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[2016] QCAT 54
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2016-05-20
Original judgment source is linked above.
Medical Board of Australia v Ong [2016] QCAT 54
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - DEPARTURE FROM ACCEPTED STANDARDS - where registrant inappropriately prescribed drugs of dependency and/or controlled drugs - where registrant's prescriptions were excessive in quantity and frequency - where registrant's record keeping was deficient - where registrant admitted conduct - where parties presented proposed sanctions - whether proposed sanctions appropriate in the circumstances
Health Ombudsman Act 2013 (Qld), s 326
Health Practitioner Regulation National Law (Queensland), ss 5, 193, 195 and 196
Queensland Civil and Administrative Tribunal Act 2009, ss 100 and 102
Medical Board of Australia v Jansz [2011] VCAT 1026
Medical Board of Australia v Martin [2013] QCAT 376
[1] The Medical Board of Australia (the Board) referred a disciplinary proceeding to the Queensland Civil and Administrative Tribunal (the Tribunal) on 12 November 2014 against the practitioner, Dr Michelle Ong.
[2] The referral was made under s 193 of the Health Practitioner Regulation National Law (Queensland) (National Law) on the basis that the Board reasonably believed Dr Ong had behaved in a way that constituted professional misconduct.
[3] The grounds set out in the referral related to conduct engaged in by Dr Ong in the period from late 2005 to mid-2016 whilst she was working as a general practitioner in her own practice.
[4] The conduct related to Dr Ong's inappropriate prescribing of pseudoephedrine (PSE) and/or restricted drugs of dependency and/or controlled drugs, and record keeping in relation to 12 patients.
[5] Following a complaint to Queensland Health with respect to her treatment of one of the 12 patients, Queensland Health issued a notice of decision on 15 December 2011 cancelling Dr Ong's endorsement to deal with restricted drugs that are benzodiazepines and restricted drugs and poisons containing PSE.
[6] Queensland Health forwarded the notification to the Australian Health Practitioner Regulation Agency. On 9 March 2012 the Board imposed conditions on Dr Ong's registration. The Board subsequently varied those conditions on 16 March 2012 to be consistent with the conditions imposed by Queensland Health.
[7] On 15 February 2013, Queensland Health restored Dr Ong's endorsement relating to restricted drugs and poisons containing PSE. On 8 March 2013, Dr Ong entered into an agreement with the Medicine Regulation and Quality Unit of Queensland Health (MRQ) covering the period from October 2012 to October 2014. Under the terms of that agreement, Dr Ong agreed to work in a group practice, undertake self-audit and professional development education and participate in a mentoring program with Dr Edward Then.
[8] Dr Ong successfully fulfilled the terms of the agreement. She was allowed to return to sole practice and was no longer subject to any restrictions on her practice.
[9] Dr Ong's registration continued to remain subject to conditions imposed by the Board. These conditions were primarily designed to allow for the free flow of information between Queensland Health and the Board. The conditions remained on her registration until 15 April 2015.
[10] The Board obtained expert reports from Drs Turnbull and Kable. The relevant extracts of those reports are contained in the parties' Statement of Agreed and Disputed Facts. In discussing Dr Ong's prescribing practices, Dr Turnbull said that "the registrant has a history of prescribing narcotics in excess of approved quantities for patients registered with the MRQ." He said "... the vast majority of General Practitioners is well aware of the 'street value' of narcotics, benzodiazepines, stimulants and PSE."
[11] In relation to Dr Ong's prescribing of PSE, he opined:
...it is common knowledge in general practice that PSE is highly valued in the illicit drug trade, and if the registrant is treating a large number of drug dependent patients, I feel she should be especially suspicious of requests for the drug...
He continued, "there are very few current indications for PSE, and alternative drugs are available in most cases."
[12] Dr Kable commented that "there was no excuse for a general practitioner not to be aware" of narcotic medication, PSE and benzodiazepines being "abused in the past and diverted for sale to other persons."
[13] In relation to the 12 patients, Dr Kable considered Dr Ong's clinical notes to be deficient. In Dr Kable's report, he referred to the notes as providing "little clinical information and clues as to why things have been prescribed." He further said, "Very rarely are there notes about clinical examinations which may have been undertaken."
[14] Dr Ong accepted the opinions of Drs Turnbull and Kable in relation to her prescribing practices and the opinion of Dr Kable in relation to her clinical record keeping.
[15] Dr Ong admitted her conduct amounted to professional misconduct as defined in s 5 of the National Law. In particular, she admitted to that conduct amounting to:
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.
[16] In terms of Dr Ong's prescribing practices, it was accepted that the unprofessional conduct of a lesser standard was:
providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's wellbeing.
[17] In relation to her prescription of PSE, Dr Ong admitted to prescribing large quantities to patients where there was insufficient therapeutic need for the prescription of PSE and/or it was otherwise inappropriate. Dr Ong admitted to prescribing some patients five or more packets of PSE at one time. In respect of some patients, she had prescribed 10 packets at one time.
[18] Given the admissions made by the practitioner and the independent reports of Drs Turnbull and Kable, the Tribunal has no difficulty in being satisfied that Dr Ong has behaved in a way that constitutes professional misconduct. There can be no doubt that in respect of the 12 patients the subject of the referral Dr Ong provided services that were "excessive, unnecessary or otherwise not reasonably required" for the patient's wellbeing, and that the clinical record keeping in respect of the 12 patients was deficient.
[19] Having determined that the conduct amounted to professional misconduct, in accordance with s 196(2) of the National Law, the Tribunal must decide the appropriate sanction to be imposed.
[20] By agreement, the parties have proposed a sanction comprised of a short period of suspension and the imposition of conditions requiring continuing mentoring and auditing of Dr Ong's records. It was agreed the conditions were to be directed to ensuring the continuance of the changes made by Dr Ong to her prescribing practices and her clinical note taking.
[21] The parties have agreed that a 1 month suspension is appropriate. In making the submission in support of the period of suspension, both parties placed reliance on the decision of Medical Board of Australia v Jansz.[1] As stated in Jansz, the two prime objectives in disciplinary proceedings are the protection of the public and the maintenance of the profession in the eyes of the public.
[22] Importantly, as was observed in Jansz, the determination of disciplinary proceedings should in no sense be punitive, and "must not be framed in such a way or be constituted in such a way, or be so harsh as in reality to be punitive or retributive".[2] Important considerations were said to be the insight gained by the practitioner into the offending conduct and any significant steps taken by the practitioner to rehabilitate.
[23] The Statement of Agreed and Disputed Facts details the various steps taken by Dr Ong since the initial complaint to Queensland Health. In April 2012, Dr Ong of her own volition commenced mentoring with Dr Then, which continued even after the Queensland Health Agreement ended. Dr Ong has attended numerous educational courses relating to the prescribing of benzodiazepines and the management of drug-addicted patients. She has also sought the assistance of her professional indemnity insurer risk advisor. Such steps are an acknowledgement by her of her conduct. They demonstrate insight, and clearly minimise the risk of future misconduct.
[24] When parties have reached a joint position, as former Deputy President Judge Horneman-Wren stated:
The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[3]
It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.[4]
[26] In the circumstances, the Tribunal is satisfied that the period of suspension proposed falls within the appropriate range and serves the intended purpose of disciplinary proceedings.
[27] In determining the conditions to be imposed on Dr Ong's registration, there was agreement between the parties that Dr Ong required continuing mentoring and auditing of her records.
[28] The parties eventually agreed on the appropriate mentor, the scope of the mentoring relationship and the period of continuing mentoring. The parties agreed that given the conditions to which Dr Ong had been subject to over the last 3 years and the mentoring which Dr Ong had already undergone in that period, a further period of mentoring of 12 months was adequate.
[29] In terms of the auditing of Dr Ong's records, agreement was reached as to the appropriate auditor, the scope of the audit and the length of period to which she was to be subjected to auditing.
[30] However, agreement was not reached as to the number of audits. The Board's position was that an audit should be conducted every 3 months over the next 12 month period. Dr Ong's starting position was that one audit at the end of the 12 month period was adequate. Her counsel in oral submissions said that, at the very most, Dr Ong would accept two audits in that period.
[31] In justifying the position taken by Dr Ong, her counsel referred to the cost of the audit, disruption to Dr Ong's practice and the conditions to which Dr Ong has already been subjected.
[32] Her counsel acknowledged that Dr Ong's practice had not previously been the subject of an independent audit.
[33] It was accepted by both parties that the primary purpose of the audit was to review Dr Ong's record keeping and to assess Dr Ong's prescribing practices.
[34] Given the lengthy period of Dr Ong's offending conduct and the extremely poor state of her clinical records during that period, the Tribunal is of the view that one audit at the end of the 12 month period would not be sufficient.
[35] It is the Tribunal's view, consistent with the agreement of the parties, that Dr Ong should remain subject to conditions for the next 12 months. Throughout that period Dr Ong's practice should be monitored, not just at the end of that period.
[36] Having considered the submissions of counsel, it is the Tribunal's view that an audit performed 4 months after the imposition of the conditions would be the appropriate time for the first audit to be performed.
[37] Further, in imposing conditions now, it is the Tribunal's view that a second audit should be performed at the end of the 12 month period from the date of the imposition of these conditions.
[38] In the period between the audit at the end of the 4 month period and the audit at the end of the 12 month period, an audit should only be conducted if the auditor concludes that the audit conducted at 4 months raises continuing concerns, which should be the subject of a further audit at 8 months. Absent that express opinion of the auditor, it is the Tribunal's view that it is not necessary to conduct a further audit at 8 months.
[39] Adopting these reporting conditions, there is no room or basis for additional reports to be required or allowed to be carried out whether at the end of any auditing relationship, or upon the request of the Board or otherwise.
[40] Taking into account the matters identified above and the terms of the conditions as proposed by the parties, the Tribunal orders the imposition of conditions on the registration of Dr Ong in the terms set out in annexure A.
[41] The parties have agreed that Dr Ong should pay the Board's costs of and incidental to the proceedings in an amount agreed, or failing agreement, to be assessed on the District Court Scale.
[42] Such an order was the usual order made by the Tribunal under s 195 of the National Law. Section 195 conferred a general discretion on the Tribunal to "make any order about costs it considers appropriate for the proceedings".
[43] However, s 195 appears to have been inadvertently removed from the National Law by the Health Ombudsman Act 2013 (Qld) (HO Act).[5] The effect of this amendment is to leave the issue of costs to be decided under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[44] The costs provisions under the QCAT Act provide that each party to a proceeding must bear its own costs unless otherwise provided in the QCAT Act, or by an enabling act,[6] or unless the interests of justice require it.[7]
[45] The matters which the Tribunal may have regard to in deciding whether to award costs are outlined in s 102(3). Those matters include "anything else the Tribunal considers relevant."
[46] In this case, the parties have consented to the making of an order awarding costs. In addition, the Board has been put to expense in investigating and prosecuting the proceeding. The Board is funded by the practitioner members. In those circumstances, it seems hardly fair that the cost should be borne by members rather than the erring practitioner.
[47] The appropriate order is that Dr Ong should pay the Board's costs.
[48] Accordingly, the Tribunal orders that:
- Pursuant to s 196(1)(b)(iii) of the (National Law), the Tribunal finds the respondent has behaved in a way that constitutes professional misconduct;
- Pursuant to s 196(2)(d) of the National Law, the respondent's registration is suspended for a period of 1 month;
- The period of suspension, referred to in order 2 above, is to commence from and including Friday, 20 May 2016;
- Pursuant to s 196(2)(b) of the National Law, conditions be imposed on the Respondent's registration in the form of annexure A to these orders, commencing on Monday, 23 May 2016;
- Pursuant to s196(3) of the National Law, the respondent may not seek a review of the conditions for a period of 12 months; and
- The respondent is to pay the applicant's costs of and incidental to these proceedings to be agreed, or failing agreement, to be assessed on the District Court Scale.
(b) recognising and appropriately responding to any of the issues described in condition 1.2 that may have arisen;
(c) using ethical prescribing practices; and
provide to the practitioner and the Board a written report within 28 days of completion of the audit addressing the matters referred to above.
[2] Medical Board of Australia v Jansz [2011] VCAT 1026 at [366].
[3] Medical Board of Australia v Martin [2013] QCAT 376 at [91].
[5] Subparagraph 50 of s 326 of the HO Act.
Medical Board of Australia
Ong [2016] QCAT 54