Medical Board of Australia v Ong (Review and Regulation) [2024] VCAT 242
Introduction
In this case, the Victorian Civil and Administrative Tribunal (the Tribunal) found a medical practitioner had engaged in professional misconduct within the meaning of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the National Law), for reasons relating to the prescription of certain Schedule 4 and Schedule 8 drugs and a failure to make certain notifications and maintain proper clinical records in relation to his patients. The medical practitioner was reprimanded by the Tribunal and disqualified from applying to be registered as a medical practitioner for a period of four years.
Facts
Dr Beng Ong was a general practitioner who had worked at a Melbourne medical clinic since 1975. In May 2019, the Medical Board of Australia (the Board) commenced an investigation of Dr Ong following two notifications to AHPRA by the Victorian Department of Health and Human Services and a family member of a patient of Dr Ong. In 2022, the Board made a written referral regarding Dr Ong to the Victorian Civil and Administrative Tribunal (the Tribunal). The allegations against Dr Ong included that, in relation to six patients between 2015 and 2019, he:
- prescribed Schedule 4 and Schedule 8 poisons with no clinical rationale;
- prescribed Schedule 8 poisons without a permit and in excess of the amount allowed by permits;
- failed to notify the Secretary to the Department of Health and Human Services that his patients were drug dependent;
- failed to adequately manage the clinical care of his patients by prescribing opiates and benzodiazepines long-term without appropriately assessing the patients’ pain or documenting a pain management plan, or prescribing those drugs in high doses without considering the associated risk;
- failed to identify and manage patients’ drug dependency and prescribed Schedule 4 drugs when there was reason to believe that the patient was a drug-dependent person;
- prescribed other medication, such as anti-depressants, to patients without undertaking a mental health examination or risk assessments for suicide or self-harm;
- failed to ensure continuity of care by failing to keep adequate clinical notes.
Dr Ong admitted to the conduct and agreed that it constituted professional misconduct. He retired from medical practice in July 2019 with no intentions to resume practice.
Issues
Despite the agreement of facts and findings between the parties, the Tribunal was required to make findings as to whether the conduct could be characterised as professional misconduct within the meaning of the National Law.
Section 5 of the National Law provides that professional misconduct of a registered practitioner includes:
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- 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; and
- conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Unprofessional conduct is defined as ‘professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.
The Board submitted that the conduct engaged in by Dr Ong was clearly unprofessional and fell substantially below the standard reasonably expected of a registered health practitioner. Dr Ong did not contest any matter and did not seek to minimise the conduct, agreeing that there was no clinical justification for the prescribing and that there had been shortcomings in his judgment and processes. Dr Ong was reflective and acknowledged his failure to ensure he had complied with the relevant legislation.
Decision
The Tribunal was satisfied that Dr Ong’s conduct constituted professional misconduct within the meaning of section 5 of the National Law. In reaching its conclusion, the Tribunal considered a range of factors including the nature and seriousness of the conduct, the need for general and specific deterrence, evidence of Dr Ong’s character and past disciplinary history, Dr Ong’s guilty plea, and other mitigating factors.
The Tribunal found that the nature of Dr Ong’s conduct posed a significant risk to patients and other members of the community. His failures in clinical management and prescribing were systematic and repeated over an extended period of five years, and the inadequacy of his clinical recordkeeping impacted the safe continuity of care of his patients. The Tribunal found that there was a need to consider general deterrence as a factor in this instance, to deter other practitioners from engaging in similar serious improper conduct. Regarding specific deterrence and Dr Ong’s character and past disciplinary history, the Tribunal was satisfied that Dr Ong had some insight and reflection on his conduct and that the Tribunal was not referred to any previous disciplinary proceedings against Dr Ong.
Taking in to account the above matters, the Tribunal was satisfied that Dr Ong’s conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Further, the conduct was inconsistent with Dr Ong being a fit and proper person to hold registration as a medical practitioner and thus constituted professional misconduct for the purposes of the National Law. The Tribunal reprimanded Dr Ong and disqualified him from applying for registration as a medical practitioner for four years.
Compliance Impact
Medical practitioners should ensure they remain up to date and compliant with relevant legislation and codes of practice in relation to prescribing and clinical recordkeeping. Practitioners should ensure they maintain detailed clinical notes, comply with permit requirements relating to the prescription of scheduled drugs and ensure strict clinical management. As this case demonstrates, failure to do so may result in the practitioner being found guilty of professional misconduct under the National Law.
