Health Care Complaints Commission v King
[2012] NSWMT 9
•10 May 2012
Medical Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do [2012] NSWMT 9 Hearing dates: 26 March, 27 March 2012 Decision date: 10 May 2012 Before: Kavanagh J; Dr Saw-Hooi Toh; Dr J Murray Wright; Ms Anne Collier Decision: We accept that all the particulars of each complaint have been established to the requisite standard of proof. We find Dr Do has engaged in both unsatisfactory professional conduct and professional misconduct.
We will hear the parties on the appropriate protective orders which should be given by the Tribunal. The matter is set down for further hearing on Monday, 16 July 2012 at 10.00 am.
Costs
The Complainant submits that the question of costs in these proceedings should be reserved.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT - practitioner fails to attend hearing but written submissions tendered - no admissions made as to Complaints - many facts conceded re over prescribing and treating a person with whom the practitioner in a personal relationship - effect of s 167 of National Law - practitioner found to have engaged in both unsatisfactory professional conduct and professional misconduct - costs reserved - separate hearing on protective orders - costs reserved Legislation Cited: Health Care Complaints Act 1993
Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966 (NSW)
Health Practitioner Regulation National Law (NSW) No 86aCases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Forge v ASIC [2004] NSWCA 448
Lucire v Health Care Complaints Commission [2011] NSWCA 99
Richter v Walton (Court of Appeal, 15 September 1993, unreported)Category: Interlocutory applications Parties: Health Care Complaints Commission (Complainant)
Dr Annette Do (Respondent)Representation: C P O'Donnell of counsel (Complainant)
Health Care Complaints Commission (Complainant)
No appearance (Respondent)
File Number(s): MT40005 of 2011
DECISION RE LIABILITY/FINDINGS
The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two complaints brought following consultation with the New South Wales Medical Board ("the Board") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 51(1) of the Medical Practice Act 1992 ("the Act") against Dr Annette Do ("the respondent") being a medical practitioner registered under the Act.
The first complaint alleges, in the following terms, that the respondent:
COMPLAINT ONE
Has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the Health Practitioner Regulation National Law (NSW) in that she has:
(i)demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her 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
(ii)contravened a provision or provisions of the Medical Practice Regulation 2003 (repealed); and/or
(iii)engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
PARTICULARS
At all relevant times the practitioner was a general practitioner practising in private practices in the State of New South Wales.
On or about 10 June 2006 the practitioner commenced a de facto relationship with Patient A such that Patient A was a family member of the practitioner at all relevant times.
On 18 June 2008 Patient A died as a result of an overdose of medications that had been prescribed to him by the practitioner.
(a)From 16 June 2006 to 18 June 2008 the practitioner was the primary medical provider for Patient A, billing Medicare for numerous consultations and/or services provided to Patient A as set out in Schedule A. Those services provided by the practitioner to Patient A included acupuncture treatments and other invasive procedures. The practitioner also provided medical services to Patient A outside of those set out in Schedule A, such as regularly injecting him with medication.
(b)Between 7 August 2006 and 18 June 2008 the practitioner regularly prescribed medication for Patient A, including morphine, pethidine, other injectable pain relief, psychotropic medications and various other medications, as set out in Schedule B.
(c)The practitioner initiated a large number of the prescriptions for Patient A.
(d)The conduct set out in paragraphs (a), (b) and (c) above was inappropriate in circumstances where Patient A was a family member of the practitioner, and was in breach of the NSW Medical Board guidelines relating to treatment of family members.
(e)The practitioner failed to maintain adequate records of the consultations and services provided to Patient A, in breach of clause 5 of the Medical Practice Regulation 2003, for the period from 16 June 2006 to 18 June 2008.
(f)The practitioner failed to maintain adequate records of prescriptions provided to Patient A, in breach of clause 5 of the Medical Practice Regulation 2003, for the period from 7 August 2006 to 18 June 2008.
(g)The practitioner failed to keep an adequate record of the prescription to Patient A of prescribed restricted substances, in breach of clause 37 of the Poisons and Therapeutic Goods Regulation 2002, for any of the substances set out in Schedule B.
(h)The practitioner failed to keep an adequate record of the prescription to Patient A of drugs of addiction, being morphine and pethidine, in breach of clause 81 of the Poisons and Therapeutic Goods Regulation 2002, on the occasions those drugs were prescribed by her to Patient A as set out in Schedule B.
(i)The practitioner prescribed Type C drugs of addiction, within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW), to Patient A without the proper authority, when the practitioner was or ought to have been of the opinion that Patient A was a drug dependent person within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW), in breach of section 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) and clause 77 of the Poisons and Therapeutic Goods Regulation 2002. These prescriptions are as set out in Schedule C.
The second complaint alleges, in the following terms, that the respondent:
COMPLAINT TWO
Has been guilty of professional misconduct within the meaning of section 139E of the Health Practitioner Regulation National Law (NSW) in that she has:
(i)Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or
(ii)Has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.
The same particulars are relied upon.
The Background
Patient A was found deceased on a building site at Kellyville Ridge on the morning of 19 June 2008, having been reported missing earlier. The direct cause of death was acute toxicity due to amitriptyline. As a result of a coronial investigation it was determined the patient died sometime between 11.40pm on 18 June 2008 and 11 am on 19 June 2008 as a result of ingesting at least two packets of Endep medication (amitriptyline) which medication he washed down with water. This event followed a previous suicide attempt the week before in which he had not used any water to assist in digesting tablets. Patient A also injected himself with an anti-nausea drug (presumably to prevent himself vomiting the tablets). On the evening of 18 June 2008, the patient sent a series of text messages to Dr Do. Patient A's death was the result of an overdose of amitryptiline, one of the medications that had been prescribed to him by Dr Do.
In pressing the two complaints before the Medical Tribunal, the HCCC was represented by counsel. Dr Do, however, chose not to appear explaining (by way of email communication) she was living in Brisbane and had "financial hardship" that did not allow her to travel. Further, she stated that she was living on sickness benefits and provides the care and support of her two young children.
The Tribunal in the hearing considered a number of documents sent by Dr Do to the HCCC and as well email communications to the Tribunal.
Section 167 of the Health Practitioner Regulation National Law (NSW) No 86a states:
167 Jurisdiction [NSW]
(1) A Tribunal must-
(a) conduct an inquiry into a complaint, matter or application referred to it; and
(b) hear any appeal referred to it.
(2) No inquiry need be conducted into a complaint referred to a Tribunal if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
Under the Act, the effect of s167(2) is a practitioner who, in writing, admits to a complaint(s) before the Tribunal has a hearing as to appropriate protective orders. However, the Tribunal is unable from the correspondence to determine if the offence is admitted. Dr Do generally submitted on 27 March 2012:
. . . I never intended to be the primary carer for (Patient A), never wanted to prescribe medications to him, in particular narcotics . I believe that I was acting strictly in accordance to the instructions given to me by the specialists that (Patient A) was seeing . I in fact was watching him like a hawk and as soon as he showed sign of dependency I took him to the Pain Clinic and had him weaned off both morphine and pethidine. (Patient A) was a very sick patient , with multiple medical conditions , with a history of severe abuse during childhood which was never treated . He was a very difficult patient , even the specialists and the hospital had a hard time dealing with him . On top of that , ... I was on my own with no family support and very limited financial mean . (Patient A) required around the clock care and supervision due to his suicidal tendency , yet I was on my own , with the responsibility of a work with a contract of 50 hours per week , caring for 2 young children aged 8 and 10 , I was truly stretched beyond my capacity to cope .
I did what I possibly could to keep him alive and as pain free as I could . I did not act irresponsibly nor negligently . I tried my very best to stick to the rules and regulations and I did ask for help everywhere I turned but it was just not available for a patient like (Patient A).
If the Tribunal looked at my record prior to Patient A, I had never prescribed irresponsibly. . . .
We are satisfied there has been no written admission of the complaints pleaded and the Tribunal must conduct a two stage hearing. This Decision will address the evidence and give consideration to whether the complaints are established and if the complaints are established there will be a second hearing to give consideration based on the Tribunal's reasoning as to the appropriate protective orders (Lucire v Health Care Complaints Commission [2011] NSWCA 99; Forge v ASIC [2004] NSWCA 448).
The first complaint alleges that Dr Do has been guilty of unsatisfactory professional conduct as defined in s 139B of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The second alleges that he has been guilty of professional misconduct as defined in s 139E of the National Law.
Both complaints arise out of the same conduct.
Dr Do has provided a detailed account of her treatment of and prescribing of medications for Patient A. The doctor does not dispute the essential facts of the Complaints with respect to her treatment of Patient A nor her prescribing of medications to Patient A nor her failure to keep adequate records of the treatment and prescribing. However, she has always asserted:
Almost all the medications prescribed ... to [Patient A] were either advised, suggested, discussed and agreed upon by the relevant specialists.
Facts
During the period covered by the complaints (16 June 2006 to 18 June 2008) Dr Do was employed as a General Practitioner in New South Wales. During that time she practiced as a General Practitioner at medical practices in Wentworthville and Merrylands. At that time, she was registered under the Medical Practice Act 1992, a corresponding prior Act as defined in the Health Practitioner Regulation National Law (NSW) ('the 'National Law'). Therefore, these proceedings under Part 8 of the National Law are brought through the operation of s 139H of the National Law.
The evidence satisfies that on or about 10 June 2006, Dr Do began a de-facto relationship with Patient A. That relationship continued until Patient A's death by suicide on 18 June 2008. The doctor admits there was a personal relationship between herself and Patient A.
The NSW Medical Board in its consideration of the issues expressed its "grave concerns" over the actions of the practitioner as did the Coronial Advocate working on the coronial investigation into the death of Patient A. Police investigations revealed that Patient A left his home in Victoria in May 2006 to live with Dr Do. He had known the practitioner for only a short time. Prior to leaving Victoria he had last seen a doctor in Victoria in February 2005. He and Dr Do began a personal relationship. Dr Do then began prescribing various medications for Patient A. They lived together between 7 August 2006 and 8 March 2008. She prescribed on 393 occasions.
The Medicare report on the provision of Medicare services to Patient A indicates Dr Do provided 49 Medicare services to Patient A between 16 June 2006 and 11 May 2008. The first four of these services were provided at a practice located at Wentworthville. The remainder were provided at a practice at Merrylands.
Pharmaceutical Benefits Scheme (PBS) records establish the practitioner prescribed a wide range of medications to Patient A on 389 occasions between 7 August 2006 and 31 May 2008. Much of this medication was dispensed at one Pharmacy. The prescribed medications included prescribed restricted substances (within clause 37 of the Poisons and Therapeutic Goods Regulation 2002, for example, Testosterone ethers, Diazepam, Alprazolam and Temazepam) and the drugs of addiction morphine and pethidine (within clause 81 of the Poisons and Therapeutic Goods Regulation 2002).
The Medical Evidence
The evidence satisfies that during her treatment of Patient A, Dr Do did refer him to a number of specialists. It is necessary to recite a chronology of the most relevant of those referrals and their outcomes especially given Dr Do relies on, at least in mitigation, that all the prescribing of medication reflected advice she received from the specialist doctors to whom she referred Patient A.
On 9 August 2006 Dr Grant Walker, a consultant neurologist, saw Patient A after a referral from the practitioner. Dr Do attended the consultation with Patient A. Dr Walker concluded in a letter to Dr Do (of the same date) that Patient A had a combination of cluster headaches with "super-imposed abnormal illness behaviour". Dr Walker also stated: [Patient A]
will almost certainly require analgesia, but given his abnormal illness behaviour, I am not sure how one can possibly monitor that, apart from being very careful not to get into a situation of medium term Pethidine addiction." Dr Walker, as to the above warning, further stated in a letter to the HCCC dated 10 November 2011 that the "use of narcotic analgesia for chronic headache is virtually never warranted, and I would never sanction usage for more than a few weeks at most.
Professor Paul Spira, a consultant neurologist, had consultations with Patient A on 7 and 15 September 2006. Patient A was referred to Professor Spira by Dr Do also for investigation of possible cluster headaches. In her letter of referral to Professor Spira dated 7 September 2006 the practitioner stated that she had given Patient A the following medications for the cluster headaches:
oxygen; imigran; verapamil; lithium; lyrica; indomethacin; melatonin; multivitamins B complex with magnesium and calcium; and Tramal or Morphine 15mg injections with Promethazine prn for pain, trying to wean off now.
Prof Spira stated in oral evidence to the Tribunal that he must not have read this reference to morphine "because I didn't notice".
In Professor Spira's report to the practitioner dated 15 September 2006, he noted a history that included the use of numerous agents to attempt to modify the headaches including: deseril, predisone, verapamil, epilim, lithium and lyrica (none of which is a narcotic agent). Professor Spira's observations of certain features not indicative of cluster headaches led him to conclude that Patient A might have a psychogenic disorder, and that psychiatric approaches would have to be considered if cluster headache therapy failed.
At the time of the September 2006 consultations, Professor Spira did not believe that Patient A suffered cluster headaches and strongly suspected a psychogenic disorder. At the time of these consultations, Professor Spira was not made aware by the practitioner of the fact that Patient A was being treated with narcotic analgesics by the practitioner.
Patient A consulted Dr Phillip Myers, an ophthalmic surgeon, on 5 December 2006 regarding a gradual progression of visual loss against a background of severe headaches. Dr Myers did not identify any ocular abnormality. Further investigation revealed "an inconsistent and spiral visual field, which is typical of a strong functional overlay such as is seen in patients whose performance is affected by psychosomatic or malingering causes". Dr Myers noted that Patient A had been diagnosed with hysterical blindness by Professor Spira, and formed the opinion that Patient A's "poor visual performance was associated with a functional rather than an organic cause". He suggested a follow up with a psychiatrist.
On 5 December 2006, Professor Spira was informed in a telephone conversation with Dr Phillip Myers that Dr Do had continued to give Patient A morphine injections to deal with what she regarded as a cluster headache. Professor Spira's concern arose partly from his opinion that atypical features of the case caused him to doubt that the headaches had an organic cause. Professor Spira stated he "was particularly concerned to hear Dr Myer state that [the practitioner] was continuing to treat her partner/fiancée with narcotic analgesics or in fact that she was actively involved in his management in any capacity".
On 13 December 2006, Dr Myers suggested to the practitioner "that she should not be treating [Patient A] and that he should be referred to a psychiatrist".
In a telephone conversation with the practitioner that occurred early in January or February 2007 and not later than 27 February 2007 Professor Spira told the practitioner how inappropriate it was for her to be medicating her partner, Patient A, with narcotic analgesia and expressed the view that she was placing herself in a precarious position by doing so. We are satisfied that at no time did Professor Spira say to the practitioner that it was advisable to use narcotics to treat Patient A in the short term.
In her submission to this Tribunal the practitioner stated that in October 2006, once it was confirmed the cluster headaches were complicated by psychological problems, she did not wish Patient A to use narcotics, so she referred him to the Sydney Pain Clinic. Following Dr Gronow's treatment at that clinic, Patient A was "weaned off all narcotics except tramal". She stated that in May 2008 Patient A had another cycle of cluster headaches and "This time he did not have any narcotics because I did not want him to become dependent on it like last year". She also stated:
When I first prescribed narcotics to [Patient A] I discussed that with Dr Grant Walker who said it was alright to do so in the short term. I also discussed that later with Prof Spira who too said it was alright in the short term."
In an email to the Tribunal dated 27 March 2012, the practitioner stated that Prof Spira gave "untrue information" about his awareness that Patient A had been given narcotic analgesia to control his pain while under his care. She stated that she informed Prof Spira of this several times in her letter of referral to him dated 7 September 2006. She agreed that she had spoken to Prof Spira by telephone after he had spoken to Dr Myer on 5 December 2006 but asserts the topic of morphine being given to Patient A was not discussed. She said she telephoned Prof Spira to make the following appointment in February but that by then Patient A had been weaned off pethidine and morphine after seeing Dr Gronow at the Sydney Pain Clinic. She agreed that Prof Spira advised her in that conversation to avoid being the primary carer for Patient A, but "it was in general, and not related to prescribing narcotics at all".
In a letter to the practitioner dated 7 February 2007, Dr Myers stated that testing of Patient A was "highly suggestive of a nonorganic or psychological cause for poor vision". He also stated:
All the data points to a nonorganic cause of [Patient A's] reduced vision and I feel that it is important that this be conveyed to you so that he can commence appropriate investigation and treatment for any psychological or psychiatric cause of his visual presentation.
In 2007, the practitioner referred Patient A to Professor Philip Mitchell, head of the School of Psychiatry at the University of New South Wales. Professor Mitchell, who was aware that the practitioner was Patient A's partner, saw Patient A on 9 August 2007. He diagnosed Patient A as suffering from rapid-cycling bipolar disorder. At that time Patient A was being treated with Epilim, Haldol and Valium. Professor Mitchell recommended that Patient A continue on his current treatment in view of the improvement in his clinical condition. He noted that Patient A did not attend the next arranged appointment on 10 October 2007.
In November 2007, Patient A was seen by a consultation-liaison team from the Access and Assessment Mental Health Team (AAMHT) at Blacktown Hospital. This followed his admission to hospital after an overdose of his prescribed carbazepine medication for cluster headaches.
On 26 February 2008, the practitioner contacted the AAMHT with concerns about Patient A. As a result, an elective admission to Blacktown Hospital was arranged and in March 2008 Patient A received psychiatric treatment from the AAMHT at Blacktown Hospital. He was on a range of psychiatric medication and was admitted to Bungaribee House, a psychiatric inpatient unit between 18 March 2008 and 4 April 2008. His psychiatric medication was rationalized during this treatment. In April 2008, when seen by Dr Chris Mah of the AAMHT following his discharge, Patient A reported feeling well and the AAMHT did not have further contact until the practitioner advised that Patient A had suicided. We accept the medical records of that centre are minimal records related to the practitioner's treatment and any prescription of medications during the period.
A total of 43 of the remaining 45 Medicare services the practitioner provided to Patient A between November 2006 and March 2007 were from the Merrylands practice. The practitioner did not keep any records of these services or of her treatment of and prescription of medications to Patient A during that period.
Blacktown Hospital records for Patient A contain details of a number of admissions of Patient A between October 2006 and June 2008. The Emergency Department clinical record dated 31 October 2006 states:
Patient suffers from chronic migraine attached to Westmead Pain Clinic. Gave himself IM morphine 30 mg, oral methadone 10 mg. CDA was called before 1000 hrs. When they got to the house he was unconscious. He was given narcan at 1025 hrs. He woke up started to walk around refused to go into hospital. CDA were called the second time at 1137 hrs. Patient was found to be agitated, verbally aggressive towards his partner. He denies being aggressive. Partner contacted Pain Clinic, wants him to be observed in ED.
The record for 27 November 2006 states:
[Patient A] "has been on gate leave every night as his wife, GP, feels she is best person to treat his cluster headache.
There is a similar entry for 29 November 2006.
Patient A was admitted into Blacktown Hospital on 6 May 2007 and discharged on 18 May 2007. The records for 13 May 2007 show that a member of the treatment staff on arrival at Patient A's bedside, observed the practitioner to be administering medication to Patient A without the authority of the hospital. She administered Tramal and Phenergan by injection and imigran nasal spray. The staff member informed the practitioner that it was inappropriate for her to manage her husband whilst he was an in-patient at Blacktown Hospital. The practitioner stated that she managed Patient A's pain in liaison with the chronic pain team at POW. She requested the staff member to administer 30 mg of injectable morphine to Patient A. The staff member objected to this.
On 28 October 2007, Patient A was admitted to Blacktown Hospital where it was determined he had taken 50 x 400mg Carbamazepine tablets and thereby overdosed. Emergency Department notes record that Patient A was "suicidal ... had argument with partner". Patient A was discharged on 3 November 2007 on his own insistence and against medical advice.
Patient A was admitted to Blacktown Hospital on 18 March 2008 suffering from hallucinations and delusional ideas about a Japanese invasion. As noted above he was transferred to Bungaribee House, a psychiatric inpatient unit between 18 March 2008 and 4 April 2008 where his psychiatric medication was rationalised.
On 12 June 2008, Patient A was admitted to Blacktown Hospital after the practitioner reported him missing and he was found walking the streets by police. It was determined that he had taken an overdose of amitryptiline and unknown quantities of valproate and Venlafaxine. Patient A's history of Bipolar disorder and personality disorder was noted. He was to be transferred to Bangaribbee House as at 15 June 2008. But he was discharged from Blacktown Hospital on 16 June 2008.
The peer reviewer, Dr Marcela Cox, examined all the above records. She first opined as to the various standards and requirements applicable to a general practitioner stipulating the need to keep thorough and accurate records of the treatment of and prescribing of medications to patients, and the inappropriateness of treating family members. She noted a key aspect of proper record-keeping is to enable another doctor to take over care of the patient using the information in the records.
The NSW Medical Board policy states that medical practitioners should avoid treating family members whenever possible because: professional judgment and objectivity may be compromised; inadequate histories and examination may result; patients may withhold relevant information due to embarrassment or discomfort; patient autonomy may be compromised; and informed consent principles may not be adhered to.
Dr Cox made a number of general observations about the practitioner's treatment of Patient A including the following:
(a) The complexity of Patient A's medical issues and the significant psychiatric component in his presentation meant it was important for him to have independent medical care and this should have been established early in the relationship with the practitioner;
(b) Dr Do did not establish clear boundaries in her relationship with Patient A with regard to his medical management;
(c) The repeat prescription of pethidine and morphine both of which have a strong addictive potential was not recommended for acute headache pain, should have been accompanied by adequate record keeping and should have been carried out, if at all, by an independent practitioner;
(d) The same applies to amitriptyline;
(e) Dr Do was not objective in her treatment of Patient A, as evidenced by her continued prescription of morphine after being warned against this, and warned generally that she should not treat Patient A, from Prof Spira;
(f) As the medical practitioner, Dr Do lacked proper record-keeping and that made it impossible for another GP to take over the treatment of Patient A;
(g) Dr Do lacked judgement and therefore blurred the boundaries between herself and her partner Patient A.
Dr Cox, having considered the relevant facts and in the context of the relevant applicable standard required from a general practitioner, then opined:
The doctor's relationship with Patient A in the context of the Medical Board guidelines concerning treatment of family members, was conduct which fell significantly below the standard expected of a practitioner with an equivalent level of training and experience but did not invite Dr Cox's strong criticism;
The practitioner's prescribing of medications to Patient A fell significantly below the standard expected of a practitioner with an equivalent level of training and experience but did not invite Dr Cox's strong criticism;
The practitioner's treatment of Patient A's cluster headaches was consistent with the standard expected of a practitioner with an equivalent level of training and experience;
The practitioner did not keep adequate and contemporaneous records of Patient A's medical conditions, consultations, treatments and referrals sufficient to enable another GP to take over care of Patient A. Her failure to do so fell significantly below the standard expected of a practitioner with an equivalent level of training and experience and invited Dr Cox's strong criticism;
Given the difficulty encountered in getting Patient A to see a psychiatrist in 2007 the practitioner's prescribing of amitriptyline to Patient A in 2007 did not fall below the standard expected of a practitioner with an equivalent level of training and experience; and
While most of the medications prescribed by the practitioner were provided after obtaining specialist advice, the manner of the overall prescribing was not appropriate due to the large number of different and potentially dangerous medications involved. The practitioner's lack of adequate record keeping with regard to prescriptions, advice and treatments of Patient A was not acceptable and fell significantly below the standard expected of a practitioner with an equivalent level of training and experience and invited Dr Cox's strong criticism.
The only area of dispute between the parties concerns the use of narcotic analgesics after Prof Spira saw Patient A in September 2006 and after he spoke to the practitioner on the telephone in early 2007. Dr Do submits that where there is a conflict in the evidence between Patient A and Prof Spira the evidence of Prof Spira should be rejected. Prof Spira's evidence was he must not have read the reference to morphine in the referral letter and did not notice the reference, given that he made no reference to it in his report dated 15 September 2006. This statement of Prof Spira brings the issue properly before us. However, Dr Do's claim that Patient A had been weaned off morphine and pethidine by the time of the telephone conversation in early 2006 is contradicted by the prescription history of Patient A. Those records indicate morphine was prescribed on three occasions in March and April 2007. The Tribunal however does not make its determination based on this disputed issue.
Relevant law
As to the first complaint, the National Law relevantly defines unsatisfactory professional conduct as:
conduct "that demonstrates the ... judgment possessed ... by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" [s 139B(1)(a)]; and, any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession [s 139B(1)(l)].
The Tribunal accepts the evidence of the multiple doses of medications should have been better co-ordinated; the doctor contributed to this over-prescribing in her failure to keep complete records and there was the further basic breach of professional standards by the doctor in unethically treating a person with whom she was in a personal familial relationship.
Section 139E of the National Law defines "professional misconduct" as:
unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
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 or cancellation of the practitioner's registration.
Conclusion
The first complaint challenges to the level of the practitioner's knowledge, skill, judgement and care in the practice of medicine and alleges that she breached a provision of the Medical Practice Regulation 2003 and/or engaged in improper or unethical conduct relating to the practice of medicine.
It is alleged in Complaint Two that the practitioner engaged in unsatisfactory professional conduct that falls within either or both of the limbs of the definition of professional misconduct that is sufficiently serious to justify suspension or cancellation of the practitioner's registration.
The standard of proof required to establish a complaint is the civil standard. However, because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must be "comfortably satisfied" that the particulars of the Complaints have been established (Dixon J in Briginshawv Briginshaw (1938) 60 CLR 336 (at 362-363)).
The seriousness of an 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 proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
In a passage cited with approval in Health Care Complaints Commission v Litchfield (supra) at 638, Priestley JA said in Richter v Walton (Court of Appeal, 15 September 1993, unreported):
The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters, the trust a patient places in a doctor is considerable. In some cases, of which the present seems to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great.
We do not accept the explanation of Dr Do that the over-prescribing practices can be held to be the responsibility of the myriad number of specialist doctors to whom she referred Patient A. There was a clear failure, as Dr Cox the peer doctor opined, in the manner in which specialist advice was relied. Her practice of referrals led to a multiplicity of medications being taken by Patient A in large doses. There was also a failure by Dr Do to keep proper clinical records.
Further, given the close personal relationship between Dr Do and Patient A, her treating practices crossed the ethical boundaries that require medical treatment be given in an environment which allows a dispassionate and clinically professional assessment. These breaches of the standards required reveal a failure by the doctor to provide proper clinical medical treatment.
We accept that all the particulars of each complaint have been established to the requisite standard of proof. We find Dr Do has engaged in both unsatisfactory professional conduct and professional misconduct.
We will hear the parties on the appropriate protective orders which should be given by the Tribunal. The matter is set down for further hearing on Monday, 16 July 2012 at 10.00 am.
Costs
The Complainant submits that the question of costs in these proceedings should be reserved.
Amendments
11 May 2012 - Correction to the decision date field in the coversheet.
Amended paragraphs: Decision Date
Decision last updated: 11 May 2012
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