In Re Dr Caladine
[2006] NSWMT 12
•5 June 2006
New South Wales
Medical Tribunal
CITATION: In Re Dr Caladine [2006] NSWMT 12 TRIBUNAL: Medical Tribunal PARTIES: MEDICAL PRACTICE ACT 1992
RE
DR KEITH CALADINEFILE NUMBER(S): 40015 of 2004 CORAM: Sidis, DCJ - Child, Dr D - Kendrick, Dr J - Ettinger, Ms G CATCHWORDS: Impairment - Unsatisfactory professional conduct ss 36 & 37 LEGISLATION CITED: Medical Practice Act 1992 (NSW) CASES CITED: DATES OF HEARING: 27, 28, February 2006, 1 March 2006, 11 April 2006 DATE OF JUDGMENT: 5 June 2006 LEGAL REPRESENTATIVES: Health Care Complaints Commission - Ms B Bourke
Self representedORDERS: 1. The Tribunal finds that Complaint 1 is proved. The Tribunal finds that the practitioner suffers from an impairment.; 2. The Tribunal finds that Complaint 2 is not proved; 3. The Tribunal orders that the registration of the practitioner as a medical practitioner in New South Wales pursuant to the Medical Practice Act 1992, be subject to the conditions set out in Appendix B to these Reasons; 4.The practitioner is to pay the Complainant's costs of the proceedings; 5.The Tribunal publishes its Reasons.
JUDGMENT:
DETERMINATION
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of any matter capable of identifying the patients described in these reasons as Patients A to M inclusive.
NATURE OF COMPLAINT
1 Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal enquired into two complaints[1] of the Acting Commissioner, Health Care Complaints Commission, dated 4 August 2004, concerning the professional conduct of Dr Keith Caladine (the practitioner). The inquiry was conducted on 27 and 28 February, 1 March and 11 April 2006.
2 The complaints against the practitioner, being a medical practitioner registered under the Act, were:
1.That the practitioner suffered from an impairment; and
2. That the practitioner had been guilty of professional misconduct or unsatisfactory professional conduct within the meaning of ss 36 and 37 of the Act in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine or had engaged in unethical or improper conduct relating to the practice of medicine.
The full terms of the complaints and of the particulars provided in support of them, as amended at the commencement of the hearing, are set out in Appendix A to these Reasons.
3 The particulars of the complaints fell into the following categories:
1.The practitioner's mental condition.
2. The practitioner's self administration of medication.
3. The detrimental affect of the practitioner's mental condition on his capacity to practise medicine as demonstrated by communications with his patients, described in the particulars as insensitive, rude, inappropriate, sexual, agitated and rambling .
4. The failure to keep adequate records of treatment, in particular, treatment of patients with Schedule 8 narcotics and benzodiazepines.
5. The inappropriate prescription of Schedule 8 narcotics and benzodiazepines to certain patients who were on a methadone programme.
Impairment
4 The term impairment is defined in the Act as follows:
A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder.
Unsatisfactory Professional Conduct
5 Section 36 (1) (a) of the Act provides:
Meaning of 'unsatisfactory professional conduct '
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(m) Other improper or unethical conduct
(a) Lack of skill etc
Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
...
Any other improper or unethical conduct relating to the practice or purported practice of medicine.
Professional Misconduct
6 Section 37 of the Act defines professional misconduct as:
"....unsatisfactory 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."
THE PRACTITIONER'S BACKGROUND
7 The practitioner was born in 1957. He graduated in medicine from Sydney University in 1980, practised in New Zealand in 1981 and in the United Kingdom between 1981 and 1984.
8 In 1985 he commenced practice as a general practitioner in Sydney.
9 There was evidence of a period of turmoil in the practitioner's life at the time of the breakdown of his marriage. He was divorced and he retained custody of his daughter.
10 He moved to Newcastle in 1996 and continued in general practice there.
11 A number of complaints were received by the NSW Medical Board in relation to the practitioner's conduct. As a result an inquiry was conducted by delegates of the Medical Board on 19 December 2002.
12 The report[2] of the inquiry, dated 21 January 2003, indicated that the Board inquired into what was said to have been an emerging pattern of complaints in the preceding two years and allegations relating to prescribing practices. It was reported that the practitioner had been dismissive of the complaints and denied the allegations concerning prescribing practices.
13 It was reported that the practitioner was agitated and intense throughout the inquiry and commented generally on the inappropriateness of his behaviour.
14 The practitioner was suspended from practice for an eight week period. This period was subsequently extended. The inquiry was reconvened on 30 July 2003 following which the suspension was lifted and conditions were imposed on the practitioner's right of practice with effect from 6 August 2003. Those conditions remain in place to date.
15 The practitioner elected not to practise medicine until the proceedings before the Tribunal had been concluded.
THE PROCEEDINGS BEFORE THE TRIBUNAL
16 The Complainant informed the Tribunal at the commencement of the hearing that:
1. The two complaints were brought as alternatives and that the particulars of the second complaint were relied upon in support of the complaint relating to impairment.
2. If the complaint relating to impairment was found to have been proved, it was accepted that the second complaint would not have been proved.
3. The Complainant's position was that the practitioner be allowed to remain in practice upon the conditions imposed by the Board on his registration, with appropriate updating amendments.
17 The practitioner was not represented at the hearing.
18 He attributed his conduct to a psychiatric condition and accepted that he was mentally ill at the time of the episodes which were the subject of the complaints. He further attributed his conduct to his self administration of Aropax in large doses, causing hypomania.
19 The practitioner submitted that he had received treatment, gained insight into his condition and that his condition was now under control. He relied heavily upon his psychiatric illness as an explanation for his conduct.
20 He submitted that, having recovered, the Tribunal should make no finding that he was currently impaired and no finding of unsatisfactory professional conduct or professional misconduct by reason of the fact that the conduct complained of had been committed in the course of his previous illness.
21 The Tribunal received in evidence a large quantity of written material and heard from a number of witnesses. It was not necessary to deal in detail with their evidence because on 1 March 2006 the practitioner admitted most of the particulars of each complaint. As a result the Complainant and the practitioner reached agreement as to the basis upon which the practitioner might be permitted to remain on the register of practitioners.
22 This involved the imposition of conditions as imposed by the Medical Board subject to amendment to take into account current circumstances. It was subsequently agreed between the Complainant and the practitioner that conditions should be imposed in the form of those attached to these Reasons as Appendix B.
23 The evidence of the peer reviewers Dr Chung and Dr Mackey indicated levels of criticism of the practitioner's conduct ranging from severe to mild.
24 Psychiatric reports in evidence were prepared by Dr Woodforde, Dr Samuels, Dr Westmore, Dr Phillips and Dr Brash. Dr Balaz, the practitioner's general practitioner, also provided a report.
25 Dr Brash has treated the practitioner over an extended period of time. He was of the view, confirmed in his evidence to the Tribunal, that the practitioner suffered and continues to suffer from Bipolar Disorder Type II, aggravated by the inappropriate use of anti-depressants. He explained that this is a disorder of a relapsing nature which it was necessary to control by means of medication.
26 None of the other psychiatrists who had examined the practitioner was prepared to make this diagnosis, although Dr Westmore stated that he would not disagree with it.
27 They did agree, however, that the practitioner suffered from personality traits which were unusual or which suggested a disorder of some type.
28 All of the psychiatrists agreed that the practitioner, with appropriate treatment, would not present a risk to patients but that it was necessary that his practice of medicine be subject to stringent safeguards and supervision.
29 In the light of this evidence, the Tribunal accepted that the conditions proposed were appropriate.
COSTS
30 There remained the issue of the costs of the Tribunal proceedings.
31 The practitioner argued that no order for costs should be made against him for the following reasons:
1. He had admitted most of the particulars of the complaints from the commencement of the hearing.
2. He was subject to the double disadvantage that he was unrepresented and impaired.
3. In the absence of legal representation he had not fully comprehended the legal import of the term impairment and for that reason had argued against such a finding.
4. The investigation of complaints against him had commenced as early as 1999 and there had been oppression and delay on the part of the Complainant in bringing the complaints before the Tribunal.
5. The NSW Medical Board had acted capriciously in referring the complaints to the Tribunal because he had been impaired and his conduct whilst impaired had not been at the most serious end of the scale.
6. A summons served on the Complainant had not been complied with.
7. He was without significant means or assets because he had not practised for more than three years pending the outcome of the Tribunal proceedings and he was a single parent, supporting his 16 year old daughter.
32 The Complainant responded in the following terms:
1. The practitioner had been legally represented until November 2005 and documents to that date had been served on the practitioner's lawyers. The absence of legal representation was irrelevant to the issue of costs.
2. The purpose of a costs order was compensatory, not punitive. Reference was made to authority which established as a general rule that it was reasonable for a successful party to expect that the unsuccessful party would be required to meet its costs. There was also authority which extended this general rule to proceedings of the Tribunal.
3. The Tribunal had been informed in the course of the opening of the Complainant's case that it would accept the outcome now sought by the parties. It had been a conscious choice of the practitioner to argue before the Tribunal the issue of impairment and to call witnesses on this issue. This had extended the time required for hearing.
4. It was appropriate and proper that the matter be brought before the Tribunal, particularly in view of the provisions of ss 52 and 66B of the Act.
5. There had been no delay on the part of the Complainant. The matter was referred to the Commission in early 2003 and the Tribunal proceedings adjourned three times at the request of the practitioner.
6. The summons had been framed in terms that were too wide, no conduct money had been tendered and, in any event, there were no documents to produce.
33 Having considered the matters put before it the Tribunal considered that there was no reason to depart from the general rule.
34 The Tribunal considered that there was nothing in the conduct of the Complainant to disentitle it to an order for costs. Further, the matters alleged against the practitioner were of a significantly serious nature.
35 The Tribunal noted that, whilst admissions concerning conduct were made by the practitioner at the commencement of the hearing, no admissions were made to the Medical Board inquiry. Further, the practitioner continued to maintain that he was not impaired in the face of a considerable body of medical evidence to the contrary.
36 As a result witnesses were called for cross examination by the practitioner in circumstances where they could add little to the information already before the Tribunal.
SUPPRESSION OF THE PRACTITIONER'S NAME
37 At the commencement of the hearing before the Tribunal the practitioner requested that a suppression order be made in respect of his name. This application was declined but the practitioner was given leave to renew the application at a later stage in the proceedings, if required.
38 The practitioner did so on 11 April 2006. He submitted that a suppression order would be appropriate having regard to the proposed formal finding of impairment.
39 It is basic to the establishment and operation of the Medical Tribunal that its proceedings be conducted openly and publicly. The Tribunal is charged with the exercise of it powers to sanction members of the medical profession for the purpose of protecting the community. The principal consideration in the exercise of these powers is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession.
40 The Tribunal does not accept that these considerations and principles would be complied with if a suppression order were made in respect of the practitioner's name.
41 The application is therefore refused.
ORDERS
1. The Tribunal finds that Complaint 1 is proved. The Tribunal finds that the practitioner suffers from an impairment.
2. The Tribunal finds that Complaint 2 is not proved.
3. The Tribunal orders that the registration of the practitioner as a medical practitioner in New South Wales pursuant to the Medical Practice Act 1992, be subject to the conditions set out in Appendix B to these Reasons.
4.The practitioner is to pay the Complainant's costs of the proceedings.
5.The Tribunal publishes its Reasons.
DEPUTY CHAIRPERSON
(signed Margaret Sidis for and with the consent of all members)
APPENDIX A
COMPLAINT ONE
Suffers from an impairment.
1. The practitioner suffers from physical and/or mental disorders, namely, bi-polar disorder, anxiety, depression and/or drug-induced hypomania, which detrimentally affect or are likely to detrimentally affect his physical or mental capacity to practise medicine.
2. Between 1998 and April 2003 the practitioner suffered episodes of depression and hypomanic behaviour and/or,
3. Between 1998 and April 2003 the practitioner suffered a drug induced hypomanic episode as a result of his self administration of Aropax.
4. In 1998 the practitioner commenced to self administer Aropax (an anti depressant) to treat symptoms of depression and anxiety that he was experiencing without seeking medical assistance. The practitioner continued to self administer Aropax until about April 2003.
5. Between 1998 and April 2003 as a result of the physical and/or mental conditions referred to in particulars 1, 2, & 3 above the practitioner's conduct demonstrated that his capacity to practise medicine was detrimentally affected in that:
(a) On 2 November 2000 the practitioner made inappropriate comments during a consultation with Patient K and the practitioner communicated with Patient K and her relatives in a manner that was insensitive and rude.
(b) On 22 March 2001 during a consultation the practitioner provided inappropriate and incorrect advice to Patient M in regard to her pregnancy and the practitioner communicated with Patient M and her relatives in a manner that was insensitive and rude.
(c) On 23 April 2001 the practitioner made inappropriate and sexual remarks to Patient J during a consultation and during a subsequent telephone conversation with Patient J.
(d) On 25 December 2001 during a consultation with Patient L the practitioner made an inappropriate comment, appeared agitated and his speech was rambling.
(e) Between August 2001 and May 2002 in his treatment of patients A, C,D, F, G and I, the practitioner failed to keep adequate medical records of his treatment of the patients and in particular of his treatment of them with schedule 8 narcotics and/or benzodiazepines.
(f) Between August 2001 and May 2002 the practitioner inappropriately prescribed schedule 8 narcotics and/or benzodiazepines to patients D, F and H when such patients were on the methadone program.
OR IN THE ALTERNATIVE
COMPLAINT TWO
- Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/or care in the practice of medicine and/or has engaged in unethical and/or improper conduct relating to the practice of medicine.
1. On 2 November 2000 the practitioner made inappropriate comments during a consultation with Patient K and the practitioner communicated with Patient K and her relatives in a manner that was insensitive and rude.
2. On 22 March 2001 during a consultation the practitioner provided inappropriate and incorrect advice to Patient M in regard to her pregnancy and the practitioner communicated with Patient M and her relatives in a manner that was insensitive and rude.
3. On 23 April 2001 the practitioner made inappropriate and sexual remarks to Patient J during a consultation and during a subsequent telephone conversation with Patient J.
4. On 25 December 2001 during a consultation with Patient L the practitioner made an inappropriate comment.
5. Between August 2001 and May 2002 in his treatment of patients A, C, D, F, G and I, the practitioner failed to keep adequate medical records of his treatment of the patients and in particular of his treatment of them with schedule 8 narcotics and/or benzodiazepines.
6. Between August 2001 and May 2002 the practitioner inappropriately prescribed schedule 8 narcotics and/or benzodiazepines to patients D, F and H when such patients were on the methdadone program.
APPENDIX B
DR KEITH CALADINE - CONDITIONS OF REGISTRATION
That Dr Keith Caladine's registration be subject to the following conditions:
Employment Conditions
1. That Dr Caladine not prescribe any Schedule 8 drug and that his authority to do so is revoked indefinitely.
2. That Dr Caladine is to work in clinical practice only:
(1) In a group practice. A group practice is defined as one in which at least two other practitioners are engaged, as principles or employees. At all times when Dr Caladine is at work in clinical practice, at least one other registered medical practitioner is to be present on the premises; or
(2) In a hospital position where he is supervised by a registered medical practitioner. The supervising practitioner is to be available at all times within reasonable proximity to the area of the hospital where Dr Caladine is working.
3. That Dr Caladine obtain the Medical Board of New South Wales ("the Board") approval prior to commencing any employment or prior to changing the nature or place of his practice and must notify any employer, partner or associate of his registration conditions.
4. Dr Caladine is to nominate a supervisor who shall not be a practitioner treating Dr Caladine prior to commencing any employment, to be approved by the Board, to monitor and review Dr Caladine's clinical practice and compliance with any employment or health conditions in accordance with Level 2 supervision of the Board's Guidelines. The supervisor is to be provided with a copy of the Board's guidelines for supervision. The cost of the supervision is to be borne by Dr Caladine. Dr Caladine and the supervisor are to:
Meet on a fortnightly basis for at least 45 minutes;
a) Meetings must address case reviews, medical record reviews, workload, pathology result reviews, clinical outcomes, communication skills, patient follow up and overall patient care and management.
b) At each meeting, the supervisor is required to complete a record of matters discussed at the meeting in a format which is approved by the Board.
c) The supervisor is required to forward to the Board, initially within one month after commencing the supervisory meetings and thereafter at three monthly intervals, a report in a format approved by the Board.
d) The supervisor is required to inform the Board immediately if there is any concern in relation to Dr Caladine's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, mental health, or if the supervisor relationship ceases. Dr Caladine is to authorise the supervisor to provide such information to the Board.
5. That Dr Caladine consent to any exchange of information between the NSW Medical Board and the Health Insurance Commission or the Pharmaceutical Services Branch where such exchange is necessary to facilitate monitoring or compliance with these conditions.
6. These conditions may be varied by the Board at such times as variance is considered appropriate.
Health Conditions
1. Dr Caladine is not to prescribe for self medication or to self-medicate.
2. Dr Caladine is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by the treating general practitioner. Dr Caladine is to notify the Board of the name of his treating general practitioner within two weeks and will authorise the practitioner to inform the Board of failure to attend for treatment, termination of treatment or if there is any significant change in Dr Caladine's health status.
3. Dr Caladine is to attend for treatment by a psychiatrist of his choice, currently Dr Brash, at a frequency to be determined by the treating psychiatrist. Dr Caladine is to authorise the treating psychiatrist to inform the Board of failure to attend for treatment, altering his medication without the treating psychiatrist's formal prior approval, termination of treatment or if there is any significant change in Dr Caladine's health status.
4. Dr Caladine is to take any medication prescribed by his treating psychiatrist.
5. That the extent of Dr Caladine's professional medical duties is to be guided by his health status and the advice of his treating and Board-nominated practitioners.
6. Dr Caladine is to attend for reviews by the Board nominated psychiatrist, on a six monthly basis. The reviews will be at the Board's expense.
7. Dr Caladine is to attend for Review Interviews at the Board as directed by the Board, at six monthly intervals.
8. A copy of the Medical Tribunal's decision, the previous section 66 Inquiry decisions dated 30 July 2003 and 21 January 2003 and any subsequent Board Review Interview Reports and any other information relevant to Dr Caladine's impairment is to be provided to Dr Caladine's treating psychiatrist, treating general practitioner, supervisor and the Board nominated psychiatrist. Dr Caladine is to notify the Board immediately of any change in the treating practitioners or supervisor, so that copies of the decision may be provided to them.
9. That Dr Caladine is to be enrolled and monitored through the Board's Impaired Registrants Program and that the Board provide him with a copy of the Impaired Registrants Handbook.
10. These conditions may be varied by the Board or the Board's Health Committee at such times as variance is considered appropriate.
DEPUTY CHAIRPERSON
(signed Margaret Sidis and for and with the consent of all Members)
1 Exhibit F
2 Exhibit C, tab 6
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