Ting v Chief Executive, Queensland Health [2020] QCAT 265

Ting v Chief Executive, Queensland Health [2020] QCAT 265 | Case summary | Zoe

[103]

[6] The applicant was registered as a medical practitioner on 21 December 1990. He became a fellow of the Royal Australian College of General Practitioners in 1994.
[7] The respondent filed material and made submissions relating to the conviction of the applicant of a criminal offence in 1996. I am of the view that I am bound to disregard such matter.[7] The respondent did not rely upon such matter in reaching her decision. I place no reliance upon such matter in my review of the decision. The matters in the following three paragraphs are referred to only as contextual matters relevant to the applicant's clinical experience.
[8] On 3 March 1997, the Medicare Participation Review Committee decided to disqualify the applicant from participation in the Medicare scheme for a period of 5 years.
[9] On 2 June 1997 the Medical Assessment Tribunal found the applicant guilty of misconduct in a professional respect. The Tribunal ordered that the applicant's name be erased from the register of medical practitioners.
[10] On 18 May 1999 the Medical Assessment Tribunal ordered that the applicant be re-registered subject to conditions including that he work in the public health system and not engage in private practice until 30 June 2002.
[11] The applicant continued to work in the public health system after 30 June 2002. From 2009 to 2013 the applicant worked in public hospitals in New South Wales as a trainee anaesthetist. Personal circumstances led to the cessation of that training before completion.
[12] The applicant was awarded a fellowship in advanced rural general practice in 2015.
[13] The applicant was involved in some rural anaesthesia until 2016. In 2017 the applicant was subject to regulatory action by the Medical Board of Australia by way of a caution and conditions placed on his registration after a finding of unsatisfactory professional performance whilst working as a general practice anaesthetist. The conditions were removed on 11 July 2018.
[14] On 10 May 2017 the applicant successfully completed Queensland Opioid Treatment Program ("QOTP") Prescriber Training.
[15] A letter dated 3 May 2017 from the respondent to the applicant enclosed a notice of approval, pursuant to section 122(5) of the Regulation, for the applicant to treat a maximum of five patients on the QOTP for drug dependence with the controlled drugs, methadone syrup/liquid or buprenorphine tablets/film.[8] The approval referred to places of practice as Redcliffe Medical Centre at Redcliffe and Marendy Medical Services at Margate. I understand the applicant by then to have returned to private practice as a general practitioner and working at both practices. Material filed by the parties refers to the "Marendy dosing clinic" and I infer that this general practice carried the bulk of the QOTP patient load.
[16] A letter from the respondent to the applicant dated 19 October 2017 includes as follows:

[136]

[30] The applicant made written representations with respect to the show cause notice by a series of emails on 3 and 4 November 2018.[23] I have considered the contents of all the emails and attachments and will refer to some relevant parts later in these reasons.
[31] After considering the written representations made by the applicant, the respondent decided, pursuant to section 24(3)(c) of the Regulation, to cancel the endorsements of the applicant in the ways stated earlier. The respondent gave notice to the applicant of the decision, pursuant to s 24(4) of the Regulation, by a notice of cancellation of endorsements dated 8 February 2019.[24] It will be necessary to refer to the contents of the notice of cancellation of endorsements in some detail when considering the merits of the decision under review.
[32] On 19 February 2019, the respondent decided, pursuant to s 25A of the Regulation, to cancel approvals, previously granted under sections 78, 122 and 213 of the Regulation, for the applicant to treat specified patients with schedule 4 and schedule 8 drugs. The applicant does not seek to review that decision.[25]
[33] During 2018 the applicant was the subject of investigation by the Australian Health Practitioner Regulation Agency ("AHPRA") and the Medical Board of Australia ("Board") in relation to his clinical performance. On 7 March 2019 the Board suspended the applicant's registration. The decision of the Board was informed by the decision of the respondent under review but also by other matters relating to the applicant's clinical performance and conduct. The applicant remains suspended with the decision of the Board the subject of another application to review.[26] The Tribunal previously ordered that that application be heard after determination of this application to review the respondent's decision.[27] The respondent has placed material before the Tribunal relating to the decision of the Board and made submissions that the other matters considered by the Board support the decision made by the respondent. The respondent did not rely upon those matters in making her decision. I have not taken those matters into account in making my decision.

[163]

In your submissions of 3 and 4 November 2018 you do not dispute any of the grounds detailed in the 29 October 2018 Notice, rather you have made full admissions to all the identified breaches and contraventions;
In your submission, you admit that, despite being aware of the requirement to seek approvals to treat drug dependent patients with S8 controlled drugs and S4 restricted drugs of dependency, you have failed on multiple occasions, to obtain or seek the requisite approvals;
As a trained QOTP prescriber I would expect you to have additional knowledge about the assessment and management of drug dependent patients, and the risks associated with treating such patients with S8 controlled drugs and S4 restricted drugs of dependency.
Of more concern is your failure to seek approvals for patients you had identified as drug dependent, where you continued to treat them with S8 controlled drugs, and/or S4 restricted drugs of dependency without seeking or obtaining the requisite approval.
Departmental records indicate that you have had considerable contact with MRQ, the Clinical Advisors and the S8INFO telephone enquiry service, and you are clearly aware of your regulatory obligations when prescribing for, and treating drug dependent patients.
In addition, your failure to endorse prescriptions as required under approvals issued by MRQ increased risk to the individual patients and the community by allowing S8 controlled drugs and S4 restricted drugs of dependency to be freely available in the community. You have made decisions about what you thought was appropriate without consultation with MRQ, the Clinical Advisors and myself in my capacity as an Addiction Medicine Specialist.
In your submission, you admitted that you have overlooked on multiple occasions to provide the requisite s 120 written report regarding lengthy treatment of a patient with S8 controlled drugs;
Your failure to provide reports to the chief executive when treating patients with S8 controlled drugs for more than two (2) months evidences your general failure to comply with the Regulation, particularly when you have admitted that you are aware of your regulatory obligations when prescribing S8 controlled drugs, and to a lesser extent, S4 restricted drugs of dependency.
Finally, I am concerned that you have frequently explained your non-compliance based on your lack of access to Dr Marendy's patients' notes when treating patients that transferred to your care. I am of the view that this should not have impacted your ongoing care of these patients or your legislative requirements as the new prescriber.
Accordingly, based on the information before me, I am currently of the view that you are no longer a suitable person under s 15 of the Regulation, pursuant to s 23(b) of the Regulation to hold endorsements for S8 controlled drugs and S4 restricted drugs of dependency.

[172]

[44] The applicant, consistently with his submissions in his emails of 3 and 4 November 2018, has not sought to deny the fact of the contraventions relied upon by the respondent in seeking a review of her decision. In material filed in the proceedings and in oral submissions during the hearing, the applicant has sought to place such matters in a context he contends should lead the Tribunal to conclude he nevertheless remains a suitable person to hold the cancelled endorsements.
[45] Some of the written and oral submissions were directed to details of the treatment of particular patients the subject of specified contraventions of the Regulation. I have considered those submissions but see no utility in detailing them in these reasons. Even accepting all those points made by the applicant in these instances, the points made by the applicant regarding particular cases did not detract substantially from the seriousness of the overall course of contraventions.
[46] The applicant filed voluminous written material of varying degrees of relevance and coherence. I have considered it all but will not attempt to summarise all of it. I should record that I do not accept that the somewhat hysterical, florid, scandalous and, in any event, irrelevant allegations made by the applicant concerning the conduct of legal practitioners involved in these and other proceedings before the Tribunal. I have also gained no assistance from the contents of contentious correspondence between the applicant and those legal practitioners which the applicant chose to place before the Tribunal. I will not further refer to those matters.
[47] The applicant contends that the contraventions occurred because he underestimated the burden of the QOTP patient load he undertook. They occurred in a situation where he had a heavy workload, time constraints and an inability to access patient records of the Marendy dosing clinic.[33] I accept that these factors may have contributed to the applicant's omissions to comply with his regulatory obligations. They do not excuse his conduct. They did not prevent him from discharging his regulatory obligations. The extent of the applicant's patient load, the time he chose to spend discharging his regulatory obligations and the efforts he made to obtain access to records, both of the prior clinic and relevant records held by QH, were ultimately all matters within the applicant's control. He chose not to prioritise regulatory compliance.
[48] The applicant contends that his non-compliance with legislative requirements did not result in harm to patients due to his clinical knowledge and skills in harm minimisation. His conduct did not pose a serious risk to persons.[34]I accept that the applicant acted in good faith as regards the interest of his patients. He did not intend to cause any of his patients harm. Indeed, I infer that he let his concern for his patient's comfort and wishes outweigh the need for proper regulatory compliance. There is no evidence of any actual harm caused to any patient. The potential for harm, however, is obvious.
[49] The applicant contends that his admission of patients to the QOTP contrary to the conditions of the approval dated 1 August 2018, in contravention of section 21 of the Regulation, occurred because he misunderstood the terms of the approval and took it to mean that the prohibition on admitting new patients was only for the month of August 2018.[35] I do not accept the applicant's contention. His explanation was unconvincing, illogical and inherently unlikely given the terms of the approval and the other correspondence on the subject. I find that he chose to ignore the clear notice that he was to cease admission of further patients. Such conduct is consistent with the applicant's subsequent deliberate breaches.
[50] The applicant admits admitting further patients to the QOTP even after it was made clear to him beyond a doubt by 30 October 2018 that he was prohibited from doing so. The applicant's explanation for such was not entirely clear to me but appeared to be that these would have been patients who had booked appointments with him to occur after 30 October 2018 and/or had pre-existing referrals from Biala or other doctors.[36] I do not accept that the applicant has satisfactorily explained these deliberate breaches of the Regulation which followed clear and repeated warnings to the applicant not to act in such a way.
[51] With respect to the contraventions constituted by prescription of drugs to a "drug dependent person" without approval, the applicant contends that it was not necessarily clear that the patients were drug dependent persons at the time of prescription, a diagnosis of drug dependence or substance abuse disorder being a temporal diagnosis involving clinical judgment and the patient's presentation at the time.[37] I do not accept that this provides a satisfactory explanation for these breaches. The applicant's submissions on this topic were entirely unconvincing. The applicant admitted that all contraventions related to patients recorded on QH records as drug dependent persons and that he could have utilised the QH hotline to ascertain that.[38]
[52] A major focus of the applicant's arguments was a misguided attack upon QH and its employees. There were two major limbs to this attack- alleged "reverse breaches" by QH and alleged dishonesty on the part of a QH employee in the process of notifying the applicant of the decision under review. The applicant appeared unable to recognise the limited relevance, if any, of such matters to his application to review the decision. His pre-occupation with such matters at the expense of matters relevant to the merits of the decision and its review caused me real concern as to the applicant's insight into his own regulatory failures and his capacity and willingness to comply with regulatory requirements. It is consistent with the applicant continuing to have a combative and antagonistic attitude to the regulatory authority.
[53] The applicant's eccentric notion of "reverse breaches" received much attention in the written material he filed in the proceedings[39] and his oral submissions.[40] I will not attempt to summarise the complex reasoning and mathematical formulae utilised by the applicant to develop this argument. As I was able to understand the argument, QH committed "reverse breaches" of provisions of the Regulation when it granted the applicant backdated approvals to treat patients on the QOTP and failed to process reports submitted by the applicant in a timely fashion. The applicant then engaged in a numerical comparison of his admitted breaches and the alleged "reverse breaches". The purpose of the exercise never became quite clear to me despite my attempts at clarification. It appears most unlikely to me that the events relied upon by the applicant as constituting "reverse breaches" could constitute contraventions of the Regulation. The material before me does not reveal contraventions of the Regulation by anyone other than the applicant. In any event, I never received any satisfactory explanation from the applicant, despite my attempts, as to why such matters could assist me in determining the review proceedings. I was left with the impression that the applicant was arguing that his contraventions should be written off in some type of accounting exercise against the alleged "reverse breaches" so as to minimise or excuse his own culpability. The argument is demonstrative of the applicant's combative attitude towards steps taken to restrict his prescribing practices.
[54] Much attention was devoted by the applicant in his written material[41] and oral submissions[42] to a delay of some days in the notification to him of the decision under review. The decision was made by the respondent on 8 February 2019. There was an attempt the same day to forward the notice of cancellation of endorsements dated 8 February 2019 by email. Such attempt was unsuccessful because the recipient's email address was incorrect- one letter of the applicant's correct email address was absent in the address used. Consequently, it was not until the afternoon of 12 February 2019 that the applicant saw a copy of the notice that had been posted to his work address. The applicant would not acknowledge the possibility of an innocent mistake on the part of the QH employee who sent the email on 8 February 2019. The applicant persisted in advancing a theory that the misaddressing of the email was deliberate and designed to prejudice him. I will not detail the substance of the applicant's argument to that effect. After having considered the applicant's detailed submissions, I am not persuaded that the misaddressing was anything other than inadvertent and do not accept the applicant's submissions to the contrary. There is no sensible reason why the QH employee would choose to engage in the deliberate dishonesty alleged by the applicant.
[55] The respondent specifically conceded that notice of the cancellation should not be regarded as having been given until 12 February 2019 and made it clear that the respondent was not seeking to rely upon any breaches of the Regulation by prescriptions by the applicant from 8 to 12 February 2019.[43] Notwithstanding that concession, the applicant argued he was prejudiced by the late receipt of the notice of cancellation. He submitted that, had he had notice of the cancellation on 8 February 2019, he could have changed his work arrangements so as to avoid the circumstances that led to him continuing to prescribe schedule 8 controlled drugs and schedule 4 restricted drugs of dependency after having received notice of the cancellation of his endorsements to do so on 12 February 2019.[44] The applicant's submissions were not persuasive. The applicant was unable to explain why he had not planned to put any alternative work arrangements in place between being required to show cause and receiving the notice of cancellation.[45]I do not accept that the four day delay in receipt of the notice of cancellation caused any real prejudice to the applicant or contributed to his prescribing, contrary to the notice, after 12 February 2019.
[56] The applicant otherwise sought to justify his continued prescription of schedule 8 controlled drugs and schedule 4 restricted drugs of dependency after 12 February 2019 as clinically appropriate. The Board noted the applicant's approach as follows:

[189]

DR TING: So, basically, my argument is, yes, that twice-weekly conditions stated on that was - is a breach. So, if you don't put that on the script, it's a breach. So there was a phone call with - MMU in regarding as to whether that should be relaxed. So, essentially, what I've done in that [indistinct] instead of making it twice weekly, I make it weekly on the clinical grounds that it's a complex patient and there was, you know, financial and transport problems. So the description is that this patient and the wife - what they are telling me is that they have only 5 like 10 or $20 petrol money to get to chemist for [indistinct]

So, in that scenario, I was - my justification for - I guess you can call it "breach of the condition" - instead of twice weekly, I make it weekly is because, look, you have to cater to the patient clinical situation. So it's not a wilful - you know, instead of twice weekly, you make it weekly. It's more to cater them. And the other counter submission to the MMU is that, if the patient needs to be, you know - if you make it weekly and if the patient somehow misbehave or financially got better, then we can always go back to twice weekly. So [indistinct] I call it "evidence best practice" in the sense that, you know, you have to adjust condition. Sure, the condition are for safety of patient, but sometimes you have to cater for the specific situation. So the specific situation in this [indistinct] is financial. Patient are well-behave and so forth. So I - I just want to take that into consideration for that section that I was talking about. So section 122(8) for that counter-argument to the respondent argument.[55]

DR TING: So, basically, this email - look, what Susan Ballantyne is implying, if you read through the email, I think she's - she's saying that twice weekly is safer for the patient which makes sense in the [indistinct] or clinical reasoning. But, if you read through the - the email, is that, you know, I talked to her about this patient and I got support from the pharmacist as well. If you read through the second 5 page - first page, second page, there was correspondence between the pharmacist, Steven Flavel, supporting what we're doing. So what the pharmacist and I were saying is that, you know, this patient situation is such that there is financial difficulty and a lot of complex issue and, in this specific circumstances, there is a rationale for relaxing the - the number of times he had to collect the medication.[56]

DEPUTY PRESIDENT: Okay. So what has happened is you've advocated for the patient, but Dr Ballantyne has said twice weekly.

DR TING: Yes, your Honour.

DEPUTY PRESIDENT: That's a condition of the approval which is later given on the 24th, but you haven't, in fact, written that on the script.

DR TING: Correct, your Honour. I think that's what's happening.

DEPUTY PRESIDENT: And you've done that because you don't agree with Dr Ballantyne.

DR TING: I'm not sure - look, like, your Honour was trying to say whether it's - whether there's an intentional sort of - I don't agree. I can't quite recollect. So, basically, the approval was - I think it's a lead up to the approval basically, I think is the best way to describe it. So there was, you know, discussion between Dr Ballantyne and myself, you know, what to do and so forth. So my advocate was for - instead of twice weekly, it was for weekly, I guess, and then it can be, you know - - -

DEPUTY PRESIDENT: But you didn't take the decision for an answer.

DR TING: The person who give the approval - I mean, it's a complex Queensland Health system. So, even though my discussion is with Dr Ballantyne, the approval subsequently meant, if you look - if you manage to hunt it down, is not Dr Ballantyne herself that wrote that approval. I think Margo Hickman would be the person or another person who wrote that approval. So it's quite - - -

DEPUTY PRESIDENT: But the approval was consistent with the opinion that she had expressed - - -

DR TING: Yes. No. I'm not - - -

DEPUTY PRESIDENT: - - - in her email.

DR TING: Sorry?

DEPUTY PRESIDENT: The approval was consistent with the opinion she had expressed. It wasn't inconsistent with it.

DR TING: No. It was consistent with the - yes. The approval was consistent with the opinion that she said.

DEPUTY PRESIDENT: Yes. But you decided you didn't agree. So you do otherwise.

DR TING: Look, you can look at it in that matter, but, look, I - what I'm trying to make a point - you know, whether it's a wilful - what you call "wilful". Look, I do not recall whether - you know, when approval is and so forth. So my rationale of what I'm doing there essentially is that for the patient interest and based on clinical grounds, you know, just to - you know, just the best outcome because the patient can't afford to travel and so forth. So, look, the main point is I agree it's a breach. So, you know, if you don't write twice weekly, like what approval says, it's a definite breach. So I'm not arguing against that, but what I'm advocating is in the clinical manner, sometime - you know, you have to bend the rules, I guess, or, you know, change the condition to suit - suit the patient, basically.[57]

DR TING: Like, the example we give for [redacted], the case that we mentioned about. Look, it's a difficult situation. The chemist and I, we held a meeting about that patient and we decide, "Look, hang on. Sure, the regulation - the - in those conditions say it has to be twice weekly, and so forth." But if the patient doesn't have money sometime you just have to adjust that breach. I mean, the better option in that situation would be, in my opinion - I mean, it's a respectful opinion - you can give a patient some leeway. And I just say weekly collection and not get me into trouble, in the sense that you will breach. But my counter-argument with Dr Ballantyne, or part of it, is, it will not be a breach. So if the endorsement say once a week, if I change that to twice a week for a good reason you wouldn't call that a breach, even though it doesn't strictly, you know, comply exactly as it is.

So if you have a patient, your Honour, and if the endorsements say once a week, okay, and if I decide that you, as a patient, is misbehaving or misusing the drugs, if I change your endorsement to instead of once a week to twice a week, then if Queensland Health discover that issue I'm pretty sure they won't say, "Look, hang on. This is a breach." So sometime endorsement is there to serve that purpose, but sometimes it's also there that the doctor, it's not a given right, but it's - you have - sometime you have to form a judgment and to say, "Look, for this patient it's more beneficial, in one sense, to relax that, or change the condition until perhaps if she's got more money and so forth, if she can go to - to the chemist twice a week if she have money for the petrol", and so forth.[58]

[194]

[67] The number and nature of the contraventions of the Regulation by the applicant constitute a serious and sustained failure by the applicant to comply with the regulatory conditions governing his endorsements to prescribe schedule 8 controlled drugs and schedule 4 restricted drugs of dependency. They evidence a repeated and deliberate flouting of those requirements by the applicant.
[68] The magnitude of the contravening conduct by the applicant is such that the Tribunal must examine with care the applicant's assertions that such conduct should be viewed in the particular context in which it occurred and that it is unlikely to be repeated. The Tribunal must consider with care the applicant's assertion that he now realises the importance of regulatory compliance and will comply in the future with the terms of the Regulation.
[69] To the contrary, the Tribunal is satisfied that the applicant is likely to contravene the Regulation if his endorsements (and registration) are restored. That is because of his attitude to regulatory compliance as evidenced by his past contraventions and in his conduct of these proceedings. Whilst at times in his submissions the applicant did pay lip service to the importance of regulatory compliance, particular aspects of, and the general tenor of, the applicant's submissions left me with the strong impression that the applicant is, in fact, ambivalent as the need for strict regulatory compliance. He impressed me as a person who lacked insight as to the seriousness of his course of contravening conduct. He is likely to contravene restrictions on his prescribing of schedule 8 controlled drugs and schedule 4 restricted drugs of dependency in circumstances where his clinical assessment of a patient leads him to believe that such limitations are unnecessary.
[70] The applicant would have been better placed to demonstrate development of insight into the need for regulatory compliance had he successfully completed available training as to the management of drug dependent patients and the prescribing of schedule 4 and schedule 8 drugs.[61] The applicant has not done so.
[71] None of the preceding comments are meant to suggest any onus on the applicant in these proceedings to satisfy the Tribunal that the decision under review is wrong or that he is a suitable person to hold the endorsements. Rather, it is for The Tribunal to consider by way of a fresh hearing on the merits whether the applicant's endorsements should be cancelled or suspended pursuant to section 24 of the Regulation on one or more of the grounds in section 23 of the Regulation. Given the very significant impact upon the applicant of an adverse decision, the Tribunal can only be satisfied that such action should be taken after considering the gravity of those consequences upon the applicant and being satisfied on cogent evidence that nothing less than such action is required to meet the purposes of the legislation.
[72] In deciding whether the applicant is a suitable person to continue to hold endorsements, I have, pursuant to section 15(1) of the Regulation, had regard to:

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