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[2014] QCAT 677
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2014-12-12
Original judgment source is linked above.
Medical Board of Australia v Alroe [2014] QCAT 677
Judge Alexander Horneman-Wren SC, Deputy President
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY - where the respondent admitted to three allegations - where the parties agreed the conduct in relation to each allegation amounted to unprofessional conduct - where the parties agree that the conduct, when looked at in totality, amounts to professional misconduct - where the parties agree on the sanction to be imposed - whether the proposed sanction is appropriate
Health Practitioner Regulation National Law (Queensland), s 5, s 226(2)
Medical Board of Australia v Anderson [2014] QCAT 374
Medical Board of Australia v Martin [2013] QCAT 376
Medical Board of Australia v Sinnathamby [2009] QCAT 137
Medical Board of Australia v Evans [2013] QCAT 217
Medical Board of Queensland v B [2006] QHPT 003
Medical Board of Queensland v Blomeley [2003] QHPT 006
Medical Board of Queensland v Keys [2002] QHPT 008
Medical Board of Queensland v Pearce [2011] QHPT 004
Medical Board of Queensland v Smith [2006] QHPT 002
PJ Davis QC with Mr AD Scott instructed by Russells Law
[1] The Medical Board of Australia referred disciplinary proceedings to the Tribunal comprising five charges of disciplinary conduct. The five charges were as follows:
(1) Dr Alroe prescribed controlled drugs of dependency to patients whom he knew, or ought to have known, to be drug dependent without the approval of the Chief Executive of Queensland Health, or her Delegate in breach of s 122(1) of the Health (Drugs and Poisons) Regulation 1996 (Qld) ('Regulation').
(2) Dr Alroe prescribed controlled drugs of dependency to patients whom he knew, or ought to have known, to be drug dependent without the approval of the Drugs of Dependence Unit ('DDU') in breach of clause 11 of the conditions imposed upon Dr Alroe's registration.
(3) Dr Alroe failed to report to the DDU prior to prescribing controlled drugs to any person in breach of clause 12 of the conditions imposed upon Dr Alroe's registration.
(4) Dr Alroe prescribed controlled drugs to a patient in excess of, or other than under, the approved or reported dosage in breach of s 122(8) of the Regulation.
(5) Dr Alroe failed to endorse prescriptions with adequate directions about the use of the controlled drug and the dose to be taken or administered in breach of s 79(f) and (g) of the Regulation.
[2] The Board concedes that it has not proved Charges 1 and 5. Dr Alroe concedes that the Board has proved Charges 2, 3 and 4, but not in respect of all the particulars of those charges as referred by the Board.
[3] It is common ground between the Board and Dr Alroe that his conduct in regard to each charge, in isolation, amounts only to unprofessional conduct. However, Dr Alroe concedes that, in totality, his conduct amounts to professional misconduct.
[4] Dr Alroe was first registered to practice as a Medical Practitioner on 5 January 1979. He practiced principally as a psychiatrist from October 1985 to 2004. At that time Dr Alroe voluntarily suspended his practice after being found to have engaged in unsatisfactory professional conduct. His registration was cancelled by the then Health Practitioners Tribunal. He was prohibited from being registered for a period of four years effective from 21 January 2004, the date he voluntarily suspended his practice. The unsatisfactory professional conduct was not of similar kind to that admitted in these proceedings.
[5] On 19 September 2007, Dr Alroe was found to have engaged in unsatisfactory professional conduct. This conduct related to the prescription of methadone to a patient in 2003, which was before his registration was cancelled. Accordingly, the Health Practitioners Tribunal extended the period during which he could not be registered.
[6] Dr Alroe re-registered as a general practitioner on 12 May 2009 with conditional registration. These conditions were varied on 10 June 2010. At the relevant time the conditions provided:
- The Registrant must seek approval from the Drugs of Dependence Unit prior to prescribing controlled drugs to any drug dependent person.
- The Registrant must report to the Drugs of Dependence Unit prior to prescribing controlled drugs to any person.
[6] Dr Alroe admits that: the Board has proved the particulars of Charge 2 concerning patients CI and DL. Dr Alroe also concedes he had actual knowledge of those patients' drug dependence.
[7] Dr Alroe had authority of the DDU to prescribe methadone to CI up until 2 August 2010. Dr Alroe admitted that after that date he prescribed methadone to CI a further five times.
[8] The DDU was aware that Dr Alroe was prescribing in breach of the authority. This is evidenced by a file note of a conversation between a DDU officer and Dr Alroe, an email from Dr Alroe to the DDU and DDU file notes.
[9] Dr Alroe also had an approval from the DDU to prescribe Oxycodone to DL during the period from 1 December 2010 to 12 December 2010. Dr Alroe made two further prescriptions on 15 and 20 December 2010.
[10] The prescriptions for DL were made three months after Dr Alroe had continued to prescribe to CI. The DDU had not notified Dr Alroe that it was inappropriate to continue prescribing to CI without approval regardless that he was keeping the DDU informed of such prescribing. Relying on the DDU's lack of action, Dr Alroe formed the view that he could continue to prescribe to DL provided he continue to disclose his prescribing to the DDU.
[11] Such a belief is evidenced by emails sent by Dr Alroe to the DDU on each date outside the approval period on which he prescribed to DL advising that he had made the prescriptions.
[12] The Board does not suggest that the prescribed dosages to either patient were not medically appropriate.
[13] Dr Alroe admits that, although he was disclosing his prescriptions to the DDU, he did not have approval for the prescriptions made to CI after 2 August 2010, and to DL after 12 December 2010. Further, Dr Alroe admits this conduct amounts to a breach of clause 11 of his conditions.
[14] Conditions are imposed on a registrant for the purpose of protecting the public. Dr Alroe concedes that, with this purpose in mind, a breach of conditions is, by its very nature, serious.
[15] The conduct of Charge 2 amounts to unprofessional conduct.
[16] Dr Alroe concedes that the Board has proved the particulars of Charge 3 concerning all but two patients. The Board concedes it has not proved the particulars concerning those two patients.
[17] Dr Alroe submits that his failure to report to the DDU was 'by way of oversight'. He noted that he would see up to 900 patients a month. The breaches occurred in the second half of 2011, a period which Dr Alroe noted to be very busy as a number of doctors had ceased work at his place of employment. As a result Dr Alroe was seeing a number of patients who regularly saw other doctors. A number of those patients were chronic pain patients, not drug dependent patients, who required Schedule 8 drugs.
[18] Again it is relevant that the Board does not suggest that the prescribed dosages were not medically appropriate. Further, the Board does not suggest that the lack of notification was a deliberate action taken by Dr Alroe.
[19] Dr Alroe admits to prescribing controlled drugs without reporting to the DDU prior to making the prescription. He concedes this is in breach of clause 12 of his conditions. Dr Alroe again concedes that a breach of conditions is, because of the purpose of their imposition, serious.
[20] The conduct proved by the Board with regards to Charge 3 amounts to unprofessional conduct.
[21] Dr Alroe concedes that the Board has proved the particulars of Charge 4 concerning all but one patient. The Board concedes it has not proved the particulars concerning that patient.
[22] Charge 4 concerns allegations Dr Alroe breached s 122(8) of the Regulations. Section 122 of the Regulations relevantly provides:
(5) If the chief executive is reasonably satisfied that, for the welfare of the drug dependent person or class of drug dependent person, it is necessary for the relevant practitioner to treat the person or persons with a controlled drug, the chief executive may give the relevant practitioner written approval to administer, dispense, prescribe, supply or give an oral or written instruction to supply a stated quantity or volume of the controlled drug.
(8) A relevant practitioner to whom a written or oral approval has been given under subsection (5) or (6) must not administer, dispense, prescribe, supply, or give an oral or written instruction to supply a controlled drug to the person or persons other than under the approval.
[23] From 10 September 2010, Dr Alroe was approved to prescribe to GU, Morphine Slow Release Oral 400 mg daily maximum subject to conditions.
[24] Over a period from 10 September 2010 to 12 January 2011, Dr Alroe prescribed a total amount of Morphine which equates to 510 mg per day. This is in excess of the approved amount.
[25] The prescriptions generally gave directions that a certain quantity was to be 'daily taken before the chemist and kept by that person'.
[26] Dr Alroe admits the Morphine had been prescribed in amounts which exceeded the approvals. However, provided the directions were followed by the pharmacist, GU would not receive amounts in excess of the approved amount.
[27] A similar situation occurred with another patient, OV, where Dr Alroe was approved to prescribe Morphine Slow Release Oral to a daily maximum of 200mg. Dr Alroe admits he had prescribed a total amount in excess of that maximum. Again, provided the directions accompanying the prescription were followed, the patient could not receive excess amounts of Morphine.
[28] Dr Alroe also had an approval for the period 1 December 2010 to 12 December 2010 to prescribe an amount of Oxycodone to DM subject to the condition that he prescribed '20 tablets only'. Dr Alroe prescribed 20 tablets to DM on 1 December 2010. Then, on 9 December 2010, Dr Alroe prescribed a further 14 tablets to DM.
[29] Dr Alroe disclosed his further prescribing to Queensland Health by email on 9 December 2010. Dr Alroe stated that he had provided DM with sufficient medication 'for only a further six days at sea'.
[30] Dr Alroe admits that, regardless of his disclosure, such prescribing was in breach of the approval.
[31] Dr Alroe admits that he breached s 122(8) of the Regulations in prescribing to GU and OV, but submits that the prescribing was only a technical breach of the approvals. Approvals are made under s 122(5) of the Regulations when it is necessary to treat a drug dependent person with a controlled drug for the welfare of that person. A major purpose of the section is to ensure a drug dependent person is treated with an appropriate amount of the controlled drug. By his endorsements and, in the case of GU, by telephoning the pharmacist Dr Alroe ensured that the patients did not receive more that the approved maximum.
[32] While Dr Alroe admits breaching s 122(8) of the Regulations in prescribing to DM, he submits that such a breach should be viewed in light of the fact that there is no suggestion the dosage was medically inappropriate, and a disclosure of the prescribing activity was immediately made.
[33] For these reasons Dr Alroe submits, and the Board concedes, that the breaches of s 122(8) of the Regulations only constitute unprofessional conduct. In my view, the circumstances of Dr Alroe's breaches of s 122 of the Regulations is properly viewed as unprofessional conduct.
[34] The parties agree and jointly submit that Dr Alroe's conduct in relation to each individual charge would constitute unprofessional conduct. They also agree and jointly submit that, when considering the breaches together, Dr Alroe behaved in a way that constitutes professional misconduct.
[35] Professional misconduct is defined in s 5 of the Health Practitioner Regulation National Law (Queensland) ('National Law') as follows:
professional misconduct, of a registered health practitioner, includes -
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
[36] The parties joint position in respect of the totality of Dr Alroe's conduct is appropriate and should be accepted. He has engaged in conduct which amounts to professional misconduct.
[37] Having determined that Dr Alroe behaved in a way that constitutes professional misconduct, it is appropriate that the Tribunal impose a sanction.
[38] The Board submitted a Draft Order to the Tribunal which Dr Alroe consents to. The Tribunal ought not to depart from an agreed sanction provided it is within a permissible range in all the circumstances of the case.[1]
[39] The Draft Order is as follows:
- Pursuant to s 196(1) of the National Law, the Registrant has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the National Law, the Registrant is reprimanded.
- The Registrant must immediately surrender his authority to Queensland Health to prescribe controlled drugs.
- Pursuant to s 196(2)(b) of the National Law, the following conditions be imposed on the Registrant's registration:
(a) The Registrant must not reapply to Queensland Health for reinstatement (either full or partial) of his authority to prescribe any controlled drug.
(b) The Registrant must authorise the Board (or its delegate) to access, inspect, take or copy his patient/practice records including patient and prescribing records, and appointment diaries at such time or times as determined by the Board (or its delegate) for the purpose of monitoring compliance with these conditions.
(c) The Registrant must authorise Medicare Australia to release to the Board (or its delegate) any information relating to his practice of medicine at such time or times as determined by the Board (or its delegate).
(d) The Registrant must authorise the Board (or its delegate), and the relevant drug regulation units of the relevant State and/or Territory to exchange information at such time or times as determined by the Board (or its delegate), for the purpose of monitoring and ensuring compliance with these conditions.
(e) The Registrant must provide a copy of these conditions to prospective employers/partners/contractors of Health Services in any practice/facility in which he is seeking to practice.
(f) Within seven days of notifying the person described in condition (e), the Registrant will advise the Board (or its delegate) in writing of the name and contact details of those persons.
[40] Dr Alroe submits that the appropriate sanction for conduct involving controlled drug prescriptions is generally a reprimand and the imposition of conditions that restrict the prescription of controlled drugs and require reporting and record keeping of these prescriptions. Instances where more serious penalties are imposed arise in cases involving further serious conduct or where the prescribing has been negligent. In this matter Dr Alroe's breach of conditions on his registration amounts to further serious conduct.
[41] Of the comparative cases referred to the Tribunal, three involved conduct regarding controlled drug prescriptions that did not involve further serious conduct or negligent prescribing. These cases were Medical Board of Queensland v Blomeley,[2] Medical Board of Queensland v B[3] and Medical Board of Australia v Sinnathamby.[4]
[42] In Blomeley the Registrant prescribed controlled drugs to a drug dependent patient in circumstances where the Registrant did not have a written approval as required by the Regulation, he was in breach of a notification not to treat the patient, and the treatment was not reasonably required. Further, the Registrant fraudulently provided to the patient prescriptions for controlled drugs under other patients' names.
[43] The Registrant was prohibited from administering, supplying or obtaining controlled drugs for patients for a period of 12 months. The Health Practitioner Tribunal also imposed the standard conditions imposed in disciplinary proceedings involving prescribing controlled drugs to allow the Board to monitor the prescribing behaviour of the Registrant after the 12 month period.
[44] The conduct in Blomeley, with regards breaching the Regulation, was more serious than the conduct of Dr Alroe. Dr Alroe did not prescribe in breach of a notification not to treat and did not attempt to fraudulently prescribe controlled drugs under other patients' names.
[45] In B the Registrant prescribed controlled drugs to his wife, who was a drug dependent person, over a period of seven years. The Registrant failed to advise his wife's treating doctor and did not make adequate records of the treatment. The prescribing was in breach of the Regulation. The Registrant also continued to prescribe controlled drugs to his wife after advising the DDU that he had ceased such prescribing.
[46] In B the Health Practitioner Tribunal imposed conditions on the Registrant prohibiting him from treating his wife along with the standard conditions imposed in this type of disciplinary proceeding.
[47] Again, the conduct in B, with regards breaching the Regulation, was more serious than Dr Alroe's conduct. Dr Alroe disclosed to the DDU all prescriptions made outside approval periods and did not attempt to deceive the DDU. Nor was his prescribing over as prolonged a period as in B. However, Dr Alroe did breach the Regulation by prescribing to more than one patient.
[48] The Registrant in Sinnathamby excessively and inappropriately prescribed controlled drugs to one patient who showed addictive behaviour. In addition, the Registrant admitted to using an unconventional treatment of a patient in absence of a clinical context and without proper note taking.
[49] The Tribunal imposed conditions requiring the Registrant to only prescribe controlled drugs in accordance with approvals by the DDU and to consent to the release of records by the DDU to the Board. The Registrant was also reprimanded and find $1,500 and other conditions were imposed which related to other conduct.
[50] Dr Alroe's conduct in breaching the Regulation was not as serious as the Registrant's conduct in Blomeley, B, and Sinnathamby. However, because of Dr Alroe's further behaviour in breaching conditions of his registration, the sanctions imposed in these matters ought to be considered as being in the lower end of the permissible range.
[51] The Tribunal was referred to the matter of Medical Board of Queensland v Smith.[5] In Smith the Registrant prescribed controlled drugs to a drug dependent person in breach of the Regulations. The prescribing was also in breach of an undertaking by the Registrant not to prescribe controlled drugs to patients pending the Board's investigation into the Registrant. The Registrant also engaged in sexual misbehaviour and harassment of a patient.
[52] The Health Practitioner Tribunal suspended the Registrant's registration for two years. It also ordered the Registrant to undertake psychiatric treatment. It imposed conditions on any future registration of the Registrant such that he could only prescribe controlled drugs under supervision. It also imposed other general conditions regarding prescribing conduct.
[53] Of the comparative cases, Smith is the only case involving a further charge similar to Dr Alroe's breach of conditions. In comparing the matters it should be noted that Dr Alroe made full disclosure of the conduct which constituted the breach of conditions at the time the breaches occurred. It is not clear, and is unlikely, that such disclosures were made in Smith.
[54] Smith should be distinguished as being more serious than this case because of the further charge of sexual misconduct. However, there were mitigating factors considered in Smith that should be kept in mind when reflecting on the sanction imposed. These factors included that the Registrant was suffering from a major depressive disorder mainly due to the suicide of his son, and the Registrant had never been the subject of allegations during 31 years in practice.
[55] The Tribunal was also referred to the matters of Medical Board of Queensland v Pearce,[6] Medical Board of Queensland v Keys[7] and Medical Board of Australia v Evans.[8] In these cases, in addition to breaching the Regulations, the Registrants were charged with further, extremely serious behaviour or serious inappropriate and negligent prescribing. For this reason, these cases are toward the higher end of the permissible range of sanctions.
[56] In Pearce the Registrant administered excessive controlled drugs that resulted in the patient's death. The Registrant had been convicted of manslaughter of a 15 month old child who was treated by the respondent for a burnt hand suffered as a result of touching a hot oven door. She had administered a manifestly excessive dose, 5 to 10 times the correct dosage, of morphine. She was sentenced to a period of imprisonment. Here, there is no occasion upon which a patient has been prescribed or administered an inappropriate dosage, albeit that in some instances they exceeded the dosage approved by the DDU. The Health Practitioner Tribunal suspended the Registrant's registration for two years.
[57] In Keys the Registrant admitted to improper and excessive prescribing of controlled drugs and to making fraudulent prescriptions for the purpose of providing his wife, a drug dependent person, with controlled drugs. The Registrant also failed to comply with undertakings made to the Board. The Health Practitioner Tribunal cancelled the Registrant's registration and he was prohibited from re-applying for registration for five years. In the event that the Registrant was re-registered strict conditions relating to prescribing of controlled drugs were to be imposed on his registration.
[58] In Evans the Registrant breached multiple sections of the Regulation. The Registrant admitted to having prescribed controlled and/or restricted drugs of dependency on more than 1,000 occasions to 18 patients whom he knew, or ought to have known, were drug dependent. The Registrant also provided unconventional and unregistered treatment to a child patient and fraudulently renewed his registration. The Tribunal observed that, but for the Registrant's undertaking not to apply for re-registration as a health practitioner in Australia, a suspension for a considerable period of time would have been appropriate.
[59] In my opinion, having discussed this matter with the assessors, the sanction contained in the proposed order is within the permissible range in the circumstances of this case. That being so, for the reasons explained in Martin, the Tribunal ought not depart from it.
[60] Two aspects of the proposed orders require comment. First, proposed order 5 is that details of the conditions imposed be recorded for the period when conditions are in force. As was noted recently in Medical Board of Australia v Anderson[9] an order imposing the period during which the conditions are to be recorded on the Board's Register is unnecessary because the Act already does that work and the Tribunal should not impose a conditions that would act as a further fetter on the Board's discretion concerning the information to be recorded in the Register.[10]
[61] Secondly, due to the delay in the Tribunal delivering these reasons, it is appropriate that the review period provided for in proposed order 6 be reduced from five to four years.
[62] The parties seek an order that Dr Alroe pay the Board's costs of and incidental to this proceeding fixed at the sum of $90,000. This order is appropriate and I will make such order.
[1] Medical Board of Australia v Martin [2013] QCAT 376 at [91]- [93] ('Martin').
[4] [2009] QCAT 137 ('Sinnathamby').
[8] [2013] QCAT 217 ('Evans').
[9] [2014] QCAT 374 at [46] - [47].
Medical Board of Australia
Alroe [2014] QCAT 677