Allegations of professional misconduct. Conduct included inappropriate prescribing, treating persons in a close personal relationship, inappropriate storage and handling of controlled drugs, substandard documentation, recklessly making an untrue statement and performing surgery while impaired. Consideration of whether sanction agreed was appropriate.

Facts

The Medical Board of Australia referred the matter to QCAT under section 126(1)(b) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) to decide whether a disciplinary ground had been established against Dr Stark.

A substantive hearing was avoided after a joint agreed position was reached between the Board and the practitioner.

Details of the conduct amounting to unsatisfactory professional conduct and professional misconduct that were agreed upon by the Board and Dr Stark, included:

  1. Inappropriate prescribing.
  2. Treating persons in a close personal relationship.
  3. Inappropriate storage and handling of controlled drugs.
  4. Substandard documentation.
  5. Recklessly making an untrue statement to the Board’s investigator.
  6. Performing surgery while impaired.

Decision

The Tribunal was satisfied that Dr Stark’s conduct constituted unsatisfactory professional conduct and professional misconduct. It noted that many aspects of his conduct represented a substantial departure from acceptable professional standing assessed in the context of Dr Stark’s training, experience and seniority in the profession.

In relation to the orders jointly proposed by the Board and Dr Stark, the Tribunal noted that it is not bound by any agreed sanctions. Carmody J stated, “On the contrary, [the Tribunal] has a duty to consider whether the proposed sanction is within the acceptable range and, if not, independently decide the proper sanction.”

In an earlier decision of Medical Board of Australia v Martin [2013] QCAT 376 (“Martin”), Deputy President, Judge Horneman-Wren SC, stated that:

“The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.”

In Martin, His Honour further stated that:

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.”

Orders

The Tribunal ordered:

  • The practitioner is reprimanded.
  • The practitioner is suspended for a period of 2 years.
  • Prior to seeking registration in the future, the practitioner must complete a course of tertiary education in record keeping.
  • Conditions to be imposed on the practitioner’s registration following the period of suspension including:
    • Prohibition from prescribing certain medications.
    • Only to provide medical care under the supervision of another medical practitioner.
    • The practitioner must submit the medical supervision of his own health care to a GP, with that GP to provide reports to the Board.
  • The matter to be reviewed within 4 years.
  • The practitioner to pay the Board’s costs.

The Tribunal’s orders largely reflected the agreed sanction but were more detailed and onerous.

This article is part of our August 2016 edition of HealthFiles. You can read the full version of HealthFiles here.