QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Medical Board of Australia v Bradford  [2023] QCAT 29	
PARTIES:	Medical Board of Australia	

(applicant)	

	v	
	julie-ann noreen bradford	

(respondent)	

APPLICATION NO/S:	OCR041-22	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	21 February 2023	
HEARING DATE:	9 February 2023	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member D J McGill SC, assisted by:
Professor D Morgan,
Professor E Weaver,
Ms C Ashcroft.	
ORDERS:	1.	The Tribunal decides that the conduct, as set out in the annexure to the referral, amounted to professional misconduct.
2.	The Tribunal reprimands the respondent.  
3.	The registration of the respondent is suspended for a period of three months, to commence one month after the date on which this decision is made.  
4.	As from the date on which the suspension of the respondent expires, her registration is to be subject to the conditions set out in Annexure A to the decision of the Tribunal.  
5.	The Health Practitioner Regulation National Law (Qld) Part 7 Division 11 Subdivision 2 is to apply to those conditions.
6.	Both parties bear their own costs of the proceeding.  	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – inappropriate prescribing – inadequate records – characterisation of conduct - sanction
Health Practitioner Regulation National Law (Qld) s 193B(2)
Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36
Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Grant [2012] QCAT 285
Medical Board of Australia v Hadges [2018] SAHPT 6
Medical Board of Australia v Hodgkinson [2021] QCAT 325
Medical Board of Australia v Martin [2013] QCAT 376
Medical Board of Australia v Marzola [2020] SACAT 116
Medical Board of Australia v McCombe [2020] QCAT 511
Medical Board of Australia v Moschou [2020] SACAT 110
Medical Board of Australia v Nguyen [2021] QCAT 346
Medical Board of Australia v Owen [2021] SACAT 9
Nadkarni v Medical Board of Australia [2022] WASCA 109
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92	
APPEARANCES & REPRESENTATION:	

Applicant:	
C Wilson, instructed by Clayton Utz solicitors.	

Respondent:	
A Luchich, instructed by Avant Law.	

REASONS FOR DECISION
[1]	This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2).  Under s 126 of the Health Ombudsman Act 2013 (Qld)  (“the Act”), I constitute the Tribunal, and sat with assessors Prof D Morgan, Prof E Weaver and Ms C Ashcroft in accordance with the Act.  On the day of the hearing I made a non-publication order covering the identity of the patients of the respondent, as is usual.  
[2]	The respondent is and was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the National Law.  The applicant alleges that the respondent engaged in professional misconduct or unprofessional conduct, in that, in relation to the prescription of certain medication to one or more of four patients, she failed to obtain properly informed consent, prescribed the medication inappropriately, maintained inadequate clinical records, provided inadequate or inappropriate assessment, treatment, management or follow up and inappropriately self-prescribed a number of such medication.  
[3]	The Tribunal has been provided by the applicant with material about the matter, and submissions in writing.  The respondent is represented by lawyers, who have provided submissions in writing and filed two affidavits by the respondent and two other affidavits.  The parties have provided an agreed statement of facts for the proceeding, and agree in proposing findings and (save in one respect) as to the appropriate sanction to be imposed.  
Background
[4]	From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows.  The respondent was first registered as a medical practitioner in 1986, and practised for some years as a surgical assistant and as a vascular ultrasonographer before commencing in 1996 to practise cosmetic medicine, which is still her area.  Since 2006 she has also been involved in anti-aging medicine.  At the relevant time she was practising in a provincial city.  The applicant has not alleged that, prior to this matter, the respondent has had any disciplinary matters brought against her.  
[5]	Between March 2012 and May 2017 the respondent prescribed to each of four patients compounded peptide substances, human growth hormone and similar medications (described in detail in the annexure to the referral) in circumstances where such medication was not appropriate for the patients, and had been prescribed for them by the respondent other than as a result of her exercise of her professional judgment.  The substances were of the kind that had limited, specific use for conditions not shown to be present, or were of no recognised therapeutic value.  
[6]	The respondent did not document in the clinical records for the patients that she had informed them of the clinical rationale for using this medication, and the risks it posed, and appropriate information about alternative treatments and their risks and benefits.  The substances prescribed had no established therapeutic benefit. They provided no benefit to her patients, and in the case of one of the patients, the use of some prescribed compounds was inappropriate because of risk.  She did not conduct any relevant examinations or assessments of the patients, prepare any treatment or management plan for the patients, or document any rationale for the dose and duration of the medication.  She prescribed these compounds not because of any diagnosed medical conditions but because she had been told by the supplier that they were beneficial for the patients.  There was also no systematic testing to follow up the effects of these compounds on the patients, and to ascertain if they were suffering harm from them.  
[7]	As well, the respondent self-prescribed a number of these compounds in a way contrary to the Code of Conduct for medical practitioners.  The respondent admits this, but does not admit that she consumed all these compounds personally.  She says that fifteen out of thirty-three prescriptions were for use in treatment at her practice.  
[8]	A notification was made to the Health Ombudsman in October 2016, and referred to the applicant.  This led to an extensive investigation, which disclosed the facts alleged in the referral.  After the applicant formed a certain belief, it notified the Office of the Health Ombudsman, which asked the applicant to deal with the matter.  As a result, the applicant referred the matter to the Tribunal on 7 March 2022.  
[9]	The applicant has provided the Tribunal with expert evidence that the respondent’s conduct in relation to the four patients was unsatisfactory and substantially below the standard reasonably expected of a health practitioner of equivalent training and experience.  As well, the experts have said that self-prescribing, while not illegal in Queensland, is fraught with danger and risks misjudgement.  That would be particularly the case with the use of unconventional substances such as these.  
[10]	The respondent has explained that she attended training seminars provided by a pharmaceutical company at which it was asserted that this material had various benefits for patients, and was safe to prescribe.  It does not appear that she took any steps to check this information from any independent source.  This does not explain the failure to keep proper medical records and to obtain informed consent, or to treat patients in a scientific way.  The standard for of written consent for the prescribing of peptides stated that they were not approved by the Therapeutic Goods Administration (“TGA”), but also that they were “approved” in some unstated way.  She said these were provided by the supplier, and she was not aware of the wording at the time.  
[11]	The registration of the respondent has not been suspended, although she twice offered undertakings not to prescribe or otherwise deal with peptide substances in the future.  She has also arranged a mentorship and undergone sessions with her mentor since July 2022.  She arranged an audit of her practice, as a result of which a selection of files were examined and a report dated 12 Jul 2022 was prepared.  The auditor described the respondent’s medical records as of an average standard, and complying with the applicant’s guidelines, although he did suggest a number of improvements, which the respondent said she had taken on board.  He did say that the records did not show how the restrictions on prescribing Schedule 4 injectables were complied with.  The respondent’s description of the process at the relevant time, of providing prescriptions to the supplied in response to a phone call from the patient (to her or to a staff member) would not appear to be consistent with the restrictions outlined in the report.  
[12]	The respondent was cross-examined on her affidavits, in the course of which it emerged that a statement in her first affidavit was not correct.  In response to a question, she said she would not now prescribe the peptide compounds, and when asked why, replied that they were not approved by the TGA, and she wanted to keep her licence.  A better answer, and one which showed insight, would have been, that she recognised that these substances were of no therapeutic benefit, and were potentially harmful to some patients.  Although she listed various procedures which would not be available in the provincial city if she were unable to practice, all of them would be available in Brisbane, and none look urgent to me.  
[13]	She claimed that at the relevant time she had not written repeat prescriptions.  When taken to the list of prescriptions for a particular injectable at Hearing Book pp 70, 71, where there are often pairs of prescriptions with the same date, she claimed that these must have been duplicated, as they also had the same form number.  The assessors tell me that that would be consistent with her having written two prescriptions on the same form, and there are examples where consecutively numbered forms were used to write two prescriptions for a patient on the same day.  I suspect that she was doing something very like writing repeat prescriptions.  Overall, the respondent did not impress in the witness box.  
Expert evidence
[14]	The applicant relied on reports from two experts.  On 18 November 2019 Professor Wittert, an endocrinologist, provided a report on the various substances prescribed by the respondent within the terms of the referral.  In the case of human growth hormone, its use without a significant pathological deficiency was not indicated, and to use it to raise levels above normal was irresponsible.  Melanotan, prescribed for one patient, is not registered or approved for sale in Australia, its importation is illegal, and its sale if unregulated for human usage is illegal worldwide.  None of the other substances had established therapeutic benefit or applications, and some of them were at least potentially harmful.  He described information sheets and general wellness plans provided by the respondent to a patient as “a mixture of good nutritional and lifestyle advice with mumbo jumbo designed to encourage the sale of a range of supplements for which there is no evidence of benefit.”  Elsewhere he described the overall nature of the practice as “based on alternative and non-evidence-based medicine that is orientated to the sale of multiple supplements and extensive testing.”  He also said it was neither appropriate nor safe to prescribe compounded injectable peptide substances in multidose vials to patients.  Overall he considered that the respondent’s performance was well below the standard expected of a registered medical practitioner.  
[15]	As well a report dated 15 August 2020 was obtained from an experienced general practitioner.  She expressed the opinion that, in respect of each patient, the respondent’s assessment, examination and investigation were inadequate and inappropriate, her diagnosis, treatment and management were inadequate and inappropriate, her follow up was inadequate and inappropriate, and her clinical records were inadequate or inappropriate.  Detailed reasons were given in each case.  Reports of side effects following injections were not followed up, diagnoses were recorded without explanation, and were inappropriate and unclear, alternative diagnoses suggested by some test results were not investigated, sometimes test results were recorded as low when they were within the reference range, the justification for many pathology tests was not in the records, and for at least one patient, peptides should not have ben prescribed because of risk factors, at least without referral to an endocrinologist.  
Characterisation of conduct 
[16]	The applicant alleged, and the respondent conceded, that her conduct was overall properly characterised as professional misconduct.  This was on the basis of the significant departure from the standards to be expected for her as a medical practitioner, and is consistent with the expert evidence, which is uncontradicted.  The Tribunal accepts that the conduct in the referral amounted to professional misconduct for the purposes of the National Law.  It was quite seriously deficient.  Such a conclusion is consistent with the characterisation adopted in most other cases involving inappropriate prescribing to which I have been referred.  
Sanction
[17]	In imposing a sanction, the health and safety of the public are paramount.  Disciplinary proceedings are protective, not punitive in nature.  Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.  Insight and remorse on the part of the respondent are also relevant.  Where fitness to practise is in issue, what matters is the fitness of the respondent at the time of the hearing rather than at the time of the relevant conduct.  A list of factors which may, in a particular case, be relevant was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].  
[18]	Save in one respect, the parties both seek the same outcome.  This is a similar situation to a joint submission as to sanction.  The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree.  I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31].  I do not propose to depart from the proposed outcome, so far as it is supported by both parties.  
[19]	The remaining issue is whether the registration of the respondent should also be suspended for a period of twelve months, as the applicant submits, or for some shorter period, or whether the respondent should be required to pay a fine, as proposed by the respondent.  The applicant relied on the features that this was a course of conduct over a number of years, that the process involved repeated failings of proper record keeping, the obtaining of informed consent, and proper, scientific treatment of a medical condition, and that there had been a lack of professional responsibility in prescribing this medication.  The applicant conceded that there had been delay in bringing the matter to the Tribunal.  
[20]	The respondent pointed out that she stopped this prescribing as soon as the initial notification was brought to her attention, she had undertaken relevant self-education and twice offered undertakings not to prescribe these substances, in line with the conditions now sought.  She had arranged an audit of her practice, and a mentor, both of which she has found helpful and from which she had learnt, and improved her practice.  It was submitted that she had shown insight and remorse.   
Other decisions
[21]	The applicant referred to a number of decisions of Tribunals.  In Medical Board of Australia v Grant [2012] QCAT 285 a general practitioner prescribed steroids and other drugs to fourteen patients for body building purposes, without any therapeutic basis.  This extended over a period of up to nine years.  He was remorseful and cooperated with the Board.  He was reprimanded, conditions for education, auditing, mentoring, and not prescribing the relevant drugs were imposed, for at least three years, and his registration was suspended for twelve months, the suspension itself suspended on condition that he comply with the conditions on his registration, and not be the subject of further disciplinary proceedings.  In that case there was a joint submission that the sanction be a reprimand and the imposition of conditions, but the Tribunal regarded that as inadequate, and imposed the suspended suspension.  
[22]	In Medical Board of Australia v Singh [2017] WASAT 33 the practitioner prescribed a range of drugs for weight loss, physical conditioning or body building on a significant scale over seven years, where the drugs were not appropriate for any established medical conditions.  He defended himself before the Tribunal, showed no insight or remorse, and the Tribunal was concerned at the risk of further offending.  By the time of the hearing his registration had lapsed, and a period of disqualification from applying for registration of ten years was imposed.  Given the lack of insight and remorse, that decision is not comparable.  
[23]	In Medical Board of Australia v Tunbridge [2020] SACAT 34 the conduct extended over twenty patients and eight years, and the practitioner initially sought to defend such prescribing.  His records and monitoring were inadequate.  By the hearing he was no longer registered, but was reprimanded, and disqualified from registration for two years.  Given the limited insight and remorse, I regard this as a worse case.  
[24]	In Medical Board of Australia v Moschou [2020] SACAT 110 a practitioner was prescribing inappropriately for ten patients over a period of seven years, without adequate records or monitoring, including self-prescribing.  There was cooperation in the proceeding, and joint submissions in which he conceded professional misconduct.  He was reprimanded, suspended for nine months, and conditions were imposed excluding such prescribing, and for supervision and auditing.  
[25]	In Medical Board of Australia v Owen [2021] SACAT 9 the practitioner prescribed various substances for which there was no therapeutic indication, failed to undertake sufficient clinical assessments or follow up appointments, and failed to keep adequate clinical records.  This occurred over some years, and involved seven patients, and breaches of the code of conduct.  The matter was initially contested, but just before the hearing the practitioner joined in an agreed statement of facts, and both parties sought the sanction which the Tribunal approved, reprimand, suspension for twelve months, then various conditions on his practice.  He also had to pay the costs of the Board.  There had been a previous notification to the Board, resulting in an undertaking about record-keeping which was not adhered to.  The lateness of the insight and remorse of that practitioner was significant, as was the prior notification, and the Tribunal referred to personal deterrence.  These factors make it a worse case than the present.  
[26]	In Medical Board of Australia v Hodgkinson [2021] QCAT 325 the practitioner prescribed peptides and similar substances to three patients over about eighteen months, for body building and related purposes.  They had no therapeutic value, and the prescribing was not supported by proper records, or subject to appropriate monitoring.  There was cooperation, and joint submissions as to sanction, which were not departed from.  Before the hearing the practitioner had retired, and held non-practising registration, and because of this and insight and remorse, there was no need for personal deterrence.  Nevertheless, a suspension of three months was imposed, because of general deterrence, as well as a reprimand.  
[27]	In Medical Board of Australia v Nguyen [2021] QCAT 346 the practitioner prescribed peptide substances inappropriately to seven patients over six months.  He did not see the patients, but worked as the prescriber in an organisation where others saw and assessed the patients, and he prescribed from their notes.  He did not keep proper records, and had no clinical justification for prescribing the substances, which in fact were of no therapeutic value, and occasionally harmful.  There was no systematic follow up.  The practitioner had fully cooperated, and made admissions, undertook further education and changed his manner of practice, showed insight and remorse, and was not regarded as unfit to practice.  He was reprimanded and conditions were imposed, and his registration suspended for four months, because of the seriousness of the conduct, general deterrence and for the maintenance of professional standards.  
[28]	The respondent referred to some additional decisions.  In Medical Board of Australia v Marzola [2020] SACAT 116, improper prescribing for six patients over twelve years resulted in a reprimand, a fine and the imposition of conditions, but no suspension.  Initially there was some contest about therapeutic value, but by the time of the hearing there was an extensive agreed statement of facts, and no contest about the allegations or that they amounted to professional misconduct.  A submission from the Board that the practitioner’s registration should be suspended for twelve months was rejected, but a condition was imposed that he practise only in six specific areas (which did not include general practice) which should not bring him into contact with people seeking steroids, as well as other agreed conditions, and that he pay a fine of $15,000 and the legal costs of the Board.  
[29]	In Medical Board of Australia v Hadges [2018] SAHPT 6 the practitioner prescribed steroids to fifteen patients over periods of up to eight years.  There were a couple of other, less serious grounds.  Professional misconduct was found, and the practitioner was reprimanded, conditions were imposed including for supervision, his registration was suspended for eight months, backdated to when he had voluntarily ceased to practise about three months earlier, and he was ordered to pay the costs fixed at $15,000.  
[30]	In Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36, a practitioner who had engaged in inappropriate prescribing to forty patients without indications and without examinations was reprimanded, and conditions were imposed restricting her ability to prescribe certain medications.  It appears that suspension was ruled out on the basis that it could be ordered only if at the date of the hearing the practitioner was found to be unfit to practise: [19].  I do not agree with that approach in the case of a suspension.  The practitioner was also ordered to pay the costs of the applicant, which would have been substantial, as there were two hearings, the first (as to what conduct had been proved) running for fifteen days.  The respondent made only limited admissions, late, about obvious matters such as inadequacy of records, and seems to me to have shown very little indicia of insight or remorse.  
[31]	In Medical Board of Australia v Dolar [2012] QCAT 271 the practitioner engaged in inappropriate prescribing for seven patients over five years, although in the case of three patients she believed at the time there was a therapeutic basis for the prescribing.  The other four were bodybuilders.  As a result of this conduct, for a time the practitioner had her endorsement to prescribe all controlled or restricted drugs, and some poisons, cancelled.  No suspension was imposed, not being sought in the joint submissions, although the Tribunal said that one was certainly open: [32].  None was imposed because she was nearing the end of her professional life anyway, her practice had already been significantly curtailed by the action taken by Queensland Health, she had engaged in self-education, and the Tribunal was imposing stringent conditions on her registration, much more stringent than those proposed here.  
[32]	In Medical Board of Australia v McCombe [2020] QCAT 511 the practitioner, who had been improperly prescribing to nine patients over seven and a half years, was reprimanded, but not suspended, in view of his early and frank admissions to the relevant conduct, and significant steps to demonstrate insight and remorse, and to guard against further inappropriate prescribing.  The Tribunal said the relevant period was really three years, and described the efforts taken towards rehabilitation as exceptional: [27].  The parties had agreed that there be some suspension, differing only as to its length, but the Tribunal departed from that submission.  In essence, the Tribunal regarded the efforts made towards rehabilitation as outweighing the significance of general deterrence: [27].  The Tribunal referred to the decisions in Grant (supra), Tunbridge (supra) and one involving a pharmacist.  I have difficulty in seeing why, in this case, some period of suspension was not within range.  
[33]	I should add that I am also aware of the decisions in Medical Board of Australia v Zhao [2021] VCAT 1053, Medical Board of Australia v Pearce (SATWA, VR53 of 2018, 27 September 2018, unreported), discussed in Nguyen (supra), and Nadkarni v Medical Board of Australia [2022] WASCA 109.  In all of these a suspension was imposed.  In Nadkarni the suspension of twenty months imposed by the Tribunal was reduced by the Court of Appeal to one of eight months, for inappropriate prescribing of steroids, human growth hormone, testosterone and other substances to nine patients over periods of up to eight years.  This was expressly on the basis that the nine were only a sample.  The practitioner was a radiologist who had become involved in anti-aging medicine, where this occurred, with inadequate records.   The Court of Appeal at [74] identified a long list of mitigating factors, but at [81] said that, taking all the relevant factors into account, suspension of his registration for a specified period was necessary.  There is a list of nine earlier decisions summarised in a schedule to the reasons.  
[34]	In general from the decisions I have looked at it appears that some suspension of registration is imposed in most cases of this kind of inappropriate prescribing, although in bad cases there are examples of preclusion periods being imposed on registration, and in some cases suspensions are not imposed, usually because of particular circumstances.  
Consideration
[35]	The present case is not a particularly bad example of inappropriate prescribing, in terms of the number of patients and the duration, although it did cover several years.  I accept that the respondent has shown remorse and insight, promptly ceased this prescribing and has taken steps to improve her method of practice, so as to perform better in the future.  I do not regard her as unfit to practice, and, in view of the conditions to be imposed, do not consider that there is much reason for concern about personal deterrence, except for the fact that she is still practicing in the field of cosmetic medicine.  Indeed, she makes extensive use in her practice of TGA approved products for “off label” (ie, outside the scope of the TGA approval) purposes.  She claimed that stopping this would be as destructive to her practice as suspension.  
[36]	There remain the considerations of general deterrence, and maintenance of professional standards.  There was a good deal of conduct which was unprofessional involved in the respondent’s relevant behaviour, and the decision of the Tribunal must show that the maintenance of professional standards is important, and is taken seriously.  Doctors are not just there to sell products.  General deterrence is also important.  There have been a number of these cases in recent years, and it would be better for practitioners to be deterred from taking on this sort of prescribing in the first place, or stopping it spontaneously, rather than trying to catch up with them years later.  That requires some significant adverse consequence from the behaviour, other than the Tribunal or the practitioner just taking steps to stop behaviour of that kind.  No doubt that is why some period of suspension is usual in these matters.  
[37]	The alternatives proposed by the respondent are of little significance by comparison.  A fine may amount to no more than a tax on inappropriate prescribing rather than a real deterrent, while a condition confining the respondent to the areas in which she was going to practise anyway is no deterrent at all.  There is really no alternative to a period of suspension to give proper effect to the considerations of general deterrence and maintenance of professional standards.  I do not consider that the period of suspension I have in mind will impose any hardship on her patients, or that it will pose a serious risk of de-skilling.  The other decisions indicate that a period of twelve months is appropriate in a more serious case than the present.  In the circumstances I consider that the appropriate balance of the relevant factors requires a shorter period of suspension of registration, further shortened because of delay, of three months.  I am prepared to defer the commencement of that for one month, to avoid too much disruption to her patients.  Otherwise the decision of the Tribunal is as proposed.    
[38]	I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is as follows:
1.	The Tribunal decides that the conduct, as set out in the annexure to the referral, amounted to professional misconduct.
2.	The Tribunal reprimands the respondent.  
3.	The registration of the respondent is suspended for a period of three months, to commence one month after the date on which this decision is made.  
4.	As from the date on which the suspension of the respondent expires, her registration is to be subject to the conditions set out in Annexure A to the decision of the Tribunal.  
5.	The Health Practitioner Regulation National Law (Qld) Part 7 Division 11 Subdivision 2 is to apply to those conditions.
6.	Both parties bear their own costs of the proceeding.