QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Pluta v Medical Board of Australia [2024] QCAT 206	
PARTIES:	Andrew Pluta	

(applicant)	

	v	
	Medical Board of Australia	

(respondent)	

APPLICATION NO/S:	No. OCR 186 of 2023	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	10 June 2024	
HEARING DATE:	15 March 2024	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member Dick SC
Assisted by:
Professor S Brun, Medical Practitioner Panel Member
Dr J Quinn, Medical Practitioner Panel Member
Ms C Ashcroft, Public Panel Member	
ORDERS:	1.	The application to review a decision filed 1 August 2023 is dismissed.
2.	Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision under review is confirmed.
3.	No order as to costs.	
CATCHWORDS:	PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC — where the applicant was subject to immediate registration action by the Board — where the applicant sought review of the decision — where the Board’s decision was correct and preferable — decision under review confirmed
ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the Tribunal exercises its review jurisdiction — whether the decision was correct and preferable — decision under review confirmed
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Ting v Chief Executive, Queensland Health [2020] QCAT 265
WD v Medical Board of Australia [2013] QCAT 614	
APPEARANCES & REPRESENTATION:	

Applicant:	
Self-represented	

Respondent:	
M J Brooks instructed by MinterEllison	

REASONS FOR DECISION
History
[1]	The applicant was first registered as a medical practitioner with the Medical Board of Australia (‘Board’) in 1994 and currently holds general and specialist registration subject to conditions the subject of this application.
[2]	The respondent is a National Board pursuant to the Health Practitioner Regulation National Law (Queensland) (‘National Law’).  The respondent originally imposed immediate action conditions on the applicant’s registration on the 1 February 2022 in accordance with s 156(1)(a) of the National Law, after forming a reasonable belief that because of his professional performance, the applicant posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety.  On the 19 February 2023 the applicant made an application to the Board requesting removal of the immediate action conditions.  Those conditions were as follows:
(a)	requiring the applicant to be supervised when providing care to mental health patients; and
(b)	prohibiting the applicant from prescribing Schedule 4 drugs of dependence or substances of misuse, antipsychotic substances and antidepressant substances to any person under the age of 18.
[3]	The applicant provided a submission in support of his application.
[4]	On 29 June 2023, the Board determined to refuse the application, as a fresh exercise of its powers under Div 7, Pt 8 of the National Law, on the basis that its reasonable belief formed on the 1 February 2022 had not been displaced.
[5]	On 1 August 2023, the applicant filed an application seeking review of that decision.  Pursuant to s 24(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Board for reconsideration with directions that the Tribunal considers appropriate.
[6]	This application is to be dealt with by the Tribunal as an appeal de novo; a fresh hearing on the merits.  This allows the Tribunal to consider material beyond that considered by the Board.
[7]	Here, although the applicant initially indicated at the hearing that he wished to call three witnesses and was given leave to do so, he desisted with that proposition.  Therefore, the only extra material before the Board was the applicant’s lengthy oral submission.
The legislative regime
[8]	The legislative regime is correctly set out in the respondent’s submissions.  However, it is worth noting the remarks of then-Deputy President of this Tribunal, Horneman-Wren SC DCJ in WD v The Medical Board of Australia:
1.	an immediate action order does not entail a detailed inquiry;
2.	it requires action on an urgent basis because of the need to protect public health and safety;
3.	the taking of immediate action does not require proof of the conduct but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.	an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.	the mere fact and seriousness of the charge as supported by untested statements of witnesses in a particular case, might well be sufficient to create the reasonable belief as to the existence of the risk;
6.	the material available should be carefully scrutinised in order to determine the weight attached to it;
7. 	a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.	the nature of the allegation will be highly relevant to the issue of whether the order is justified.
The background of the notifications
[9]	On 26 November 2021, the Office of the Health Ombudsman (‘OHO’) received a notification made by a psychiatrist.  The notification raised concern about the care provided by the applicant to a patient under the age of 16.  This patient will hereinafter be referred to as Patient A.  The Board considered that:
...[the applicant] excessively, inappropriately, and unsafely prescribed numerous Schedule 4 medications, including drugs of dependence, anti-psychotics and/or anti-depressants to [Patient A], a 15 year old adolescent, from her first consultation on 26 May 2021, which ultimately resulted in her dangerously overdosing with amitriptyline and led to her experiencing severe side-effects with depot haloperidol... 
It is further noted by the Board that given [Patient A]’s age, a referral to Child and Youth Mental Health Service should have been considered by [the applicant].  The risk is heightened in circumstances where on 13 December 2021, following [Patient A]’s discharge from hospital, [the applicant]commenced prescribing diazepam 5 mg and amitriptyline 50 mg despite cessation of these medications during her hospital admission…
[10]	Dr Jillian Gardner provided an expert report which opined that in Patient A’s case, the applicant’s prescribing practices are reckless and that he contributed to the high risk overdose in an adolescent and harmed a vulnerable adolescent through significant side effects due to his prescribing without appropriate diagnosis.  Dr Gardner was also critical of the applicant’s inadequate notes.
Other live notifications
[11]	Patient B was a child aged two years and 10 months for whom the applicant prescribed diazepam and a tricyclic antidepressant.  The child had behavioural issues.  Dr Gardner opined that it would not be appropriate to prescribe diazepam to Patient B.  Diazepam would generally only be given to a child this age by a specialist paediatrician or non-GP specialist and would only be appropriate if Patient B was having uncontrollable seizures or inpatient hospital care requiring sedation.  There is a real risk of respiratory depression, CNS depression and drowsiness.  The applicant’s assessment was made after a 10-minute visit.  There was no appropriate history taken.  This perhaps explains why the applicant was unaware that Patient B had been seen at the Mater Children’s Hospital where she had been assessed as having globally delayed development.
[12]	The next patient, Patient C, suffered side effects from a medication regime including a combination of diazepam and multiple antipsychotics (risperidone, chlorpromazine, paliperidone, and haloperidol) prescribed by the applicant.  The mental health unit review on the 1 February 2022 included a recommendation:
Treating team to address inappropriate medication prescriptions by GP.
[13]	Dr Gardner opined that the applicant had not taken a history including whether the medication had been taken before.  The child’s weight had reportedly gone from 45 kilos to 143 kilos which had not been adequately monitored by the applicant.  Once again, his note-taking was inadequate.
[14]	The next patient, Patient D, then aged nine, attended a consultation with the applicant in order to have a skin biopsy of a lesion to her right forehead.  The notifier stated he believed from comments from the child’s mother that D had been administered diazepam and, at a later date, the applicant admitted to the notifier that the child had been given a Valium tablet prior to the procedure.  The applicant in his response says he did not prescribe Valium, however, he did prescribe Polaramine.
The applicant’s submission to the Board 
[15]	On the 19 February 2023 the applicant contended:
Harm caused to the patients by AHPRA actions has reached plateau level suitable for legal action on a criminal basis against AHPRA.  Patient testimony ignored severe patient harm from AHPRA actions.
Practitioner has lost his practice and has been unable to work as a result of AHPRA actions.
AHPRA actions have effectively deregistered the practitioner and prevented him from work.
AHPRA staffer instructed doctor to cease work immediately in writing.  This has been overturned by subsequent AHPRA staff who have indicated there was never any need to stop work immediately.  Doctor was unable to work for a period of six months due to incorrect AHPRA instructions.
No evidence presented by AHPRA as to … reason / justification for endangering their lives. FOI for results further investigations show no new findings.  Public is endangered not protected by AHPRA actions.
Patient/ Mother/ Other Doctors involved in the AHPRA case has registered complaints against actions taken affecting her treatment.  AHPRA has refused to accept testimony of these people for unknown reasons.
Twelve months is excessive punishment for successfully treating a patient with their consent and cooperation to a mutually satisfactory extent.
[16]	In June 2023, the applicant submitted that he had always sought to, and believed he had, safely treated patients with mental health conditions.  In future he would endeavour to always refer such patients to appropriate hospital and specialist services.  He attached letters of support from colleagues, although it should be noted that the writers did not advise whether they were fully aware of the details of the allegations.
[17]	In summary, the applicant continues to maintain his treatment of the children subject to the notifications is and was appropriate.
The hearing
[18]	At the hearing the applicant made lengthy oral submissions which, in large part, repeated his earlier written submissions to the Board and the Tribunal.
[19]	It is enlightening to quote some passages from the transcript.  At T 1-11, lines 22–28, the applicant said:
So we will show evidence that the experts at various times in regards to all the patients are acting dangerously and illegally at times ignoring medical and legal issues, ignoring consent, doing whatever they want, ignoring PBS rules, doing whatever they want, ignoring commonsense, doing whatever they want, and ignoring safety, doing whatever they want, except looking after the people affected, even doing the same things that ended badly previously and, again, and in spite of warnings.
[20]	In speaking about what members of the public would think of the matter, he said:
DR PLUTA:	The Board makes the issue that Dr Pluta’s actions in his medical practice are a threat to public safety and yet directly or indirectly several hundred witnesses, members of the public, patients, believe that Dr Pluta’s actions are acceptable.  
MEMBER:   	…Are they witnesses in the tribunal or just people?
DR PLUTA:   	People.
[21]	In the same vein:
It is only the opinions of the specialists and the guidelines that are an appropriate way to judge a practitioner’s ability to practice safely.  This attitude removes the necessity to have the public agree with the Board’s action and the Board avoids the need to have witnesses judging your actions.
[22]	At times during the course of his submissions, the applicant exhibited idiosyncratic and incorrect views of the law:
There are experts here prepared to break the law.  They’re prepared to do things to patients without their consent.  They’re experts prepared to breach PBS prescribing rules.
[23]	This aspect is repeated at T 1-17, lines 39–41:
So they’re prepared to lie to make a point.  This person also, to assist the Medical Board’s inquiry, illegally accessed information.  She broke the law in accessing Qscript.
[24]	This was a reference to Dr Olson from the Royal Brisbane Hospital who was one of the notifiers.  
[25]	He exhibited strident views about his condition requiring a supervisor:
So having seen 30 to 40 people a day, the Board thinks it’s reasonable then to discuss every case and review every case with the supervisor; supervisors that have no knowledge or training regarding patients with substance abuse disorder.  Doctors who generally have very little tolerance or understanding of patients with substance abuse disorder.  Doctors who have no desire to be involved in the care of patients with substance abuse disorder.  Doctors who don’t want to be there, don’t want to do it and don’t know anything.
[26]	He also had a very strong view about the Board’s comments in relation to his lack of reflection:
The key issue with reflection is that it wants him to confess guilt and accept responsibility for the actions relating to these people ... Dr Pluta has reflected.  He just hasn’t provided the confession desired ... There’s no criminal in Australia refused release for failing to make a confession to gain a benefit legitimisation of the actions taken and with the threat of detriment to Dr Pluta, you will never work normally again.  It is, in effect, the extortion of a confession by the Board to prevent legal repercussions of their decision...
[27]	He has, further, a rather idiosyncratic view of the necessity to take a proper history:
There’s a lot talked about in history here, inadequate history.  There are some very basic questions that need to be asked every time you see a mental health patient.  “What’s wrong with you? What are you taking for it? And how is it working?”  It’s as simple as that.  Asking about family, friends, relatives — that’s a chat.
[28]	It is, of course, pertinent to note that if he had taken a proper history in relation to Patient A he would have been aware that the mother who was supposed to be supervising the medication had a problem with alcohol abuse, and, it should be noted, it was her alcohol abuse that precipitated the suicide attempt.
[29]	In relation to Patient B, if he had taken an adequate history he would have known that the child had been seen at the Mater Children’s Hospital and had been diagnosed with globally delayed development.
[30]	He attacks the credentials of Ahpra and the Board at T 1-22, lines 20–24:
None of these people are qualified to make the decisions they have made.  They’re not qualified psychiatrists and they probably have a lot less psychiatric experience than Dr Pluta and don’t know the patients and have never been involved and don’t know anything about it anyway…
[31]	He, once again, has an incorrect view of the law as evidenced by T 1-24, lines 37–40:
Under section 1123 of the Medical Act, if a National Board decides to renew or reject a practitioner’s registration…the Board must decide a review period for the condition.
[32]	This overlooks the fact that the condition was not applied under the ‘Medical Act’ but, rather, under s 156 of the National Law.  He maintained that the Board had said at some point that his notes were adequate – line 25, line 3.  
The Medical Board agreed with Dr Pluta in the final statement that Dr Pluta’s medical records were adequate, and that was a statement that ended that case.
[33]	This was explained by the Board’s representative during the hearing.  Dr Pluta had been placed for earlier proceedings on a condition that he complete 10 hours of education, but after some negotiation, the Board agreed to make that eight and a half hours of education.
[34]	One of the complaints from the various hospitals was that they had been unable to obtain a collateral history from Dr Pluta in respect of various patients.  He first denied that, then this passage ensued:
MEMBER:		There are a number of different bodies that say you didn’t respond to them.
DR PLUTA:   	Respond. Can’t comment on that.
[35]	The applicant was critical of Dr Gardner and her criticism of his inadequate notes.  
[36]	One of the notifiers was a Dr Nyst.  He was critical of Dr Nyst in relation to sending a prescription for a patient through to the Redcliffe Hospital which he said was a 50 minute hike for medications and he suggested that it meant that Dr Nyst did not want to look after her.  After some discussion it turned out that the script had been sent to the Redcliffe Hospital which is where the patient lived. When that was pointed out to him the applicant said, “I see your point there”.
Ruling
[37]	The question is whether the applicant presents a serious or grave or weighty risk to the safety of the public.  There are now four live notifications concerning the applicant’s treatment of minors, in particular the inappropriate supply and prescription and administration of medication.  The investigation into these matters is on foot and the Tribunal was advised would probably be completed within three months of the hearing.
[38]	It is trite to say that the inappropriate prescription of drugs of dependence is a serious matter and must be strictly managed.  The age of the patients is an aggravating feature.  It appears from his submissions the applicant lacks awareness of the seriousness of the conduct complained of and has rather grandiose ideas about his particular abilities.  
[39]	The conditions imposed by the Board do not prevent the applicant from practising his profession, even if not in the way he would wish to do so.  The applicant has a longstanding history regarding his prescribing practice and note-taking.
[40]	The Tribunal should consider whether the taking of immediate action is necessary to protect public health or safety.  This does not necessitate a detailed inquiry such as that required in a disciplinary hearing.  It requires action on an urgent basis because of the need to protect the public.  The present conditions serve to reassure the public that professional standards are being maintained and that a system is in place to maintain professional standards and to protect public health.  
[41]	The Tribunal is satisfied because of the above reasons the conditions imposed are necessary to protect public health and safety.
Orders
1.	The application to review a decision filed 1 August 2023 is dismissed.
2.	Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision under review is confirmed.
3.	No order as to costs.