Dental Board of Australia v Anderson [2023] QCAT 245

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Anderson [2023] QCAT 245 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v PAUL ANDERSON (respondent) APPLICATION NO/S: OCR152-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 14 July 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member J Robertson Assisted by: Dr Astor Mario de Silva Dr Chun-Ming Chang Mr David Lyons ORDERS: Pursuant to Section 196(1)(iii) of the National Law, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct. Pursuant to Section 196(2) of the National Law, the respondent is reprimanded. No order as to costs. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the applicant Board applies for disciplinary findings and orders against the respondent practitioner- where the factual matters and sanction are agreed upon – where the practitioner experienced addiction to narcotics – where the practitioner misused schedule 8 drugs that he had access to as a result of his work as a dentist – where the respondent self-notified – where the respondent disclosed his misconduct to colleagues – where approximately eight years have passed since the initial notification – whether the agreed sanction should be imposed – whether and how the Tribunal should take into account the delay in finalising these proceedings -- 1 of 4 -- 2 Health Practitioner Regulation National Law (Queensland) ss 3A, 5, 196. Health Ombudsman v HNH [2021] QCAT 235 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] These are the Tribunal’s reasons for judgment in a disciplinary referral filed by the Board on 20 June 2022. The respondent is a highly qualified dentist with long standing health issues, particularly relating to addiction to drugs, in particular, codeine and pethidine. The allegations of fact contained in the referral relate to his misuse of pethidine and fentanyl from February to November 2014, when he obtained the drugs in his capacity as a dentist/practice principal of a dental practice in regional Queensland. He has never disputed these allegations and notified his colleagues in 2014. His colleagues, in turn, notified regulators. [2] The respondent himself notified AHPRA on 8 July 2013 that he had a substance addiction, relating to codeine. He has been subject to conditions imposed on his registration by the Board since 2015, which, inter alia, removed his prescribing rights in relation to schedule 8 drugs and require him to continue his treatment with his psychiatrist and general practitioner. It is common ground that he has complied with all the conditions on his registration, which have varied over the years, and he has never been suspended from practice. [3] He is currently employed as principal dental officer at the Bundaberg Oral Health Clinic, Wide Bay Hospital and Health Service. He is also currently employed as an associate lecturer at the University of Queensland in the School of Dentistry. [4] He currently holds registration with the Board with conditions including, relevantly, conditions that: (a) require urine, drug screening, and hair analysis for drug testing at group 3 frequency (not visible on the public register); (b) prohibit access to schedule 8 drugs; (c) require attendance upon treating practitioners, being a psychiatrist and a general practitioner (not visible on the public register). [5] The Board has had responsibility for the conduct complaint, the subject of the referral since 2015. Because the matter is being heard on the papers, and there are no factual disputes between the parties, and the parties agree as to the proper characterisation of the admitted conduct and sanction, there is no need for me to trace in detail the background details relating to the investigation leading up to the referral. [6] The delay in finalising disciplinary proceedings, in this case, can only be described as unacceptable, but that factor can be reflected in the sanction imposed and in the Tribunal recommending to the Board that it remove the reprimand to be imposed from the National Register after a period of 12 months. -- 2 of 4 -- 3 [7] In 2015, APHRA referred the respondent to Dr Nigel Prior, consultant psychiatrist, who is highly skilled in assessing impaired health practitioners, and Dr Prior has provided two reports which are before the Tribunal. [8] The first report details the respondent’s long history of mental health issues and addiction to dangerous drugs. It also addresses his significant efforts to address his problems through treatment, including inpatient relapse prevention treatment, notifying colleagues about his problems, and not disputing conditions placed on his registration by the Board. In his first report in 2015, Dr Prior opined that the respondent was then safe to practice dentistry, subject to conditions which have been imposed. [9] The respondent’s admitted conduct offends many of the provisions of the relevant code of conduct promulgated by the Board. These provisions are admissible in proceedings of this nature as evidence of what constitutes proper professional practice by a health practitioner. [10] The Tribunal is satisfied to the requisite standard pursuant to Section 196(2)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), that the admitted conduct constitutes professional misconduct. [11] The principles relating to imposition of sanctions in disciplinary proceedings are well established. Proceedings of this nature are protective and not punitive in nature. Relevant factors include the nature and seriousness of the conduct, insight and remorse expressed by the practitioner, steps taken by the practitioner to address the underlying causes of the misconduct, specific and general deterrence, factors that may explain the conduct, such as a health impairment, delay and a effluxion of time, character evidence, and the need to protect the reputation of the profession and other factors that may arise in the circumstances of a particular case. [12] Fundamentally, the Tribunal’s discretion to impose disciplinary sanctions on a health practitioner who has engaged in professional misconduct is informed by the main guiding principle set out in Section 3A of the National Law, and that is that the protection of the public and public confidence in the safety of services provided by health practitioners are paramount. [13] It is common ground that the practitioner has demonstrated insight into the seriousness and consequences of his actions for himself and others and expresses considerable remorse. There is no evidence that harm was caused to any of his patients because the self-administering occurred after work hours. The conduct was not isolated, and it was clearly serious. However, the evidence indicates that the respondent has now abstained from all opiate use for more than six years. [14] He has undergone regular urine drug screening and hair analysis as part of his registration conditions, which he acknowledges has had a powerful inhibitory effect on his drug cravings and drug seeking behaviour and long-term behavioural modification. He self-notified of his drug dependence in 2013 and admitted to the Office of the Health Ombudsman very early in the investigation to the details of the relevant conduct. [15] He sought treatment for his drug dependence in 2013, which treatment is ongoing until the present time. He has demonstrated a commitment to rebuilding his career by seeking new employment in a different environment where he has made significant progress, both personally and professionally. -- 3 of 4 -- 4 [16] Annexed to his affidavit are six supportive character references which demonstrate that he has earned the respect of his colleagues in Bundaberg and in the Wide Bay Hospital and Health Service since the commencement of his employment there in 2017, and continues to provide a valuable service. [17] He has also provided a reference from his treating psychiatrist, Dr Matthew Hocking, who confirms that he is in remission for his opioid use disorder, and has been diagnosed with generalised anxiety disorder, for which he has been prescribed antidepressants, with good effect. Dr Hocking expressed his confidence in the practitioner’s stability and he has no concerns about his drug use recommencing in the foreseeable future. [18] Approximately 8 years have passed between the initial notification, and these proceedings during which time the practitioner has complied with his registration conditions, rehabilitated himself and made positive professional contributions. I would note that the respondent has also fully cooperated with regulators throughout and has cooperated with the Board in relation to these disciplinary proceedings. [19] I agree with his counsel that the respondent’s exemplary conduct since the notification indicates that he presents now as no ongoing risk and is highly likely to contribute much to the public health sector. I am satisfied on all the evidence that there are excellent prospects that he will remain drug free. [20] I also agree with counsel’s submissions about delay, and its relevance here, and how it can be reflected in the Tribunal’s orders and recommendations. I agree that Health Ombudsman v HNH [2021] QCAT 235 is comparable and helpful here in relation to the issue of sanction. [21] The Tribunal recommends that the Board consider removing from the National Register, the reprimand to be imposed on the respondent’s registration after a period of 12 months from today. [22] The Tribunal makes the following findings and orders: Pursuant to Section 196(1)(iii) of the National Law, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct. Pursuant to Section 196(2) of the National Law, the respondent is reprimanded. No order as to costs. -- 4 of 4 --