HCCC v Dr Brendan O'Sullivan
[2010] NSWMT 5
•9 April 2010
New South Wales
Medical Tribunal
CITATION: HCCC v Dr Brendan O'Sullivan [2010] NSWMT 5 TRIBUNAL: Medical Tribunal PARTIES: Helath Care Complaints Commission
Dr Brendan O'SullivanFILE NUMBER(S): 40016 & 40017 of 2008 CORAM: Ainslie-Wallace, DCJ - O'Brien, Dr E - Edwards, Dr K - Mair, Dr J - CATCHWORDS: Unsatisfactory professional conduct - Reprimand - Medical Ethics - Complete schedule pursuant to Schedule 2 Mental Health Act 1990 when he knew the patient was detained in prison - Gave the schedule to the Mother of the patient - Failure to maintain adequate records - Relationship with patient's partner - Obtain access to patients pathology records without the patient's consent. LEGISLATION CITED: Medical Practice Act 1992 ss 36 & 37
Mental Health Act s 21 & Schedule 2
Code of Professional Conduct Part 4CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 362;
Director-General, Department of Community Services; re Sophie [1928] NSWCA 250;
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 171DATES OF HEARING: 17.8.2009 to 18.8.2009
20.8.2009 to 18.8. 2009
15.8.2010 to 17.2.2010DATE OF JUDGMENT: 9 April 2010 LEGAL REPRESENTATIVES: G Farmer of Counsel
S Connors Solicitor - Health Care Complaints Commission
P Maiden of Sentior Counsel
D Brown Solicitor - Brown Legal & ConsultingORDERS: In respect of Complaint 1; 1 The respondent be reprimanded in respect of his writing of the Schedule 2 for Patient MA.; In respect of complaint 2; 2 The respondent complete at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria or equivalent. The course must be completed within 2 years from the date of the orders.; 3 Within 4 weeks of the date of these orders, the respondent must provide evidence to the New South Wales Medical Board of his enrolment in the Ethics course.; 4 Within 4 weeks of completion of the course, the respondent to provide documentary evidence of his satisfactory completion of the course.; 5. This order may be amended, varied or removed at the discretion of the Medical Board of New South Wales; 6. The respondent pay the complainant's costs of the application.
JUDGMENT:
THE MEDICAL TRIBUNAL Friday 9th April 2010
OF NEW SOUTH WALES
AT SYDNEY
No. 40016 of 2008 and
- 40017 of 2008
BETWEEN
Health Care Complaints Commission
Applicant
Dr Brendan O'Sullivan
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr Elizabeth O'Brien
Dr Keith Edwards
Dr Judith Mair PhD
Orders and Reasons for Determination
Order:
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the name of the patients and relatives referred to in the proceed ings.
1. The Health Care Complaints Commission (the ' complainant ') brings two complaints against the respondent. The first relates to his actions in writing a schedule pursuant to Schedule 2 of the Mental Health Act 1990 in respect of patient MA. The second concerns his treatment of Patient EL.
Background
2. The respondent graduated MB BS from the University of Sydney in January 1980. After graduating he worked as a Resident and Registrar at the Royal Prince Alfred Hospital and was admitted as a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1988.
3. In 1991 he was awarded a PhD. He then completed 2 years of post-doctoral studies in Stockholm. In 1993 the respondent returned to Australia and worked as Staff Specialist Psychiatrist at Royal Prince Alfred Hospital while he continued his research in mood disorders until June 2000. In 1998 he was appointed an Associate Professor in Psychiatry at Sydney University.
4. He conducted private practice from consulting rooms in Macquarie Street and later in premises occupied by Primary Health.
5. The respondent presently practises in Queensland. He is the senior staff specialist in the Whitsunday Area Health Service where he directs inpatient and outpatient services.
Patient MA
6. By complaint dated 30th January 2007 the complainant alleges:
that the respondent has been guilty of unsatisfactory professional conduct in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised by him the practice of medicine is significantly below the standard reasonable expected of a practitioner of an equivalent level of training or experience; and/or has engaged in improper and/or unethical conduct in relation to the practice of medicine.
7. The complaint concerns the respondent's issue of a document pursuant to Schedule 2 of the Mental Health Act 1990 in relation to a patient who was at that time in prison.
8. The particulars of the complaint are that at the time of issuing the schedule, the respondent:
1. failed to personally examine or personally observe the patient immediately before or shortly before completing Part 1 of the schedule;
2. failed to properly consider the requirements that there be no other reasonably available appropriate means for dealing with the patient and that involuntary admission and detention were necessary;
3. completed the schedule when he knew that the patient was detained in gaol;
4. failed to comply with the requirement that he should not request police assistance unless there were serious concerns relating to the safety of the patient or other persons if the subject person was taken to a hospital without the assistance of the police force;
5. acted inappropriately by giving the Schedule to the mother of the patient.
6. failed to display probity in his professional practice, in that he failed to ensure that the Schedule signed by the practitioner, was not false or misleading contrary to Standard 4 of the Code of Professional Conduct, applicable to all Doctors registered with the NSW Medical Board."
Background:
9. Patient MA was born in October 1980 and had a longstanding, rather complex psychiatric history. He had been a client of the Canterbury Community Health Service on and off from 1997 when he was diagnosed with emergent psychotic illness and later treated for depression. Thereafter he had intermittent contact with the Mental Health team. Dr McDonald first saw the patient at Canterbury Community Health Service in December 2003 and a further five times up until February 20th 2004. During that time he treated him for depressed phase of schizoaffective disorder by the prescription of a mood stabiliser and he was being prescribed antipsychotic and antidepressant medication.
10. The patient first consulted the respondent in March 2003. Medicare records show 8 consultations took place up to 7th February 2004. The respondent said that he saw the patient on more occasions than recorded by Medicare, sometimes he saw the patient when he was in company of his mother who also was the repondent's patient. But for some correspondence, none of the patient's medical records was produced. The respondent said that they could not be found. He believed that the patient's original records may have been sent to a court in answer to a subpoena and not returned.
11. The patient was arrested in October 2003 after becoming involved in an argument with his sister while both of them were at his mother's house. The argument culminated in the patient punching his sister several times to the face and he threatened to kill her. Police were called and he was arrested. Some time later he was released to bail. On 25th February 2004 the patient was arrested again and taken into custody at Silverwater prison.
12. The respondent and the patient's mother were most concerned about the patient's welfare in prison. The patient's mother thought that his mental state was deteriorating in prison.
13. On 11th March 2004 the respondent wrote a letter addressed to the Supreme Court in which he indicated that he was the patient's doctor and expressed the view that the patient had ongoing psychotic symptoms and was mentally ill within the meaning of the Mental Health Act . The letter requested that the patient be transferred to a psychiatric hospital for treatment.
14. An application for bail was made in the Supreme Court on the 31st March 2004. The transcript of the judge's remarks on that day makes reference to the respondent's letter of 11th March 2004. The court was made aware of the patient's psychiatric problems and His Honour considered it might be appropriate for him to be scheduled under the Mental Health Act because as an involuntary patient, he would remain hospital until he had been psychiatrically assessed. The judge noted that the patient's psychiatrist was prepared to schedule him. His Honour said:
"Further enquiries have to be undertaken and the machinery put in train for the scheduling under the Mental Health Act".
15. The bail application was adjourned until 21st April 2004. In the result, the patient was not given bail.
The Schedule
16. On 1st April 2004 the respondent completed a Schedule 2 under the Mental Health Act in relation to the patient and gave it to his mother. She took a copy to the prison and handed it to the prison authorities, apparently believing that it would secure her son's release. It did not. She also took a copy to the Canterbury Community Health Service.
17. The circumstances in which the schedule was handed to prison authorities gave rise to the present complaint.
Standard of Proof
18. The Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the " Briginshaw " test. While this does not mean that some higher test than that applicable to other matters where proof is to be found on the balance of probabilities, the Tribunal is required to have regard to:
"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the Tribunal.” (1)
19. 19 In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the " Briginshaw test " applies and said at paragraph 68:
"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly."
The respondent's evidence
20. Aspects of the respondent's evidence appeared confused and his evidence was inconsistent and contradictory. In some instances he contradicted his sworn evidence within a very short time of having given the evidence and contradicted his written statements.
21. An example of this occurred in the respondent's evidence about the how he came to assess the patient for the purposes of writing the schedule. The document he signed certified:
"I personally examined/personally observed (the patient) for a period of 30 minutes".
22. After the complaint was made about his writing of the Schedule, the respondent wrote a number of letters to the NSW Medical Board about the circumstances in which the Schedule was written.
23. In a letter dated 4th June 2004 (2) the respondent wrote:
" Recently (the patient) required scheduling to hospital, which I duly did, having seen the patient myself personally ."
(underlining in the original).
The respondent was asked whether he agreed that the letter clearly implied that he was in the patient's presence during the assessment. He said that he thought that the letter was in response to a complaint about his writing of another schedule (not that of the 1st April). He said that two weeks before he was arrested, the patient was in his rooms and the respondent completed a Schedule 2 in front of him because he was being non-compliant with medication and the respondent wanted to show the patient what might happen if he continued to be non-compliant.(3) He did not give this Schedule to anyone but was it written merely to show the patient what could happen if he did not take his medication.
24. It seems clear from the face of the letter of 4th June 2006 that the respondent was referring to the Schedule of 1st April 2004, the subject of the complaint. When this was suggested to him, he said that he was confused about whether the complaint to which he was responding in the letter was the April Schedule or the other schedule which did not leave his office.(4)
25. In a letter of 9th June 2005 (5) the respondent wrote:
"...it is 'my call' whether a patient under my own care needs scheduling into hospital or not......So long as the patient was seen in person within the last 48 hours of the schedule being written and I am satisfied myself that it is appropriate to write such a schedule, then the schedule may be written. The schedule is a transport order to hospital only. If the schedule cannot then be legally enforced for some other reason, then it cannot be enforced."
26. The respondent was asked:
"Are you saying that you had seen (the patient) within 48 hours of 1 April ?"
and he replied:
"No I'm not saying that. And, your Honour, that letter...I'm not sure if that's a response to the complaint but the other letter (of 4th June 2004) that's not a response to the complaint".
When the respondent was again asked what he meant by the words:
"within the last 48 hours of the Schedule being written"
said:
"I don't know".
27. The respondent wrote a further letter on 17th January 2006: (6)
"I have previously conducted psychiatric assessment on other patients by televideo link... I had frequent telephone contact with (the patient) when the issue of his being released came up.....I did not want to see him released without a clear transport order for him to go to a hospital...".
28. The respondent rejected a suggestion that this was the first time that he had intimated that his assessment of the patient was conducted other than by face-to-face interview. He said that he had always made it clear that his assessment of the patient had been by telephone.
29. In a letter of 12th March 2006 (7)the respondent said:
"I had treated (the patient) for some 4 years and saw him only days before the Schedule was issued and only after a phone communication which said that he may be released on bail...."
30. There was no dispute that the patient was arrested on 25 February 2004 and remained in custody. The first time that the respondent visited the patient in prison was late in April 2004.
31. The respondent wrote on the Schedule that the time taken in personally examining or observing the patient was 30 minutes.
32. At the time that the Schedule was written the patient was in Silverwater prison. At Silverwater a prisoner may make telephone calls only to designated phone numbers and each call can be no longer than 6 minutes. After 6 minutes has elapsed, the call cuts out. There is a further 6-minute delay before the next call can be made.
33. When asked about the time take in examining the patient, the respondent said: (8)
"Well, I think it might have been 30 minutes. It might have been at least two calls. It would certainly have to be six because occasionally the calls drop out at six or there's a limit of calls of six. But what would happen is 5 minutes later (the patients mother) would ring back and you'd get another 6 minutes."
34. When it was suggested to the respondent that to have a 30-minute conversation with the patient from prison it would involve at least 5 telephone calls, he said:
"I didn't have 5 telephone conversations"
and added:
"But that 30 minutes includes information gleaned by third parties including his mother and I definitely had 30 minutes combined." (9)
The respondent agreed that the particular section of the document did not include information from or time spent talking to third persons. The respondent then said that he did not need 30 minutes to make the assessment about the patient's mental state.(10)
35. In answer to further questions about the circumstances in which he came to speak to the patient by phone and for how long, the respondent said:
"it has to be 5 minutes"
and suggested that perhaps the patient's mother re-called the patient. It was suggested to him that the patient could not receive incoming calls in prison and the respondent said:
"it was either that or (the patient) rang her (his mother) at the point of time. I didn't take the call." (11)
36. There was no dispute that the respondent handed the completed schedule to the patient's mother. Although the respondent said he had a good working relationship with the solicitor who was acting for the patient in attempting to secure his release to bail, he did not send the Schedule to her. The respondent said that he handed the Schedule to the patient's mother with instructions that she was to take it directly to the solicitor.(12)
37. In his affidavit sworn in August 2009 and relied on in the Tribunal hearing, the respondent did not say that he gave the schedule to the patient's mother with instructions that it be delivered to the patient's solicitor. He said: (13)
"...the schedule was intended to give some authority to the (patient's mother and sister) to obtain some police support if they needed it. Since I could not establish whether (the patient) would be released or not that weekend, I did not make a point of informing the local police."
38. The respondent said he was concerned that the patient's medication had been stopped since being in prison. In his affidavit (14) he said that he had made several attempts to contact the doctors at Silverwater without success. It was suggested to him that he had not spoken to anyone at the prison about the patient after his arrest, the respondent said:
"That's not correct...I had at least two conversations and my major concern was that there was a discontinuation of his medication...". (15)
Shortly afterwards the respondent said in relation to speaking to someone in the prison:
"At least one person - I can't say two - and the concern was expressed about his medication".
When asked to explain the apparent contradiction between these two accounts, the respondent said that he had not spoken to a doctor at the prison but had spoken to a psychiatric nurse. He was asked why then in his affidavit did he not say that he had spoken to a psychiatrist nurse, the respondent said:
"I don't know". (16)
Later in his evidence the respondent said, apropos the patient's medication:
"...there's at least one contact with the psych nurse, and the Epilim level had been ceased...". (17)
The respondent later agreed that the only information he had about the patient's medication and whether it had been ceased came from the patient's mother and not from any contact with a psychiatric nurse at the prison.
39. These are but a few examples of what the Tribunal found to be inconsistent and contradictory evidence given by the respondent. During his evidence there was a real sense that he was extemporising, answering the question and when challenged, resiling to a different position, often more than one. In coming to a conclusion about the reliability of the respondent's evidence, the Tribunal has considered whether the time that has passed since the actions giving rise to the complaint has in some way contributed to the confusion and contradiction in the respondent's account of events. In the Tribunal's view, it is unlikely that time has contributed to the respondent's confusing evidence.
40. Counsel for the respondent submitted that the respondent was clearly preoccupied and distressed over a history of conflict and complaints within the Health system. There is no doubt that the respondent was preoccupied. On a number of occasions he made non-responsive references to a dispute between him and Dr Diana Horvath and about various proceedings in which he had been engaged. His clear view was that he had been subject to a number of baseless and vindictive complaints about his professional practice. It may be that he was distressed and perhaps affronted that he was called on to explain his professional practices in the Tribunal hearing, however, it is difficult to see how this might have caused his evidence to be riven with internal contradictions.
41. Whether the respondent was deliberately not giving an honest and accurate account of events or whether his evidence was driven by some underlying anxiety and preoccupation cannot be determined by the Tribunal. However, it leaves the Tribunal with considerable doubts about the reliability of his evidence and the Tribunal proposes to approach it with caution before accepting and relying on it.
Particulars of the Complaint
1. Failed to personally examine or personally observe the patient immediately before or shortly before completing Part 1 of the Schedule.
42. It was the complainant's case that a medical practitioner completing a Schedule is obliged to examine or observe the patient in person.
43. Section 21 of the Mental Health Act 1990 states:
A person may be taken to and detained in a hospital on the Certificate of a Medical Practitioner....
(d) who has personally examined or personally observed the person immediately before or shortly before completing the Certificate...."
44. It is clear that the respondent did not personally examine the patient in the sense of being in the same room as the patient. He said that he had spoken to the patient on the phone a day or so before the Schedule was written. The respondent could not recall when he spoke to the patient before writing the Schedule.
45. The applicant sought the views of peers on the writing of the Schedule, Dr John Slaughter and Dr Ben Teoh. Dr Slaughter said that a telephone assessment of a patient was possible, particularly where the patient was well known to the doctor although he believed it would have been more appropriate to examine the patient in person. He did not consider this to be ideal practice and thought that the conduct fell below the expected standard but not to a significant level and it would not invite strong criticism.
46. In a later report he revised his opinion because on he understood that the wording of the Mental Health Act required a doctor " to personally examine or personally observe " and so led him to change his opinion that it was allowable to conduct such an examination other than in person.
47. In evidence Dr Slaughter, on reflection conceded that a telephone call may be permissible but had reservations about whether it would be sufficient for the purposes of the required examination. He said that if it was carried out by phone he would expect that fact to be noted in the document. He said that an essential part of a mental state examination is how the patient appears. He said:
"...if you're signing a document which has the power to take a person's liberty you have to be very careful what you do and I think to be sure of doing anything like that you really need to see them face to face."(18)
48. Counsel for the respondent criticised Dr Slaughter and said that his evidence should be rejected because he changed his opinion. The Tribunal does not reject Dr Slaughter's evidence either wholly or in part and does not find that his changed opinion causes his evidence to be unreliable.
49. Dr Ben Teoh (19) did not consider a telephone call fulfilled the requirement for personal observation or examination in the Mental Health Act and believed that the respondent's conduct fell significantly below the expected standard. He said that while it was possible for a psychiatrist to examine a person without observing the patient it was unusual. However, he agreed that a telephone call examination in circumstances where the practitioner had examined the patient personally some time earlier and where the patient was well known to the practitioner, would be sufficient to allow the practitioner to be confident of his diagnosis.
50. Dr Lachter, a psychiatrist, qualified by the respondent said that in his experience a telephone examination was unusual but he expressed no criticism of the respondent because he had consulted with the patient before his imprisonment.
51. Counsel for the complainant accepted that professional practice accommodates a telephone examination for the purposes of completing a Schedule where the practitioner had some recent, personal contact with the patient albeit rarely done.
52. The Tribunal finds that this particular is not made out.
2. failed to properly consider the requirements that there be no other reasonably available appropriate means for dealing with the patient and that involuntary admission and detention were necessary.
53. The respondent said that he wrote the Schedule because he believed that the patient's release to bail was imminent and when that occurred, the Schedule would be "enacted" to allow the patient to be taken to a hospital as an involuntary patient. The respondent's position had always been that the Schedule was to be given effect only when the patient was released from prison.
54. The respondent believed that attempts were being made to secure the patients release although when he wrote the Schedule did not know when that might be. The patient's mother told him her son would be released soon, maybe as soon as that weekend. Some time before this conversation with the patient's mother, he had spoken to the patient's solicitor who was optimistic that bail would be obtained: "within weeks". The respondent had no idea precisely when the patient would be released to bail. He said that to write the schedule and make it, according to his annotation, (20) conditional on a bail document being attached to it would have covered the situation of the patient being released over that particular weekend when the respondent expected to be away.
55. The respondent's rationale for writing the document was to provide a mechanism for taking the patient to a psychiatric hospital directly on his release from prison and avoid any likelihood that he would go back to his mother's house and pose a threat to his mother or sister.
56. Before writing the Schedule the respondent did not speak to the patient's solicitor, the person who might be in possession of accurate information about the prospect of the patients release. He said that he tried to contact her once but was unsuccessful. A telephone call to the patient's solicitor would have made clear when the patient might be expected to be released.
57. On all of the evidence the Tribunal finds that there was no reasonable basis for the respondent to believe that the patient would be released from prison that coming weekend or even within a short time of 1st April 2004. Dr Slaughter said (21) had he been in the respondent's position and believed that the patient's release was imminent, he would have made contact with the gaol to express his concern about any discharge over the weekend, contacted the Canterbury Community Health service about his concerns and have arranged for another doctor to be, in effect, briefed to take over the patient's care if he was to be released on the weekend.
58. Dr Lachter said (22) that had he been in the respondent's position, he would have done nothing other than to write a letter to the prison authorities alerting them that he had been involved in the patient's treatment and indicating that if they required information to contact him. He agreed that had there already been a letter written to the prison authority on the respondent's letterhead, that would be sufficient information to allow the prison authorities to know who to contact. (23)
59. The respondent was aware at the time that he wrote the Schedule that a prisoner could be removed directly from prison to a mental health facility by the use of a Schedule 3 completed by a prison medical officer. He did not consider this course at the time that he wrote the Schedule. The respondent conceded (24) that there were other options for dealing with the patient available to him at the time that he wrote the Schedule. He did not explain why he did not explore those options.
60. The Tribunal is satisfied that there were other means for dealing with the patient reasonably available to the respondent in the circumstances, as he perceived them, other than writing a Schedule. He did none of those things, opting instead to write the Schedule. The Tribunal is of the view that the respondent did not properly consider other available measures for dealing with the patient.
61. The Tribunal finds this particular made out.
3. completed the Schedule when he knew that the patient was detained in gaol
62. Dr Teoh's view was that the respondent's action in writing the Schedule while the patient was in prison was inappropriate because there was no indication that the patient was a risk to himself and others while in prison.
63. It was agreed that while the patient was in prison there was no need to write the Schedule. The respondent said that this is reflected in the notation he added to the bottom of the Schedule: " also Supreme Court determination attached ". He said that he regarded the Schedule as a " transport document ", by which he meant a document that would merely effect the transfer of the patient from prison to a psychiatric hospital.
64. Dr Lachter regarded writing the Schedule as largely irrelevant because while ever the patient was in prison, the Schedule would have no effect.
65. Leaving aside the categorisation of the Schedule as a " transport document ", a description that the Tribunal does not accept and to which it will return. The Tribunal accepts that the respondent did not intend the Schedule to have effect until the patient received bail. Nonetheless, he was well aware that a different document, Schedule 3 specifically provided for release from prison directly to a hospital.
66. In those circumstances, the Tribunal finds this particular established.
4. failed to comply with the requirement that he should not request police assistance unless there were serious concerns relating to the safety of the patient or other persons if the subject person was taken to a hospital without the assistance of the police force.
67. The respondent said that he invoked police assistance in the Schedule because he intended it to be used by the patient's mother if the patient was released over the weekend and returned home. He believed it would be necessary for her to have police assistance to take the patient to a psychiatric hospital for her protection and that of her daughter, the patient's sister.
68. In his evidence to the Tribunal the respondent said that he wrote the Schedule on the understanding that the patient's mother would take it directly to the solicitor acting for the patient and he gave her instructions to do that. (25)
69. These two accounts of what the respondent intended are unable to be reconciled by the Tribunal. However for the purposes of this particular it is not necessary to its determination.
70. The respondent had concerns for the safety of the patient's mother and sister because of what the patient said in the telephone call with him around the 1st April.
71. Based on those concerns, if the patient was to be released on bail, it was reasonable for the respondent to believe that police assistance would be necessary to take him to hospital against his will whether from home or prison.
72. The Tribunal does not find this particular proved.
5. acted inappropriately by giving the Schedule to the mother of the patient
73. There was no dispute that the patient's mother took the Schedule to the prison expecting it to secure the release of her son and when it did not, was saddened and distressed. Her first language is not English. She gave evidence to the Tribunal and, while she was sufficiently proficient in English to be able to give her evidence without an interpreter, she did not appear to have a sophisticated understanding of the language.
74. Dr Lachter had never handed a Schedule to a relative as the respondent did. He said that he would have considered it in circumstances such as those that prevailed at the time but would have concerns about doing so. He went on to say that if he were to give the Schedule to the patient's mother he would have spent considerable time with her explaining what it was and how it was meant to be used.
75. Dr Teoh said it was inappropriate for the respondent to have given the Schedule to the patient's mother and believed the respondent should have arranged to hand the Schedule to someone else.
76. The Tribunal is satisfied that, even if it be accepted that the respondent gave the Schedule to the patient's mother against his being released on the weekend, it was inappropriate in the circumstances. The patient's mother was clearly under a misapprehension of the effect of the document which squarely raises the concerns expressed by Dr Lachter that if the document was to be given to the patient's mother, great care needed to be taken to make sure that she understood its effect and how it would be used to assist her son.
77. The Tribunal finds this particular made out.
6.failed to display probity in professional practice in that the respondent failed to ensure that the Schedule was not false and misleading contrary to Standard 4 of the Code of Professional Conduct applicable to all doctors registered with the NSW Medical Board.
78. Part 4.4.1 of the Code of Professional Conduct relates to the completion of documents by practitioners. It notes that practitioners have authority to sign a variety of documents and it assumes that they will only sign documents that the practitioner believes to be true. In particular it observes that practitioners must take reasonable steps to verify any statement before it is signed and must not sign documents which the practitioner believes to be false or misleading.
79. There was much on the face of the Schedule that the Tribunal finds was false and misleading; the assertion of personal observation or examination when the respondent had a short telephone call with the patient, the failure to note on the document that the examination was conducted by phone, the assertion of 30 minutes of examination when on no version of the events could that be accurate and there being nothing on the face of the document that indicated that the patient was a danger to himself or others to warrant involuntary admission.
80. The Tribunal is satisfied that the time for the telephone examination of the patient was no more than 6 minutes and further finds that the clear implication conveyed by the document is that the respondent was personally present with the patient at the time of the examination/observation.
81. The respondent said that in his telephone call with the patient he became concerned that the patient was experiencing command hallucinations and systemised delusions against his sister and he considered that she would be at immediate risk if the patient was to be released and at large. These were not mentioned in the Schedule and the respondent deleted the section of the Schedule where a practitioner is asked to indicate whether the patient is a danger to others.
82. These are all matters which the Tribunal considers to be false and misleading in the document.
83. The Tribunal rejects the submission that the fact that the document did mislead or had the potential to be misunderstood did not amount to a want of probity in its completion. The matters to which the Tribunal has referred were matters that the respondent would have known were incorrect when he completed the document and he nonetheless allowed it to leave his possession with those incorrect statements in it.
84. Both the respondent and Dr Lachter referred to the Schedule as a " transport document ".
85. While a Schedule may, in some circumstances, have the effect of causing a person to be transported to hospital, the Tribunal regards that description as misapprehending the importance of a document that has the effect of depriving a person of his liberty.
86. Dr Teoh said: (26)
"I think it is more than a transportation document because it has the power to take a person's liberty away during that process and they may be assessed and released subsequently but at the time you're doing it you're actually taking that person's freedom away."
87. The Tribunal finds that a Schedule 2 is an important document, capable of depriving a person of his liberty because of mental illness. A practitioner entitled to write such a document is obliged to act with significant care and probity in its completion to ensure that it is as accurate and as informative as the circumstances permit. While the Tribunal accepts that Dr Lachter's experience with Schedules may be that they are often poorly completed and lack detail, that does not derogate from the overriding obligation that with the right to deprive a person of his liberty comes a concomitant duty to act with probity.
88. The Tribunal finds this particular made out.
Discussion
89. The circumstances in which the respondent came to write a Schedule for a person then in custody and hand it to his mother who was clearly confused about its scope and purpose was at best unfortunate. The Tribunal accepts the submission that the respondent was doing his best to assist his patient and ensure that he received appropriate medical treatment. The Tribunal finds that the inaccurate and misleading statements in the document reflect a lack of care and attention to what the Tribunal regards as an important document, one that has profound effects on the liberty of a person. The Tribunal finds that completion of the Schedule ought to have been attended with greater care and accuracy than the respondent took in this case.
90. The Tribunal accepts the opinion expressed by Dr Teoh about the seriousness of the document and finds that the respondent's conduct falls significantly below that reasonably expected of a practitioner of the respondent's training and experience.
91. The Tribunal finds that the established particulars demonstrate that the skill, judgement and care exercised by the respondent fell significantly below the expected standard and the Tribunal is satisfied to the required standard that the respondent is guilty of unsatisfactory professional conduct.
Complaint 2
92. This complaint concerns the respondent's treatment of Patient EL. The complainant alleges that the respondent has been guilty of unsatisfactory professional conduct in that he has:
1. demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or
2. engaged in improper or unethical conduct relating to the practice of medicine and/or
3. contravened the Medical Practice Regulation 2003
93. Particulars of the Complaint are:
1. The practitioner prescribed Lithium to patient (EL) but failed to monitor Patient (EL's) thyroid function and renal function;
2. The practitioner failed to ensure that Patient (EL) was aware of the risk of developing hypothyroidism from taking Lithium;
3. 3.The practitioner failed to communicate with any general practitioner regarding his ongoing prescription of Lithium to Patient (EL);
4. The practitioner failed to maintain adequate records of the treatment of Patient (EL) as required by the Medical Practice Regulation 2003;
5. The practitioner inappropriately undertook treatment of Patient (EL) in circumstances where Patient (EL's) partner was a personal friend of the practitioner, referred clients to the practitioner for medico legal reports and socialised with the practitioner;
6. The practitioner sought and obtained access to results of pathology testing requested by other practitioners for Patient (EL) without Patient (EL's) consent and at a time when the practitioner was no longer treating Patient (EL).
Background to the complaint
94. The patient first consulted the respondent in early March 2003. She had been recently hospitalised because of a psychotic illness.
95. The patient had little memory of events around that time because she had been very unwell. Details of her past medical history are taken from the medical records produced to the Tribunal.
96. In January 2000 she was seen and assessed by Dr Kumar, a psychiatric registrar at Manly Hospital who diagnosed a major depression, prescribed anti-depressants and referred her to Dr Wiren. Dr Wiren first saw the patient on 31st January 2000. He diagnosed a major depression and continued the antidepressants. He noted that there was a " small chance that this may be the prodrome of a psychotic illness ".
97. Dr Wiren continued to see the patient. In early March 2003 she was admitted to hospital because of a psychotic episode. Dr Wiren was assisting her to negotiate some difficulties that her illness was causing her at work. He continued to treat the patient until March 2003.
98. The patient first consulted the respondent on 15th March 2003. She was referred to the respondent by Dr Parmar, a general practitioner, at a medical centre in which the respondent had consulting rooms. She believed that she last consulted the respondent in September or October 2005 although the Medicare records show the last consultation to be July 2005. The respondent appeared to accept that although there was no note of the consultation, it had occurred as indicated in the Medicare records. (27)
99. There was no dispute that at the time that the respondent first saw the patient she was psychiatrically unwell. He prescribed Lithium for her. It is a result of his prescription of Lithium that the patient's complaint arises.
100. In late 2005 the patient said was lethargic, felt particularly sensitive to cold and noticed that her neck was swollen. She consulted a general practitioner, Dr Harry Nespolon. On examination he noticed a mild goitre and he arranged for blood tests. They revealed that she had very elevated TSH levels. Later tests showed elevated thyroid antibodies. The patient was referred to a specialist, Dr Greenaway and was treated successfully with Thyroxine.
101. Dr Teoh said that it was highly likely that the patient's hypothyroidism, detected in November 2005, was caused by the Lithium prescribed by the respondent.
102. There are significant differences in the accounts of the consultations between the patient and the respondent and it will be necessary to resolve those disputes so far as possible to determine the issues relating to this complaint.
103. The patient's account of events was inconsistent in many respects. For example she said in her letter of complaint to the HCCC that when she was first prescribed Lithium the respondent told her of some side effects such as weight gain and: " also said that I could possibly develop a thyroid problem but left it at that... ". She said he reassured her that she would be unlikely to develop any problems. On each visit to the respondent she asked him whether she should have a blood test because she understood that she could be " poisoned " by Lithium and the respondent assured her that it was not necessary.
104. In her evidence to the Tribunal, the patient said that the only side effect of Lithium of which the respondent warned her was that she might put on weight. She said that she knew that she needed blood tests but did not know why. (28) She said that she asked about having a blood test it was because she was concerned about the absorption of Lithium in her blood and her thyroid but said that the respondent had not told her about this. (29)
105. The patient could recall little of the early months of 2003. She could not recall seeing Dr Parmar who referred her to the respondent. She disputed much of the history in the medical records produced by the various doctors whom she consulted around this time.
106. The Tribunal makes no criticism of the patient because of her poor memory or the inconsistent accounts given by her in her statements and evidence. There is no doubt that she was deeply unwell at this time and had some recurrence of her illness in 2004. It is entirely understandable that her recollection is not accurate. The Tribunal also takes into account that the patient's complaint about the respondent was lodged in 2006 some 12 months after she last consulted him and taken with her illness, may have caused her recollection to falter. The Tribunal has taken these matters into account in determining the facts established by the evidence as it has the reservations already expressed about the respondent's evidence.
107. According to the respondent's records he first prescribed Lithium at the consultation on 30th May 2003.
108. The patient said that she felt an immediate improvement in her life after commencing the Lithium. She said that when the respondent first prescribed it for her he gave her a leaflet to read and a handout for her friends and family which she read. She could not recall the contents. The respondent said that the leaflet dealt with the issues involved in using Lithium, including side effects. The document was not available to the Tribunal.
109. It was agreed that before commencing a patient on Lithium, it is appropriate for the prescribing doctor to order blood tests to establish a base line against which later tests could be measured. It is important in prescribing Lithium to establish an appropriate dose to manage the symptoms while monitoring the Lithium level in the patient's blood.
1. Failed to monitor the patient's thyroid function and renal function
110. The respondent's record for 30th May 2003 has " Lithium i/ii Bondi Junction tomorrow [Li]. He said that this note means that he required the patient to have a blood test and she would attend the medical centre at Bondi Junction to have it done. The records of that Medical Centre show that the patient attended there on 31st May and blood was taken. The respondent's records of 2nd June 2003 note "Li=.6" .
111. The next recorded blood test result in the respondent's notes is on 14th February 2004 and recorded the patient's Lithium level as .7 No other blood test results were obtained by the respondent during his treatment of the patient.
112. The patient said that at each consultation she asked the respondent whether she needed to have a blood test and, from time to time, he would give her a form for blood to be taken. She said that on each occasion that he gave her a pathology request form she had blood taken as required. The patient said that there were times when she asked about a blood test and the respondent told her that it was unnecessary because she was stabilised on Lithium.
113. The respondent said that on a number of occasions he asked the patient to have blood testing and gave her the necessary request forms but she failed to have the tests done.
114. The respondent's clinical record shows that he asked the patient to have blood testing. The record for the consultation in August 2003 has " check TFTS! Form " against which is a tick. The respondent said that the tick signified that he had provided the patient with the relevant form. The note for the consultation of October 2003 is " Rpt [Lithium] TFTS ". Similar notes appear in the record of the consultations of November 2003 and May 2004. The respondent said that these indicated that he had asked the patient to have a Lithium blood test and a thyroid function test and had provided her with the appropriate pathology request form. The note of the consultation in August 2004 is " Must check Li/TFTS ". The respondent's notes indicate that in August 2004 he asked the patient for permission to speak to her partner (Mr A) and that was refused. At the next consultation his note indicates that this request was made again and permission given. The respondent said that this was to allow him to discuss the patient's refusal to have blood testing with her partner as a last resort to get her to comply. The patient did not then return to see the respondent until the consultation in July 2005.
115. The respondent said that he had prescribed Lithium for many of his patients over years and was acutely aware of the need for routine blood testing to monitor both the Lithium levels in the blood and to check that thyroid function was not being impeded by the Lithium.
116. The respondent's clinical records support his evidence that he asked the patient to have blood tests and she did not comply. The Tribunal accepts that he did ask her to have the tests and gave her the necessary request forms. The Tribunal does not accept that at each consultation the patient asked him whether she needed to have a blood test nor that she had a blood test done every time the respondent requested it. The Tribunal makes this finding notwithstanding that the patient underwent blood testing at the request of a general practitioner, Dr Anne Condon, in February 2004.
117. The respondent said that he was concerned that the patient persistently refused to comply with his request for blood testing. He conceded that he did not ask the patient why she refused to have the tests done. He said that the exclamation mark against the note of the 15th August 2003 indicates to him that he would have mentioned to her that the tests needed to be done and that it was the second time he had ordered them and she had not attended to it. The respondent said that he did not record everything said in the consultation in his notes but said that it would be incomprehensible that he did not discuss Lithium, the importance of maintaining a good level and the importance of getting a thyroid function test done with the patient. He did not threaten to stop seeing her or stop prescribing Lithium if she did not comply with the request for blood testing.
118. The complainant sought the opinion of Dr Ben Teoh on this issue who wrote a number of reports. Dr Teoh was critical (30) that the respondent had not been more vigilant and assertive about the patient complying with the test request and said that the respondent ought to have ceased prescribing Lithium. However in evidence Dr Teoh said where a patient refuses to have blood testing, there is little a practitioner can do. (31) He said that it becomes a matter of balancing the risk of the patient developing complications from the treatment against the benefit of the treatment to the patient's psychiatric condition. If the risk outweighs the benefit, then he would consider stopping the medication.
119. Dr Lachter said that when a patient is non-compliant as this patient was, the practitioner must explore why the patient will not comply and inform the patient why the test is necessary. He believed that the practitioner must become forceful with such a patient. The respondent's failure to explore the reasons for non-compliance and reinforce the necessity of the tests attracted his moderate criticism. He said that he would record the discussions about this in his notes.
120. The Tribunal is satisfied that the respondent could have been more persistent with the patient about her failure to attend to his request for blood testing and should have explored with her why it was that she refused to comply.
121. The Tribunal finds this particular of the complaint made out.
2. Failed to ensure that the patient was aware of the risk of developing hypothyroidism from taking Lithium
122. The patient said that while the Lithium at first made her feel very well, after a few months she told the respondent that she was gaining weight. She said (32) that she raised this with the respondent who told her that she had been too thin before. She also told him that she was not enjoying running as much and had trouble getting out of bed in the morning. She had been an avid runner and used to run between 3 and 4 times a week. In 2004 she did not feel so much like running and reduced the number of runs she did each week.
123. The respondent's clinical record is scant, a matter to which the Tribunal will return later in this determination.
124. At the consultations in August and October 2004 the respondent noted that the patient complained of lethargy. The respondent said that when she complained of lethargy he was concerned to have the patient attend for a blood test. (33) He was concerned about weight gain because Lithium can cause that of itself (apart from any thyroid involvement)(34) and said that during his treatment of her the patient was trying to stop smoking which could have accounted for weight gain. At the second of these consultations, in October 2004, the respondent has noted that the patient was irritable and he said he was concerned that the lethargy and irritation might be an indication of a relapse of her illness.
125. The Tribunal does not accept that the respondent did not explain the potential side effects or associated risks in taking Lithium with the patient.
126. The Tribunal finds that the respondent was astute to the potential side effects of Lithium and when the patient complained of lethargy in 2004 was well aware that it could be an indicator of thyroid difficulties and, as a result, redoubled his efforts to have her attend for blood testing.
127. The Tribunal accepts that the respondent had been prescribing Lithium for his patients for many years and finds that, consistent with his expressed practice, gave the patient a leaflet about Lithium and its possible side effects. The Tribunal accepts that the respondent did make the patient aware of the possible side effects resulting from using Lithium.
128. The Tribunal finds that this particular is not made out.
- 3. Failure to communicate with any general practitioner about the prescription of Lithium
129. It was argued by the complainant that in order to secure the patient's compliance with his requests for blood tests, the respondent could have engaged the assistance of the patient's general practitioner. The evidence established that the patient did not have a regular general practitioner. Although she was taking Lithium continuously she said that she would go to the local medical centre and see the first doctor available for repeat prescriptions for Lithium. She could not recall every general practitioner she attended for prescriptions.
130. Dr Parmar who referred the patient to the respondent said that he received a telephone call from the respondent after he had consulted with the patient but she did not return to see him after that first the visit.
131. The respondent knew in February 2004 that the patient had a blood test at the request of Dr Condon at the CBD Medical Centre. He did not ring Dr Condon to discuss the patient's non-compliance with her. The respondent conceded that he could have contacted her but observed that the patient did not maintain contact with any particular general practitioner. Certainly the records show that the patient only saw Dr Condon once. In the circumstances that the patient did not maintain contact with a general practitioner, there was no general practitioner with whom the respondent could meaningfully communicate.
132. The Tribunal does not find this particular made out.
4. Failure to maintain adequate records
133. The respondent made no note at all of the apparently lengthy consultation of July 2005 and although he has a note that a consultation took place in March 2004. There is nothing written of what occurred. The notes in this respect are inadequate.
134. Dr Teoh was asked to express an opinion about the respondent's notes and said that they do not provide sufficient information to reflect on his management of the patient. He said that the respondent's record was significantly below the expected standard and would incur mild criticism. Dr Lachter too criticised the paucity of the respondent's notes and noted that there were instances in which no note was made of an attendance at all. He made an assessment of the expected duration of the consultation based on the Medicare records and said that the detail in the notes did not always reflect consultations of that duration. He also agreed that the notation " ISQ " insufficiently recorded what occurred during the consultation. His criticism of the respondent was moderate in this regard.
135. The Tribunal finds that the respondent failed to maintain records in accordance with the provisions of the Medical Practice Act . The Act requires a medical practitioner to record information relevant to diagnosis and treatment of the patients; the patient's medical history, the results of physical examinations performed, test results, plan of treatment for the patients, any medication prescribed for the patient and advice given to the patients.
136. It is well established that the need for a practitioner to maintain records of the type mandated by the regulation allows another practitioner to take over the care of the patient and provides an important safeguard for the patient in allowing consistency in treatment.
137. The Tribunal finds this particular proved and finds that the respondent's recording of consultations was deficient both in his failure to keep a record of two consultations and at times the note that was made was not sufficient to reflect what occurred in the consultation.
5. Relationship with the patient's partner
138. The patient's partner is a barrister, Mr A. The patient said that she sought a referral to the respondent on the recommendation of her partner who knew him. It was argued for the respondent that there was no evidence that there was a personal or professional relationship between the respondent and Mr A during the time that the respondent was treating the patient.
139. The respondent said (35) that the patient was referred to him through her general practitioner:
"on the suggestion of her then partner (Mr A) a barrister who knew me personally and professionally."
There seems to be no doubt that the respondent and Mr A had, at least, a professional relationship before the patient came under his care. (36)
140. In 2005 the patient and Mr A moved into the same apartment building as the respondent and they met from time to time in the apartment building. The chambers in which Mr A practised were disbanded and he began working from home. The patient said that Mr A told her that from time to time the respondent called in to see him. The patient said that she had little contact with the respondent. She said that to her observation the respondent and Mr A formed a friendship as well as a professional relationship. In 2006 Mr A began representing the respondent in litigation. The Tribunal accepts that Mr A was not appearing for the respondent while the respondent was treating the patient.
141. In May 2004 the respondent's clinical notes record: " talk with M...? ". The respondent said that this indicated that he was concerned because the patient was failing to comply with his requests for blood tests and the note reflected his request of her to speak to her partner about it. The respondent said that she refused his request. The next consultation was in August 2004. The note reads: " talk to M...? Ok ". The respondent said that the patient agreed this time that he could speak to Mr A about his concerns. The patient denied that she gave this permission.
142. The Tribunal prefers the clinical notes to the patient's evidence as providing the best indication of the course of events. The Tribunal finds that the respondent asked the patient for permission to speak to her partner and she agreed.
143. It was not suggested that the association between the respondent and Mr A in fact impinged on his professional relationship with the patient. Dr Teoh said that the association between the respondent and Mr A had the potential for conflict and the overlapping of professional boundaries so far as the patient is concerned. He believed it to be a significant departure from the expected standard and the conduct warranted his moderate criticism. Dr Lachter was less concerned than Dr Teoh because of the nature of the professional contact between the respondent and the patient. He believed that maintaining of strict professional boundaries was considerably more important when there is a psychotherapeutic relationship. Nonetheless, he said that the relationship with Mr A was not an ideal situation and he did not like it and said that he would not treat a friend of a friend.
144. The Tribunal accepts that the actions of the respondent in treating the patient while in a professional relationship and later a friendship with the patient's partner created the potential for conflict and given the respondent's seniority and experience it should have been avoided.
145. The Tribunal finds this particular proved.
6. Obtaining access to the patient's pathology results
146. The last consultation between the respondent and the patient was in July 2005. The respondent had no further professional contact with the patient after that consultation.
147. In August 2006 the patient complained about the respondent's treatment of her to the Health Care Complaints Commission. The respondent was advised of the complaint by letter of September 2006. At about this time the respondent contacted SDS pathology service, requested and was provided with the pathology test results ordered by Dr Nespolon after he took over the patient's care.
148. The respondent said that when he notified his insurer of the complaint he was told to collect all the pathology results and took this to include all results obtained by other practitioners. He said in his affidavit (37) that he was able to do this by accessing the shared information at the Primary Health Care medical centre in Chatswood. There is no evidence to suggest that the results from SDS Pathology were in any way connected with the Primary Health care. All had emanated from tests ordered by Dr Nespolon and Dr Greenaway, the specialist to whom Dr Nespolon referred the patient.
149. The respondent conceded that he had contacted SDS Pathology and asked for the patient's results. He agreed that he did not seek her permission.
150. The respondent justified his access to those reports on the basis that the patient was still under his care and said:
"...there had been long periods of time - six and nine months - where she hadn't visited me and the patient may well have cycled back into my care and I was asked specifically by her partner to do so." (38)
151. The Tribunal rejects the respondent's explanations for accessing the patient's pathology results and does not accept either that he believed the patient was still under his care or that he understood his insurer required him to access other practitioners' results.
152. The Tribunal makes this finding even accepting the respondent's evidence that in the past patients had left his care only to return after some time and accepting that the patient's husband might have wanted him to treat her again. All of the circumstances prevailing at the time persuade the Tribunal that the respondent could not reasonably have believed that she was still his patient.
153. The respondent refused to concede that he had acted imprudently and that his actions were directly in response to the complaint. The Tribunal rejects this evidence.
154. The Tribunal is of the view that the respondent accessed her records to enable him to meet the complaint. The respondent said that he was:
"updating my knowledge in order to respond to the complaint that had been made against me."39
155. Dr Teoh disapproved of the respondent having access to the patient's results without her consent and at a time after she had complained about him. He said this was conduct that fell significantly below the expected standard. Dr Lachter said that in his opinion it was inappropriate for the respondent to access the patient's pathology reports after the complaint was made.
156. The respondent said that he was well aware of the ethical principles governing his access to the patient's records.
157. The Tribunal finds that there was no professional relationship between the patient and the respondent at this time and the respondent had no legitimate professional reason to access the notes and did not have her permission.
158. The Tribunal finds this particular proved.
Discussion
159. The particulars of this Complaint of which the Tribunal is satisfied warrant criticism.
160. In respect of Particulars 1, 4 and 6 the Tribunal finds that the respondent's conduct falls significantly below the expected standard.
161. Although the Tribunal has found particular 5 made out, it does not find that this is conduct that falls significantly below the expected standard.
162. The complainant argued that the respondent demonstrated no insight into his conduct in relation to either complaint and submitted that he was unable to acknowledge fault where it was plain and unarguable. The Tribunal accepts that the respondent was, throughout his evidence, concerned with justifying his conduct.
163. This matter concerns sections 36 and 37 of the Act . Relevant to this matter the sections are in the following form:
S 36(1) "For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Any conduct that the knowledge, skill or judgment possessed or care exercised by the pre in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
(c) Any other improper or unethical conduct relating to the practice or purported practice of medicine.
S 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means:
(a) unsatisfactory professional conduct or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together amount to conduct,
- of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register." (40)
164. In relation to both complaints the Tribunal is satisfied that the conduct amounts to unsatisfactory professional conduct. It is not satisfied that the conduct is sufficiently serious to amount to professional misconduct.
165. The jurisdiction of the Tribunal is a protective not a punitive one. The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect the good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way.
166. In determining how to give effect to the Tribunal's protective functions appropriate to the matters found made out, the Tribunal is of the view that in relation to Complaint 1, the respondent should receive a reprimand. In relation to Complaint 2 the Tribunal will order that the respondent complete a course on Medical Ethics.
167. The Tribunal is conscious that the finding in relation to Complaint 2 is not that the respondent acted improperly or unethically in relation to the practice of medicine but of conduct falling below the standard expected of a practitioner of his experience. However, it is of the view that the conduct found proved in the particulars requires the respondent to review the ethical obligations of practice.
168. Having found particulars 2,3,5 and 6 of Complaint 1 proved and particulars 1,4,5 and 6 of the Complaint 2 proved, the Tribunal finds in relation to each complaint that the respondent is guilty of unsatisfactory professional conduct and makes the following orders:
1. The respondent be reprimanded in respect of his writing of the Schedule 2 for Patient MA.
In respect of complaint 2:
2. the respondent complete at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria or equivalent. The course must be completed within 2 years from the date of the orders.
3. Within 4 weeks of the date of these orders, the respondent must provide evidence to the New South Wales Medical Board of his enrolment in the Ethics course.
4. Within 4 weeks of completion of the course, the respondent to provide documentary evidence of his satisfactory completion of the course.
5. This order may be amended, varied or removed at the discretion of the Medical Board of New South Wales
6. The respondent pay the complainant's costs of the application.
Endnotes
1 Briginshaw v Briginshaw (1938) 60 CLR 362
2 Tab 3, Volume 1 Complaint 1 to Acting Registrar of the NSW Medical Board
3 transcript 15.2.10 page 30 line 35
4 transcript 15.2.10 page 37 13
5 Tab 6
6 Vol 1 tab 12
7 Vol 1 tab 13
8 transcript 15.2.10 page 34 line 10
9 transcript page 34-35
10 transcript page 35.42
11 transcript page 42
12 transcript page 50 line 1
13 paragraph 33
14 Paragraph 18
15 Transcript 15.2.10 page 23.18 ff
16 transcript page 24.35
17 transcript page 27.45
18 transcript 21.8.09 page 210.20
19 Vol 1 tab 13, report December 2008
20 "also Supreme Court determination (attached)"
21 transcript 21.8.09 page 208.4
22 transcript 16.2.10 page 326.40
23 In February 2004 the respondent had written on his letterhead to the prison authorities about the patient's medications.
24 August 2009 paragraph 29
25 transcript 15.2.10 page 26.6
26 transcript 21.8.09 page 210.35
27 Letter respondent to HCCC 21st November 2007.
28 transcript 17.8.09 page 18.23
29 transcript page 20.20
30 Report 7th November 2007
31 transcript August 2009 page 171
32 Statement tab 2 7.9.06
33 transcript 15.2.10 page 72
34 statement of respondent paragraph 36
35 Letter 4.1.07 to HCCC
36 17.8.09 transcript page 28
37 Ex 1, tab 1
38 transcript page 353.45
39 paragraph 46
40 The definitions of unprofessional conduct and professional misconduct in relation to the Complaint about patient MA is different to that for Patient EL, but in the result nothing turns on the difference.
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