Medical Board of Australia v Bertholini [2025] QCAT 507

(a) reprimanded; and

(b) required to pay a fine of $5,000 to the Board.

• [4] As there is no dispute between the parties, it is appropriate that the referral be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
• [5] However, notwithstanding the parties' agreed position, it is necessary for the Tribunal to determine the appropriate characterisation of the conduct and the sanction to be imposed.[1] As to the agreed sanction, the Tribunal ought not depart from a proposed sanction agreed between the parties unless the sanction falls outside the permissible range, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[2]

• [6] The respondent has been a registered medical practitioner for approximately 23 years. He currently holds general registration as a medical practitioner and specialist registration in anaesthesia.
• [7] The respondent ceased practise on or about 13 July 2023 to focus on his health. The respondent self-notified Ahpra of his conduct on 20 July 2023.
• [8] On or about 26 July 2023, the respondent consulted his general practitioner ('GP') for a referral to a psychiatrist. The respondent has continued to regularly consult with his GP.
• [9] On 1 August 2023, the respondent consulted with a psychiatrist, Dr Apel, who he has continued to regularly consult with.
• [10] On 2 February 2024, the Board decided to investigate the respondent's conduct pursuant to section 160(1)(a) of the National Law.
• [11] On 12 February 2024, with the endorsement of his treating psychiatrist, the respondent returned to practise. Since doing so, the respondent:

(a) has limited his clinical practice to an average of 34 hours a week;

(b) has been mentored by a registered specialist anaesthetist, Dr Mitchell; and

(c) self-requested hair and urine drug screening, with the results provided to his psychiatrist.

• [12] The Tribunal is exercising original jurisdiction. Despite the agreement between the parties, the Tribunal must ultimately be satisfied that the referred conduct can be proven to the standard enunciated in Briginshaw v Briginshaw [1938] HCA 34 before it considers the characterisation of the proven conduct.
• [13] The Tribunal must observe the rules of natural justice, is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.[3]

• [14] The allegation in the referral involves agreed facts where there were six occasions of misappropriation of propofol: twice 'at some point in 2021', once in approximately September 2022, twice in approximately June 2023, and once on 11 July 2023. On each occasion bar the last, he self-administered the drug at his home or in its surrounds. At all material times, the respondent worked as an anaesthetist at three different private hospitals on the Sunshine Coast.
• [15] There are some further facts which arise from material in the hearing brief, which are not contested.
• [16] The respondent's self-referral had a precipitating event, which was that, on 12 July 2023, a nurse saw him put a syringe of medication into his bag in theatre and reported it to the Director of Nursing, Ms CT, who immediately attended the theatre and saw the respondent's bag open with the 10ml syringe that contained a white fluid sitting at the bottom of the bag. Ms CT removed the syringe while the nurse was watching. After discussions with another senior medical practitioner, they decided not to confront the respondent at that time.
• [17] When the respondent got home from work, he realised the syringe had been removed from his bag.
• [18] Ms CT and the respondent spoke by telephone on 13 July after he had finished work and they 'had that conversation',[4] which clearly is a reference to Ms CT mentioning the fact that she found the syringe and removed it from the respondent's bag two days prior. During this conversation, the respondent denied knowing anything about misappropriating the propofol.
• [19] It is the respondent's recollection that he contacted solicitors the following day to get legal advice, thinking that he should do so before making any admissions. It is also around this time, that is on or about 13 July 2023, that the respondent voluntarily removed himself from practise to focus on his health.
• [20] In his interview with Ahpra almost one year later, on 14 June 2024, the respondent said that his 'reflex denial' was owing to him being in a 'pretty bad place' and needing 'to deal with [his]... psychological wellbeing before [he] was ready to admit to, or to put anything in writing and discuss with [his solicitor]' regarding the notification.[5] He also said that he was 'eternally ashamed of... what was a silly denial'.[6]
• [21] On 20 July 2023, the respondent made a voluntary self-notification to Ahpra in which he stated that, inter alia, he:[7]

(a) ceased practising on or about 13 July 2023, having taken time off work on account of his health;

(b) was making a voluntary self-notification pursuant to s 144(1)(d) of the National Law on the grounds that he may have an impairment;

(c) has a pre-existing back injury that is symptomatic from time to time;

(d) has self-administered propofol 'on a handful of occasions over the preceding three years';

(e) wished to inform the Board that on no occasion has he self-administered propofol in the workplace or otherwise during practise;

(f) had an appointment with his GP scheduled for 26 July 2023 for a long consult and a referral to a psychiatrist;

(g) intends to return to clinical practise only when his treating practitioners certify that he is medically fit to do so; and

(h) has voluntarily sought out an education plan from Avant's Risk Advisory Service in relation to self-administration by medical practitioners and the Board's Good Medical Practice: a Code of Conduct for Doctors in Australia ('Code of Conduct').

• [22] The Tribunal is satisfied that the Board has established the sole ground in the referral.

• [23] The parties have agreed that the conduct should be characterised as professional misconduct.
• [24] The Tribunal accepts that is the appropriate characterisation for the following reasons.
• [25] Propofol is a schedule 4 prescription only medication under the Standard for the Uniform Scheduling of Medicines and Poisons, a 'diversion risk medicine' according to schedule 2, part 3 of the Medicines and Poisons (Medicines) Regulation 2021 (Qld) and medication typically indicated to induce sedation.
• [26] On each occasion, the respondent misappropriated the propofol, it was a medication he had access to by virtue of his work. He misappropriated it from his workplace for the purpose of self- administration. It is conduct which is inconsistent with Principles 2.1 and 11 of the Code of Conduct, a document which is evidence of what constitutes appropriate professional conduct in the medical profession.[8]
• [27] It was conduct which was repeated on intermittent occasions over a couple of years, with a direct nexus to his professional practise, it was directly contrary to conduct expected of health practitioners, which places the profession at risk in terms of undermining the reputation of medical practitioners, and it was conduct with the potential to reduce the trust and confidence of the community in medical practitioners and the health industry.
• [28] It was conduct which was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

• [29] The Tribunal must regard the health and safety of the public as paramount.[9] The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public. The sanction in a particular case must be considered based on the facts and to achieve those purposes.
• [30] Insight into the seriousness of the conduct will be a relevant consideration of the Tribunal in assessing the ongoing risk posed by the respondent and the likelihood of him reoffending. The respondent has demonstrated very significant insight into and remorse for his conduct.
• [31] Firstly, he made full and frank admissions about his conduct immediately after obtaining legal advice, by a voluntary self-notification to Ahpra about his conduct, including circumstances which would not otherwise have been identified.
• [32] Secondly, the respondent immediately ceased practise for a period of seven months to focus on his health and only returned after he was medically cleared to do so.
• [33] Thirdly, the respondent sought professional help from his GP and psychiatrist, both of whom the respondent has maintained seeing regularly and who endorsed his return to practise.
• [34] Fourthly, he has provided an explanation (on the basis that it does not constitute an excuse) for his conduct, involving both a physical injury to his back, together with some difficult matters in his personal life. These explanations are supported by the medical evidence from his treating psychiatrist and GP.
• [35] Fifth, he has cooperated fulsomely with Ahpra's investigations and in the proceedings before the Tribunal.
• [36] Sixth, he has completed education programs on various topics including, relevantly, professional ethics, professionalism in medicine, the guidelines for self-treatment and treating family members.
• [37] Seventh, he has returned to practise with conditions imposed at his own volition, and has continued to consult with his professional mentor.
• [38] Eighth, he has expressed remorse and regret not only for engaging in the conduct but for causing his colleagues to be faced with such a situation.
• [39] The Tribunal notes the respondent's conduct did not cause any direct harm to patients.
• [40] There is evidence before the Tribunal from the respondent's treating psychiatrist, Dr Apel, who confirmed to Ahpra in 2023 the respondent:

(a) has remained abstinent from all substances;

(b) remains in regular contact with Dr Apel;

(c) is well committed to the concept of a complete abstinence and withdrawal from unprescribed substances and as such, psychologically, well committed to appropriate goals;

(d) in addressing his personal issues, has had a significant improvement in his mood and that his 'gross unhappiness in the home environment and compensatory somewhat excessive work hours' had been major driving factors of his mood disorder, so much so his judgment is no longer impaired by depressive issues;

(e) is fit to return to work on the conditions that:

(i) he works no more than 30 hours per week (with flexibility as required given the unpredictable nature of being an anaesthetist);

(ii) he remains under the care of Dr Apel or another psychiatrist experienced in addiction work;

(iii) he remains in regular contact with his GP;

(iv) he has regular daily contact with another anaesthetist who is familiar with his situation;

(v) the logged record of intraoperative medications be maintained and checked by the hospital staff; and

(vi) he undertakes hair testing to ensure abstinence from medication, as arranged by Dr Apel.

• [41] The respondent's professional mentor, Dr Mitchell, provided a reference dated 24 August 2024, which states¸ inter alia:

(a) he has been one of the respondent's 'support people in the aftermath of a personal crisis';

(b) the mentoring relationship is fluid due to the busy nature of practising anaesthetics;

(c) that he considers the process of mentoring the respondent has been a 'tremendous success', which he has found rewarding and that he has gotten out as much of the mentoring relationship as the respondent has;

(d) he and the respondent have developed a deep sense of trust and respect for each other; and

(e) that he has been 'constantly amazed by the way [the respondent] has navigated through an incredibly difficult phase of his life' by remaining calm and accepting of difficulties, setbacks and delays.

• [42] Dr Apel observed in his further report to Ahpra in August 2024, that the respondent has been living a 'much more balanced life than at the time of the index behaviours', the respondent was 'off all medications and [there] was no evidence of recurrence of depression'. Dr Apel further opined that:

(a) there was no ongoing psychiatric illness;

(b) the respondent is an individual who accepted the 'galactic wrongfulness of his behaviour' and 'has made significant efforts to improve matters'; and

(c) the risk of recurrence of problematic behaviours is low in the respondent.

• [43] There is in evidence before the Tribunal of several pathology reports that demonstrate the respondent's abstinence.
• [44] The respondent has also filed several character references from his colleagues. It is clear from the character references that the respondent is held in high regard, has consistently demonstrated a high level of clinical competence, is considered to have shown incredible strength of character at a time of adversity, is well-respected and an excellent and reliable anaesthetist, who advocates for his patients.
• [45] The Tribunal accepts the respondent is deeply remorseful, that his insight and remorse are each evident from his affidavit and submissions, together with his early admissions and cooperation in the disciplinary process. The Tribunal further accepts that the respondent continues to address the root causes for his conduct by attending his GP, psychiatrist and more recently, a psychologist, together with managing his working hours and changing other aspects of his life.
• [46] The parties submit, and the Tribunal accepts, that a reprimand is within the permissible range. A reprimand is not a trivial penalty and has the potential for serious adverse implications; it amounts to a public denunciation and is not a mere slap on the wrist.[10]
• [47] The respondent's admissions and cooperation have enabled the matter to progress timeously throughout the Tribunal (i.e., in about six months), and have prevented the need for a contested hearing, subsequently not putting the Board to that expense and saving the Tribunal's time and resources.
• [48] While the comparable cases provided by the Board[11] provide a yardstick, each case turns on its own facts and nothing directly comparable is available. However, the cases referred to support the proposition that the sanction proposed by the parties is consistent with other authorities.
• [49] It is in the circumstances set out at [31] to [38], together with the medical evidence from his GP and psychiatrist, that the Tribunal considers personal deterrence does not loom large in this case. General deterrence is an important function of any disciplinary proceeding and outcome. The Tribunal is of the view that a finding of professional misconduct, together with a reprimand and imposition of a fine of $5,000, will achieve general deterrence.
• [50] The Tribunal is satisfied that the findings and orders proposed by the parties not only send a clear message to the profession that conduct such as this will not be tolerated but also appropriately balance the mitigating factors.
• [51] While noting that the Tribunal has no power to order a date on which the reprimand should cease to be recorded on the national register, in reliance on authority,[12] counsel for the respondent submitted that the Tribunal should make a recommendation to the Board that it seriously consider whether it is necessary or appropriate for the reprimand to be recorded on the national register for more than two years. In the particular circumstances of this case, with the voluntary notification of matters including some which would otherwise likely have gone undetected, the significant level of insight the respondent has shown and his deep remorse, the Tribunal recommends that the Board seriously consider whether it is necessary or appropriate for the reprimand to be recorded on the national register for more than two years.

[1] Health Practitioner Regulation National Law (Queensland) s 196 ('National Law').

[2] Medical Board of Australia v Martin [2013] QCAT 376, 17 [91].

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a)-(c).

[4] Transcript of the respondent's interview with Ahpra, 14 June 2024, 6 [68].

[7] Hearing Brief, filed in the Tribunal 18 November 2025, 23.

[8] National Law (n 1) s 41.

[10] Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Court, Marks J, 19 January 1994).

[11] Health Ombudsman v White [2019] QCAT 36; Medical Board of Australia v YQX [2023] QCAT 560, Medical Board of Australia v Lodhi [2022] VCAT 439, Nursing and Midwifery Board of Australia v Edwards [2020] SACAT 44.

[12] Health Ombudsman v Veltmeyer [2021] QCAT 77, 7-8 [36]-[38]; Health Ombudsman v Maisch [2024] QCAT 431.