Health Care Complaints Commission v Ly
[2010] NSWMT 20
•15 December 2010
NEW SOUTH WALES DISTRICT COURT - MEDICAL TRIBUNAL
CITATION: HCCC v Dr Ly [2010] NSWMT 20
PARTIES: Dr Chi-Quan Benjamin Ly
Health Care Comlaints Commission
FILE NUMBERS: 40009
HEARING DATES: 13.12.2010
DATE OF JUDGMENT DELIVERY: 15/12/2010
CORAM: Murrell, SC DCJKertesz, Dr ESutton, Dr VHouen, Ms J
LEGISLATION CITED: Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966
Medical Practice Regulation 2003
Poisons and Therapeutic Goods Regulations 2002
CASES CITED: HCCC v Karalasingham (2007) NSWCA 267
A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253
HCCC Lichfield (1997) 41 NSWLR 630
NSW Bar Association v Meakes (2006) NSWCA 340
Re Dr Peter Keith (2007) NSWMT12
Dr Whitton(6 December 2005, unreported)
HCCC v Hutchins (unreported, 31 July 2009)
Re Dr GC (29 November 2007, unreported)
CATCHWORDS: General practitioner
Unsatisfactory professional conduct
Professional misconduct
Drug-dependent patients
Prescription of Schedule 4D restricted substances in inappropriate circumstances
No authority to prescribe Schedule 8 drugs of addiction
Deficient record-keeping
Protection of the public
General deterrence
Fine and other conditions imposed
LEGAL REPRESENTATIVES:
Mr Farmer
Mr Lynch
Avant Law Pty Ltd
ORDERS: (1) The practitioner is reprimanded
(2) The Tribunal directs that the annexed conditions be imposed on the practitioner's registration
(3) The practitioner is to pay the costs of the HCCC
Reasons for Decision:
The Complaint
In 1995, the practitioner graduated in medicine. In 2003, he was made a Fellow of the Royal Australian College of General Practitioners. From 1997 to 2005, he worked as a general practitioner in a group practice. In 2005, he commenced working as a sole practitioner. As the practitioner is fluent in Mandarin and Cantonese, most of his clients were of Chinese ethnic background.
In October 2007 the Health Care Complaints Commission (HCCC) received an anonymous complaint about the practitioner's approach to the prescription of benzodiazepines (Exhibit A1, tab 2). The Pharmaceutical Services Branch (PSB) of the Department of Health conducted an investigation and identified 12 patients (Patients A to L) for whom the practitioner was prescribing Schedule 4D (‘S4D’) drugs (restricted substances) and/or Schedule 8 (‘S8’) drugs (drugs of addiction) over a long period and/or in large quantities and/or without appropriate Department of Health authority. The practitioner was interviewed on 20 May 2008 (Exhibit A1, tab 4). He voluntarily withdrew his prescribing rights for S4D drugs (from 4 June 2008) and S8 drugs (from 23 December 2008) (Exhibit 1, tab 1, par 20 and par 74; Exhibit A1, tab 4).
The HCCC complains that the practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct under sections 36 and 37 the Medical Practice Act1992 in that he has demonstrated inadequate knowledge, skill or judgment, has engaged in improper or unethical conduct, and/or has contravened the Medical Practice Regulation 2003 (Exhibit A1, tab 1). Clause 33 of the Poisons and Therapeutic Goods Regulation 2002 requires a medical practitioner, as an authorised practitioner, to prescribe a S4D drug in accordance with recognised therapeutic standards of what is appropriate in the circumstances (of medical treatment). Certain S4D drugs require written authority issued by the NSW Department of Health (Section 37 and 170 of the Act 1966). Section 28 of the Poisons and Therapeutic Goods Act 1966 prohibits a medical practitioner from prescribing S8 drugs of addiction without obtaining proper written authority to do so, subject to exceptions (Clause 83 Regulation 2002). The Department of Health may give and revoke authority to prescribe S8 drugs of addiction (Section 29 of the Act 1966) in response to applications for authority from a medical practitioner or recommendations from the Medical Committee (Section 28A of the Act 1966). Schedule 2 of the Regulation 2003 requires the keeping of adequate patient records and, inter alia, requires that the patient history and any treatment plan be recorded.
Pursuant to s 60 of the Act, the practitioner admits that, by virtue of the conduct particularised in the complaint, he is guilty of unsatisfactory professional conduct and professional misconduct (Exhibit 1, tab 9). Through his counsel, he admits that he demonstrated inadequate knowledge, skill or judgment in relation to each of the 12 patients. He admits that it was improper or unethical to prescribe S8 drugs of addiction to four patients without authority. In relation to nine patients, he admits that he failed to keep adequate records and thereby contravened Regulation 2003.
The Issue
The practitioner submits that, in the exercise of its duty to protect the health and safety of the public, it is not necessary that he be suspended or deregistered. Rather, the Tribunal should deal with the matter pursuant to s 61 of the Act 1992.
The HCCC concedes that the Tribunal could deal with the matter otherwise than by suspension or deregistration. The HCCC suggests that an appropriate outcome would be a fine (under s 62 of the Act 1992), and a reprimand and the imposition of registration conditions (under s 61 of the Act 1992).
The Tribunal is required to determine the outcome that is required to protect the health and safety of the public: s 2A of the Act 1992.
The Patients
Patient A
The practitioner admits that (Exhibit 1, tab 1, par 23-par 26):
Between about October 2006 and about July 2007 he prescribed S4D and S8 drugs for pain, when he knew that A was a drug addict who was on the methadone program.
On two occasions (4 December 2007 and 25 March 2008) he prescribed Oxycontin 80mg, a S8 drug, without authority.
His prescription of a S4D benzodiazepine (Valium) to help A reduce S8 drug use was inappropriate and contrary to cl 33 of the PTGR 2002.
Patient B
The practitioner admits that (Exhibit 1, tab 1, par 27-par 31):
He prescribed S4D drugs to B for anxiety, depression and insomnia, knowing that B was a drug addict (but not that he was on the methadone program).
The prescription of Valium was inappropriate and contrary to cl 33 of the PTGR 2002.
His overall care of B was significantly below the standard expected.
His records were inadequate in that he did not record a treatment plan.
Patient C
The practitioner admits that (Exhibit 1, tab 1, par 32-38):
Between November 2006 and February 2008 he prescribed S4D and S8 drugs for pain, knowing that C was a drug addict.
On 12 June 2007 he prescribed MS Contin 60mg, a S8 drug, without authority.
His prescription of opioid medication was inappropriate and contrary to cl 33 of the PTGR 2002.
His overall care of C was significantly below the standard expected.
His record keeping was inadequate in that he did not take an appropriate history and failed to record a treatment plan.
Patient D
The practitioner admits that (Exhibit 1, tab 1, par 39 - par 43):
Between November 2006 and April 2008 he prescribed S4D drugs (Serepax and Murelax) for anxiety, knowing that D was a drug addict.
The prescription of a S4D drug (Oxazepam) between November 2006 and April 2008 was inappropriate and contrary to cl 33 of the PTGR2002.
His overall care of D was significantly below the standard expected.
His record - keeping was inadequate in that he failed to take a full history and he failed to record a treatment plan.
Patient E
The practitioner admits that (Exhibit 1, tab 1, par 44 - par 48):
Between June 2007 and May 2008 he prescribed a S4D drug knowing that E was a drug addict who was on the methadone program.
His prescription of Valium and Panadeine Forte (to assist in withdrawal from methadone) was inappropriate and contrary to cl 33 of the PTGR 2002.
His overall care of E was significantly below the standard expected.
His record - keeping was inadequate in that he failed to take a full history and he failed to record a treatment plan.
Patient F
The practitioner admits that (Exhibit 1, tab 1, par 49 - par 52):
His prescription of S4 drugs (for anxiety and pain) between about September 2005 and September 2008 was inappropriate as he knew that F was on the methadone program.
His overall care of F was significantly below the standard expected.
His record - keeping was inadequate in that he failed to take a full history and he failed to record a treatment plan.
Patient G
The practitioner admits that (Exhibit 1, tab 1, par 53-57):
His prescription of benzodiazepines for anxiety and depression between May 2005 and May 2008 was inappropriate and contrary to cl 33 of the PTGR 2002.
His overall care of G was significantly below the standard expected.
His record - keeping was inadequate in that he failed to take a full history and he failed to record a treatment plan.
Patient H
The practitioner admits that (Exhibit 1, tab 1, par 57 - par 59):
During two periods between December 2005 and October 2007 he prescribed a S8 drug for pain without authority to do so.
His overall care of G was significantly below the standard expected.
Patient I
The practitioner admits that (Exhibit 1, tab 1, par 60- par 62):
Between December 2005 and June 2008 he prescribed a S4D drug, knowing that I was a drug addict.
His prescription of Oxazepam for anxiety and withdrawal from methadone was inappropriate and contrary to cl 33 of the PTGR 2002.
Patient J
The practitioner admits that (Exhibit 1, tab 1, par 63 - par 64):
Between September 2007 and November 2007 he prescribed a S8 drug for pain without authority.
Patient K
The practitioner admits that (Exhibit 1, tab 1, par 65 - par 67):
His prescription of S4D and S8 drugs for anxiety between December 2005 and August 2008 when he knew that K was a drug addict was inappropriate and contrary to cl 33 of the PTGR2002.
His record keeping was inadequate in that he failed to take a full history and he failed to record a treatment plan.
Patient L
The practitioner admits that (Exhibit 1, tab 1, par 68 - par 71):
Between March 2007 and May 2007 he prescribed a S4D drug for anxiety and to assist in withdrawal from drugs, knowing that L was a drug addict.
His overall care of L was significantly below the standard expected.
His record keeping was inadequate in that he failed to make and keep all appropriate clinical notes.
In cross-examination, the practitioner conceded that, whether a patient purported to seek help for chronic pain, withdrawal from drugs or anxiety and depression, he had treated the patient in a similar manner, prescribing benzodiazepines. At the time of the impugned conduct, he had not appreciated the problems associated with the prescription of benzodiazepines. In particular, he had not appreciated that benzodiazepines should only be prescribed for a brief period of two months, rather than the much longer periods over which he prescribed them. The practitioner was unaware that ongoing benzodiazepine use was an inappropriate way to treat withdrawal from heroin or methadone, and was an inappropriate way in which to manage anxiety and depression. His treatment records were brief and failed to document important matters.
The Practitioner’s Attitude and Response
The Tribunal is satisfied that the practitioner’s misconduct was the result of ignorance, an overestimation of his skills in relation to the treatment of drug dependent patients, personality factors and an ad hoc approach to patient management. The practitioner was well intentioned but pliable. Drug dependent patients are often credible and manipulative.
In relation to each of the 12 patients, the practitioner lacked a firm treatment plan. He genuinely wanted to help the patients. At times, he attempted to counsel them (for example, Exhibit 1, tab 1, par 26 (e) and par 31(t)). In relation to some of the patients, he contacted the Health Insurance Commission hotline to ascertain whether the patients were "doctor shopping" (Exhibit 1, tab 1, par (i); Exhibit A4, tab 1(A)). However, in circumstances where he should have been assertive and proactive, the practitioner was compliant, uncritically accepting excuses proferred by drug dependent patients and responding to their demands (for example, T14.4-29).
The practitioner is "thankful" that his misconduct came to the attention of the authorities as it has caused him to reflect on his professional inadequacies (Exhibit A2, p 327). From the outset, he made admissions of misconduct. He is contrite. He acknowledges the detriment caused to patients by his misconduct. He has responded to the intervention (T19.28-T20.14).
The practitioner has pursued education in the areas of inadequacy. In 2009, he undertook a substantial prescribing program through Monash University (Exhibit 1, tab 7) and a mental health skills training course through Think GP (Exhibit 1, tab 8). He has just completed a medical ethics course through Monash University (Exhibit 1, tab 1, par 80; Exhibit 1, tab 3a, p 2).
The practitioner acknowledges that his record keeping was seriously deficient. He now ensures that manual files are maintained correctly. He has undertaken training in relation to electronic record-keeping, and is in the process of converting his practice to a completely electronic system (T17.40-18.16). One advantage of the electronic system is that the practitioner will receive automatic notification of the need for recalls.
The practitioner has benefited personally by reducing his working week from six days to five days and reducing his patient load from about 50 patients per day to 40-45 per day (T20.25-43). He acknowledges that he would benefit from mentoring and from counselling in relation to patient management (T20.49-21.29).
Expert Opinion
The HCCC obtained reports from Dr Marcela Cox, a general practitioner (Exhibit A2, tab 52). At pp 308-309, Dr Cox summarised her opinion as follows:
"1) Dr Ly was unaware of the rules regarding prescription of drugs of addiction to drug-dependent patients and consequently did not apply for authorities from the NSW Department of Health. Had he done so, for most of the 12 patients reviewed an authority would not have been granted as the patient was on the methadone program. Dr Ly would then have quickly been able to refer the patient back to their methadone prescriber.
2) Dr Ly did show a degree of concern about supplying S4D and S8 drugs to his patients in that he regularly contacted the Doctor Shopping Hotline. He was however unaware that these patients may still be inappropriately accessing medications, even if not known to this service.
3) Dr Ly seemed to take patient stories at face value and failed to try to substantiate patient claims through contacting previous prescribers or obtaining previous records for patients. In most cases the histories recorded were inadequate for the ongoing provision of restricted substances. There was also a general lack of physical or mental state examinations.
4) Dr Ly tended to prescribe the drug the patient requested, in a reactive manner, rather than taking control of the prescribing and choosing the most appropriate drug. It seems to me that Dr Ly lacked skill in negotiating with patients or saying "no".
5) Dr Ly tended to be somewhat gullible and seemed to believe his patients when they presented too early for prescriptions.
6) Dr Ly’s management of anxiety and depression indicates a lack of knowledge of the current most appropriate treatments, such as SSRI medications.
7) Dr Ly’s ongoing use of benzodiazepines in the treatment of withdrawal from heroin or methadone is inappropriate and demonstrates a lack of knowledge in this area.
8) Dr Ly’s records for most patients are brief and do not contain adequate documentation for the ongoing prescription of S4D and S8 drugs. For example there is a lack of baseline assessment, recording of the amount being used, discussion of side effects, management plan regarding the weaning etc.Despite these criticisms it appears to me that Dr Ly was genuinely trying to help his patients. These patients would have been difficult for any general practitioner to manage. They had significant social disadvantages and Dr Ly showed concern for their situation and provided counselling on a number of occasions. Dr Ly did at times try to limit the amount of medication given…
Dr Ly has taken the process seriously and was pleased to have learned a lot about prescribing and management of drug-seeking patients …”
Dr Cox expressed the view that, in relation to prescriptions provided to each of the 12 patients, the practitioner’s conduct fell "significantly below" the standard expected of a practitioner with an equivalent level of training or experience. For many patients, the overall care provided and/or the standard of record-keeping was "below" or "significantly below" the standard expected. Nevertheless, she concluded (Exhibit A2, tab 52, p 309):
"Whilst there are numerous instances where Dr Ly’s care, prescribing and record-keeping fell below or significantly below the standard expected of a practitioner with an equivalent level of training or experience, in my opinion for the reasons stated above, these departures from the standard expected do not invite my strong criticism of Dr Ly. ”
The medical members of the Tribunal concur with this view.
Outcome
By admitting that his conduct constitutes "professional misconduct", the practitioner concedes that the conduct is "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" (s 37 of the Act 1992). However, this does not mean that the practitioner must be removed: HCCC v Karalasingham [2007] NSWCA 267 at [67].
The question of fitness to practice is to be determined as at the date of the hearing: A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253 at [21].
The Tribunal exercises a protective jurisdiction:s 2A of the Act 1992, HCCC Lichfield (1997) 41 NSWLR 630 at 637. The outcome should be the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession): NSW Bar Association v Meakes[2006] NSWCA 340 at [113]-[114].
In Re Dr Peter Keith (2007) NSWMT12 at [65], the Tribunal expressed its "strong disapproval" of the practitioner's prescription of benzodiazepines to drug dependent patients over a period of five years. The Tribunal fixed a fine of $20,000 and imposed counselling, education or training, supervision, auditing and prescription conditions on registration. In Dr Whitton (6 December 2005, unreported), the Tribunal considered conduct that involved inappropriate prescription of drugs; destruction and falsification of records; and misleading investigating officers of the PSB. The Tribunal responded with a reprimand, a fine of $25,000, and counselling and mentoring conditions. However, in HCCC v Hutchins (unreported, 31 July 2009), a case involving the unauthorised prescription of S4B special restricted drugs, the Tribunal declined to impose a fine (at [85]). Re Dr GC (29 November 2007, unreported) concerned a successful appeal against the imposition of a fine for failing to ensure a member of a practitioner's staff was appropriately registered and authorised to administer a S8 drug of addiction. The Tribunal set out the type of factors to be considered when determining whether a fine should be imposed. Those factors include the risk of re-offending; whether the misconduct was deliberate; whether there is actual or significant risk of harm to the patient; the seriousness of the misconduct; the prevalence of the misconduct; the number of incidents of misconduct/whether the misconduct was part of a pattern of behaviour; whether the misconduct has ceased and the likelihood of a general deterrent effect (at [8]-[9]).
In the exercise of the Tribunal's protective jurisdiction, for the purpose of determining the appropriate outcome, the following considerations are important:
(1) The practitioner's conduct created a significant risk of harm to 12 patients.
(2) The conduct extended over several years.
(3) The conduct was the product of ignorance rather than any sinister motive.
(4) The practitioner gained financial benefit from the relevant consultations, but the misconduct was not motivated by financial gain.
(5) After the misconduct was drawn to the practitioner's attention in 2008, it was not repeated.
(6) From the outset, the practitioner has been frank, contrite and remorseful.
(7) The practitioner voluntarily surrendered his prescribing rights for S4D and S8 drugs.
(8) The practitioner has undertaken significant re-education to improve his knowledge in areas of inadequacy.
(9) The practitioner is converting to electronic record-keeping.
(10) Having regard to (5) – (9), there is almost no prospect that the practitioner will re-offend.
(11) The inappropriate prescription of dangerous drugs is reasonably prevalent (see the cases referred to in paragraph 21 above) and a strong message of general deterrence is required.
(12) The protective conditions that the Tribunal intends to impose on the practitioner's registration will cause financial detriment to the practitioner. In particular, there will be a very significant financial detriment associated with the condition that requires that the practitioner reduce his patient load.
Having regard to (12) and the other matters referred to above, the exercise of the Tribunal’s protective function does not require that a fine be imposed.
Orders
(1) The practitioner is reprimanded.
(2) The Tribunal directs that the annexed conditions (Annexure A) be imposed on the practitioner's registration.
(3) The practitioner is to pay the costs of the HCCC.
Annexure A
Conditions
(a) For a period of two years from this decision, the practitioner must not prescribe, supply or administer any Schedule 4D or Schedule 8 drug of addiction.
(b) Thereafter, if the practitioner applies to the Pharmaceutical Services Branch of the NSW Department of Health for an authority to prescribe any drug of addiction, he must notify the Medical Council of NSW within seven days of making the application.
(a) Within 28 days of this decision, the practitioner is to provide the Council with the name and professional address of a suitable senior general practitioner who has agreed to act as his professional mentor. The proposed mentor must have received a copy of the Council publication "Guidelines for Mentors" and the decision in these proceedings. The proposed mentor must be independent of the practitioner’s immediate professional and social network (including the Burwood Chinese Presbyterian Church and the Australian-Chinese Medical Association). The Council will determine the suitability of the proposed mentor.
(b) The practitioner is to meet with the mentor at least once a month for at least two hours.
(c) The first meeting is to occur within two weeks of the Council advising the practitioner that it has approved the proposed mentor. Monthly meetings are to continue for at least 12 months. Thereafter, if required by the Council, monthly meetings are to continue for a maximum period of two years from the date of the first meeting.
(d) In the meetings, the practitioner and the mentor are to discuss record-keeping, workload, prescribing practices, patient management including the management of difficult patients and patients with drug and alcohol problems, communication with patients, the legislative and regulatory requirements of medical practice and any personal issue, practice issue or other issue that the mentor considers relevant.
(e) The practitioner is to authorise the mentor to report to the Council bimonthly in accordance with (f).
(f) In each report, the mentor is to note the times and dates of meetings, inform the Council of any concern about the practitioner's professional conduct, health or personal well-being, and advise the Council of any other matter that the mentor considers relevant.
(g) If the mentor or the Council notifies the practitioner that the mentor wishes to discontinue the mentorship, within 28 days of being so notified the practitioner is to propose a replacement mentor by following the process in (a) above.
(h) The practitioner is to meet all costs associated with the mentorship.
(a) Unless the Council agrees to less frequent auditing, the practitioner is to submit to audits of his practice at approximately 6 months, 12 months, and 24 months from this decision.
(b) The first audit is to encompass drug-keeping facilities, drug prescription, administration and record-keeping, general record-keeping, compliance with legislative requirements, patient consultation, staffing and practice premises. If the Council agrees, the scope of subsequent audits may be narrowed.
(c) The practitioner is to authorise the auditor to provide the Council with a report of each audit.
(d) The practitioner is to meet all costs associated with auditing and audit reporting.
(a) Within 28 days of this decision, the practitioner is to provide the Council with the name and professional address of a suitable psychologist/ other professional person who is able to teach the practitioner practical strategies for communicating with and managing patients, including difficult patients and patients with drug and alcohol problems. The Council will determine the suitability of the proposed professional person.
(b) Within 28 days of the Council advising the practitioner that it has approved the proposed professional person, the practitioner is to commence consulting the person.
(c) Thereafter, he is to consult the person with such frequency and for such duration as is recommended by the person, provided that the total period does not exceed 12 months from the commencement of consultations.
(d) The practitioner is to meet all costs associated with the consultations.
5. For a period of two years from this decision:
(a) The practitioner is to work a maximum of five days a week.
(b) The practitioner is to accept a maximum of 35 patients a day.
6. For a period of two years from this decision, as part of normal continuing professional development requirements the practitioner is to earn at least 20 CPD points through activities that are not Internet-based.
7. The Council is the appropriate review body for the purpose of a review of any condition.
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