Health Care Complaints Commission v Dr Leslie

Case •

[2013] NSWMT 1

•

22 February 2013

Medical Tribunal

New South Wales
Case Title: Health Care Complaints Commission v Dr Leslie
Medium Neutral Citation: [2013] NSWMT 1
Hearing Date(s): 11 and 12/02/2013
Decision Date: 22 February 2013
Jurisdiction: Civil
Before: Levy SC DCJ

Dr E Kertesz
Dr R Gordon
Ms J Houen
Decision:

See paragraphs [48] - [50] for orders.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: MEDICAL PRACTITIONER - unsatisfactory professional conduct - professional misconduct - practice of inappropriate prescription of restricted Schedule 4D and Schedule 8 drugs without required authority - adequacy of records kept by practitioner - protective orders and practice conditions
Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a, cl 7 Sch 5D, s 139B, s 139E, s 163(1)(a)
Health Practitioner Regulation (New South Wales) Regulation 2010, Pt 4 & Sch 2
Medical Practice Act 1992, s 66
Cases Cited: King v Health Care Complaints Commission [2011] NSWCA 353
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Dr Reddall Leslie (Respondent)
Representation
- Counsel: Mr W Hunt (Applicant)
Mr M Lynch (Respondent)
- Solicitors: Health Care Complaints Commission (Applicant)
Avant Law (Respondent)
File Number(s): 40006/11
Publication Restriction: Yes

REASONS FOR DECISION

Table of Contents

The proceedings [1]
Non-publication order [2]
The complaints [3] - [6]
Events leading to the complaints [7] - [9]
Complainant's evidence [10] - [13]
Respondent's evidence [14] - [15]
Dr Leslie's responses to the complaints [16] - [19]
Factual background [20] - [34]
Consideration [35] - [41]
Findings [42] - [47]
Protective orders [48]
Practice Conditions [49]
Medical Records Audit [50]

The proceedings

  1. The Tribunal was convened to inquire into two inter-related complaints by the Health Care Complaints Commission ["HCCC"] relating to Dr Reddall Leslie, a general practitioner practising in Orange, NSW. The complaints relate to various prescriptions issued over time by Dr Leslie for opiates, narcotics and benzodiazepines to 23 of his patients for pain relief, in the period between 23 April 2004 and 12 December 2008. The complaints also relate to the adequacy of Dr Leslie's medical records for those patients in that period. The proceedings are governed by the Health Practitioner Regulation National Law (NSW) No 86a ["the National Law (NSW)"].

Non-publication order

  1. In documents tendered in these proceedings, the patients were referred to by the de-identifying alphabetical letter codes "A" to "W". At the commencement of the hearing on 11 February 2013, an order was made pursuant to cl 7 Sch 5D of the National Law (NSW) prohibiting the publication or disclosure of the names, addresses, or any other evidence and information that might tend to, or lead to, the identification of those patients.

The complaints

  1. The initial form of complaint was filed by the HCCC on 1 February 2011. It was amended on 8 November 2011 and 17 April 2012, and then further amended on the first day of the hearing on 11 February 2013.

  2. The first limb of complaint alleges that Dr Leslie engaged in unsatisfactory professional conduct within the meaning of s 139B of the National Law (NSW). That complaint variously concerns the inappropriate prescription of Schedule 4D and Schedule 8 drugs of addiction to drug dependent persons, without the required authority, outside of therapeutic guidelines, and in circumstances of inadequate record keeping.

  3. The second limb of complaint alleges that Dr Leslie engaged in professional misconduct within the meaning of s 139E of the National Law (NSW) in that, on an acceptance of the factual basis of the first complaint, the circumstances are of a sufficiently serious nature to justify consideration of the suspension or cancellation of his registration pursuant to that Law.

  4. The clinical and prescription records which base the complaints are compendious. The relevant dates and prescription quantities are summarised as follows:

Patient Date Range Number of prescriptions      Drugs
"A" 30.12.2006 - 08.05.2008 37 Narcotics
"B" 23.04.2004 - 06.12.2008 148 Narcotics
"C" 12.10.2004 - 21.11.2008 273 Narcotics
"D" 14.09.2007 - 04.11.2008 28 Narcotics
"E" 08.05.2007 - 14.11.2008 94 Narcotics
"F" 13.10.2004 - 21.11.2008 115 Narcotics
"G" 08.05.2007 - 14.11.2008 77 Narcotics
"H" 30.07.2004 - 31.10.2008 53 Narcotics
"I" 20.05.2004 - 08.12.2008 60 Narcotics
"J" 08.05.2007 - 05.12.2008 91 Narcotics
"K" 02.05.2007 - 05.12.2008 75 Narcotics
"L" 04.06.2004 - 04.12.2008 38 Benzodiazepines
"M" 05.07.2004 - 05.12.2008 31 Narcotics
"N" 13.01.2005 - 21.11.2008 45 Narcotics
"O" 20.05.2004 - 18.11.2008 43 Benzodiazepines
"P" 18.05.2004 - 12.12.2008 171 Narcotics
"Q" 20.05.2004 - 05.12.2008 198 Narcotics
"R" 19.05.2007 - 06.11.2008 77 Narcotics
"S" 25.02.2008 - 21.11.2008 43 Benzodiazepines
"T" 19.05.2004 - 08.12.2008 148 Narcotics
"U" 17.05.2004 - 19.11.2008 127 Narcotics
"V" 10.09.2007 - 04.12.2008 25 Narcotics
"W" 03.05.2007 - 04.12.2008 118 Narcotics
Total prescriptions 2115

Events leading to the complaints

  1. On 5 occasions between 1991 and 2009, Dr Leslie had received oral and written advice and counselling by the Pharmaceutical Services Branch of the NSW Health Department ["PSB"] because of concerns over his prescribing conduct regarding Schedule 4D and Schedule 8 drugs. In 2009 a hearing under s 66 of the former Medical Practice Act 1992 was conducted on behalf of the formerly constituted NSW Medical Board ["the Board"] at which time Dr Leslie's patient records and prescribing conduct were examined.

  2. At that s 66 hearing, Dr Leslie expressed resistance to suggestions that there had been shortcomings concerning his management of the above patients. Those identified shortcomings have been particularised in these proceedings.

  3. Following the s 66 hearing, the PSB and the Board made adverse findings against Dr Leslie. At that time protective conditions were placed on Dr Leslie's practice. This had the effect of withdrawing his rights to prescribe Schedule 4D and Schedule 8 drugs. On 25 June 2009 the Board forwarded a complaint to the HCCC arising out of the events in question. The present proceedings were then instituted by the HCCC.

Complainant's evidence

  1. The evidence tendered by the HCCC in the proceedings comprised 9 volumes (Exhibit "A"). The products of the hearing under s 66 of the National Law (NSW) were incorporated within Exhibit "A". Also included was correspondence with Dr Leslie and a lengthy record of interview of Dr Leslie conducted on behalf of the Board.

  2. The HCCC commissioned a peer review report from Dr Ian Chung concerning Dr Leslie's management of the patients in question. In his first report dated 27 November 2009, Dr Chung expressed the unchallenged opinion that Dr Leslie's consultation notes and prescribing records for the patients in question in the period under consideration departed significantly from the mandatory statutory requirements for such records. Dr Chung expressed the opinion that such conduct attracted the very strong disapproval of peers of an equivalent level of training, or experience reasonably expected of a practitioner such as Dr Leslie, at the time of the conduct under critical review.

  3. Dr Chung identified what he described as an inadequate standard of clinical practice that contributed to the perpetuation of his patients' dependence on Schedule 4D and Schedule 8 drugs. Dr Chung was also critical of the failure to change the prescribing conduct over an extended period despite earlier guidance and counselling by the PSB, describing this as consistently poor standards of practice and clinical judgment.

  4. Subsequently, Dr Chung was provided with some further materials and provided a supplementary report dated 20 November 2011. In that additional commentary he did not significantly change his earlier views.

Respondent's evidence

  1. The evidence tendered on behalf of Dr Leslie comprised 6 volumes (Exhibit "1"). Incorporated into Exhibit "1", at Tab 1 was a 40 page statement prepared by Dr Leslie in which he explained and summarised his clinical management of each of the patients "A" to "W". Exhibit "1" also included other material which will be referred to in the consideration of the matters calling for findings.

  2. In support of his position Dr Leslie tendered some peer testimonials, a certificate of completion of a Monash University course on 11 July 2012 concerning pain management, and a certificate of attendance at a webinar on 21 November 2012 intended to assist general practitioners to care for patients with chronic pain and mental health issues. A report dated 28 January 2013 from Dr Murray Wright, a consultant psychiatrist, was also tendered.

Dr Leslie's responses to the complaints

  1. In these proceedings Dr Leslie was well represented. In contradistinction to the position he took at the s 66 hearing, at the commencement of this hearing, in a written outline of submissions made on his behalf, the particulars of the amended complaint were all admitted: MFI "5", para [1]. Those admissions followed a series of concessions Dr Leslie made in his written statement dated 25 October 2012: Exhibit "1", Tab [1].

  2. In his concessions to the Tribunal, Dr Leslie has admitted that he has been guilty of unsatisfactory professional conduct as well as professional misconduct, as particularised. The Tribunal has had the advantage of reviewing the combined 15 volumes of tendered material and is comfortably satisfied that the proffered admissions were properly made by Dr Leslie.

  3. As a consequence, the scheduled lengthy hearing was substantially shortened. In the light of the concessions made by Dr Leslie, apart from the need to state formal findings, it is no longer necessary to canvass the detail of his management of the 23 patients who are the subject of the present proceedings.

  4. In those circumstances, and with the consent of the parties, the Tribunal proceeded to hear explanatory factual evidence from Dr Leslie, including the tender of mitigatory evidence, in order to determine the appropriate protective orders without the need for a separate hearing, which would otherwise have been necessary if the stated concessions had not been made: King v Health Care Complaints Commission [2011] NSWCA 353.

Factual background

  1. Dr Leslie is presently aged 62 years. He is employed in a General Practice in Orange. He graduated with the degrees MB BS from the University of NSW in 1975. He was granted registration in the general category as a medical practitioner on 7 December 1975. After completing his residency at Auburn District Hospital he was employed as a Medical Officer in the Royal Australian Navy and worked in on-shore and at-sea postings. After leaving the Navy he obtained a diploma in Obstetrics from the RANZCOG and then obtained further qualifications to enable him to work in General Practice.

  2. In 1987 he joined the General Practice in Orange where he presently works. Over time he obtained visiting rights to Orange Base Hospital and also to Bloomfield Psychiatric Hospital in Orange. He has remained in that practice as an employee after it was sold to a corporate entity.

  3. In the early years of his practice Dr Leslie began seeing psychiatric patients from the community. He developed a special interest in patients with psychological issues and pain management issues. As a result of an emergent need in his local community, he obtained an authority to prescribe methadone as Opioid Treatment Program Prescriber. The local methadone clinic had a significant patient load. As a result, patients in need of that service experienced delays in obtaining the required treatment and Dr Leslie saw a number of these patients in his private practice.

  4. As was ultimately conceded by Dr Leslie, in hindsight, he became known as "a soft touch" for patients seeking prescriptions for pain relieving medication. His professional interest in dealing with psychiatric patients and patients with chronic pain, led to him attracting a significant patient base of persons presenting with difficult challenges for clinical management. His practice involving such patients developed through word of mouth as well as from referrals by other practitioners. He estimated that these challenging patients represented approximately 1 - 2 per cent of the patient base of the practice as a whole.

  5. Dr Leslie acknowledged that his personality style was non-confrontational and, in hindsight, he conceded he had been insufficiently assertive in his assessment and management of that category of patients.

  6. It was in those circumstances that Dr Leslie's prescribing practices for Schedule 4D and Schedule 8 drugs as summarised at paragraph [6] above came to the adverse attention of the PSB, now the Pharmaceutical Services Unit ["PSU"].

  7. As to his past prescribing practices concerning Schedule 4D and Schedule 8 drugs, Dr Leslie acknowledged that his clinical attitude towards his patients who were drug dependent had been misguided. In that regard, he explained that he thought the patients in question were in genuine pain at the time he saw them, and as such, they were not to be regarded as being dependent on the restricted drugs for recreational use. In that setting, he considered himself able to write the subject prescriptions for such patients without having first obtained the required authority to do so.

  8. At the time, Dr Leslie naively believed that if such patients had been started on Schedule 8 drugs, he did not require a further authority for such drugs after 2 months, in circumstances where he believed that the patients were not to be classed as being drug dependent: T13.25. In that regard he naively considered that if the patient was in what he considered to be in genuine pain, then they were not to be classified as drug dependent: T12.30.

  9. These misguided views were brought to light in the investigation undertaken by the PSB and in the s 66 inquiry. It is now conceded by Dr Leslie that as a result of his prescribing conduct he had placed his vulnerable patients in danger and at risk of harm from perpetuating drug dependency. Fortunately for the patients, there is no actual evidence of significant long term harm having occurred.

  10. As to his record keeping, Dr Leslie conceded that prior to the end of 2008, his patient record keeping had been quite poor, and in a lot of the cases in question, not compliant with the required statutory obligations. After a performance assessment review undertaken at the direction of the Medical Council of NSW, the successor of the Board ("the Council") he resolved to improve his performance in that regard, and he in fact did so when his practice moved from paper based records to a computerised electronic records system.

  11. Following the findings of the PSB and the findings of the s 66 hearing by the Board, Dr Leslie's prescribing rights for Schedule 4D and Schedule 8 drugs were withdrawn. He was permitted to continue practise with a number of conditions, pending the finalisation of these proceedings.

  12. Following the s 66 hearing, Dr Leslie undertook steps to address the circumstances that predisposed him to the present complaints. We are satisfied that subsequently, Dr Leslie has undertaken appropriate education and has employed appropriate clinical strategies concerning the proper use of Schedule 4D and Schedule 8 drugs, and how they are to be prescribed and managed. This included a course conducted by Monash University in 2011 concerning prescribing in general practice.

  13. Since the s 66 findings were made by the Board, Dr Leslie has taken steps to develop his armamentarium of clinical and interpersonal skills to better equip him to deal with challenging patients in the clinical setting. Dr Leslie has undertaken counselling and therapy to assist him in recognising the professional shortcomings that have led to the present proceedings.

  14. Dr Leslie was clearly embarrassed by the matters that have come to light in these proceedings. We consider that he is genuinely embarrassed at his former professional shortcomings. We are of the view that Dr Leslie has learnt the essential lessons that have emerged from the described circumstances that are the subject of these proceedings. He gave his evidence openly, he was unreserved in his admissions and self-criticisms, and we accept that he has shown genuine contrition over the events.

  15. There have been no other complaints made concerning Dr Leslie's professional conduct apart from the events which are the subject of these proceedings.

Consideration

  1. In his written statement, and in his oral evidence, Dr Leslie has unreservedly acknowledged that as has been particularised by the HCCC, there had been shortcomings in his clinical management, prescribing conduct and recordkeeping in respect of the patients who were the subject of the complaints.

  2. In our consideration of the issues calling for decision, we have placed significant weight upon the opinion of Dr Wright in his report dated 28 January 2013. Dr Wright had seen Dr Leslie in a series of 4 consultations in 2011 and 2012. We are satisfied that following treatment sessions with Dr Wright, and following other consultations Dr Leslie has attended with a clinical psychologist for cognitive behavioural therapy, he has taken appropriate steps to better equip himself to deal with the clinical challenges he had previously encountered in dealing with patients consulting him to seek prescriptions for pain relieving medication. We accept that by these means he has developed an ability to be appropriately more assertive in the face of challenges presented by such categories of patients.

  3. Whilst it is true that since Dr Leslie's prescribing rights for Schedule 4D and Schedule 8 drugs have been withdrawn for some time, thereby removing the clinical stressor of dealing with the demands of such patients, and therefore Dr Leslie's newly acquired skills remain unconsolidated by testing in the clinical setting, the Tribunal is nevertheless satisfied, on its acceptance of the unchallenged evidence of Dr Wright, that Dr Leslie has gained and continues to gain considerable insight into his own vulnerability in dealing with the category of difficult and complex patients which have been at the centre of the complaints. Such insights have extended to Dr Leslie improving his level of understanding of protocols and acceptable practice standards with regard to the prescribing of opiates and benzodiazepines.

  4. Dr Wright has stated, and we accept, that Dr Leslie has regarded the subject matter of the present complaints with the utmost seriousness and has taken all appropriate action in terms of further education and personal psychological treatment, to fully address the matters at issue in these proceedings. In that context, Dr Wright saw no reason why Dr Leslie was not fit to continue to practise medicine. We accept that opinion.

  5. We therefore do not see this as an appropriate case for cancellation of registration or suspension from practice.

  6. In giving full force to Dr Wright's unchallenged views, nevertheless, in the public interest, the question of protective orders necessarily arises.

  1. Since 2009, Dr Leslie has not had the right to prescribe the Schedule 4D and Schedule 8 drugs that have led to the circumstances under present review. Pending consolidation and reinforcement of the described personal and professional gains, acumen and skills gained by Dr Leslie since the matters in question came to light, and pending further peer review that will inevitably follow if Dr Leslie wishes to seek a variation in the Tribunal's orders at any future time, we are of the opinion that with some necessary variations, the restrictions imposed on Dr Leslie following the s 66 hearing should continue for a further period of 18 (eighteen) months before any further consideration is given to lifting or varying those restrictions.

Findings

  1. The Tribunal accepts the admissions Dr Leslie has made concerning the particulars of each of the complaints brought by the HCCC. It therefore follows that he must be found to have engaged in unsatisfactory professional conduct and professional misconduct within the respective meanings of s 139B and s 139E of the National Law (NSW), and we so find.

  2. Having considered the evidence we are satisfied that Dr Leslie has ultimately and appropriately addressed his acknowledged former practice shortcomings. There is no evidence that the conduct in question was actuated by turpitude on the part of Dr Leslie. Similarly, there is no evidence that the identified shortcomings in practice standards are continuing. We therefore find that this is not an appropriate case for suspension or cancellation of Dr Leslie's registration.

  3. Nevertheless, Dr Leslie's prescribing conduct needlessly exposed his patients to the risk of harm. Dr Leslie conceded this was reckless on his part. Therefore his prescribing conduct requires censure. Balanced against that consideration, we are of the opinion that Dr Leslie has undergone a salutary and embarrassing experience in having to address the present complaints. In the circumstances, we consider the appropriate deterrent order is a reprimand without further censure. In the absence of evidence of turpitude on the part of Dr Leslie, a fine is inappropriate.

  4. In framing the required protective orders, we accept the HCCC submission that there should be provision for the future audit of Dr Leslie's patient medical records in order to monitor his compliance with the standards required for maintaining medical records: Health Practitioner Regulation (NSW) Regulation 2010, Sch 2. Initially the first audit should be within 6 months of the date of this decision, and thereafter at 12 monthly intervals. We leave it to the discretion of the Council to determine how many such audits are required following the initial audits.

  5. The protective orders that we proposed to make will include a provision for a preclusion period of 18 months before Dr Leslie can apply for a review of the practice and audit conditions imposed by this decision.

  6. In coming to these views we have not overlooked the fact that from time to time, according to roster arrangements within his practice, Dr Leslie's palliative care and nursing home patients may well be in need of prescriptions for Schedule 4D and Schedule 8 drugs. In balancing that need against the public interest mandating the protective orders we propose to make, we note that the present arrangements for such patients in Dr Leslie's practice are such that, if required, prescriptions for such medications may be obtained by Dr Leslie making the appropriate arrangements with another practitioner in the practice. On the evidence, this seems to be a satisfactory and workable arrangement for the period covered by the orders we propose to make.

Protective orders

  1. The Tribunal makes the following orders:

    (1)The Practitioner is reprimanded;

    (2)The Practitioner is subject to conditions on his registration as set out in paragraph [49] below under the heading Practice Conditions;

    (3)The Practitioner shall not make an application for variation in Practice Conditions (1), (2), (3) and (4) to the PSU or the Council before the expiry of 18 months;

    (4)The Practitioner must submit his practice to medical records audit as set out in paragraph [50] below under the heading Medical Records Audit;

    (5)If the Practitioner resides anywhere else in Australia other than New South Wales, sections 125 to 127 inclusive of the National law (NSW) are to apply, so that a review of these conditions may be conducted by the Medical Board of Australia;

    (6)The Practitioner is to pay the complainant's costs in the proceedings.

Practice Conditions

  1. The practice conditions referred to in paragraph [48)] above are as follows:

    (1)The Practitioner is not to possess, prescribe, supply administer or dispense Schedule 4 Appendix D drugs. His Schedule 4 Appendix D drug authority is to remain withdrawn by the Pharmaceutical Services Unit, NSW Ministry of Health ["PSU"] formerly known as Pharmaceutical Services Branch, Department of Health NSW);

    (2)The Practitioner is not to possess, prescribe, supply, administer or dispense Schedule 8 drugs of addiction. His Schedule 8 drug authority is to remain withdrawn by the PSU;

    (3)If practising in general practice, the Practitioner is to work only in a group practice. (Group is defined as 2 or more medical practitioners excluding Dr Leslie);

    (4)If practising in general practice, the Practitioner is to notify the owner/s and principal of the practice, and any other practitioner (including future practitioners) who may be working on site with him of these conditions and to forward to the Council, within 7 days, a copy of these Conditions signed by each one of these practitioners;

    (5)Any subsequent change in the Practitioner's Schedule 8 and/or Schedule 4D prescribing status must be in accordance with the Council's protocol. Prior to the submission of any variation application to the PSU, pursuant to s 163(1)(a) of the National Law (NSW), the Practitioner must seek and obtain approval of the Council to the lifting of conditions (1), (2), (3) and (4) above, and to the re-instatement of any prescribing authority;

    (6)The Practitioner is to obtain Council approval prior to changing the nature or place of his practice;

    (7)The Practitioner is to authorise the exchange of information between Medicare Australia, the PSU, Department of Health, NSW and the Council in order to facilitate compliance with these conditions;

Medical Records Audit

  1. The Medical Records Audit referred to in paragraph [48] above is as follows:

    (1)The Practitioner is to submit to an audit at his premises, of a random selection of his medical records by a person or persons nominated by the Council to assess his compliance with the relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 (Pt 4 and Sch 2) and the RACGP Standards for General Practices (3rd edition), in particular Standard 1.7 'Content of Patient Health Records' with particular attention to his assessment of patients, treatment plans and prescribing of medication.

    (2)The audit is to occur within 6 (six) months from the Date of the Decision and subsequently at 12 (twelve) monthly intervals, or as required by the Council. The practitioner is to authorise the Auditor/s to provide the Council with a report on their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports.

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Cases Cited

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Statutory Material Cited

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King v Health Care Complaints Commission [2011] NSWCA 353