QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Medical Board of Australia v QLX [2023] QCAT 60	
PARTIES:	medical board of australia	

(applicant)	

	v	
	qlx	

(respondent)	

APPLICATION NO/S:	OCR290-21	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	21 February 2023	
HEARING DATE:	31 January 2023	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member D J McGill SC, assisted by
Dr S J Goode
Dr J S Phipps
Ms S Harrop.
	
ORDERS:	1.	The conduct of the respondent referred to in paragraph one of the referral constituted professional misconduct. 
2.	The respondent is reprimanded.  	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – impairment - breach of conditions on registration – characterisation of conduct - sanction
Health Practitioner Regulation National Law (Qld) s 193B(2)
Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92
Medical Board of Australia v CQW [2021] VCAT 346
Nursing and Midwifery Board of Australia v Stokes [2021] VCAT 1319	
APPEARANCES & REPRESENTATION:	

Applicant:	
R M De Luchi, instructed by Clayton Utz, solicitors.	

Respondent:	
Self-represented	

REASONS FOR DECISION
[1]	This is a referral by the applicant for a disciplinary proceeding 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), I constitute the Tribunal, and am sitting with assessors Dr Goode, Dr Phipps and Ms Harrop in accordance with that Act.  
[2]	The respondent was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the National Law. The applicant initially alleged that the respondent engaged in professional misconduct, in that he breached certain conditions of his registration, and he was affected by illicit drugs whilst working in his capacity as a registered medical practitioner.  During the hearing, the applicant withdrew the second allegation, and no more need be said about it.  That the respondent breached the conditions of his registration was not contentious.  The respondent was not legally represented in the proceeding, but made submissions in writing and orally, and tendered additional material at the hearing, as did the applicant.  There was also a Statement of Agreed Facts before the Tribunal.  On 28 October 2022 the Deputy President of the Tribunal made a non-publication order covering the identity of the respondent.  
Background
[3]	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 born in October 1980, and is now 42 years old.  He was first registered as a medical practitioner by the applicant in December 2006, and for a time worked in a trainee position in hospitals, although he did not complete his training.  In January 2014 he began work on a part time basis in the travel insurance industry, and has remained in that industry ever since when working as a medical practitioner.  On one occasion in 2015 he was involved in a medical evacuation from overseas to Australia; otherwise his work did not involve working directly with patients.  
[4]	On 30 August 2014 the respondent was taken to a hospital with a psychotic episode brought on by use of methamphetamine, which he had used for the first time 3 or 4 months earlier.  He was discharged the following day, and attended ATODS where he was told he did not need a detox.  This event occurred in the context of a relationship breakdown.  A notification to the Health Ombudsman was referred to the applicant, conditions were put on his registration, and he had an independent health assessment, provided to the applicant by a psychiatrist on 31 October 2014.  
[5]	The report stated that the respondent had admitted to using methamphetamine at weekends during July and August 2014, and to some further use of the drug in September 2014.  The respondent was diagnosed with Substance Abuse Disorder, and the psychiatrist recommended treatment, a short period away from work, drug screening, and conditions on registration when returning to work.  He later advised that analysis of a hair sample confirmed the opinions expressed in his report.  
[6]	After giving notice to and receiving submissions from the respondent, the applicant on 17 February 2015 imposed different conditions on the registration of the respondent, including for continuing drug screening.  In late September 2015 there was some further use of methamphetamine, first at a party and then over a weekend.  He had a positive drug screening test on 14 October, as a result of which his registration was suspended.  He told his employer what he had done, and his then partner, who left him, following which there was some further use of methamphetamine, a period away from it, and more use in late 2015.  In a further report to the applicant, the same psychiatrist on 18 December 2015 noted that the respondent had now lost his job, had the same diagnosis, and recommended a period away from practice of at least six months, but with abstinence for that period and positive reports from treating practitioners he would be then able to return to work with conditions.  A later report advised that the result of hair testing confirmed the reported drug use, and the opinion provided.   
[7]	In March 2016 the respondent was admitted to a private hospital for two weeks of inpatient psychiatric treatment.  On 27 April 2016 the applicant lifted the suspension of the respondent’s registration, and imposed conditions, but it is not clear that the respondent worked at this time.  When he saw the same psychiatrist in April 2017 for a further health assessment he said that he had travelled for three months, following which he had again used methamphetamine in August 2016 over a three day period, ending when police took him to hospital with paranoid delusions.  He was hospitalised overnight, and then spent a week in the Damascus unit.  He started on a long road trip, but in October 2016 again used the drug which showed on a screening test on 27 October 2016.  He was assessed as having the same diagnosis, but that in view of subsequent abstinence he was fit to return to a position in the travel insurance industry.  A hair test on a sample taken that day was drug free.  
[8]	On 21 June 2017 the applicant, after considering this health assessment, imposed new conditions on the respondent.  The applicant later modified those conditions, on 13 September 2017 by reducing the frequency of drug screening tests, and on 6 December 2017, by allowing him to work five days per week.  In January 2018 the respondent lost his employment following a further relapse, the applicant varied the conditions again, and sought a further health assessment from the same psychiatrist, provided on 4 July 2018.  
[9]	The respondent advised the psychiatrist that he had taken the drug over three days following problems with his relationship, and problems within his family.  He had a positive drug screening test, and was seeing his psychiatrist and his GP regularly.  He wanted to return to work.  The psychiatrist had the same diagnosis, and considered he was fit to work in the proposed employment, where he did not have direct clinical care of patients, but should remain subject to conditions.  The applicant approved the respondent’s working with a travel insurer, and in November cautioned the respondent in relation to the use of methamphetamine earlier in 2018.  On a review in February 2019, the applicant decided to keep in place the then current conditions on the respondent’s registration, of 21 June 2017, as varied on 13 September 2017, 6 December 2017 and 30 May 2018.  
[10]	On 15 May 2019 the applicant cautioned the respondent over suspected use of the drug methamphetamine during the period October 2018 to January 2019.  On 10 July 2019 the applicant again cautioned the respondent over the suspected use of that drug during the period January 2019 to March 2019.  
[11]	Supervisor’s reports to AHPRA for the period 16 December 2019 to 17 February 2020 stated that there were no concerns about the respondent’s performance in his employment, or his health, conduct or fitness to practise.  His supervisor, and other people at his workplace, have provided references, speaking positively of his work, and indicating that he gave no sign of being intoxicated while at the workplace.  
Relevant conduct
[12]	There was a further relapse into the use of illegal drugs in February 2020.  According to the history provided to the same psychiatrist in a health assessment report dated 10 August 2020, after his partner left to travel overseas to train, he used some cocaine at a party on 5 February 2020.  He went to work the next day, but did not present for a drug screening test which was to occur that day, or for one due the following day, when he was not working.  He did not work again until 11 February, working that and the following two days.  Drug screening tests on 11 and 12 February 2020 detected no illegal drugs, but after work on 13 February he used again, and missed a screening test the following day, and one on 17 February 2020.  On 18 February 2020 he had a screening test, and tested positive for methamphetamine.  He did not work again until 3 March.  
[13]	On 17 February he advised AHPRA of his relapse; he had not previously advised of his failure to undertake the screening tests on 6, 7, 14 and 17 February.  He had also failed to attend for a hair test for drugs arranged for 21 January 2020, although he attended for one three days later.  The failure to attend for scheduled tests put the respondent in breach of Conditions 16 and 17 of the then current conditions on his registration.  The failure to advise immediately that he had failed to present for the drug screening tests was a breach of the Drug and Alcohol Screening Protocol, compliance with which was a requirement of that Condition 16.  Taking the illegal drugs was a breach of Condition 15 of the then current conditions on his registration, that he must only take substances prescribed, approved or administered by a nominated treating practitioner.
[14]	On 5 March 2020 the applicant suspended the registration of the respondent.  On 9 June 2021 the applicant determined to refer the respondent’s conduct to the Tribunal, and the referral was filed on 6 October 2021.  On 9 November 2021 the same psychiatrist provided a further health assessment which stated that the respondent had been free from illegal drugs since the previous report, confirmed by hair tests.  He considered the respondent to be in sustained remission, and to be fit to return to work, with conditions.  The applicant lifted the suspension on 10 February 2022, but extensive conditions remain on his registration, and the respondent has not been able to obtain employment as a medical practitioner since then. He said he had applied to the applicant to review the conditions, but there has been no result to date.   
Characterisation of the conduct
[15]	The referral alleges that the relevant conduct constituted professional misconduct, or unprofessional conduct, but the applicant submitted that the former was appropriate.  The respondent did not dispute that it was one or the other, but did not concede that it was the former.  Unprofessional conduct is defined in the National Law s 5 as including a contravention of a condition to which the practitioner’s registration was subject.  Multiple instances of unprofessional conduct can amount to professional misconduct.  The two cases relied on by the applicant, discussed below, both found professional misconduct, but in circumstances where the parties agreed that that was the appropriate characterisation, and the behaviour was more serious.  
[16]	Being a few days late for the hair test, although a breach of condition, is of very little consequence.  The respondent explained that this occurred at a time when he was distracted by the impending departure of his partner.  Missing several drug screening tests is more serious, particularly when it follows, from what was reported to the psychiatrist, that on a couple of occasions at least this was deliberate, to avoid a positive result.  The serious breaches however are those constituted by the taking of the illegal drugs.  This occurred on a number of occasions, involved illegal drugs, the respondent had a long history of occasional use of those drugs, despite the imposition of conditions, psychiatric treatment, and cautions from the applicant.  Because of all these features, the breaches are sufficiently serious to amount to professional misconduct.  
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 generally include 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.  The fitness to practice of the respondent is to be assessed at the time of the hearing.  A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].  
[18]	The applicant submitted that it was important that conditions imposed on the registration of a practitioner were complied with, and that the most important factors here were the need to protect the public through general deterrence, and the need to maintain public confidence in the profession.  In view of his history, personal deterrence would also be of some significance.  The respondent referred to his personal history, that he had had no formal complaints in relation to his actual clinical practice, and that he was not in 2019 directly treating patients.  As to that, he still could have been taking decisions which affected the care of patients, even if others were more involved.  He apologised for his breaches of the conditions, and seemed genuinely upset and embarrassed when discussing his conduct.  He also provided a number of references which spoke highly of his work as a doctor.  
[19]	The applicant relied on two earlier decisions.  In Medical Board of Australia v CQW [2021] VCAT 346 the respondent had a long-standing opioid addiction which was generally managed, but there were significant relapses in 2013, 2016, 2017, and what were described as numerous breaches of conditions relating to drug screening tests, supervision and chain of custody forms for prescription medication.  These breaches were aggravated by the respondent’s provision of false and misleading information to AHPRA, presented as a separate allegation.  The Tribunal proceeded on the basis that the respondent had been drug free for about four years.  Each allegation was found to be professional misconduct, in accordance with the joint submissions of the parties.  The respondent was reprimanded, her registration was suspended for six months (not having been suspended at any time by the Board) and conditions were imposed on her registration.  
[20]	In Nursing and Midwifery Board of Australia v Stokes [2021] VCAT 1319 the practitioner had forty-one instances of non-compliance with testing conditions over a period of seven months.  She had some history of misuse of alcohol and illegal drugs, and had previously had her registration suspended for a time, and been placed on conditions including for testing.  Following these breaches, her registration was suspended by the Board for eighteen months.  There was good evidence of subsequent rehabilitation, and the testing conditions had already been relaxed by the Board.  The Tribunal reprimanded the respondent, and imposed conditions for testing, but did not impose any additional suspension of her registration.  
[21]	In the present case, it is relevant that the respondent’s registration was suspended by the applicant for a period of essentially two years, and indeed for a further period of one year he has been unable to obtain employment because of the conditions on his registration.  This is a longer period of suspension than any which would have been imposed by the Tribunal by way of sanction in this matter.  It may also be noted that the respondent’s registration is already subject to strict conditions, imposed by the applicant, which mean that it is not necessary to consider the imposition of conditions by way of sanction.  In the light of these factors, the applicant, appropriately, did not seek any suspension of registration or the imposition of further conditions by the Tribunal.  The only appropriate sanction in the circumstances is a reprimand.  
[22]	I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is that: 
1.	The conduct of the respondent referred to in paragraph one of the referral constituted professional misconduct. 
2.	The respondent is reprimanded.