MEDICAL BOARD OF AUSTRALIA and PATERSON
[2016] WASAT 60
•25 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and PATERSON [2016] WASAT 60
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR D MACLEAN (MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
HEARD: 18, 19 AND 20 JANUARY 2016
DELIVERED : 25 MAY 2016
FILE NO/S: VR 90 of 2014
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
ROGER PATERSON
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Disciplinary action - Diagnosis of Attention Deficit Hyperactivity Disorder - Treatment of ADHD using stimulant medication - Whether adequate clinical records maintained - Whether conduct on a scale of gravity sufficiently serious to warrant punishment and disciplinary action for the protection of the public.
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010
Medical Act 1894 (WA), s 13(1)(a), s 13(1)(c), s 13(3)
Medical Act 2008 (WA)
Result:
Application dismissed
Summary of Tribunal's decision:
On 16 May 2014, the Medical Board of Australia filed an application with the Tribunal seeking orders that disciplinary action be taken against a medical practitioner who may be guilty of improper conduct in a professional respect and /or guilty of gross carelessness or incompetency.
The allegations principally related to the practitioner's diagnosis of a patient with Attention Deficit Hyperactivity Disorder and his treatment of the patient's ADHD using stimulant medication in the period from 1999 to 2000. The allegations also raised issues in relation to the adequacy of the practitioner's record keeping and the termination of his therapeutic relationship with the patient in early 2001.
The Tribunal concluded that only two of the matters alleged against the practitioner were established in the evidence, that is, that he failed to maintain adequate clinical records for the patient and that he failed to adequately document the basis upon which the diagnosis of ADHD was reached and the criteria or symptoms relied upon for the making of his diagnosis.
Nevertheless, following a thorough analysis of the written and oral evidence of the expert witnesses provided by the Board and by the respondent, the Tribunal concluded that in the course of his practice, the practitioner did not engage in conduct that assumed a scale of gravity which was sufficiently serious to warrant, in the eyes of professional colleagues of good repute and competence, punishment and disciplinary action for the protection of the public.
The Medical Board's application was therefore dismissed.
Category: B
Representation:
Counsel:
Applicant: Mr H Quail
Respondent: Mr P Quinlan SC
Solicitors:
Applicant: Panetta McGrath Lawyers
Respondent: DLA Piper Australia
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Cranley v Medical Board of Western Australia (Unreported, WASC. Library No 8668, 21 December 1990)
Decker v Medical Board of Australia [2014] WASCA 216
Herron v McGregor (1986) 6 NSWLR 246
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Medical Board of Western Australia and Petros [2007] WASAT 42
Medical Board of Western Australia v Roberman [2005] WASAT 81
Mustac v Medical Board of Western Australia [2004] WASCA 156
NOM v Director of Public Prosecutions (2012) 38 VR 618
Rejfek v McElroy (1965) 112 CLR 517
Woollard and Medical Board of Western Australia [2016] WASAT 26
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 16 May 2014, the Medical Board of Australia (the Board) filed an application against Dr Roger Paterson (the Application).
The Board sought the following orders:
1.Pursuant to section 13(1)(a) and (c) of the Medical Act 1894 (WA) (repealed) (the Medical Act) that disciplinary action should be taken against the Respondent as the Respondent may be:
1.1guilty of improper conduct in a professional respect; and/or
1.2guilty of gross carelessness or incompetency.
2.Pursuant to section 13(3) of the Medical Act, any one or more of the following orders:
2.1The Respondent pay a fine not exceeding $10,000.00 to the Applicant;
2.2The Respondent be reprimanded.
3.Pursuant to section 88(2) of the State Administrative Tribunal Act 2004 (WA), the Respondent pay the Applicant's costs of this application in a sum to be fixed.
The allegations principally relate to Dr Paterson's diagnosis of Patient A with Attention Deficit Hyperactivity Disorder (ADHD) in about April 1999 and his treatment of her with stimulant medication in 1999 and 2000. The allegations also raise issues in relation to the adequacy of Dr Paterson's record keeping and the termination of his therapeutic relationship with Patient A in January 2001.
Dr Paterson had been treating Patient A, for a variety of conditions, since February 1995. No allegation is made in relation to Dr Paterson's treatment of Patient A for the four years and three months from February 1995 to April 1999.
Procedural history
The grounds upon which the Board sought the orders set out above were detailed in the Application. The Board made some amendments to the orders sought and to the grounds in the course of the hearing. The amended statement of the orders sought and the amended grounds are those that are set out in these reasons.
On 20 June 2014, Dr Paterson filed a response to the grounds set out in the Application. Dr Paterson filed a substituted response on 14 October 2014.
The Medical Act 1894 (WA) repealed
The conduct complained of occurred more than 15 years ago when the MedicalAct1894 (WA) (repealed) (Medical Act) applied to Dr Paterson.
The Medical Act imposed materially different standards in relation to disciplinary proceedings than are found in either the Medical Practitioners Act 2008 (WA) (repealed) or the Health Practitioner Regulation National Law (WA) Act2010.
Sections 13(1)(a) and 13(1)(c) of the Medical Act stated that:
Where it appears to the Board that a medical practitioner, not being a body corporate, may be
(a)guilty of infamous or improper conduct in a professional respect;
…
(c)guilty of gross carelessness or incompetency;
…
the Board may allege to the State Administrative Tribunal that disciplinary action should be taken against the medical practitioner for that reason.
Section 13(3) of the Medical Act stated that:
The State Administrative Tribunal may, on dealing with an allegation under subsection (1)(a), (b), (c) or (d)
(a)order the removal of the name of the medical practitioner from the register;
(b)order that the registration of the medical practitioner be suspended for such period not exceeding 12 months as is specified in the order;
(c)impose a fine not exceeding $10 000;
(d)reprimand the medical practitioner.
The authorities
a) Infamous or improper conduct: s 13(1)(a) of the Medical Act
The concept of 'improper conduct' requires proof of conduct which would 'reasonably be regarded as improper by professional colleagues of good repute and competency': Mustac v Medical Board of Western Australia[2004] WASCA 156 (Mustac) at [97].
In Mustac, the Court of Appeal followed what Ipp J stated in Cranley v Medical Board of Western Australia (Unreported, WASC. Library No 8668, 21 December 1990) (Cranley) at 56:
The established test of 'infamous conduct in a professional respect' is that adopted by the Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:
'If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the general medical council to say that he has been guilty of infamous conduct in a profession respect.'
In Felix v General Dental Council [1060] AC 704 Lord Jenkins said at 720, in relation to 'infamous conduct in a professional respect' that the conduct in question falls to be judged in relation to the acceptable ethical standards of the profession concerned and the adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off'.
In their reasons the Board pointed out that improper conduct is conduct which falls short of 'infamous conduct'.
'It is constituted by something less than serious professional conduct that is nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency.'
I agree, with respect, with this statement by the Board.
A medical practitioner facing a charge under s 13(1)(a) has to be judged in accordance with the ethical standards of his profession. It is this principle that underlies the remarks of Hutley JA in Qidwai v Brown [1984] 1 NSWLR 100 at 102:
'The evidence of expert and independent anaesthetists is, in my opinion, sufficient to establish that there is a respectable, though minority, view that such operations (sic appendectomies on a day stay basis), in the circumstances existing in respect of his operation are acceptable. Where this exists, it cannot be said that one who acts on the minority view is guilty of professional misconduct.'
…
Accordingly, a medical practitioner is not guilty of infamous or improper conduct merely because he employs a method of treatment different from that of other medical practitioners.
…
In Maynard v West Midlands Royal Hospital Authority [1984] 1 WRL 634 Lord Scarman said at 638:
'Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.'
Similarly, infamous or improper conduct is not established by preferring one respectable body of medical opinion to another.
b) Gross carelessness or incompetency: s 13(1)(c) of the Medical Act
In Medical Board of Western Australia and Petros [2007] WASAT 42 at [42] and [43], the Tribunal set out the relevant law:
The allegations against Dr Petros are brought under s 13(1)(c) of the Medical Act 1894 (WA), alleging that he is guilty of gross carelessness or incompetency. Owen J, in Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, Library No 920584), endorsed the following explanation of those expressions:
The Board is of the view that gross carelessness or incompetency in section 13(c) of the Act means gross carelessness or inability by the practitioner to attend to the requirements of a patient either at all or with reasonable skill and care. In the context of s 13 it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regarded as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public.
His Honour went on to say:
The [Board] also held that the concept of incompetency involved an unfitness to practice the particular field of medicine which is under examination or an inability to perform the techniques or reach the judgments needed for the proper practice of medicine in that field. The concept of gross carelessness involves unacceptable conduct without any intentional wrong doing on the part of the practitioner. It also suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required. In my view, the Board has correctly identified the appropriate meanings of those phrases as they apply to disciplinary proceedings and to standards of professional conduct required of medical practitioners. I should add one small point. The concept of 'carelessness' may not be endemic to the practitioner's affairs generally. It may be limited to individual, perhaps sporadic, incidents. However, the concept of incompetency seems to suggest a more generalised deficiency in the way in which a practitioner handles his professional affairs.
Similarly, in Medical Board of Western Australia v Roberman [2005] WASAT 81 (Roberman, at [41] and [42], the Tribunal stated:
The parties were in agreement as to what constitutes gross carelessness or incompetency as those expressions are used in s 13(l)(c) of the Medical Act 1894. Gross carelessness is a significantly higher degree of carelessness and want of due care than that which will satisfy the description of negligence for the purposes of civil liability: Callaghan v The Queen (1952) 87 CLR 115 at 119-124. In the context of s 13, it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached a scale that such other practitioners regard as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public: Jemielita v Medical Board of Western Australia, unreported SCT of WA (Full Court); Library No 920584, 13 November 1992. Owen J, in Jemielita, also accepted that the concept of gross carelessness involves unacceptable conduct without any intentional wrongdoing on the part of the practitioner and suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
The concept of incompetency on the other hand involves an unfitness to practise in the particular field of medicine under examination or an inability to perform the techniques or reach the judgments needed for the proper practice of medicine in that field. Incompetency is usually suggestive of a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual or sporadic shortcomings: Jemielita, (supra).
Onus and standard
The Board accepted that it bore the onus of proof in the hearing before this Tribunal.
In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek v McElroy (1965) 112 CLR 517 (Rejfek) where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed, at 521:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
The high threshold for both 'gross carelessness' and 'improper conduct' is to be judged by reference to the available knowledge and medical practice applicable at the time of the relevant events (Cranley at page 8).
The analysis required of the Tribunal
The analysis required of the Tribunal was set out by the Court of Appeal in Decker v Medical Board of Australia [2014] WASCA 216, at [71][74]:
71Ordinarily, at least, it would be expected in a case of this kind that the Tribunal would first consider, and make careful findings of fact about, the medical practitioner's conduct and all the relevant circumstances in which it occurred. The relevant circumstances would, at least ordinarily, include any standard, or specific professional duty, generally accepted within the medical profession at the time, which had potential application to the other primary facts as found: Qidwai (106 - 107).
72The question of whether there existed a generally accepted professional standard or duty, and its content, would be questions of fact.
73The conventional ways in which such facts would be proved (in the absence of admission) would, generally speaking, involve, or include, the Medical Board calling expert evidence from a person of good repute and competence within the medical profession to attest to the existence of the generally accepted standard or duty and its content, or to tender any relevant professional conduct rules (see, eg, Psychologists Board of Queensland v Robinson [2004] QCA 405 [24]), or to point to any applicable statutory regime governing the conduct in question. In some cases a professional duty or obligation may be such that the Medical Board would invite the Tribunal, having regard to the expertise of its members, to take notice of the fact of the obligation and its contents without the need for evidence: cf Cooke (616). A duty not to have sexual relations with a patient might be an obligation of that kind.
74Secondly, ordinarily the Tribunal would then make a conclusory finding, based on its primary findings of fact (including the existence of any generally accepted standard or duty), as to whether the medical practitioner's conduct in the particular circumstances as found would reasonably be regarded as improper by professional colleagues of good repute and competency generally. This conclusory finding is also a question of fact. The conclusory finding and any anterior finding as to the existence and content of any generally accepted standard or professional duty are commonly interrelated: Qidwai (107). For example, the more fundamental and important the generally accepted standard or duty, the more likely that the breach of it will allow the conclusion to be drawn that the practitioner's conduct would reasonably be regarded as improper by professional colleagues of good repute competency generally. Thus, in the case of a doctor conducting a sexual relationship with a patient, not only might the tribunal be able to infer the existence of a specific proscriptive duty in that regard, but the tribunal might also (depending on the circumstances) infer that the conduct would be regarded as improper by professional colleagues of good repute and competency generally, without the need for specific expert evidence on that point.
A note on the terms used
ADHD was previously referred to as hyperkinesis or attention deficit disorder (ADD).
The American Psychiatric Association periodically publishes a text entitled American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The title is commonly abbreviated as DSM. Successive editions are identified by Roman numerals, hence DSM IV.
The statement of issues and summary of the experts' meetings referred to the International Classification of Diseases (ICD-10). However, the focus of the evidence was almost entirely on DSM IV. It is unnecessary to consider the application of ICD-10 in these reasons.
Statement of agreed facts and issues
The parties filed a statement of agreed facts and issues (Exhibit F). The statement of agreed facts and issues substantially reduced the analysis required by the Tribunal and enabled it to focus on the issues that truly arose.
The Tribunal takes this opportunity to thank Mr Quail for the Board, and Mr Quinlan SC for Dr Paterson, for the manner in which they conducted the proceedings throughout. The width of the statement of agreed facts and issues is reflective of their conduct.
The agreed facts were:
1.At all material times, Dr Paterson was a health practitioner, specifically a medical practitioner holding specialist qualification in the area of psychiatry, pursuant to the National Law, and a registered medical practitioner within the meaning of the Medical Practitioner Act 2008 (WA) (repealed) and the Medical Act.
(a)At all material times, Dr Paterson:
(i)had clinical experience in the treatment of patients with eating disorders;
(ii)was a member of the Royal College of Psychiatrists;
(iii)had attained Fellowship of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and a Certificate in Child Psychiatry from RANZCP;
(iv)was a Consultant Child Psychiatrist for the WA Health Department from 1989 to 1996;
(v)was the Honorary Secretary of the RANZCP WA Branch Committee in 1995 and subsequently became an ordinary member of the same in 1996;
(vi)had clinical experience in the treatment of patients with ADHD. He had been prescribing stimulant medications for the treatment of ADHD for children and adolescents since 1989 and for adults since 1995, and published a research paper on using dexamphetamine to treat adult ADHD in 1999, this was the first research paper published internationally on the subject.
(b)Dr Paterson:
(i)was on the Western Australian Department of Health Stimulants Committee (the Stimulants Committee), which was responsible for regulating practitioners who prescribed stimulant medication, between May 1996 and November 1998;
(ii)the Stimulants Committee drafted the Western Australian Department of Health's 1997 Stimulant Treatment Guidelines (Adult);
(iii)was the inaugural Director of the Hollywood Clinic Eating Disorder Program from 1997 to 2011; and
(iv)received a special RANZCP award for exemplary participation in the RANZCP 'Maintenance of Professional Standards' program.
2.In or about February 1995, Dr Paterson first consulted with Patient A, who was at that time aged 15 years, in relation to an eating disorder suffered by Patient A. Dr Paterson recorded in his notes that:
(a)Patient A was 15 years old and in Year 11 at John XXIII College;
(b)she was the eldest of 3 children, having a younger brother and sister;
(c)she had been under the care of Dr Ross Manners, a child psychiatrist, for the previous 2 years;
(d)she had been seen by Dr Arvid Linde, another child psychiatrist, and she and her parents were seeking a second opinion after 2 years of care from Dr Manners;
(e)her presenting complaints included bulimia nervosa with recurrent bingeing and vomiting for a number of years;
(f)Patient A was bingeing and vomiting up to 18 times perday; and
(g)there was family conflict that had resulted in her reporting that she had been assaulted by her father and brother.
3.Dr Paterson continued to treat Patient A with respect to an eating disorder and other psychiatric illnesses from about February1995 through to in or about January 2001.
4.In March 1995, Dr Paterson obtained a history from Patient A that she smoked approximately seven cigarettes per day, drank occasional alcohol and was an occasional user of marijuana.
5.On 8 March 1995, Patient A was admitted to Niola Hospital. Patient A remained there until 3 April 1995 and she received treatment for bulimia nervosa.
6.Patient A took an overdose of paracetamol and pseudoephedrine on 6 April 1995 and of alcohol and analgesics on 5 May 1995, and after each overdose she was briefly admitted to Niola Hospital.
7.Patient A was readmitted to Niola between 22 May 1995 and 29 June 1995 for bulimia nervosa.
8.In or about August 1995, Patient A was admitted to Graylands Hospital as an involuntary patient and during the course of that admission, a diagnosis of adjustment disorder with disturbance of emotions and conduct was made.
9.Upon discharge from Graylands Hospital in September 1995, Patient A was transferred back to the care of Dr Paterson;
10.The discharge summary from Graylands Hospital dated 6 December 1995 described Patient A as having occasional use of marijuana and binges of alcohol and as being a cigarette smoker.
11.Patient A was admitted to Niola Hospital on 8 September 1995 and received Tegretol.
12.On 22 September 1995 Patient A took an overdose and required a transfer to the Emergency Department of Queen Elizabeth II Hospital for one night before returning to Niola Hospital. Patient A was discharged from Niola Hospital on 5 December 1995.
13.On 25 January 1996, Patient A was admitted to Niola Hospital for bulimia nervosa.
14.Between 19 February 1996 and 4 April 1996, Patient A was admitted to Lynton Clinic in Sydney, New South Wales and received treatment for her eating disorder.
15.In or about April 1996 Dr Paterson received correspondence from Professor Beumont at the Lynton Clinic in which Professor Beumont advised Dr Paterson that during her time at Lynton Clinic, Patient A left the ward and 'got so drunk that she was admitted to the casualty department of a general hospital before being transferred back to Lynton'.
16.The clinical notes at Lynton Clinic also documented that Patient A was impulsive and demonstrated poor tolerance of restraint.
17.On or about 28 May 1996, Dr Paterson was granted an 'en bloc' authorisation to prescribe stimulant drugs for the treatment of attention deficit disorders. The 'en bloc' authorisation did not apply to patients with a past or current history of usage of illicit drugs and Dr Paterson was required to make individual applications for such patients.
18.On 17 December 1996, Dr Paterson documented in his clinical records relating to Patient A, 'Increased alcohol, decreased binge and vomit …'.
19.On 21 December 1996, Patient A was admitted to Niola Hospital overnight and required mood stabilising treatment.
20.On 30 December 1996 Dr Paterson documented in his clinical records relating to Patient A, 'alcohol ++++++ - coma'.
21.On 9 April 1997 Dr Paterson admitted Patient A to hospital for treatment of post Tetrahydrocannabinol (THC) paranoid psychosis. Patient A was administered Chlorpromazine which settled the paranoia.
22.On 10 May 1997 Dr Paterson documented in his clinical records relating to Patient A that she was using THC daily.
23.Patient A was admitted to Niola Hospital for one week in October 1997 for treatment of depression.
24.In October 1997 the Western Australian Department of Health published the Stimulant Treatment Guidelines (Adult) (the 1997 Guidelines) which stated, inter alia:
'DIAGNOSTIC CRITERIA are as described in the DSM-IV Diagnostic Criteria for Attention Deficit/Hyperactivity Disorder (see Appendix A) with two variations:
(i)Cut off levels in adults are lower such that four (or more) symptoms of inattention or five (or more) symptoms of hyperactivity-impulsivity should be present.
(ii)Symptoms should have been present in childhood, adolescence and adult life, with verification wherever possible by school or work reports or from third parties such as parents or partners.'
25.The 1997 Guidelines also stated:
'SUBSTANCE ABUSE If there is a history of regular use of illicit drugs or alcohol misuse then routine granting of authorisation is NOT possible.
PROCEDURE FOR NON-ROUTINE CASES
This category is for those cases outside of the criteria for routine granting of authority, eg:
•Do not fit the diagnostic criteria
•The dose planned is greater than 12 tablets daily
•Substance abuse is, or has been, present
In this situation, all specialists (even those with en bloc authorisation) should apply using the yellow Form AA together with a detailed clinical report. Wherever possible more than one professional assessment of the patient should be included.'
26.On 1 June 1998 Dr Paterson documented in his clinical records relating to Patient A, 'Alcohol ++ - 3 bottles of wine and sober'.
27.On or about 1 November 1998, Dr Paterson admitted Patient A to the Hollywood Clinic as an inpatient due to increasing symptoms of bulimia over a one month period (the November admission).
28.During the Dr Paterson's assessment of Patient A at the time of the November admission he noted that Patient A:
(a)had had a bad month;
(b)had been bingeing and purging approximately 15 times per day for the previous two weeks;
(c)had increased her alcohol consumption;
(d)had been using illicit drugs such as speed, ecstasy and amyl nitrate; and
(e)was presently suicidal.
29.At the time of the November admission, Dr Paterson recorded Patient A's medical history as including Bulimia Nervosa, Borderline Personality Disorder and alcohol abuse.
30.Patient A's inpatient notes of Hollywood Clinic for the November admission record Patient A's history of polydrug use.
31.On or about 30 November 1998, Patient A was discharged from Hollywood Clinic for follow up with Dr Paterson.
32.On or about 11 April 1999 (the April admission), Dr Paterson again admitted Patient A to the Hollywood Clinic due to increasing symptoms of bulimia over a one month period.
33.During the course of the April admission, nursing staff described Patient A's affect as depressed and flat with her being quite withdrawn and detached from fellow patients and staff. The inpatient notes also recorded that on several occasions Patient A felt out of control with respect to her bingeing and purging.
34.On or about 22 April 1999, Patient A was commenced on Valproate in accordance with the Respondent's instructions.
35.On or about 29 April 1999:
(a)Patient A left the ward to undertake a driving test;
(b)Patient A returned to the ward following the test and was upset at having failed it for the fourth time;
(c)Dr Paterson made an entry in the Hollywood Clinic Doctors Progress Notes that Patient A was upset at failing her driving test and her immediate desire was to remove the pain of that experience by bingeing, cutting or medication. The Respondent documented that the plan for Patient A was to decrease her Clonazepam usage and trial Dexamphetamine for Attention Deficit/Hyperactivity Disorder (ADHD) to decrease impulsivity.
36.On 4 May 1999, nursing staff noted that Patient A was feeling pleased with her ability to seek reassurance and support during urges to binge and that this behaviour had resulted in Patient A not bingeing. The nursing staff later recorded that Patient A requested Chlorpromazine and said she was afraid of bingeing if she did not have it.
37.On 5 May 1999 Dr Wright, RMO at Hollywood Clinic, noted that Patient A's mood remained variable but generally she feels better.
38.On 5 May 1999, Dr Paterson ceased Patient A's Clonazepam and ordered that she commence on dexamphetamine 5mg BD.
39.On 6 May 1999, the nursing staff noted that Patient A was commenced on dexamphetamine and that she felt calmer.
40.Following the commencement of dexamphetamine, the nursing staff recorded that Patient A was in good spirits, bright and reactive and that she seemed more focused.
41.On 10 May 1999, nursing staff noted that Patient A was teary and distressed and complained that her sleep was disturbed since commencing on dexamphetamine.
42.Dr Paterson reviewed Patient A's medication and ordered that she take 10mg dexamphetamine in the morning only.
43.On 12 May 1999, Dr Wright recorded that dexamphetamine had been commenced and seemed to have improved Patient A's bulimic symptoms.
44.On or about 14 May 1999, Dr Paterson gave a telephone order to nursing staff at Hollywood Clinic to provide Patient A with all dexamphetamine tablets on the ward (101 tablets) at the time of discharge.
45.The Discharge Summary for the April admission signed by Dr Paterson recorded that Patient A was admitted with increasing symptoms of bulimia over a one month period and that there had been gradual improvement of symptoms with individual and group therapy and commencement of dexamphetamine.
46.On 17 May 1999, Dr Paterson consulted with Patient A at his rooms at which time he advised Patient A that she should take 2 to 3 dexamphetamine tablets per day only.
47.On or about 8 June 1999, Dr Paterson again consulted with Patient A at his rooms and noted that she was taking two 5 mg dexamphetamine tablets twice per day. At this consultation Dr Paterson prescribed Patient A another 200 tablets of dexamphetamine 5 mg and this prescription was dispensed to Patient A on 9 June 1999.
48.On or about 24 June 1999, the Respondent wrote a letter to Associate Professor Jan Russell at Northside Clinic in Greenwich, New South Wales advising that Patient A was moving to Sydney and requested that Patient A be able to keep in touch with Associate Professor Russell as a day patient (the referral letter).
49.In the referral letter Dr Paterson advised Associate Professor Russell that Patient A suffered from Bulimia Nervosa as well as a tendency towards alcohol abuse. He further advised that Patient A had responded well to dexamphetamine 2-3 tablets daily and that there was increasing research that stimulants may be helpful in Bulimia Nervosa.
50.On or about 29 June 1999, Dr Paterson prescribed Patient A a further 400 tablets of 5 mg dexamphetamine and this was dispensed on or about 2 July 1999.
51.In June 1999, prescriptions issued in Western Australia could not be dispensed in any other state. Dr Paterson prescribed quantities of dexamphetamine to provide for the time Patient A would be in Sydney, where she would not have ready access to prescriptions.
52.On or about 2 July 1999, Patient A moved to Sydney for work.
53.On 9 August 1999, Dr Paterson:
(a)spoke to Patient A via telephone at which time he noted that she was generally good with very little Bulimia Nervosa. He recorded that Patient A had two bottles of dexamphetamine left and she was taking two tablets in the morning and at lunchtime; and
(b)recorded in his notes that Patient A had a four month supply of dexamphetamine, being 480 tablets.
54.On or about 19 August 1999, Dr Paterson prescribed Patient A a further 200 tablets of dexamphetamine with two repeats by forwarding the prescription to The Downs Pharmacy at Wembley Downs Shopping Centre for collection by Patient A's mother.
55.On or about 20 December 1999, Dr Paterson next consulted with Patient A at the urgent request of her parents due to Patient A's increasing paranoid and aggressive behaviour. Dr Paterson noted that Patient A remained on dexamphetamine, had decreasing food thoughts but was experiencing paranoia.
56.As a consequence of Dr Paterson's assessment of Patient A on 20 December 1999, Dr Paterson ceased Patient A's dexamphetamine and commenced her on Ritalin by providing Patient A with a prescription for 100 x 10mg Ritalin tablets.
57.On or about 27 December 1999, Dr Paterson consulted with Patient A at which time he noted that she was taking six Ritalin tablets per day. Dr Paterson prescribed Patient A further Ritalin tablets and provided her with 11 repeats of the prescription.
58.Patient A then returned to Sydney.
59.On or about 27 December 1999, Patient A was dispensed 300 Ritalin tablets which had been prescribed by Dr Paterson.
60.On or about 10 January 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
61.On or about 3 February 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
62.On or about 21 February 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
63.On or about 23 February 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
64.On or about 1 March 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
65.On or about 2 March 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
66.On or about 3 March 2000, Patient A was dispensed 100 Ritalin tablets which had been prescribed by Dr Paterson.
67.On 23 May 2000, Patient A returned from Sydney. Dr Paterson consulted with Patient A in person. At this consultation:
(a)Patient A informed Dr Paterson that she had left her employment at SBS Television in January 2000 and since then she had been undertaking 'temp work';
(b)Patient A reported that she was in control of her bulimia nervosa and she had not consumed drugs;
(c)Patient A described feeling lonely and disconnected and her fear of a fuzzy mind;
(d)Dr Paterson noted that Patient A was taking one Ritalin tablet in the morning and at lunch and that she was experiencing some people conflict and phobia; and
(e)Dr Paterson prescribed Patient A 600 dexamphetamine tablets and documented that she should take three tablets per day.
68.On or about 24 May 2000, Patient A was dispensed 600 dexamphetamine tablets which had been prescribed by Dr Paterson.
69.On 24 May 2000 Patient A returned to Sydney from Perth to commence work as a cadet journalist at Murdoch Press.
70.On or about 26 June 2000, Dr Paterson was contacted by Patient A's parents with an urgent request to review Patient A due to increasingly paranoid behaviour.
71.Dr Paterson arranged for Patient A to be admitted to Hollywood Clinic as a voluntary patient and prescribed her PRN Chlorpromazine.
72.On 27 June 2000, Patient A absconded from Hollywood Clinic and Dr Paterson arranged for Patient A to be admitted to Graylands Hospital as an involuntary patient.
73.At the time of her admission to Graylands Hospital, Patient A was described as being floridly psychotic demonstrating persecutory delusions and religious and grandiose ideations. Following assessment, Patient A was diagnosed with acute paranoid psychosis, probably amphetamine induced.
74.Patient A's mother provided medical staff at Graylands Hospital with a history that:
(a)Patient A had returned to Sydney four weeks prior, having recommenced on dexamphetamine. Patient A's paranoid delusions continued to increase from that time with daily telephone calls to her mother advising that people were following her and her flat mate was trying to kill her; and
(b)on 24 June 2000, Patient A's situation deteriorated when she telephoned her mother in a very distressed state advising that someone was trying to kill her and she was in severe danger. It was arranged for Patient A to return to Perth from Sydney and this occurred on 26 June 2000.
75.On 29 June 2000, Patient A was discharged from Graylands Hospital to Hollywood Clinic under the care of Dr Paterson but remained agitated and paranoid, despite the discharge summary noting that her psychosis had largely settled. She remained an inpatient at the Hollywood Clinic until 4 September 2000.
76.Following her discharge, Patient A continued to see Dr Paterson for treatment of her bulimia nervosa. In October 2000, Patient A was commenced on Naltrexone.
77.On or about 23 January 2001, Patient A was again admitted to Hollywood Clinic with ongoing persecutory beliefs.
78.On or about 27 January 2001, Dr Paterson arranged for Patient A to be transferred to Graylands Hospital as an involuntary patient.
79.In his letter of referral to Graylands Hospital dated 27 January 2001, Dr Paterson stated that he was happy to resume Patient A's care if required following discharge but it may be that she will do better with a longer term attachment to Graylands Hospital. Dr Paterson explained in the letter that he was persistently denying Patient A's requests to leave Hollywood Clinic and that he and the nursing staff felt ethically obliged to transfer Patient A to Graylands Hospital as an involuntary patient.
80.On or about 30 January 2001, Patient A requested that she be transferred back to Hollywood Clinic under the care of Dr Paterson.
81.Dr Paterson declined Patient A's request for transfer to Hollywood Clinic under his care.
82.On 31 January 2001:
(a)Patient A was discharged from Graylands Hospital to Perth Clinic under the care of another psychiatrist (the second psychiatrist); and
(b)the second psychiatrist wrote a letter to Graylands Hospital and sent a copy of the letter to Dr Paterson in which he confirmed that he had accepted Patient A for 'transition' inpatient admission and that he would not be involved in her long term management.
83.On or about 2 February 2001, Dr Paterson wrote to the second psychiatrist and advised that he was surprised to see that the proposed management plan included some commitment from him for Patient A's long term management. Dr Paterson advised the second psychiatrist that it should not be assumed that Patient A 'will be routinely referred back to [him] - this may or may not be the best thing for her, we will just have to wait and see'.
84.Dr Paterson has had no further involvement in the care of Patient A.
DSM IV and ADHD
The analysis and diagnostic criteria for ADHD comprise eight pages in DSM IV (Exhibit A pages 3744).
DSM IV, in part, provides:
The essential feature of Attention-Deficit/Hyperactivity Disorder is a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequent and severe than is typically observed in individuals at a comparable level of development (Criterion A). Some hyperactiveimpulsive or inattentive symptoms that cause impairment must have been present before age 7 years, although many individuals are diagnosed after the symptoms have been present for a number of years (Criterion B). Some impairment from the symptoms must be present in at least two settings (eg, at home and at school or work) (Criterion C). There must be clear evidence of interference with developmentally appropriate social, academic, or occupational functioning (Criterion D). The disturbance does not occur exclusively during the course of a Pervasive Developmental Disorder, Schizophrenia, or other Psychotic Disorder and is not better accounted for by another mental disorder (e.g., a Mood Disorder, Anxiety Disorder, Dissociative Disorder, or Personality Disorder) (Criterion E).
Diagnostic criteria for Attention-Deficit/Hyperactivity Disorder
A. Either (1) or (2);
(1) six (or more) of the following symptoms of inattention have persisted for at least 6 months to a degree that is maladaptive and inconsistent with developmental level:
Inattention
(a)often fails to give close attention to details or makes careless mistakes in schoolwork, work, or other activities
b)often has difficulty sustaining attention in tasks or play activities
(c)often does not seem to listen when spoken to directly
(d)often does not follow through on instructions and fails to finish schoolwork, chores, or duties in the workplace (not due to oppositional behavior or failure to understand instructions)
(e)often has difficulty organizing tasks and activities
(f)often avoids, dislikes, or is reluctant to engage in tasks that require sustained mental effort (such as schoolwork or home-work)
(g)often loses things necessary for tasks or activities (e.g., toys, school assignments, pencils, books, or tools)
(h)is often easily distracted by extraneous stimuli
(i)is often forgetful in daily activities
(2)six (or more) of the following symptoms of hyperactivityimpulsivity have persisted for at least 6 months to a degree that is maladaptive and inconsistent with developmental level:
Hyperactivity
(a)often fidgets with hands or feet or squirms in seat
(b)often leaves seat in classroom or in other situations in which remaining seated is expected
(c)often runs about or climbs excessively in situations in which it is inappropriate (in adolescents or adults, may be limited to subjective feelings of restlessness)
(d)often has difficulty playing or engaging in leisure activities quietly
(e)is often 'on the go' or often acts as if 'driven by a motor'
(f)often talks excessively
Impulsivity
(g)often blurts out answers before questions have been completed
(h)often has difficulty awaiting turn
(i)often interrupts or intrudes on others (e.g., butts into conversations or games)
B.Some hyperactive-impulsive or inattentive symptoms that caused impairment were present before age 7 years.
C.Some impairment from the symptoms is present in two or more settings (e.g., at school [or work] and at home).
D.There must be clear evidence of clinically significant impairment in social, academic, or occupational functioning.
E.The symptoms do not occur exclusively during the course of a Pervasive Developmental Disorder, Schizophrenia, or other Psychotic Disorder and are not better accounted for by another mental disorder (e.g., Mood Disorder, Anxiety Disorder, Dissociative Disorder, or a Personality Disorder).
The agreed issues
The agreed issues were:
1.1Whether Dr Paterson diagnosed Patient A with ADHD in or about April 1999 without undertaking any or any proper assessment of Patient A against the diagnostic criteria for ADHD as outlined in the DSM IV and/or the International Classification of Diseases (ICD)10.
1.2Whether Dr Paterson failed to adequately document the basis upon which the diagnosis of ADHD was reached and the criteria and or symptoms relied upon for making such a diagnosis.
1.3Whether Dr Paterson incorrectly diagnosed Patient A with ADHD.
1.4Whether it was unacceptable practice for Dr Paterson to prescribe Patient A dexamphetamine and Ritalin (the stimulant drugs) in circumstances where:
a)he had not sought a second opinion from another psychiatrist in relation to the efficacy of stimulant drugs in the treatment of Patient A;
b)the use of stimulant drugs was contraindicated due to Patient A's:
i)bulimia nervosa;
ii)additional psychiatric diagnoses;
iii)history of alcohol and drug abuse; and
iv)addictive behaviours including but not limited to her bingeing and purging and alcohol use; and
c)Patient A was not being supervised in her taking of the stimulant drugs.
1.5Whether Dr Paterson should have obtained an individual authorisation from the Department of Health for the prescribing of stimulant drugs to Patient A as required by the Stimulant Treatment Guidelines (Adult) (October 1997 edition) published by the Department of Health.
1.6Whether Dr Paterson failed to monitor, or properly monitor, Patient A's usage of the stimulant drugs and the effects of the stimulant drugs on Patient A.
1.7Whether it was unacceptable practice for Dr Paterson to provide prescriptions for large amounts of the stimulant drugs to Patient A when Dr Paterson knew or ought reasonably to have known that Patient A was living in Sydney and her taking/usage of the stimulant drugs was unsupervised.
1.8Whether Dr Paterson failed to maintain adequate clinical records for Patient A.
1.9Whether Dr Paterson failed to properly terminate his therapeutic relationship with Patient A in January 2001 by failing to:
a)inform Patient A and her other treating doctors, in clear and unambiguous terms, that the doctorpatient relationship was at an end; and
b)refer Patient A to another psychiatrist who was prepared to take over her longterm care and to facilitate continuity of her psychiatric care by providing all necessary information to the new treating doctor.
The Tribunal accepted that the agreed statement of issues correctly identifies the relevant issues, albeit that the Tribunal has dealt with the issues in a different order and grouped some issues together.
The quality of the factual evidence other than the agreed facts
As noted above, the allegations made against Dr Paterson date back over 15 years. In this case, the delay in the matter coming before the Tribunal was due to the long delay by Patient A in making a complaint.
Recently, in a different context, in Woollard and Medical Board of Western Australia [2016] WASAT 26, the Tribunal cited Herron v McGregor (1986) 6 NSWLR 246 (Herron), at [35], on the effect of delay.
In Herron, at 254255, McHugh JA stated:
Since no time limit has been laid down under the Act, a complaint may be made at any time unless the institution of the proceedings in the circumstances is oppressive and an abuse of process. Nevertheless, while the Act contains no time limitation for lodging a complaint it does not follow that a complainant, with knowledge of the facts, can stand by and allow time to pass. The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) 'what has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: 'Where there is delay the whole quality of justice deteriorates.' The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):
'In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance indeed, the enormity of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.'
Some of the clinical records, for example, the in-patient notes at Niola Hospital, where Patient A spent significant periods from 1995 to 1997 have been destroyed in the ordinary course of business and are unavailable.
Inevitably, this means that a complete record of Dr Paterson's relationship with Patient A cannot be recreated. Dr Paterson admitted that his outpatient notes (while adequate to his own purposes at the time) were brief and do not adequately reflect his extensive therapeutic relationship with Patient A. The requirements of notetaking now, compared to pre2000, are different: see Dr Combrinck Exhibit C page 430.
The outpatient notes alone reveal in excess of 110 consultations by Dr Paterson, leaving aside the daily attendances on Patient A during her periods of hospitalisation.
Over that long period of time, Dr Paterson came to know Patient A very well and was able to assess her on a continuous basis (Exhibit D at [27]). The changes in Patient A's presentation over a long period of time that would be apparent to Dr Paterson would not necessarily be apparent to a practitioner treating her for a short period of time or at intervals.
Patient A did not give evidence. After her initial complaint in January 2012, the Board interviewed her in February 2012. The Board does not have a statement from her. Patient A has not been able to be located since the Board interviewed her in February 2012 (T:4). No evidence was called as to her treatment after she ceased to be under Dr Paterson's care. Through noone's fault, the evidence that the Tribunal is required to consider is necessarily incomplete and does not provide a complete picture.
Ultimately, an assessment of Dr Paterson's conduct must be considered in the context that:
a)the events occurred long ago;
b)Dr Paterson's notes were of a different standard to what would be expected today; and
c)the evidence is incomplete.
The expert evidence
Expert evidence in the form of written reports and oral evidence was given by Dr Anthony Mander (Exhibit C pages 433448) and Dr Johann Combrinck (Exhibit C pages 429432) on behalf of Dr Paterson, and by Professor Jon Jureidini (Exhibit A pages 5560) and Emeritus Professor Ross Kalucy (Exhibit A pages 1954) on behalf of the Board.
It is obvious from the joint summary of the experts' meeting, as set out below, that Dr Mander and Dr Combrinck have very different views to Professor Jureidini and Professor Kalucy as to the appropriateness of Dr Paterson's treatment of Patient A.
It is apparent from each of the expert's witness statements that they are all highly qualified.
Essentially, the Tribunal's findings as to Dr Paterson's treatment are to be determined in the context of the fact that Dr Paterson was a practising clinical psychiatrist involved in the treatment of patients with ADHD, and similar or related disorders, using stimulants.
Dr Mander's curriculum vitae appeared at pages 14 to 16 of his witness statement (Exhibit C). In addition, Dr Mander gave oral evidence that he is predominantly in private practice, although he does have a commitment of one session a week to a State clinic. In the past 10 years, he has assessed more than a thousand people for ADHD. At the time of giving evidence, Dr Mander had over 450 patients under continual treatment for ADHD (T:82; 18.01.16).
Dr Combrinck's experience and qualifications are set out in his letter of 21 August 2014 (Exhibit C). Over the last six years he has had a significant number of referrals for ADHD. At the time of giving evidence, Dr Combrinck's patient load for ADHD patients was about 400. At least a third of those patients had comorbidities for their conditions including mood disorders and eating disorders (T:81; 18.01.16).
Both Dr Mander and Dr Combrinck, and in particular Dr Mander, have extensive experience in the clinical longterm treatment of patients with ADHD and in the use of stimulants.
Professor Jureidini's experience and qualifications are apparent from his letter of 12 August 2014 (Exhibit A) as expanded by his oral evidence (T:10; 18.01.16).
Professor Jureidini has been a critic of the idea that ADHD is a disorder (T:7677; 18.01.16). In Professor Jureidini's opinion, ADHD is not an independent disorder but a label that is applied to symptoms which can be explained by other phenomena. He accepted that he does not subscribe to the prevailing mainstream view as to ADHD. He was not asked by the Board to express his own views about ADHD for the purposes of his report. Professor Jureidini's evidence was that in the process of preparing his expert report, he operated from the position of someone who did accept that concept. He stated that, in giving his evidence, he was operating from what is the mainstream view about ADHD (T:77; 18.01.16).
Professor Jureidini conceded that he did not have any patients that he would diagnose as having ADHD. He stated that he is very familiar with the concept of ADHD and believed that he has the skills and training to recognise, conventionally, ADHD, even though it is not a concept that he found useful in his own practice (T:77; 18.01.16).
Professor Jureidini's evidence was that several of his patients had diagnoses of ADHD from other people (T:78; 18.01.16).
Professor Jureidini conceded that his criticism or scepticism in relation to the diagnosis of ADHD also extends to the use of stimulant medication. He believes that it is overused. Very rarely in his practice does he use stimulants for the condition that other practitioners would describe as ADHD. It is not a common part of Professor Jureidini's practice to diagnose people with ADHD and treat them with stimulant medication.
Professor Jureidini's experience and expertise in treating patients with ADHD is very limited. Professor Jureidini does not have practical experience in the administration of stimulants. The fact that Professor Jureidini does not accept the mainstream position in relation to ADHD and the use of stimulants in treatment inevitably means that he is not able to offer evidence that can compare to the practical experience of Dr Mander and Dr Combrinck. Since he did not accept that ADHD is a proper diagnosis and he did not use stimulants in the treatment of his patients, it was very difficult for Professor Jureidini to comment on a diagnosis of ADHD and its treatment, other than in a theoretical sense.
Professor Kalucy's qualifications and experience are set out in his letter of 22 November 2015 and 25 July 2014 (Exhibit A) and were expanded by his oral evidence (T:1012; 18.01.16).
Professor Kalucy did not claim to be a scientific expert in the care of ADHD patients but he had considerable expertise at a clinical level, particularly in bulimia nervosa and anorexia nervosa. Professor Kalucy tries not to take on longterm patients with ADHD; he refers them to other colleagues (T:79; 18.01.16).
It is not part of Professor Kalucy's practice to have patients on his books that are being managed and prescribed stimulant medication, either dexamphetamine or Ritalin (T:79; 18.01.16).
Professor Kalucy's practice, insofar as it involves ADHD, is in the nature of a kind of emergency department practice dealing with a particular, often crisis, presentation rather than ongoing care over months or years (T:7980; 18.01.16).
Professor Kalucy's experience and expertise does not compare to that of Dr Mander and Dr Combrinck in the particular area that the Tribunal is considering.
Whilst each of the experts were eminently qualified, the particular area of expertise of each of Dr Paterson's expert witnesses, that is, Dr Mander and Dr Combrinck was relevant to the issues arising in this case in a way that the expertise of the Board's expert witnesses, Professor Jureidini and Professor Kalucy, was not.
The Tribunal prefers the evidence of Dr Mander and Dr Combrinck in any area where their evidence conflicts with Professor Jureidini and Professor Kalucy.
The Tribunal has considered each of the expert's reports and their oral evidence in reaching its conclusions.
The outcome of the experts' conferral
Following a conferral between the experts on 27 March and 31 July 2015, a joint summary of the experts' meeting was filed.
1.1Diagnosed Patient A with ADHD in or about April 1999 without undertaking any or any proper assessment of Patient A against the diagnostic criteria for ADHD as outlined In the DSMIV and or the International Classification pf Diseases (ICD) 10.
There is no evidence that Dr Paterson carried out a proper assessment; however the experts are not in a position to refute his claims that he did so.
1.2 Failed to document or adequately document the basis on which the diagnosis of ADHD was reached and the criteria and or symptoms relied upon for malting such a diagnosis.
Agreed: that the notes were inadequate,
1.3Incorrectly diagnosed Patient A with ADHD.
It follows from 1.2 that we cannot be reassured that the patient was correctly diagnosed as Dr Paterson's notes are not adequate. All experts agreed that in patients with complex comorbidities, symptoms may be reflective of different disorders.
Not agreed; Whether the patient did in fact have ADHD. Dr Jureidini is of the opinion that there are other objective reports inconsistent with a diagnosis of ADHD including the parents' statements.
Dr Kalucy noted that many patients with bulimia nervosa would show features of, for example, poor attention and overactivity. Dr Mander's opinion was that notes from the various hospitals mention ADHD type symptoms, and Dr Combrinck and Dr Mander are of the opinion that the school reports are consistent with ADHD.
1.4Prescribed Patient A dexamphetamine and Ritalin (the stimulant drugs) in circumstances where:
a)he had not sought a second opinion from another psychiatrist in relation to the efficacy of stimulant drugs in the treatment of Patient A as recommended in the Guidelines for the use of dexamphetamine and methylphenidate In adults published by the Royal Australian and New Zealand College of Psychiatrists;
Agreed:Dr Paterson had not sought a second opinion.
Not agreed: Drs Combrinck and Mander judged it unnecessary to do so in this case; Drs Kalucy and Jureidini judged it to be essential.
b)the use of stimulant drugs was contraindicated due to Patient A's:
a)Bulimia Nervosa,
b)additional psychiatric diagnoses,
c)history of alcohol and drug abuse; and
d)addictive behaviours including but not limited to her binging and purging and alcohol use; and
Drs Combrinck and Mander judged that these issues did not contraindicate stimulants; Drs Kalucy and Jureidini judged that it did.
c)Patient A was not being supervised in her taking of the stimulant drugs.
Not agreed: Drs Combrinck and Mander judged that supervision was adequate; Drs Kalucy and Jureidini disagreed.
1.5Failed to obtain an individual authorisation from the Department of Health for the prescribing of stimulant drugs to Patient A as required by the Stimulant Treatment Guidelines (Adult) (October 1997 edition) published by the Department of Health.
Drs Kalucy and Jureidini judged that there was an imperative to seek individual approval in this case, Drs Combrinck and Mander disagreed.
1.6Failed to monitor or properly monitor Patient A's usage of the stimulant drugs and the effects of the stimulant drugs on Patient A.
When the patient went to Sydney, Dr Paterson prescribed dexamphetamine to cover her. This was filled in by her mother in Western Australia and sent to her.
Drs Kalucy and Jureidini judged this is a significant failure of proper care, Drs Combrinck and Mander disagreed;
1.7Provided prescriptions for large amounts of the stimulant drugs to Patient A when Dr Paterson knew or ought reasonably to have known that Patient A was living in Sydney and her taking/usage of the stimulant drugs was unsupervised.
Dr Mander believed that Dr Paterson was provided adequate supervision, Dr Combrinck noted there was another layer of supervision from her mother.
Dr Jureidini was of the opinion that there are no circumstances in which the prescribing of eleven repeats of a recognised drug of abuse to a very vulnerable patient both from the point of suicidal behaviour and the misuse of drugs could not be anything but irresponsible. He considered that the management of the case was 'clinically deficient with too much medication and too little supervision while the patient was In Sydney'.
Drs Mander and Combrinck pointed out the practical challenges when the prescription of 100 tablets of Ritalin per prescription when the patient was taking 6 a day would last 16 days.
Professor Kalucy stated that other arrangements should have been made including dispensing arrangements. Drs Combrinck and Mander stated that this was logistically impossible given the patient was residing in New South Wales, but Drs Kalucy and Jureidini disagreed.
1.8Failed to maintain adequate clinical records for Patient A.
This is connected to 1.1. The notes were inadequate.
1.9Failed to appropriately terminate his therapeutic relationship with Patient A in January 2001 in that he failed to;
a)Inform Patient A and her other treating doctors, in clear and unambiguous terms, that the doctor patient relationship was at an end; and
b)refer Patient A to another psychiatrist who was prepared to take over her long term care and to facilitate continuity of her psychiatric care by providing all necessary Information to the new treating doctor.
Transfer from Hollywood Hospital to Graylands Hospital was carried out as per standard practice. Transfer from Graylands Hospital to Perth Clinic was not under Dr Paterson's control. Discharge of patient from Perth Clinic was the responsibility of the consultant who had care of her at Perth Clinic.
Drs Mander and Combrinck stated that Dr Paterson could reasonably have expected the patient or her parents to have contacted him for a further appointment if she had been discharged from Perth Clinic without arrangements being put in place or he could have expected her new treating practitioner to have requested the information that he/she required.
Dr Combrinck reiterated that the parents had transferred care to another psychiatrist. This was after discussion with Dr Paterson where he agreed to continue clinical care once the patient was stable and he was of the opinion that she needed to stay in hospital for a few weeks.
Drs Jureidini and Kalucy are of the opinion that, notwithstanding that there had been a transfer of care to two other units, it remained Dr Paterson's responsibility to ensure her further care needs were met. At the very least there needed to have been recorded attempts by Dr Paterson to engage the patient in an attempt to work through the ending of an intensive long-term therapeutic relationship, and if she refused to have anything further to do with him, to have documented that.
Dr Jureidini pointed out that it is negligent/malpractice for a psychiatrist to discharge a patient from care without first ensuring that appropriate alternative care arrangements have been established. A long-term intensively treated patient being admitted to an in-patient unit does not constitute an appropriate termination/transfer of care. It was Dr Paterson's responsibility to ensure that plans were in place for the patient's care after she was discharged from her in-patient stay.
The Tribunal has found that only two of the matters alleged against Dr Paterson have been established in the evidence:
1)that he failed to maintain adequate clinical records for Patient A (issue 1.2); and
2)that he failed to adequately document the basis upon which the diagnosis of ADHD was reached and the criteria or symptoms relied upon for making such a diagnosis (issue 1.8).
Dr Mander's evidence was that:
Other than being reminded of the importance of note keeping which likely most doctors fail to do occasionally, I cannot see what other punishment or disciplinary action is required.
(Exhibit C)
Conclusion
The Tribunal finds that Dr Paterson, in the course of his practice as a medical practitioner, did not engage in conduct that assumed a scale of gravity which was sufficiently serious, in the eyes of professional colleagues of good repute and competence, to warrant punishment and disciplinary action for the protection of the public.
Order
1.The Board's application is dismissed.
I certify that this and the preceding [281] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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