Medical Board of Australia v Dansie, Benjamin

[2023] QCAT 163

[2023] QCAT 163

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

ROBERTSON, Judicial Member

Assisted by:

MS ASHCROFT

DR CAVANAGH
DR QUINN

No OCR 250 of 2022

MEDICAL BOARD OF AUSTRALIA  Applicant

v

DANSIE, Benjamin  Respondent

BRISBANE

TUESDAY, 11 APRIL 2023 JUDGMENT

JUDICIAL MEMBER:. The Medical Board of Australia (the Board) referred this matter to the tribunal under section 193 of the Health Practitioner National Law (Queensland) (the National Law), on the 21^st of September 2022. The annexure to the referral was amended and filed on the 1^st of November 2022 and the hearing today proceeds on that basis.

The parties have filed a statement of agreed facts,[1] and a joint submission as to the disciplinary findings and sanctions. There are no factual issues in dispute and the matter proceeds today on the papers.

[1] Hearing Brief (HB) pp 24-29.

Background
The respondent is a registered medical practitioner having completed his Bachelor of Medicine, Bachelor of Surgery in 2017. He practiced as an optometrist between 2008 and 2018 after having acquired a degree in optometry from QUT.

At all relevant times he was employed by Queensland Health as a principal house officer, ophthalmology, at the Royal Brisbane and Women’s Hospital (the Hospital).

It is common ground, that prior to the conduct the subject of the referral, the respondent had struggled with anxiety, reduced mood, sleep deprivation and a slight tremor. These issues he relates in part to the breakdown of a long-term relationship in 2019, and to other stressors which are referred to in the material. He says that he did not seek professional help because he felt embarrassed and felt it might affect his career aspirations.

Consulting psychiatrist Dr Bassett provided a report to Ahpra which confirms that the respondent was suffering from a major depressive disorder with anxiety for which he is now being appropriately treated.

He is presently working as a locum registrar doctor and is stationed at the Royal
Darwin Hospital.

The relevant conduct
Instead of seeking professional assistance for his health issue, the respondent forged and filled a number of prescriptions in the name of another doctor at the hospital, who neither knew of his actions nor consented to them. Between the 28^th of March 2019 and the 12^th of September 2019, he presented four forged prescriptions to obtain drugs designed to self-treat his health conditions. These included diazepam which is a schedule 4 restricted drug and tapentadol which is a schedule 8 control drug. This conduct contravened relevant provisions of the Health (Drugs and Poisons) Regulation 1996 (Qld) (the Regulation).

However, the conduct that brought his behaviour to light occurred on the 29^th of December 2019, when he presented another forged prescription for propranolol and diazepam, which led to the pharmacist becoming suspicious and contacting the doctor, the alleged writer of the prescription. As a consequence, the respondent was interviewed by his employer and made admissions. He consulted with a general practitioner on the 3^rd of January 2020 and commenced antidepressant medication and was subject to a mental health plan.

On the 9^th of December 2020, he pleaded guilty to one count of forgery and one count of uttering in the Cairns Magistrates Court and was fined $600 with no conviction recorded. He has no previous or subsequent criminal history and this is his only disciplinary matter.

He also accepts that in notifying the Board of his Court appearance on the 9th of September 2020, 15 days later, he contravened section 131 of the National Law which requires notice of a relevant act within seven days.

The admitted conduct in relation to the prescriptions was bound up into individual counts of forgery and uttering, so that he was not charged with multiple counts in respect of each transaction. Each transaction involved breaches of various provisions of the Regulation, and breaches of the Criminal Code which he admitted. His conduct contravenes a number of provisions of the Good Medical Practice: A Code of Conduct in Australia (Code of Conduct in Australia for Doctors) (the Code of Conduct) which provisions are admissible in these proceedings as evidence of what constitutes appropriate professional conduct for a health practitioner.

Almost invariably, in this tribunal and in equivalent tribunals in other States, conduct of this kind has been held to constitute professional misconduct as defined in section 5 of the National Law. The respondent agrees that his conduct amounts to professional misconduct.  The tribunal finds that the applicant has proved that the respondent has engaged in professional misconduct.

Sanction
The relevant principles are well-known, and a convenient summary was set out most recently by Judicial Member McGill SC in Medical Board of Australia v Nguyen [2021] QCAT 346:

1. In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant. What matters is the fitness to practise of the respondent at the time of the hearing.

Here the respondent was acting as he did to treat a genuine medical condition. There is no suggestion that he acted otherwise. Immediately after his conduct came to light, he made admissions, was remorseful and obtained medical treatment from another medical practitioner. He has also seen a psychiatrist and psychologist and he has continued working and is clearly fit to practice. He cooperated with his employer and the police, the Courts, and with the Board in resolving these proceedings. He has undertaken relevant education courses and has a number of positive references including one each from his mother and father.

Undoubtedly his conduct as a medical practitioner in forging and uttering prescriptions for medication for himself is extremely serious, and principles of general deterrence are important in such cases. Personal deterrence is of little relevance here because of the steps taken by him to address the underlying causes of his conduct.

The parties have reached agreement as to the appropriate disciplinary responses. The Tribunal should not depart from that agreement unless the orders to be imposed, namely a reprimand and a $5000 fine fall outside the permissible range of sanction for such conduct. The cases referred to in the joint submission, particularly those of Health Ombudsman v White [2019] QCAT 36 and Health Ombudsman v NLM [2018] QCAT 164 clearly demonstrate that the agreed sanction is well within the permissible range. The tribunal makes the following findings and orders:

1. Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.

3. Pursuant to s 196(2)(c) of the National Law, that the respondent pay a fine of $5,000.00 to the applicant.

4. The parties bear their own costs.

ADJOURN