the name of the person with whom he was in a personal relationship with. A number of those drugs were psychotropic medications and one, clonazepam, was defined as a ‘drug of dependence’.7 It was an additional allegation that he self-prescribed two schedule 4 psychotropic medications on two earlier dates in December 2014 and October 2016 - that is prior to the period described in the first allegation. [24] Although different in relation to personal circumstances, relevant similarities exist, in that Dr Ballekere and the respondent are both psychiatrists, Dr Ballekere being a consultant psychiatrist specialising in geriatrics. The Tribunal in Ballekere8 accepted that there would be an adverse impact on Dr Ballekere’s patients in the highly specialised area of geriatric mental health. [25] Similar to the approach taken by the respondent’s legal representatives, Dr Ballekere submitted for a maximum fine of $30,000 rather than any period of suspension. The respondent in the present case submits for a fine in the region of $25,000. [26] In the respondent’s written submissions,9 it is submitted that a period of suspension of 6 months is a very significant disciplinary action for any medical practitioner, particularly one with private practice commitments. That general proposition may be accepted, however in relation to this point, the facts of this case are distinguishable from those of Ballekere.10 There is no evidence that a period of suspension would result in an adverse impact on the respondent’s patients. The respondent works with another psychiatrist in a joint practice, and there is no evidence that the practice is in an area of particular need, apart from the view that a need always exists for trained medical mental health practitioners. [27] The circumstances of this particular case suggest that a period out of practice for the respondent is an appropriate disciplinary response to give effect to principles such as 5 Hearing brief filed on 4 March 2025 pp 35–37, 68–84. 6 [2022] VCAT 645 (Ballekere’). 7 Ibid [2]. 8 Ibid. 9 Submissions of the respondent filed on 30 January 2025. 10 Ballekere (n 6). -- 5 of 6 -- 6 general deterrence and maintenance of professional standards. It is helpful to refer to what the Tribunal in Ballekere said in this regard:11 Although there is no suggestion that Dr Ballekere is likely to be a repeat offender, there is a real risk that – if doctors practising in specialist fields came to the view that they could escape with a fine …..when they engaged in serious misconduct – that would not serve to deter them from engaging in such conduct. [28] This is not to suggest that the respondent’s submission is made for any ulterior purpose; it is simply to state an obvious proposition of general application.12 [29] In all the of comparable cases referred to by the parties a period of suspension was imposed. Orders [30] The orders of the Tribunal are as follows: 1. The non-publication order made by the Deputy President on 16 December 2024 is affirmed on a permanent basis. 2. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), with respect to allegation 1, the respondent has behaved in a way that constitutes professional misconduct. 3. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded. 4. Pursuant to s 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of three (3) months to commence on 6 June 2025. 5. Each party must bear their own costs of the proceeding. 11 Ibid [49]. 12 Submissions of the respondent filed on 30 January 2025. -- 6 of 6 --