[2023] QCAT 247

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

JONES, Judicial Member 
Assisted by:
MS ASHCROFT
DR CAVANAGH
DR QUINN OAM

No OCR 144 of 2021
No OCR 138 of 2022

HEALTH OMBUDSMAN 	Applicant

v

YVT 	Respondent 

BRISBANE

WEDNESDAY, 7 JUNE 2023 JUDGMENT 
[1]	JUDICIAL MEMBER: This proceeding is concerned with two referrals brought by the director of proceedings on behalf of the Health Ombudsman (the applicant) against YVT (the respondent).

Introduction
[2]	The respondent was awarded a Bachelor of Medicine and Bachelor of Surgery in Queensland in 2009. He is a registered medical practitioner pursuant to the National Law. He was first granted registration as a medical practitioner in late 2009, and at all relevant times practised as a general practitioner at a medical centre and was a health service provider within the meaning of section 8(a)(i) of the relevant legislation.

[3]	As already mentioned, there are two referrals before this Tribunal. They arise from a period in the respondent’s practice between January 2018 and April 2021. The first referral matter arises from a complaint made by a medical colleague and was related to the respondent’s clinical management and conduct in respect of a patient who will be referred to as Patient A. During the investigation of that matter, other matters were revealed. Given the level of overlap in respect of a number of the matters involving various patients and given the level of agreement between the parties as to how the respondent ought to be dealt with, it was decided to deal with both matters at the same time.

[4]	In this regard, the Tribunal would note that the respondent admitted the substance of the majority of the allegations in the referrals, and also that that conduct constituted professional misconduct. That the parties have agreed to what the appropriate findings and orders ought to be made is, of course, a significant matter to be taken into account. However, at the end of the day, it is for the Tribunal to finally to decide what the appropriate findings and orders ought be. That the respondent admitted the substance of the allegations against him is a matter that works in his favour. There are also a number of matters, to which the Tribunal will refer to in a moment, that also reflect a high level of contrition on the part of the respondent and a desire to address those issues that brought him before the Tribunal. It is also clear that the respondent, apart from the conduct that has brought him before the Tribunal, is a well-respected medical practitioner.

[5]	Written submissions were filed on behalf of both parties, where it was agreed that the appropriate finding and orders ought be as follows: 

(1)	the respondent’s conduct, as admitted by him in these proceedings, was professional misconduct as defined by section 5 of the National Law;
(2)	the respondent is reprimanded;
(3)	the respondent’s registration is suspended for a period of 12 calendar months from the date of these orders;
(4)	at the conclusion of the period of suspension, the conditions set out in annexure A to this decision be imposed on the respondent’s registration, and that the review period for the conditions is not less than two years from the date of the commencement of the conditions.

Background of conduct 
[6]	Given the level of agreement about the facts surrounding the two referrals and the admissions made by the respondent, it is unnecessary to dwell on the relevant facts in detail. The conduct concerning the first referral involving Patient A could be summarised as follows. Between August 2015 and December 2019, the respondent was in a close personal relationship with the patient. They were living together and had become engaged to be married. From on or about January 2018 until 8 March 2019, the respondent provided medical treatment to Patient A, and indeed, the respondent became Patient A’s primary general practitioner. 

[7]	From, and including, 20 April 2018 and up until 8 March 2019, the respondent prescribed a number of controlled drugs to Patient A. These included: 
(a)	oxycodone hydrochloride,
(b)	buprenorphine,
(c)	fentanyl,
(d)	tapentadol,
(e)	morphine sulphate,
(f)	morphine hydrochloride and methadone hydrochloride.

[8]	In addition to the number of drugs that were prescribed to Patient A over a relatively lengthy period of time. Another disturbing feature was that he continued to prescribe those controlled drugs to Patient A, notwithstanding being advised by others that he should discontinue that conduct. There can be no doubt that the cumulative volumes of all the controlled drugs prescribed by the respondent were excessive from the perspective of clinical requirement and reasonable pain relief. 

[9]	In respect of the second referral, that conduct could be summarised as follows. It involved the crossing of professional boundaries and inappropriate prescribing for seven patients, many of whom had a personal relationship with the respondent. The first of these patients was Patient B, with whom the respondent shared a house for a period of time. The next was Patient C, who lived next door to the respondent and was a friend of the previously mentioned Patient B. The third patient, Patient D, was also a friend of Patient A and therefore known to the respondent. The fourth patient, Patient E, was a registered nurse and former employee at the clinic where the respondent had practised. The fifth patient, Patient F, was the daughter of a receptionist at the clinic where the respondent practiced. The final two patients, Patient G and Patient H, seemed to have a lesser personal relationship with the respondent than the other patients.

[10]	The Tribunal would also observe that in respect of Patient H, the respondent also failed to provide adequate monitoring of lithium levels, leading to lithium toxicity in that patient. In his affidavit, the contents of which are unchallenged, the respondent deposes to a number of significant factors which work in his favour. First, it is clear that the respondent has recognised and accepts the seriousness of the errors that he has made. In this regard, the respondent’s psychiatrist reports:

I do consider that [YVT] has been able to develop insight into the professional conduct issues that are before the tribunal. He has been able to reflect on how he came to be in the situation he was in and has put in place a range of strategies to minimise the risk of this happening again.

[11]	In this regard, the respondent has engaged in professional monitoring, professional education and professional counselling programs to ensure that, as far as practicable, he will not digress again. In respect of the professional counselling, the respondent, in his affidavit, deposes as follows:
At times relevant to matters under consideration in these proceedings, I was personally under the care of a psychiatrist, Dr Milind Pant.
I attended upon Dr Pant at my own volition for assistance in relation to, amongst other things, anxiety and depression relating to psychosocial stressors arising from my relationship with [Patient A]. I continued to see Dr Pant during the course of the period under consideration in these proceedings and subsequently until 24 August 2020. Commencing in or around 2021, I started seeing Dr Ben Duke, psychiatrist for professional supervision and counselling, in relation to my practice, with a particular focus on professional boundaries, professional conduct and the impact of my personal life on my professional practice. I’ve attended Dr Duke on approximately a monthly basis for one hour over a period of more than 12 months. This professional counselling arrangement continues to the present date. I have benefitted personally and professionally from these counselling arrangements

[12]	Attached to his affidavits are correspondence from both Dr Pant and from Dr Duke. In this regard, the applicant accepts that the respondent has provided considerable assistance to this process and has taken direct action to address his professional failings. In particular, he, of his own volition, has engaged in extensive education directed towards the deficiencies exhibited in his conduct, and has sought out support of professional relationships including formal mentoring and counselling, and has provided details outlining his personal reflections and the lessons that he has learned. On the evidence before the Tribunal, the following submissions made on behalf of the respondent can also be accepted. Those submissions are as follows:
The Respondent has written a series of reflective essays over time, showing his developing awareness how his conduct was inappropriate and how it came to be that he allowed himself into that position in the first place. The essays reflect the work that he has done with others to rehabilitate himself. With the understanding that he has developed, and the strategies that he has learned, there can be confidence that he has indeed been rehabilitated from the unsatisfactory practitioner that he was.
At the time of his misconduct the Respondent had allowed himself to get into a bad place. He was materially estranged from his family and in an unstable and problematic relationship.
He is now in a stable relationship, with a young child and has reconnected with his close family members. That stability is a good portend for him maintaining the rehabilitated state he has achieved.

[13]	It is also submitted on behalf of the respondent that the Tribunal ought to be satisfied that the proposed sanctions are within the range that are appropriate in all the circumstances of the case. All of that can be accepted and works very much in favour of the final outcome. That said, the conduct of the respondent that brings him before the Tribunal involved significant and serious departures from acceptable professional conduct. Indeed, the conduct admitted by the respondent demonstrates that, during the relevant period, he exhibited (a) a grave lack of understanding of the proper prescribing of controlled and other drugs and, (b) engaged in a pattern of practise that involved allowing himself to be drawn into professional boundary violations in the pursuit of his own interests or needs. In this regard, the submission made on behalf of the applicant is an appropriate one:
These are extremely serious deficiencies in a medical practitioner and potentially expose the practitioner’s patients and the general public to serious risk. The respondent’s offending conduct involved a number of patients and a protracted period of time. The applicant submits that this adds to the serious nature of the conduct, and that the tribunal would find that the respondent’s conduct fell substantially below the requisite standard.

[14]	That submission is accepted. Accordingly, the findings and the orders of the Tribunal must provide for an adequate but appropriate message of deterrence. Particularly in the circumstances of this case, a message of general deterrence. The findings and orders of the Tribunal must also, as far as is possible, be designed to ensure an adequate and appropriate level of public protection.
[15]	On balance, the Tribunal is of the view that the findings and orders advanced by the parties ought to be accepted. Accordingly, the findings and orders of the Tribunal are as follows:
1.	The Respondent’s conduct as admitted by him in these proceedings was professional misconduct as defined by section 5 of the National Law.

2.	The Respondent is reprimanded.

3.	The Respondent’s registration is suspended for a period of 12 calendar months from the date of these orders.

4.	At the conclusion of the period of suspension the conditions set out in ‘Annexure A’ to this decision be imposed on the Respondent’s registration.

5.	That the review period for the conditions is not less than two years from the date of commencement of the conditions.

6.	Part 7, division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) (the National Law) applies to the conditions imposed by this decision. 

7.	Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) the Health Ombudsman’s immediate registration action of 4 June 2019 is set aside. 

Postscript
[16]	On 13 June 2023, I amended my orders to include order 7, which I had overlooked including in my original orders. I am grateful to the parties for having brought that to my attention.