Medical Board of Australia v XY  QCAT 443
Consideration of appropriate sanction given admitted professional misconduct. Consideration of whether the continuance of a non-publication order was appropriate. Delivered on 21 December 2017.
In August 2012, nurses employed by the respondent made notifications to the Drug and Dependency Health Unit (DDU) and the Australian Health Practitioner Regulation Agency (AHPRA) about the respondent. The notifications described a series of events relating to entries in the controlled drug registrar and the unexplained and unrecorded removal of ampoules of controlled drugs from the controlled drugs cupboard.
After undergoing a health assessment at the direction by the Medical Board (the Board), the respondent was assessed as being impaired (opioid dependence and cannabis use). The respondent reported self administration of opioids as having commenced in January 2012, referable to chronic lower back pain and the stress of establishing and running a general practice.
The respondent’s registration was suspended on 23 August 2013, following concerns with respect to his compliance with screening conditions. He had previously been monitored for substance abuse.
The respondent admitted allegations concerning self-prescription and self-administration of controlled drugs, failing to record and making false entries in the record books of controlled drugs, inappropriately storing controlled drugs and providing false and misleading information to DDU investigators.
The respondent admitted that his conduct constituted professional misconduct. The Tribunal agreed.
The parties jointly proposed that the appropriate orders on sanction were:
- The respondent’s registration be cancelled.
- The respondent be disqualified from reapplying for registration for a period of 6 months.
- The respondent pay the costs of, and incidental to, the proceedings on the District Court Scale.
Period of Deregistration
In considering the proposed sanction, the Tribunal noted it was relevant that the respondent had not practiced since August 2013. There was no dispute that the period of non practice should be taken directly into account.
The Tribunal confirmed that it “ought not to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct”.
Given that the respondent had not practised since August 2013, the effect of the submission on sanction was that the parties considered the appropriate period of deregistration to be four years.
Following review of the relevant authorities, the Tribunal considered that a period of four years deregistration was appropriate.
The respondent had also applied for the continuance of a non publication order preventing the publication of identifying information about him. That order had been in place since 11 September 2015.
Section 66(2) of the QCAT Act prescribes the circumstances under which a non publication order can be made, and includes to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest, or for any other reason in the interests of justice.
The Tribunal noted that the wording of section 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary. The phrase “in the interests of justice” while not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.
In considering whether to maintain the non-publication order the Tribunal noted that the respondent had not filed any evidence to suggest that publication of the respondent’s name was likely to endanger the respondent’s health. The evidence given was that the information was intensely personal and that the respondent and his spouse lived in a small regional community.
The Tribunal noted that where there are publication concerns about identification of parties affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial consequences”, or damage reputation, has generally not been considered a sufficient reason to prohibit publication. Reference was also made to X v Australian Credential Regulation Authority in which Kirby J observed:
“However, every day, in our courts, parties and witnesses must disclose their names and identities, although this is doubtless often uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country.”
Based on the evidence before the Tribunal, Sheridan J found that it was not necessary for the decision to be de-identified.
In relation to sanction, given the passage of time since the making of the joint submissions, it was ordered that the respondent be disqualified from applying for registration for a period of one week from the making of the order (making his period of deregistration four years).
In relation to the non-publication order, it was ordered that the existing non-publication order would not be disturbed until 1 March 2018, to enable the respondent to either file additional material directed to the continuation or variation of the non publication order, or to appeal the decision. Failing that, the order would cease and the decision would be published with the name of the respondent inserted instead of the pseudonym XY.
 Pursuant to an order of the Board
 Medical Board of Australia v Martin (2013) QC18 376, 
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 See Dye v Commonwealth Securities Limited  FCAFC 115, ; Medical Board of Western Australian v A Medical Practitioner  WASCA 151
 (2007) 226 CLR 630 at 655-656