MEDICAL BOARD OF AUSTRALIA and VAN RENSBURG
[2023] WASAT 49
•30 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and VAN RENSBURG [2023] WASAT 49
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
DR E MARILLIER, SENIOR MEMBER
MS V HAIGH, MEMBER
HEARD: 8 – 11 MARCH 2022, 15 MARCH 2022, 26 MAY 2022 AND 29 JULY 2022
DELIVERED : 30 JUNE 2023
FILE NO/S: VR 161 of 2018
VR 109 of 2019
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
HENDRIK VAN RENSBURG
Respondent
Catchwords:
Vocational regulation - Health Practitioner - Medical Practitioner – Disciplinary proceedings – Health Practitioner Regulation National Law (WA) Act 2010 (WA) – Allegations of professional misconduct in respect of two patients
Failure to provide adequate patient management by prescribing medications when not indicated – Failure to provide adequate patient management by discontinuing medications when not indicated – Failure to have an adequate treatment or management plan – Failure to keep adequate clinical records
Breach of professional boundaries – Sexual relationship with patient – Intimate non–sexual relationship with patient – Sexual relationship with employee – Inappropriate contact with patient after notification to AHPRA – Whether sexual relationship was exploitative – Whether prescribing particular medications while in sexual relationship was exploitative – Whether prescribing for purposes of furthering sexual relationship
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1)
Health Practitioner Regulation National Law, s 3, s 3(1)(a), s 3(2)(a), s 4, s 5, s 31, s 41, s 39, s 193(1), s 193(2), s 196, s 196(1), s 196(2)
Health Practitioner Regulation National Law Regulation 2018 (WA), reg 4
Result:
Application successful
Category: B
Representation:
Counsel:
| Applicant | : | Ms F A Stanton |
| Respondent | : | Mr L Buchbinder |
Solicitors:
| Applicant | : | Clayton Utz |
| Respondent | : | Bowen Buchbinder Vilensky |
Cases referred to in decision:
Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Dekker v Medical Board of Australia [2014] WASCA 216
Medical Board of Australia and Panegyres [2017] WASAT 146
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Panegyres v Medical Board of Australia [2020] WASCA 58
Psychologists Board of Queensland v Robinson [2004] QCA 405
Qidwai v Brown [1984] 1 NSWLR 100
Re A Medical Practitioner [1995] 2 Qd R 154
Contents
Introduction
In respect of Patient A
In respect of Patient B
Summary of outcome
Onus and standard of proof
The National Law
The Code and Guidelines
Considerations in determining the nature of the professional conduct
Issues to be determined
In respect of Patient A:
In respect of Patient B:
History of the proceeding
Procedural history in respect of Patient A - VR 161 of 2018
Procedural history in respect of Patient B - VR 109 of 2019
Background to final hearing
Submissions
Documentary evidence
The lay witnesses - credibility
The expert witnesses
Issue 1: What is the Requisite Standard applicable to Dr Van Rensburg?
Conclusion Issue 1: What is the Requisite Standard applicable to Dr Van Rensburg?
Patient A - VR 161 of 2018
The doctor–patient relationship
Issue 2: Did Dr Van Rensburg fail to provide adequate patient management to Patient A?
Issue 2 (i): Did Dr Van Rensburg prescribe medications when such medications were not indicated or required and where there were risks of harm?
Issue 2 (ii): Did Dr Van Rensburg fail to have any or any adequate management plan?
Conclusion Issue 2: Did Dr Van Rensburg fail to provide adequate patient management to Patient A?
Issue 3: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Standard in respect of Prescribing
Conclusion Issue 3: Did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 4: Did Dr Van Rensburg fail to keep adequate clinical records?
The Requisite Standard
Findings in relation to clinical notes
Conclusion Issue 4: Did Dr Van Rensburg fail to keep adequate clinical records?
Issue 5: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 6: Has Dr Van Rensburg breached professional boundaries with Patient A?
The personal intimate and sexual relationship
Conclusion Issue 6: Has Dr Van Rensburg breached professional boundaries?
Issue 7: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
The letter to Dr Glendenning
Patient B - VR 109 of 2019
Issue 8: Did Dr Van Rensburg fail to provide adequate patient management to Patient B?
Issue 8 (i): Did Dr Van Rensburg discontinue Patient B's diabetes medication when not indicated and without communication with her GP?
Conclusion: Issue 8 (i): Did Dr Van Rensburg discontinue Patient A's diabetes medication when not indicated and without communication with her GP?
Issue 8 (ii) Did Dr Van Rensburg prescribe a low energy diet when not indicated?
Conclusion Issue 8 (ii): Did Dr Van Rensburg prescribe a low energy diet when not indicated?
Issue 8 (iii): Did Dr Van Rensburg prescribe thyroid medication when not indicated?
Conclusion Issue 8 (iii): Did Dr Van Rensburg prescribe thyroid medication when not indicated?
Conclusion Issue 8: Did Dr Van Rensburg fail to provide adequate patient management to Patient B?
Issue 9: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Conclusion Issue 9: Did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 10: Did Dr Van Rensburg fail to keep adequate clinical records?
Conclusion Issue 10: Did Dr Van Rensburg fail to keep adequate clinical records?
Issue 11: Did Dr Van Rensburg's failure to keep adequate clinical records fall below the Requisite Standard, and if so, to what degree?
Conclusion Issue 11: Did Dr Van Rensburg's failure to keep adequate clinical records fall below the Requisite Standard, and if so, to what degree?
Issue 12: Has Dr Van Rensburg breached professional boundaries with Patient B?
The communications between AHPRA and Dr Van Rensburg regarding the notification
Telephone call on 21 May 2018
Telephone call on 31 May 2018
Visit on 1 June 2018
Does this conduct amount to a breach of professional boundaries?
Conclusion Issue 12: Has Dr Van Rensburg breached professional boundaries with Patient B?
Proposed orders
In VR 161 of 2018
In VR 109 of 2019
Orders
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Medical Board of Australia (the Board) alleges that Dr Hendrik Van Rensburg, a registered medical practitioner, has behaved in ways that constitute professional misconduct or alternatively unprofessional conduct or unsatisfactory professional performance in relation to two patients, Patient A and Patient B.
The Board's allegations against Dr Van Rensburg are as follows:
In respect of Patient A
1.Dr Van Rensburg failed to provide adequate patient management to Patient A.
In particular:
(a)Dr Van Rensburg prescribed medications when such medications were not indicated or required and where there were risks of harm; and
(b)Dr Van Rensburg failed to have any or any adequate treatment or management plan.
2.Dr Van Rensburg failed to keep adequate clinical records.
3.Dr Van Rensburg breached professional boundaries.
In particular:
(a)by having an intimate, personal and sexual relationship with Patient A; and
(b)by writing an unprofessional letter about Patient A to Dr Paul Glendenning.
Each alleged failure is said to amount to professional misconduct.
In respect of Patient B
1.Dr Van Rensburg failed to provide adequate patient management to Patient B.
In particular:
(a)Dr Van Rensburg discontinued Patient B's diabetes medication when not indicated and without communication with her general practitioner;
(b)Dr Van Rensburg prescribed a low energy diet when not indicated; and
(c)Dr Van Rensburg prescribed thyroid medication when not indicated.
2.Dr Van Rensburg failed to keep adequate clinical records.
3.Dr Van Rensburg breached professional boundaries.
In particular:
(a)Dr Van Rensburg had inappropriate contact with Patient B following notification of her complaint to the Australian Health Practitioner Regulation Authority (AHPRA).
Each alleged failure is said to amount to professional misconduct.
Summary of outcome
For the reasons that follow we have found that:
1.In respect of Patient A:
(a)Dr Van Rensburg behaved in a way which constitutes professional misconduct in that he failed to provide adequate patient management in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(b)Dr Van Rensburg behaved in a way which constitutes professional misconduct in that he failed to keep adequate clinical records in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(c)Dr Van Rensburg behaved in a way which constitutes professional misconduct in that he breached professional boundaries in a way which fell substantially below the standard reasonably expected for a registered health practitioner of an equivalent level of training and experience; and
(d)Dr Van Rensburg behaved in a way which constitutes professional misconduct in that he wrote a letter to Dr Glendenning dated 8 May 2015 which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.
2.In respect of Patient B:
(a)Dr Van Rensburg behaved in a way which constitutes professional misconduct in that he failed to provide adequate patient management in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(b)Dr Van Rensburg behaved in a way that constitutes unprofessional conduct by failing to keep adequate clinical records in a way which is of a lesser standard than that which might reasonably be expected of a registered health practitioner of an equivalent level of training and experience.
Onus and standard of proof
It is uncontentious that the Board bears the onus of proving its case against Dr Van Rensburg to the civil standard (being on the balance of probabilities).[1] Nevertheless, given the seriousness of the allegations of professional misconduct which the Board presses in this case:
[C]ogent evidence will be required to establish the facts on which those allegations depend. Satisfaction that such serious conduct…has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect references.[2]
[1] Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336 (Briginshaw).
[2] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 at [55]; citing Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at [171]; Briginshaw at [362].
When we make findings we do so in accordance with that standard bearing in mind the caution regarding the quality of evidence that would be required in cases of this kind which was expressed in Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336.
The National Law
Section 4(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNL(WA) Act) provides that the Schedule to the HPRNL(WA) Act (National Law) applies as a law of Western Australia and as so applying, is part of the HPRNL(WA) Act.
The Board is established under s 31 of the National Law.
Section 4 of the National Law provides that an entity that has functions under the National Law (in this case the Board) is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3 of the National Law. Those objectives include:
(a)the regulation of health practitioners;[3] and
(b)providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[4]
[3] National Law, s 3(1)(a).
[4] National Law, s 3(2)(a).
Disciplinary proceedings are, therefore, brought for the protection of the public and are not punitive.
Pursuant to s 193(1) of the National Law, the Board must refer a matter about a registered health practitioner to the Tribunal[5] if the Board reasonably believes, based on a notification or for any other reason, that the practitioner has behaved in a way that constitutes professional misconduct.[6]
[5] For the purposes of the National Law, the Board is the National Board under reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA), and the Tribunal is a 'responsible tribunal' pursuant to s 5 of the National Law.
[6] National Law, s 193(1) and s 193(2).
The outcomes which may be reached after a hearing of a matter referred to the Tribunal are set out in s 196 of the National Law. Section 196(1) provides that the Tribunal may decide:
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following:
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment;
(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
If the Tribunal makes one of the findings referred to in s 196(1)(b) of the National Law it may decide to take any one or more of the actions set out in s 196(2). They range from issuing a caution or reprimand, to cancelling the practitioner's registration.
The terms 'unsatisfactory professional performance', 'unprofessional conduct' and 'professional misconduct' which are used in s 196(1) describe categories of behaviour of different gravity,[7] and are defined in s 5 of the National Law as follows:
[7] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [139] (Vaughan JA).
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
unprofessional conduct, of a registered health practitioner means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes —
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of —
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well‑being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
professional misconduct, of a registered health practitioner, includes —
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
The Code and Guidelines
Pursuant to s 39 of the National Law the Board approved and issued 'Good Medical Practice - A Code of Conduct for Doctors in Australia' in July 2010 (2010 Code) and issued an amended version of the Code in March 2014 (2014 Code) and 'Sexual Boundaries: Guidelines for Doctors' on 28 October 2011 (Guidelines).[8]
[8] Exhibit E in VR 161 of 2018 and VR 109 of 2019.
A code or guideline approved by a National Board is admissible in proceedings commenced under the National Law as evidence of what constitutes appropriate professional conduct or practice for the profession.[9]
[9] National Law, s 41.
Dr Van Rensburg's impugned conduct spans the period from 2001 to 2015. Therefore, each of the 2010 Code, 2014 Code and the Guidelines are evidence of what constituted appropriate professional conduct or practice at various points in time over that period.
We have set out the relevant provisions of the 2010 Code, the 2014 Code and the Guidelines later in our reasons.
Considerations in determining the nature of the professional conduct
In Panegyres, Vaughan JA (with whom Buss P and Murphy JA relevantly agreed) observed, in relation to 'professional misconduct', that:
(a)the definition is inclusive and does not contain an exhaustive statement of what may constitute professional misconduct (accordingly, the concept of professional misconduct is wider than that which is provided for in pars (a) to (c));[10]
[10] Panegyres at [149] and [152].
(b)the definition has both a 'performance component' (in pars (a) and (b)) and a 'conduct component' (in par (c));[11]and
[11] Panegyres at [150].
(c)as to the 'performance component' under pars (a) and (b):
(i)there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct;[12]
[12] Panegyres at [151].
(ii)there is a difference between pars (a) and (b) of the definition - par (a) is concerned with a single instance of unprofessional conduct, while par (b) is concerned with more than one instance (that is, multiple instances) of unprofessional conduct;[13]
[13] Panegyres at [150].
(iii)a finding of professional misconduct under this component involves, in substance, two elements:
1.First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct').
2.Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1.What level of training or experience is possessed by the practitioner?
2.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
3.Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard[;][14]
(d)the 'conduct component' under par (c):
(i)expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession; and
(ii)provides part of the context in which pars (a) and (b) are to be construed, giving an indication of the degree of serious departure from the Requisite Standard required for conduct to be 'substantially below' the standard, and the gravity of making such a finding.
[14] Panegyres at [153] – [155].
In Dekker v Medical Board of Australia [2014] WASCA 216 (Dekker), the Court of Appeal made some general observations about the relevant principles to be applied by the Tribunal in matters of this nature. While these remarks were made expressly on the basis that they do not purport to provide a comprehensive explanation of the relevant principles to be applied, the Tribunal considers them to be useful in this context.
The Court said that 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.[15] 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.[16]
[15] Dekker at [71].
[16] Qidwai v Brown [1984] 1 NSWLR 100 (Qidwai) at [106] and [107].
The question of whether there existed a generally accepted professional standard or duty, and its content, would be questions of fact.[17]
[17] Dekker at [72].
The conventional ways in which such facts would be proved (in the absence of admission) would, generally speaking, involve, or include, the 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[18] 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 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. A duty not to have sexual relations with a patient might be an obligation of that kind.[19]
[18] For example Psychologists Board of Queensland v Robinson [2004] QCA 405 at [24].
[19] Dekker at [73].
The Tribunal would then ordinarily 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.[20] The conclusory finding and any anterior finding as to the existence and content of any generally accepted standard or professional duty are commonly interrelated.[21] 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 conduct of the practitioner in question would reasonably be regarded as improper by professional colleagues of good repute and 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.[22]
[20] Dekker at [74].
[21] Qidwai at [107].
[22] Dekker at [74].
Issues to be determined
The hearing dealt only with whether the Board had established the allegations it made against Dr Van Rensburg. The issues for the Tribunal to determine are:
Issue 1: What is the Requisite Standard applicable to Dr Van Rensburg?
In respect of Patient A:
Issue 2: Did Dr Van Rensburg fail to provide adequate patient management to Patient A?
(i)Did Dr Van Rensburg prescribe medications when such medications were not indicated or required and where there were risks of harm?
(ii)Did Dr Van Rensburg fail to have any or any adequate management plan?
Issue 3: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 4: Did Dr Van Rensburg fail to keep adequate clinical records?
Issue 5: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 6: Has Dr Van Rensburg breached professional boundaries?
(i)Did Dr Van Rensburg have an intimate, personal and sexual relationship with Patient A?
(ii)Did Dr Van Rensburg write an unprofessional letter about Patient A to Dr Glendenning?
Issue 7: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
In respect of Patient B:
Issue 8: Did Dr Van Rensburg fail to provide adequate patient management to Patient B?
(i)Did Dr Van Rensburg discontinue Patient B's diabetes medication when not indicated and without communication with her general practitioner?
(ii)Did Dr Van Rensburg prescribe a low energy diet when not indicated?
(iii)Did Dr Van Rensburg prescribe thyroid medication when not indicated?
Issue 9: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 10: Did Dr Van Rensburg fail to keep adequate clinical records?
Issue 11: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
Issue 12: Has Dr Van Rensburg breached professional boundaries with Patient B?
(i)Did Dr Van Rensburg have inappropriate contact with Patient B following notification of her complaint to AHPRA.
Issue 13: If so, did Dr Van Rensburg's conduct fall below the Requisite Standard and to what degree?
History of the proceeding
Dr Van Rensburg was legally represented throughout both proceedings excepting for the period 2 July 2020 to 24 May 2022, a period which, importantly, included all of the hearing of the evidence.
Procedural history in respect of Patient A - VR 161 of 2018
The proceeding in relation to Dr Van Rensburg's treatment of Patient A was commenced when the Board filed an Application in the Tribunal on 31 August 2018.
On 14 September 2018 a Notice of Representation was filed on behalf of Dr Van Rensburg, advising that he was represented by Brand Barristers & Solicitors. That firm of solicitors acted for Dr Van Rensburg until a Notice of Representation was filed by Bennett & Co on 30 April 2019. Dr Van Rensburg's legal representatives appeared at numerous directions hearings, and two mediations that were conducted over the period.
On 27 May 2019 Dr Van Rensburg filed his Response.
On 28 June 2019 the Board filed a Statement of Issues, Facts and Contentions.
On 24 July 2019 Dr Van Rensburg filed a Statement of Issues, Facts and Contentions.
On 29 January 2020 Dr Van Rensburg filed his Amended Response.
On 15 April 2020 the Board filed an Amended Statement of Issues, Facts and Contentions.
On 2 July 2020 Dr Van Rensburg ceased to be legally represented by Bennett & Co.
On 20 July 2020 Dr Van Rensburg filed a further Statement of Issues, Facts and Contentions.
On 24 May 2022 a Notice of Representation was filed on behalf of Dr Van Rensburg advising that he was represented by Bowen Buchbinder Vilensky.
Procedural history in respect of Patient B - VR 109 of 2019
The proceeding in relation to Dr Van Rensburg's conduct in connection with Patient B was commenced when the Board filed an Application in the Tribunal on 31 July 2019.
On 8 August 2019 a Notice of Representation was filed on behalf of Dr Van Rensburg advising that he was represented by Bennett & Co. Dr Van Rensburg's legal representative appeared at the directions hearings conducted during this period.
On 4 September 2019 Dr Van Rensburg filed his Response.
On 20 December 2019 the Board filed its Amended Grounds for the Application.
On 29 January 2020 an Amended Response was filed by Dr Van Rensburg.
On 3 March 2020 the Tribunal ordered that this Application be heard concurrently with the Application regarding Patient A.
A Statement of Issues, Facts and Contentions was filed by the Board on 16 April 2020.
On 2 July 2020 Dr Van Rensburg ceased to be legally represented until a Notice of Representation was filed on his behalf on 24 May 2022 by Bowen Buchbinder Vilensky.
Background to final hearing
As the matter progressed towards hearing Dr Van Rensburg made numerous applications for extensions of time to comply with programming orders, an adjournment of directions hearings and applications to postpone the final hearing. Those applications were made on the grounds of physical and mental ill health. On most occasions the applications for adjournments were refused on the basis that Dr Van Rensburg did not satisfy the Tribunal that an adjournment was necessary and oral reasons for refusing the applications were provided.[23] Even the final hearing of both proceedings was conducted without the involvement of Dr Van Rensburg until 24 May 2022, when he engaged legal representation.
[23] Oral reasons for refusing Dr Van Rensburg's two applications to postpone the final hearing were delivered on 17 August 2021 and 18 February 2022 respectively.
On 8 March 2022, the first day of the final hearing, Dr Van Rensburg sought an adjournment on the basis that he was hospitalised and unable to participate. While we delayed the commencement of the hearing for two days in order to allow Dr Van Rensburg to file material evidencing his hospitalisation and condition, we ultimately determined that the hearing would proceed on 10 March 2022 after Dr Van Rensburg did not produce medical evidence about his condition or hospitalisation. Oral reasons in relation to that matter were given on 10 March 2022.
On 26 May 2022, when Dr Van Rensburg's counsel first appeared before the Tribunal, he informed us that he did not wish to seek leave to call or produce any evidence and only proposed to make closing submissions on behalf of Dr Van Rensburg. On 17 June 2022 orders were made to accommodate Dr Van Rensburg's counsel's need to review the evidence for the purpose of making closing submissions. Dr Van Rensburg's counsel provided written closing submissions on 15 July 2022. Oral closing submissions were made by the parties on 29 July 2022. Dr Van Rensburg attended to observe the proceedings on that day.
A final hearing of both proceedings was conducted over seven days (on 8 – 11 March 2022 and 15 March 2022, 26 May 2022 and 29 July 2022).
In his written submissions Dr Van Rensburg's counsel submitted that Dr Van Rensburg did not admit any facts alleged against him and that it was for the Board to prove each fact alleged. We do not entirely accept that submission. In the course of the preparation for hearing, while Dr Van Rensburg was represented by different, but very experienced solicitors and counsel, he filed a number of documents in which he made admissions of certain facts. Those documents were:
1.In VR 161 of 2018 (Patient A) – Dr Van Rensburg's Response dated 27 May 2019 and Amended Response dated 29 January 2020.
2.In VR 109 of 2019 (Patient B) – Dr Van Rensburg's Response dated 4 September 2019 and Amended Response dated 29 January 2020.
Among the admissions made in those documents was an admission that he had engaged in an intimate relationship with Patient A while her daughter was his patient and that he had engaged in a sexual relationship with Patient A.[24]
[24] Response, VR 161 of 2018, paras 3(l) and 8; Amended Response, VR 161 of 2018, paras 3(k) and 8.
At no stage did Dr Van Rensburg resile from those admissions.
In the circumstances, we consider that it was reasonable for the Board to prepare its case on the basis that the facts and admissions which had been agreed by Dr Van Rensburg while legally represented, did not need to be proved by evidence. Accordingly, where a fact which was admitted by Dr Van Rensburg was not proved by evidence led or produced by the Board we nevertheless find the fact proved as a result of his admission. We make specific reference to any finding of fact made in that way where we refer to it in these reasons.
Submissions
In addition to their oral submissions, the parties filed written submissions as follows:
1.Board's opening submissions dated 8 March 2022;
2.Board's closing submissions dated 19 May 2022;
3.Dr Van Rensburg's closing submissions dated 15 July 2022; and
4.Board's supplementary closing submissions and submissions in reply dated 25 July 2022.
Documentary evidence
During the course of the hearing the Board tendered 34 exhibits in respect of the allegations concerning Patient A, 16 exhibits in respect of the allegations concerning Patient B, and 6 exhibits relevant to both patients. Those exhibits include:
1.Copies of the 2010 Code and the 2014 Code and the Guidelines;
2.Emails sent to and from Patient A and Dr Van Rensburg;
3.Photographs;
4.Records from various pharmacies relating to prescriptions dispensed to Patient A over the relevant time;
5.Copies of Medicare records of Dr Van Rensburg's billing of Patient A;
6.Copies of communications between Dr Van Rensburg and other doctors regarding Patient A;
7.Copies of communications between doctors other than Dr Van Rensburg regarding Patient A; and
8.Dr Van Rensburg's registration and qualifications.
The information contained in the documents at 4 to 8 above are either business records of the relevant organisation or medical practice or contain information derived from the business records of the relevant organisations. We have no reason to doubt the contents of those records and accept their contents are accurate.
The lay witnesses - credibility
The Board called the following lay witnesses:
1.Patient A who made a witness statement dated 14 October 2020,[25] and gave oral evidence on 10 and 15 March 2022;
2.Patient B who made a witness statement dated 28 October 2020[26] and gave oral evidence on 10 March 2022; and
3.Ms Erin Duce, who worked for AHPRA between December 2017 and April 2020, and gave oral evidence on 11 March 2022.
[25] Exhibit 1, VR 161 of 2018.
[26] Exhibit 1, VR 109 of 2019.
Patient A was a reluctant witness who gave evidence under compulsion. We did not regard her to be elaborating or exaggerating in her answers to questions asked of her in evidence‑in‑chief. We find that Patient A's evidence was honestly given. We find her evidence was accurate and reliable regarding the overall sequence and nature of events. However, as to the specific dates on which certain events occurred, we have found that there are some discrepancies between her recollection and the contemporaneous documentary evidence. We set out these discrepancies where they arise in relation to each allegation and our resolution of them. They may be attributed to lapses in memory owing to the passage of time, given that the events concerning Patient A commenced in about 2000, some 23 years ago. The differences between Patient A's recollections about certain events and the documentary record may instead be a result of the fact that Dr Van Rensburg's clinical notes are not an accurate record. They may also be attributable to the fact that the evidence before us is not a complete documentary record. In the end nothing significant turns on the differences. We are supported in our conclusions as to the honesty and the accuracy of Patient A's evidence by the photographs and emails which she identified in evidence which corroborated her oral evidence about the nature of her relationship with Dr Van Rensburg.
We find the evidence of Patient B to have been honestly given. We also find it to be accurate and reliable. In our opinion, Patient B gave her oral evidence without hesitation. We find that her evidence was consistent with the contemporaneous written records of other medical practitioners who were involved in treating her, for example when she was treated in hospital after becoming unwell as a result of being taken off her diabetes medication by Dr Van Rensburg.
Ms Duce gave evidence that she worked for AHPRA between December 2017 and April 2020. Her evidence was that as part of her duties she obtained a computer from a person whose name she could not recall but who she described in her evidence. We find that her description of that person matched our observation of Patient A. Ms Duce's evidence was that after obtaining that computer she obtained technical assistance to retrieve the emails and videos (which became exhibit 15 in VR 161 of 2018) from its hard‑drive. Having been able to retrieve those emails and videos she printed them and made annotations on some.
Ms Duce's evidence was not contentious and we find that she was an honest, accurate and reliable witness.
The expert witnesses
The Board called two expert witnesses, Professor Gary Wittert, a specialist endocrinologist and specialist physician, and Dr Glendenning, a specialist endocrinologist, specialist physician and specialist pathologist. Dr Glendenning was also a witness of fact, being Patient A's former treating endocrinologist.
They both attended on 11 March 2022 and gave concurrent evidence, Professor Wittert via video‑link and Dr Glendenning in person.
Professor Wittert provided a report dated 6 November 2019[27] (2019 Report) and a supplementary report dated 27 September 2021[28] (2021 Report) which provided responses to the Statement of Issues, Facts and Contentions and attached 'Response to Prof Wittert report' filed by Dr Van Rensburg on 20 July 2020.[29]
[27] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
[28] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
[29] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
Professor Wittert's Curriculum Vitae and description of his medical credentials include that he is a Fellow of the Royal Australasian College of Physicians and that he has maintained a dual accreditation in General Medicine and Endocrinology. Professor Wittert worked for a year as a general practitioner (GP) prior to commencing specialist training and is involved in medical student and GP education. He has published over 350 peer‑reviewed research papers and has been an office‑bearer and member of Australasian and international obesity expert bodies.[30]
[30] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
Professor Wittert identified, in his reports and oral evidence, the documents upon which he relied in forming his opinion in respect of both patients, including the clinical notes of Dr Van Rensburg, correspondence from specialists, pathology test results, bone densitometry records and Medicare summaries of services and drugs prescribed in respect of Patient A. In respect of Patient B, the documents included the clinical notes of Dr Van Rensburg and various other documents provided to Patient B by Dr Van Rensburg including a questionnaire which she had completed at his request.
Professor Wittert also included in his 2019 Report appendices including Clinical Practice Guidelines from the American Thyroid Association 2012 and a position statement from the Australian Endocrine Society on the use of natural thyroid extract.
Dr Glendenning provided a witness statement dated 28 October 2020.[31]
[31] Exhibit 10, VR 161 of 2018.
Dr Glendenning identified during the course of giving his evidence the documents that were relevant to the expression of his opinion. They were Dr Van Rensburg's letter of referral,[32] Dr Glendenning's own clinical notes[33] and bone densitometry testing obtained at Dr Glendenning's request in 2015.[34]
[32] Exhibit 11, VR 161 of 2018.
[33] Exhibit 12, VR 161 of 2018.
[34] Exhibit 12, VR 161 of 2018.
We accept the expertise of both of the expert witnesses and the relevance of that expertise to the opinions provided and we accept the independence of each of the experts in providing their oral and written evidence.
As we have stated, Dr Glendenning also had a role in the management, review and treatment of Patient A, following a referral from Dr Van Rensburg. We found him to be an honest, accurate and reliable witness of fact in relation to those matters about which he gave evidence as to facts.
Issue 1: What is the Requisite Standard applicable to Dr Van Rensburg?
It was not contentious, and we find, that Dr Van Rensburg has general registration as a medical practitioner and is not registered as a specialist.[35]
[35] Exhibit F in VR 161 of 2018 and VR 109 of 2019.
On his website Dr Van Rensburg describes himself as providing specialised treatment in 'two areas of endocrinology' which he describes as 'bariatric medicine' and 'corrective hormone therapies'.[36]
[36] Exhibit A in VR 161 of 2018 and VR 109 of 2019.
It was uncontentious that Dr Van Rensburg qualified as a medical practitioner in 1978 after graduating from Trinity College, Dublin.[37] He has practiced medicine in Australia with a focus on 'bariatric medicine and corrective hormonal therapies'.[38]
[37] Exhibit F in VR 161 of 2018 and VR 109 of 2019.
[38] Exhibit A in VR 161 of 2018 and VR 109 of 2019.
Dr Van Rensburg states that he was a member of the Endocrine Society of Australia (ESA) from 2005 to 2012.[39]
[39] Respondent's Amended Response in VR 161 of 2018, para 3.2(b)(ii).
It is not contended by the Board that Dr Van Rensburg is holding himself out as a specialist.[40]
[40] ts 202, 205 and 237, 29 July 2022.
Dr Van Rensburg submits that on the basis of the evidence it is open to the Tribunal to find that he is a general medical practitioner with a particular interest in an identified area of medicine which he describes as bariatric medicine and corrective hormonal therapies.[41]
[41] Exhibit A in VR 161 of 2018 and VR 109 of 2019.
The Board contends that the evidence demonstrates that Dr Van Rensburg should be expected to meet the standard of care of a competent and ethical medical practitioner with general registration, and an interest in, and focus on, endocrinology and bariatric medicine.[42]
[42] Opening submissions, para 11; Closing submissions, para 5.
We do not regard there to be any difference between 'corrective hormonal therapies' and 'endocrinology' for the purpose of these proceedings.
On the basis of the evidence before us we find that Dr Van Rensburg is a general medical practitioner with an interest in and focus on endocrinology and bariatric medicine.
Conclusion Issue 1: What is the Requisite Standard applicable to Dr Van Rensburg?
The Requisite Standard applicable to Dr Van Rensburg is that of a general medical practitioner with a particular interest in endocrinology and bariatric medicine.
Patient A - VR 161 of 2018
The doctor–patient relationship
The duration of the doctor‑patient relationship between Dr Van Rensburg and Patient A is relevant to each of the Board's allegations. We therefore set out our finding in relation to that issue before turning to those allegations.
The Board alleges that Patient A became a patient of Dr Van Rensburg in about June 1999 and remained a patient until May 2015.[43]
[43] Grounds, para 3.
Patient A gave evidence that Dr Van Rensburg treated her over a period commencing in or about March 2001 until shortly after she commenced seeing Dr Glendenning in January 2015, excepting for a period of approximately 12 months beginning in early 2006 when she saw Dr Partridge, as her GP.[44]
[44] Exhibit 1, VR 161 of 2018.
However, during the time Patient A says she saw Dr Partridge, the Medicare Patient History Reports[45] indicate that she was bulk billed for attendances upon Dr Van Rensburg on multiple occasions in 2006. We prefer the Medicare Patient History Reports in this regard because it provides independent contemporaneous evidence that in 2006 Patient A continued to seek treatment from Dr Van Rensburg.
[45] Exhibit 29, VR 161 of 2018.
Dr Van Rensburg's clinical notes span the period 6 April 2002 to 7 May 2015,[46] a period commencing later than recalled by Patient A, and ending later than recalled by Patient A. While they clearly evidence the existence of a doctor‑patient relationship between Patient A and Dr Van Rensburg, for reasons we set out later, we find Dr Van Rensburg's clinical notes are not a reliable record of their interactions. Accordingly other then as corroborating the fact of a doctor‑patient relationship from at least 6 April 2002 to May 2015, we do not regard them as reliable evidence as to the beginning of that relationship.
[46] Exhibit 14 and 32, VR 161 of 2018.
The independent evidence, to which we refer below, indicates that the doctor‑patient relationship was longer than recalled by Patient A.
The earliest independent evidence before us which shows some involvement of Dr Van Rensburg with Patient A is a Clinipath Pathology test result dated June 1999 which indicates the results were provided to Dr Van Rensburg.[47] However, the document identifies that this test was requested by a doctor other than Dr Van Rensburg. There was no evidence before us regarding why a copy of this result was sent to Dr Van Rensburg. The test results were of Patient A's full blood picture, thyroid, renal and hepatic function. Whilst it was clear Dr Van Rensburg was involved in her life in some way at the time in 1999, we cannot find that it was as her doctor.
[47] Exhibit 16, VR 161 of 2018.
Patient A's recollection that she first met Dr Van Rensburg in February 2001 at an appointment for her daughter is inconsistent with the Medicare Patient History Report showing a standard consultation for Patient A was billed by Dr Van Rensburg on 14 December 2000.
Dr Van Rensburg's referral letter to Dr Glendenning is dated 17 November 2014.[48] Dr Glendenning gave evidence that he had reported to Dr Van Rensburg in relation to his care of Patient A by letters dated 19 January 2015 and 18 February 2015 and that he subsequently, ceased reporting to Dr Van Rensburg after Patient A informed him that she was no longer seeing Dr Van Rensburg. Dr Glendenning's letter of 22 April 2015 addressed to Dr Mark Reed and copied to Dr Roger Paterson, states that Patient A has ceased seeing Dr Van Rensburg, and that Dr Glendenning is therefore no longer copying him into correspondence.[49]
[48] Exhibit 11, VR 161 of 2018.
[49] Exhibit 12, VR 161 of 2018.
The last clinical note made by Dr Van Rensburg regarding Patient A was made on 7 May 2015.[50] It records that a prescription for Codalgin Forte and Valium 5 mg was 'sent to [Patient A]' which might indicate the maintenance of a doctor‑patient relationship up until that time.
[50] Exhibits 14 and 32, VR 161 of 2018.
Despite that note, we find that the doctor‑patient relationship ended before that time, some time after 18 February 2015 and before 22 April 2015. We make that finding because it is consistent with the evidence of both Patient A and Dr Glendenning to which we have referred and because it is not inconsistent with the entry in Dr Van Rensburg's clinical notes. There is nothing in that note that suggests Patient A attended on 7 May 2015 given the use of the word 'sent' in the notation. In any event, even on Dr Van Rensburg's account contained in the letter he wrote to Dr Glendenning on 8 May 2015,[51] the doctor‑patient relationship had ended before 8 May 2015.
[51] Exhibit 13, VR 161 of 2018.
Patient A's evidence of the lengthy duration of their doctor‑patient relationship is corroborated by other contemporaneous evidence including communications between Dr Van Rensburg and medical specialists involved in her care,[52] Medicare Patient History Reports,[53] Australian Government Department of Human Services Prescriber Detail Report showing prescriptions for Patient A from Chemist Warehouse for the period 1 January 2011 to 31 December 2014 (Prescriber Detail Report),[54] McKenzie's Pharmacy Patient History Report (McKenzie's Pharmacy Report)[55] and Emslie's Floreat Pharmacy Log of Scripts filled between 1 January 2001 and 30 December 2015 (Emslie's Pharmacy Records),[56] and the Pathology Results[57] and we accept this evidence.
[52] Exhibits 13, 22, 23, 24, 25, 26 and 27, VR 161 of 2018.
[53] Exhibit 29, VR 161 of 2018.
[54] Exhibit 28, VR 161 of 2018.
[55] Exhibit 30, VR 161 of 2018.
[56] Exhibit 31, VR 161 of 2018.
[57] Exhibit 16, VR 161 of 2018.
On the basis of the evidence before us we find that the doctor‑patient relationship between Dr Van Rensburg and Patient A was in existence from at least 14 December 2000 to some time between 18 February 2015 and 22 April 2015.
In our view nothing turns on the difference between Patient A's recollection of the duration of the relationship and the duration as we have found it.
Issue 2: Did Dr Van Rensburg fail to provide adequate patient management to Patient A?
Issue 2 (i): Did Dr Van Rensburg prescribe medications when such medications were not indicated or required and where there were risks of harm?
The Board alleges that Dr Van Rensburg prescribed to Patient A hydrocortisone (hysone) and fludrocortisone acetate (Florinef),[58] testosterone,[59] progesterone,[60] oestrogen/estradiol,[61] thyroid medications (T3 and T4, Armour thyroid 110 mg, Thyroxine, Liothyronine, Thyroid natural 90 mg, 110 mg, 40 mg, 80 mg, Thyroid extract),[62] metformin (and other diabetic medications namely Glucophage and Diabex (which are brand names for metformin)), minirin (desmopressin),[63] DHEA,[64] oxytocin,[65] and dexamphetamine.[66]
[58] Grounds, para 14.
[59] Grounds, para 18.
[60] Grounds, para 18.
[61] Grounds, para 18.
[62] Grounds, para 22.
[63] Grounds, para 24.
[64] Grounds, para 26.
[65] Grounds, para 26.
[66] Amended Statement of Issues, Facts and Contentions, paras 169 – 179.
The Board alleges that these medications were not clinically indicated in Patient A's case.[67] Further, the Board alleges that in prescribing them Dr Van Rensburg put Patient A at risk of the adverse effects of those medications.[68]
[67] Amended Statement of Issues, Facts and Contentions.
[68] Amended Statement of Issues, Facts and Contentions.
In its Grounds the Board alleges that, in aggregate, by this prescribing Dr Van Rensburg has engaged in professional misconduct.
In the Amended Statement of Issues Facts and Contentions the Board has alleged that the prescribing of each of the following medications or combinations of medications separately amounts to professional misconduct:
1.hydrocortisone, hysone and fludrocortisone;[69]
2.progesterone, oestrogen and testosterone;[70]
3.thyroid medications;[71]
4.metformin (and other diabetic medications);[72]
5.DHEA;[73]
6.oxytocin;[74] and
7.dexamphetamine.[75]
[69] Amended Statement of Issues, Facts and Contentions, para 89.
[70] Amended Statement of Issues, Facts and Contentions, para 112.
[71] Amended Statement of Issues, Facts and Contentions, para 133.
[72] Amended Statement of Issues, Facts and Contentions, para 151.
[73] Amended Statement of Issues, Facts and Contentions, para 160.
[74] Amended Statement of Issues, Facts and Contentions, para 168.
[75] Amended Statement of Issues, Facts and Contentions, para 179.
The requirement to prescribe medication only when indicated is expressly set out in the National Law where the definition of unprofessional conduct in s 5 includes providing a person with health services of a kind that are excessive, unnecessary, or otherwise not reasonably required for the person's wellbeing.
We next consider each of the remaining medications in the order outlined above.
Hydrocortisone (hysone) and fludrocortisone (florinef)
What are hydrocortisone, hysone, fludrocortisone and florinef?
Professor Wittert gave evidence that hydrocortisone is the form of cortisone used to treat adrenal insufficiency because it is identical to cortisol which is made by the adrenal glands and so replaces the hormone that is normally present.[76] Dr Glendenning's evidence was that the indications for such treatment are primary or secondary adrenal failure.[77] We so find.
[76] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
[77] Exhibit 10, VR 161 of 2018.
Dr Glendenning gave evidence that fludrocortisone, also known by the brand name florinef, is a mineralocorticoid and hydrocortisone also known by the brand name hysone, is a glucocorticoid.[78] We so find.
Prescribing
[78] Exhibit 10, VR 161 of 2018.
The Board alleges that in or about 2005 Dr Van Rensburg diagnosed Patient A with adrenal insufficiency and treated her for adrenal insufficiency.[79] Because they have particularised this by reference to prescriptions of hydrocortisone and hysone on at least 19 occasions during the period 2007 to 2014[80] and fludrocortisone on at least two occasions in the period February 2012 to May 2014,[81] we take this to mean he treated her on an ongoing basis from in or about 2005.
[79] Grounds, para 14.
[80] Grounds, para 14A.
[81] Grounds, para 14B.
Patient A gave evidence as to the following matters[82] and we find that:
1.in 2006, during a telephone call with Dr Van Rensburg, he diagnosed her with adrenal fatigue and prescribed hydrocortisone;
2.Dr Van Rensburg continued to prescribe hydrocortisone for her for many years; and
3.in 2014 Dr Van Rensburg prescribed her fludrocortisone.
[82] Exhibit 1, VR 161 of 2018.
The Prescriber Detail Report[83] records, and we find, that Patient A was prescribed hydrocortisone by Dr Van Rensburg and it was dispensed at Chemist Warehouse on 11 occasions between 2012 and 2014.
[83] Exhibit 28, VR 161 of 2018.
The McKenzie's Pharmacy Report[84] states, and we find, that Patient A was prescribed hydrocortisone by Dr Van Rensburg on eight occasions between November 2007 and December 2008.
[84] Exhibit 30, VR 161 of 2018.
The Prescriber Detail Report[85] records, and we find, that Patient A was prescribed fludrocortisone by Dr Van Rensburg which was dispensed at Chemist Warehouse on two occasions between February 2012 and May 2014.
[85] Exhibit 28, VR 161 of 2018.
Dr Glendenning gave evidence, that when Patient A first consulted him in January 2015 she was taking 20 mg of hydrocortisone per day which he described as being a full glucocorticoid replacement dosage according to her body weight.[86]
[86] Exhibit 10, VR 161 of 2018.
On the basis of the Prescriber Detail Report, and McKenzie's Pharmacy Report and Dr Glendenning's evidence we find that Dr Van Rensburg prescribed hydrocortisone on at least 19 occasions between 2007 and 2014 and fludrocortisone on at least two occasions in the period February 2012 to May 2014 as alleged and that he was still prescribing these medications to Patient A in 2015.
We find on the basis of Patient A's evidence that the prescribing began in 2006, that Dr Van Rensburg prescribed hydrocortisone and fludrocortisone to her on more than those occasions. It is not possible however, to find precisely how many occasions each medication was prescribed to Patient A because, as we set out below, his clinical notes are so deficient that they do not constitute an accurate record of Dr Van Rensburg's prescribing and because Patient A did not give precise evidence as to that issue. Additionally, it is not submitted that the McKenzie's Pharmacy Report and Prescriber Detail Report are a complete record of prescriptions to Patient A over that time.
Testing
The Board alleges that Dr Van Rensburg ought to have arranged an adrenocorticotropic hormone simulation test and adrenal or pituitary imaging prior to diagnosing and commencing treatment for adrenal insufficiency and following the initiation of hormone treatment to support the diagnosis of adrenal insufficiency.[87] The Board alleges that Dr Van Rensburg failed to take these steps.[88]
[87] Grounds, para 15.
[88] Grounds, para 16.
We accept Patient A's evidence[89] and make the following findings:
1.in 2006, during a telephone call with Dr Van Rensburg, he diagnosed her with 'subclinical adrenal fatigue' and prescribed hydrocortisone;
2.prior to being diagnosed she did not undergo any testing in relation to the diagnosis of adrenal deficiency;
3.she had simply complained to Dr Van Rensburg that she was feeling extremely tired and generally unwell, and that Dr Van Rensburg had recently been at a conference relating to adrenal deficiency and that he thought she may be suffering from such a deficiency; and
4.in 2007 Dr Van Rensburg had her undergo 24‑hour urine testing for adrenal insufficiency.
[89] Exhibit 1, VR 161 of 2018.
Dr Glendenning gave evidence that when Patient A was referred to him, he arranged for testing of her hydrocortisol levels, which established that Patient A did not require hydrocortisone or fludrocortisone, and that he worked with Patient A to gradually wean her entirely from those medications.[90]
[90] Exhibit 10, VR 161 of 2018.
Professor Wittert gave evidence that it was not appropriate for Dr Van Rensburg to prescribe hydrocortisone as there was no indication for it.[91]
[91] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
On the basis of the expert evidence, we find that there was no indication for Dr Van Rensburg to prescribe hydrocortisone to Patient A.
Professor Wittert also gave evidence that it was not appropriate for Dr Van Rensburg to prescribe fludrocortisone to Patient A as there was no indication for it in her case.[92]
[92] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
On the basis of Professor Wittert's evidence, we find that there was no indication for Dr Van Rensburg's prescription of fludrocortisone to Patient A.
Adverse effects
Professor Wittert gave evidence that if over a prolonged period (more than a couple of weeks) more cortisone is administered than the body needs, there are several potential adverse effects. His evidence was that even slightly more cortisone than is needed over a prolonged period can have untoward effects.[93]
[93] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
In his 2019 Report, Professor Wittert states that the adverse effects of hydrocortisone which may occur are thin fragile skin, polycythaemia, sodium and water retention, potassium loss, cushingoid habitus (moon face, buffalo hump and central obesity), weight gain, increased gluconeogenesis giving rise to an increase in blood glucose, suppression of the hypophyseal pituitary adrenal axis, reduced production of sex hormones causative of osteoporosis, increased serum lipids – both triglycerides and cholesterol, mood swings, euphoria, depression, sleep disturbance, psychosis, inhibition of immune system and associated increased risk of infection including bacterial, viral, fungal and candida infections, gastro‑intestinal side‑effects including peptic ulcer disease, candidiasis and pancreatitis.[94] In his oral evidence Professor Wittert gave evidence, that hydrocortisone may also cause oedema.[95]
[94] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
[95] ts 118 – 119, 11 March 2022.
In his 2019 Report, Professor Wittert also stated that the adverse effects of fludrocortisone acetate are gastrointestinal upset or pain, nausea, bloating, headache, dizziness, spinning sensation, insomnia, mood changes, muscle, bone and joint pain, fatigue, hypertension and electrolyte disturbance.[96]
[96] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
Dr Glendenning gave evidence, which we accept, that when hydrocortisone and fludrocortisone are prescribed in combination there may be an increased risk of hypertension.[97]
[97] Exhibit 10, VR 161 of 2018.
Dr Glendenning gave evidence, which we accept, that the long‑term use of glucocorticoid treatment increases the risk of osteoporosis and can cause weight gain, muscle thinning and in high doses can cause infection, type II diabetes, and hypertension.[98]
[98] Exhibit 10, VR 161 of 2018.
Professor Wittert also gave evidence in respect of the possible side‑effects of taking hydrocortisone in combination with other drugs. In his 2019 Report,[99] he wrote:
[99] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
5.5.1Sleep disturbance (dexamphetamine, thyroid hormone, hydrocortisone, pregnenolone);
5.5.2 Osteoporosis (hydrocortisone, Florinef, thyroid hormone);
5.5.3Musculoskeletal pain. It is not possible to dissect which medication or combinations of medications were responsible for this however it is clear that it resolved completely once the majority of the medications were discontinued by Dr Glendenning.
5.5.4 Digital vasospasm (dexamphetamine)
5.5.5Anxiety and possibly other neuropsychiatric adverse effects (dexamphetamine, thyroid hormone, hydrocortisone, pregnenolone, fludrocortisone).
5.5.6Added to the polypharmacy and potential toxicity by prescribing Valium and presumably to negate the adverse effects of the other medications on mood and sleep, and panadeine presumably to negate the musculoskeletal pain.
We accept the evidence of Professor Wittert and Dr Glendenning, and we find that the potential side‑effects of prescribing the medications listed above either alone or in combination are those set out in paras [117] – [122] above.
We find that Patient A experienced gastro‑intestinal upset for at least a four‑month period leading up to February 2008, during which time she was being prescribed hydrocortisone and fludrocortisone by Dr Van Rensburg. We do so on the basis of Patient A's own evidence and the report of Professor W D Reed of February 2008 to Dr Van Rensburg[100] which reports that, having been referred complaining of a four‑month history of change in bowel habits, she underwent a colonoscopy combined with gastroscopy.
[100] Exhibit 22, VR 161 of 2018.
In evidence there are 13 letters from Dr Mark Reed, a specialist rheumatologist, to Dr Van Rensburg regarding Patient A.[101] They span from 1 February 2010 to 13 November 2014. In the first of those letters dated 1 February 2010 to Dr Van Rensburg, Patient A was referred to him because she had experienced six months of joint and muscle pain. He reports that she complained that she had morning stiffness and pain throughout the day which worsened on activity. We accept the contents of those letters and from them we find that Dr Reed continued to treat Patient A and report to Dr Van Rensburg on her muscle and joint pain until 2014. We find that Patient A suffered musculoskeletal symptoms between at least mid‑2009 and 2014 and this was a period during which she was being prescribed hydrocortisone and fludrocortisone by Dr Van Rensburg.
[101] Exhibit 27, VR 161 of 2018.
Dr Reed's letter of 1 February 2010 also documents Patient A reporting she suffered from sleep apnoea and daytime somnolence.[102] In his letter of 30 March 2011 to Dr Van Rensburg, Dr Reed reported on Patient A's worsening sleep patterns.[103] In his letter to Dr Van Rensburg of 27 July 2011, Dr Reed notes Patient A's 'moderate sleep disturbance.'[104] On the basis of Dr Reed's letters, we find that Patient A was suffering from sleep disturbance in 2010 and 2011 and this was a period during which we have found that she was being prescribed hydrocortisone and fludrocortisone by Dr Van Rensburg.
[102] Exhibit 27, VR 161 of 2018.
[103] Exhibit 27, VR 161 of 2018.
[104] Exhibit 27, VR 161 of 2018.
Dr Glendenning's evidence is that he requested bone densitometry in 2015 which we accept revealed osteoporosis in Patient A's spine.[105] We accept his evidence and find that Patient A had osteoporosis in 2015.
[105] Exhibit 12, VR 161 of 2018.
Dr Glendenning gave evidence that the bone densitometry scores obtained in relation to Patient A in 2002 and 2005 were within the healthy range for a person of Patient A's age.[106] Dr Glendenning gave evidence that, in comparison, the bone densitometry tests ordered by him in 2015 revealed a 'deterioration in bone health'. We find that Patient A's bone density was within a healthy range for her age prior to Dr Van Rensburg prescribing hydrocortisone for her in 2006, and that by 2015 she had developed osteoporosis.
[106] ts 97 – 98, 11 March 2022.
Dr Van Rensburg's clinical notes for Patient A do not record any bone density testing and there are no results from any such testing between 2006 and 2015 for Patient A in evidence.
In Dr Glendenning's opinion, this deterioration in Patient A's bone density may have been caused by the long‑term use of hydrocortisone.[107]
[107] Exhibit 10, VR 161 of 2018.
Dr Glendenning also expressed the opinion that alternatively, Patient A's osteoporosis may be caused by the prescription of hydrocortisone in combination with the prescription of thyroid hormone supplements[108] (see below).
[108] ts 98, 11 March 2022.
Professor Wittert gave evidence that his clinical opinion was that Patient A's osteoporosis may have been caused by the combination of both hydrocortisone and thyroid hormone supplementation[109] and that fludrocortisone may also have contributed.[110]
[109] ts 118, 11 March 2022.
[110] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
On the basis of the expert evidence we find that Patient A's osteoporosis was likely to have been caused by the prescription of hydrocortisone in combination with thyroid hormone.
Conclusion regarding hydrocortisone and fludrocortisone
We find that the prescription of hydrocortisone and fludrocortisone to Patient A by Dr Van Rensburg had no clinical justification and exposed her to the risk of multiple adverse side‑effects. We find that Patient A suffered osteoporosis, gastro‑intestinal upset, musculoskeletal pain and sleep disturbance while taking these medications.
Progesterone/oestrogen/testosterone/estradiol
The Board alleges that Dr Van Rensburg prescribed progesterone and oestrogen for Patient A from at least 14 December 2007.[111]
[111] Grounds, para 18.
In its particulars the Board alleges that Dr Van Rensburg prescribed progesterone for Patient A on at least 15 occasions in the period 2007 to 2014[112] and that he prescribed Patient A oestrogen in the form of estradiol, on at least 10 occasions in that same period.[113]
[112] Grounds, para 18A.
[113] Grounds, para 18B.
In addition, in its particulars the Board alleges[114] that Dr Van Rensburg prescribed testosterone for Patient A on at least four occasions in the period 2010 to 2014.
[114] Grounds, para 18C.
We will deal with each of these medications in turn.
Progesterone
Prescribing of progesterone
Patient A gave evidence, which we accept, that she commenced hormone treatment including progesterone through Dr Van Rensburg in 2001.[115]
[115] Exhibit 1, VR 161 of 2018.
Dr Van Rensburg's clinical notes record that he prescribed progesterone to Patient A on five occasions from 2008 to 2012.[116]
[116] Exhibit 14 and 32, VR 161 of 2018.
The McKenzie's Pharmacy Report[117] records that they dispensed to Patient A progesterone which had been prescribed by Dr Van Rensburg on five occasions between May 2008 and 2015.
[117] Exhibit 30, VR 161 of 2018.
According to the Emslie's Pharmacy Records[118] progesterone prescribed by Dr Van Rensburg was dispensed for Patient A on 12 occasions, with the first occasion being in 2009.
[118] Exhibit 31, VR 161 of 2018.
Dr Glendenning gave evidence that when Patient A saw him in 2015, she was being prescribed progesterone.[119]
[119] Exhibit 10, VR 161 of 2018.
According to Dr Glendenning's letter to Dr Van Rensburg dated 19 January 2015[120] he asked Patient A to cease taking progesterone on 19 January 2015.
[120] Exhibit 12, VR 161 of 2018.
On the basis of the evidence of Patient A, Dr Van Rensburg's clinical notes, McKenzie's Pharmacy Report, and Emslie's Pharmacy Records we find that Dr Van Rensburg prescribed progesterone for Patient A on at least 17 occasions in the period 2008 until she saw Dr Glendenning in 2015.
On the basis of Patient A's evidence we are satisfied and find that she was prescribed progesterone on more than those 17 occasions by Dr Van Rensburg and he commenced prescribing it to her in 2001, although we cannot make findings about precisely when and on how many occasions he did so for the same reasons we have set out regarding the deficiencies of the evidence in relation to hydrocortisone and fludrocortisone.
Was progesterone indicated?
The Board asserts that in treating Patient A, Dr Van Rensburg failed to take into account the following matters:[121]
1.that Patient A had had a hysterectomy in 1986;
2.that progesterone with oestrogen is not appropriate for women who have had a hysterectomy; and
3.that hormone replacement therapy comprising oestrogen and progesterone (HRT)[122] should not be continued for longer than five years.
[121] Grounds, para 19.
[122] HRT definition taken from Exhibit D in VR 161 of 2018 and VR 109 of 2019.
Patient A's evidence was that she had had a hysterectomy in 1986 when she was 27 following the birth of her son and that Dr Van Rensburg knew of this at the time he commenced prescribing hormones to her.[123]
[123] Exhibit 1, VR 161 of 2018.
In his Response Dr Van Rensburg states that he knew that Patient A had had a hysterectomy in 1986.[124]
[124] Response, para 21.1.
In his Response Dr Van Rensburg denies that progesterone with oestrogen is not appropriate for women who have had a hysterectomy.[125]
[125] Response, para 21.2.
Dr Glendenning gave evidence that progesterone supplementation is indicated for the prevention of endometrial hyperplasia,[126] which Patient A could not have developed because she had had a hysterectomy, which meant she no longer had an endometrium.
[126] Exhibit 10, VR 161 of 2018.
Professor Wittert concurred with Dr Glendenning's opinion that in the absence of the uterus there is no indication to prescribe progesterone.[127]
[127] Exhibit D and 10, VR 161 of 2018.
Even without reliance on Dr Van Rensburg's admission that he was aware that Patient A had had a hysterectomy[128] we find that he was because we accept Patient A's evidence on that issue. We find that given this fact and the expert evidence, Dr Van Rensburg's prescription of progesterone to Patient A was not clinically indicated.
Risk and adverse effects
[128] Response, para 21.1.
Dr Glendenning and Professor Wittert gave evidence that the progesterone supplementation gave rise to an increased risk of breast cancer.[129] Dr Glendenning referred in his evidence to the Women's Health Initiative trial results published in 2002 which showed an increased risk of breast cancer in women taking combined oestrogen and progesterone HRT which was not present in women who had had a hysterectomy and were on oestrogen alone.[130] Dr Glendenning said that, as a result, he advised Patient A to undergo screening for breast cancer and to cease the progesterone immediately.[131]
Conclusion regarding progesterone
[129] Dr Glendenning at Exhibit 10, VR 161 of 2018; and Professor Wittert at Exhibit D in VR 161 of 2018 and VR 109 of 2019.
[130] Exhibit 10, VR 161 of 2018.
[131] Exhibit 10, VR 161 of 2018.
On the basis of the expert evidence we find that in the absence of a uterus there was no clinical indication for the prescription of progesterone, and this unnecessarily exposed Patient A to an increased risk of breast cancer.
Oestrogen/Estradiol
Prescribing of oestrogen/estradiol
The Board alleges that Dr Van Rensburg prescribed Patient A oestrogen from at least 14 December 2007[132] and particularised the allegation by stating that Dr Van Rensburg prescribed Patient A estradiol (a form of oestrogen) on at least 10 occasions in the period 2007 to 2014.[133]
[132] Grounds, para 18.
[133] Grounds, para 18B.
Patient A gave evidence that she commenced hormone treatment which included oestrogen through Dr Van Rensburg in 2001.[134]
[134] Exhibit 1, VR 161 of 2018.
According to the Prescriber Detail Report,[135] Patient A was dispensed oestradiol (which is an alternate spelling for estradiol) by Chemist Warehouse which had been prescribed by Dr Van Rensburg on 20 occasions between 2012 and 2014.
[135] Exhibit 28, VR 161 of 2018.
According to Emslie's Pharmacy Records[136] estradiol prescribed by Dr Van Rensburg was dispensed to Patient A on two occasions between 1 January 2001 and 30 December 2015, the first being in 2009.
[136] Exhibit 31, VR 161 of 2018.
According to the McKenzie's Pharmacy Report[137] it dispensed estradiol prescribed by Dr Van Rensburg to Patient A on seven occasions between May 2008 and March 2015.
[137] Exhibit 30, VR 161 of 2018.
On the basis of the evidence of Patient A, the Prescriber Detail Report, the Emslie's Pharmacy Records, and McKenzie's Pharmacy Report we find that Dr Van Rensburg prescribed oestrogen on at least 29 occasions between 2008 and 2015. For the same reasons as those set out in para [109] in relation to hydrocortisone and fludrocortisone, we cannot find precisely for how long or on how many additional occasions Dr Van Rensburg prescribed oestrogen for Patient A.
Indications
Professor Wittert gave evidence that in a woman who has had normal reproductive function, hormone replacement therapy is indicated in the event of premature menopause (eg after total abdominal hysterectomy with removal of the ovaries or an auto‑immune condition) or after onset of natural menopause.[138]
[138] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
Professor Wittert gave evidence that there was evidence that Patient A had entered menopause and under those circumstances it was reasonable to prescribe hormone replacement treatment to prevent osteoporosis. He gave evidence that topical oestrogen as prescribed was very unlikely to cause any adverse effects for Patient A. In his opinion 'it is reasonable to continue hormone replacement therapy [for longer than five years] for the control of [menopausal] symptoms and where risk‑benefit has been assessed and discussed with the patient'.[139]
Conclusion regarding oestrogen/estradiol
[139] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
On the basis of Professor Wittert's evidence we are not satisfied that the Board has made out its allegation that the prescription of the oestrogen component of HRT for greater than five years was not indicated for Patient A.
Testosterone
Prescribing of testosterone
In its particulars the Board alleges[140] that Dr Van Rensburg prescribed testosterone on at least four occasions in the period 2010 to 2014.[141]
[140] Grounds, para 18C.
[141] Response, para 20.
Patient A gave evidence that she commenced hormone treatment including testosterone through Dr Van Rensburg in 2001.[142]
[142] Exhibit 1, VR 161 of 2018.
Dr Van Rensburg's clinical notes[143] record that he prescribed testosterone on three occasions between July 2010 and September 2012.
[143] Exhibit 14 and 32, VR 161 of 2018.
According to the Emslie's Pharmacy Record[144] testosterone prescribed by Dr Van Rensburg was dispensed to Patient A on four occasions, with the first being in 2010 and the last in 2012.
[144] Exhibit 31, VR 161 of 2018.
On the basis of the Emslie's Pharmacy Record, and Dr Van Rensburg's clinical notes we find that Dr Van Rensburg prescribed testosterone for Patient A on at least four occasions between 2010 and 2014.
For the same reasons as set out in para [109], we find that Dr Van Rensburg prescribed testosterone to Patient A on more than those four occasions but we cannot make specific findings about precisely for how long or on how many additional occasions Dr Van Rensburg prescribed testosterone for Patient A.
Indications
Professor Wittert gave evidence that there were no clinical indications for Dr Van Rensburg to prescribe testosterone to Patient A.[145] We accept his evidence and so find.
Risk and adverse effects
[145] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
Dr Glendenning gave evidence that testosterone supplementation in women poses a risk of virilisation (facial hair, acne, scalp hair loss with frontal balding, voice changes) that can be irreversible, and of polycythaemia.[146] Professor Wittert also gave evidence in respect of the risk of virilisation.[147]
[146] Exhibit 10, VR 161 of 2018.
[147] Exhibit C, VR 161 of 2018.
Professor Wittert also gave evidence that other adverse effects of testosterone are changes to mood and sleep.[148]
[148] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
We find that the prescription of testosterone to women exposes them to the risk of the side‑effects identified in paras [172] and [173].
We find that Dr Van Rensburg prescribed testosterone to Patient A in the absence of any clinical indication, potentially exposing her to the adverse effects of that medication.
In his letter to Dr Van Rensburg dated 1 February 2010[149] Dr Mark Reed, rheumatologist, reports that Patient A has 'long‑standing poor sleep'.
[149] Exhibit 27, VR 161 of 2018.
Patient A gave evidence that under the care of Dr Glendenning, after gradually ceasing all the medications prescribed by Dr Van Rensburg, she was no longer 'aggressive, impulsive and angry'.[150] We find that Patient A did suffer those symptoms prior to 2015, and that testosterone was prescribed between at least 2010 and 2014.
Conclusion regarding testosterone
[150] Exhibit 1, VR 161 of 2018.
In the absence of more evidence about the amount of testosterone required to cause these adverse effects, and the overall amount of prescribing of the substance, we cannot find that the prescribing of testosterone caused the sleep and mood symptoms.
Thyroid hormones
Prescribing
The Board alleges that Dr Van Rensburg prescribed thyroid medications (specifically 'T3, T4, Armour thyroid 110 mg, thyroxine, liothyronine, thyroid natural 90 mg, 110 mg, 40 mg, 80 mg, and thyroid extract') to Patient A during the period 14 December 2007 to 30 March 2015[151] without any clinical indication.
[151] Grounds, para 22A.
Patient A gave evidence that Dr Van Rensburg initially prescribed thyroid medication for her in around 2001.[152]
[152] Exhibit 1, VR 161 of 2018.
Dr Glendenning's evidence was that when he first saw Patient A in January 2015, she was taking thyroid hormones in the form of Armour thyroid, which includes both T4 and T3, on prescription from Dr Van Rensburg.[153]
[153] Exhibit 10 and 12, VR 161 of 2018.
The McKenzie's Pharmacy Report[154] records that it dispensed to Patient A thyroxine on two occasions, liothyronine on four occasions, and thyroid natural (90 mg, 110 mg) on 12 occasions between October 2007 and December 2008, and that the medications had been prescribed by Dr Van Rensburg.
[154] Exhibit 30, VR 161 of 2018.
The Emslie's Pharmacy Records record that between 1 January 2001 and 30 December 2015[155] they dispensed to Patient A thyroid natural (40 mg, 80 mg, 110 mg) prescribed by Dr Van Rensburg on 21 occasions to Patient A.
[155] Exhibit 31, VR 161 of 2018.
On the basis of Patient A's evidence, Dr Glendenning's evidence, McKenzie's Pharmacy Report, and the Emslie's Pharmacy Record, we find that Dr Van Rensburg prescribed thyroid medications to Patient A on at least 39 occasions between 2001 and 2015. For the reasons set out at para [109] we cannot be certain whether there were more occasions on which Dr Van Rensburg prescribed thyroid hormone to Patient A.
Indications
The Board alleges that there was no indication for the prescription of thyroid hormones.[156] Professor Wittert gave evidence that there is no evidence that in Patient A's case a diagnosis of thyroid disease of any pathological significance was ever established.
[156] Grounds, para 23.
Professor Wittert gave evidence that the symptoms of an underactive thyroid are very non‑specific. The condition can be suspected but not diagnosed based on clinical findings. His evidence was that confirmatory biochemistry is required. He also gave evidence that it is inappropriate to prescribe any form of thyroid hormone when tests of thyroid function are normal.
Professor Wittert gave evidence that Patient A's thyroid function was normal when she was first prescribed thyroid medication by Dr Van Rensburg. Professor Wittert gave evidence that during the period of treatment by Dr Van Rensburg, Patient A had several abnormal thyroid test results. The tests had been ordered by Dr Van Rensburg. Professor Wittert said it was his opinion that the abnormal test results indicated overtreatment with thyroid hormones (our emphasis). Professor Wittert's opinion was that the maintenance of normal thyroid function by Patient A after withdrawal of the thyroid medication by Dr Glendenning is consistent with the notion that there was no requirement for her to have treatment with thyroid hormone while under Dr Van Rensburg's care.[157]
[157] Exhibit C in VR 161 of 2018 and VR 109 of 2019; ts 119, 11 March 2022.
Professor Wittert's opinion was that there was no clinical indication for Dr Van Rensburg to prescribe thyroid hormones to Patient A.[158]
[158] Exhibit C in VR 161 of 2018 and VR 109 of 2019.
Dr Glendenning gave evidence that when he began to review Patient A, he ordered thyroid testing which revealed that she did not have any clinical, antibody or biochemical evidence of thyroid disease.[159] His evidence was that as a result, he weaned her off thyroid supplementation without ill effect.[160]
[159] Exhibit 10, VR 161 of 2018.
[160] Exhibit 13, VR 161 of 2018.
Professor Wittert gave evidence that it was his opinion that the clinical notes were 'well below the standard one would expect for someone who claims the expertise of Dr Van Rensburg'.[384]
Conclusion Issue 11: Did Dr Van Rensburg's failure to keep adequate clinical records fall below the Requisite Standard, and if so, to what degree?
[384] Exhibit D in VR 161 of 2018 and VR 109 of 2019.
Having regard to the multiplicity of ways in which Dr Van Rensburg's notes were deficient we find that they fell below the Requisite Standard for the keeping of clinical records. However, we do not find that Dr Van Rensburg's failure to maintain adequate clinical notes in respect of Patient B constitutes professional misconduct. The number of appointments at which inadequate notes were made was small and the consultations took place over a short period of time. Rather, we find that the failure to maintain adequate clinical notes in respect of Patient B amounts to unprofessional conduct.
Issue 12: Has Dr Van Rensburg breached professional boundaries with Patient B?
The Board alleges that Dr Van Rensburg engaged in professional misconduct by breaching professional boundaries in respect of Patient B. It says that he did so by having inappropriate contact with Patient B following notification of her complaint to AHPRA. The inappropriate conduct is said to be:
1.A phone call to her on 21 May 2018;
2.A phone call to her on 31 May 2018; and
3.An unsolicited attendance at her home in the evening of 1 June 2018.
The Board alleges that after a complaint was made to AHPRA about Dr Van Rensburg's poor medical management of Patient B, Dr Van Rensburg was contacted by an officer of AHPRA, informed in a general way about the complaint and asked to provide a response to that officer. The Board alleges that in a subsequent call to Dr Van Rensburg he was asked not to communicate with Patient B about the complaint. The Board alleges that notwithstanding those instructions, Dr Van Rensburg engaged in the conduct referred to at para [543] and in doing so breached professional boundaries.
In his Amended Response Dr Van Rensburg admitted that by contacting Patient B after he had become aware of the notification about his conduct having been made, he engaged in professional misconduct. Despite that, we are required to be satisfied ourselves that that concession is appropriate in light of the facts as we find them.
The communications between AHPRA and Dr Van Rensburg regarding the notification
Before turning to the communications between Dr Van Rensburg and Patient B which are said to have occurred on 21 and 31 May 2018 and 1 June 2018, it is necessary to make some findings about the communication between AHPRA and Dr Van Rensburg which concerned the notification.
In evidence is a note of a telephone communication between a Mr Shaw and Dr Van Rensburg.[385] The note records that at 11.48 am on 21 May 2018 Mr Shaw telephoned Dr Van Rensburg and left a message on his answering machine. The note records 'my aim is to advise of board decision to seek a response'. It is not clear from that note that Mr Shaw informed Dr Van Rensburg that a complaint had been made, identified the patient involved or requested a response by any particular time.
[385] Exhibit 14, VR 109 of 2019.
A note of a conversation between Mr Shaw and Dr Van Rensburg is in evidence.[386] That note records that Dr Van Rensburg called Mr Shaw at 1.02 pm on 21 May 2018. It records that Dr Van Rensburg was calling in response to his earlier call and requested that he be given an extension of time until 14 June 2018 to provide his response to the notification. The note records that the reason the extension was required was because Dr Van Rensburg was 'travelling for conferences'.
[386] Exhibit 12, VR 109 of 2019.
Also in evidence is a copy of a letter dated 23 May 2018 from AHPRA to Dr Van Rensburg.[387] The copy of the letter states that it encloses a copy of the notification relating to Patient B. We accept that it did so. In that correspondence AHPRA requested Dr Van Rensburg provide a response to the notification. It also stated:[388]
Although you may be tempted to discuss this matter with the notifier and/or patient, we would ask you to please refrain from doing so at this point.
[387] Exhibit 15, VR 109 of 2019.
[388] Exhibit 15, VR 109 of 2019.
The letter then states that communication about the notification and his response should be sent to Mr Shaw.
The Board has not proved by independent evidence that Dr Van Rensburg received the letter. However, given that Dr Van Rensburg admitted that he had received it in his Amended Response, we are prepared to find that he did even in the absence of that evidence because, as we have set out at para [51], we regard it as reasonable for the Board to have proceeded on the basis that certain matters did not need to be proved in light of admissions made by Dr Van Rensburg. In the circumstances, we find that Dr Van Rensburg received the letter dated 23 May 2018.
Telephone call on 21 May 2018
Patient B gave evidence that she received a telephone call from Dr Van Rensburg on 21 May 2018. Her evidence was that in that phone call he asked her to return to his weight loss program and told her that she was one of his favourite patients and that he would treat her for free if she returned. Patient B's evidence was that she told him she did not wish to return and that she had resumed taking her diabetes medication.
Exhibit 6 was a screenshot which Patient B said she had taken on her phone showing the call from Dr Van Rensburg to her occurred on 21 May 2018 as she had said. That screenshot shows that the call took place at 11.43 and was of nine minutes duration.
On the basis of Patient B's evidence and the contents of exhibit 6 we find that Dr Van Rensburg did call Patient B on 21 May 2018 at 11.43 am and endeavoured to have her return to his weight loss program and offered to treat her for free if she did so. We also find she did not wish to return and that she told him she had resumed taking her diabetes medication.
We find that Mr Shaw was an employee of AHPRA who worked in Adelaide. We find this to be the case because the letter dated 23 May 2018 from AHPRA to Dr Van Rensburg requests that Dr Van Rensburg direct all future correspondence to Mr Shaw via an AHPRA email address provided in that letter and because, an email dated 14 June 2018,[389] identifies that Mr Shaw works in Adelaide.
[389] Exhibit 12, VR 109 of 2019.
It is uncontroversial that in May 2018 11.43 am in Western Australia was 1.13 pm in Adelaide and we so find. Given that we accept that the phone call in which Dr Van Rensburg asked for an extension of time to provide a response to the notification took place at 1.02 pm Adelaide time, we find that Dr Van Rensburg's call to Patient B at 11.43 am Perth time was made very soon after both the message from Mr Shaw had been left on Dr Van Rensburg's answering machine and they had had a conversation about the need to provide a response to the notification at 11.32 am Perth time.
We are satisfied in the circumstances that we can reasonably infer from those findings that the telephone call to Patient B was made by Dr Van Rensburg in response to learning of the notification regarding his treatment of Patient B. We find that his call to Patient B was made in response to Dr Van Rensburg being made aware of the notification.
Telephone call on 31 May 2018
Patient B's evidence was that on 31 May 2018 she received a call from Dr Van Rensburg. She said that during the call he asked if she had reconsidered his offer and suggested that they 'go across the road to have a coffee'. Patient B's evidence was that she declined Dr Van Rensburg's offer to meet. She also gave evidence that during the call he told her that he had prepared a response to AHPRA about her complaint and that he would get his secretary to drop it off to her. Patient B said that she took a screenshot on her phone about the call. Exhibit 7 in VR 109 of 2019 is a screenshot taken from Patient B's phone which shows a call was made to her mobile phone from a phone number which, we find, corresponds with the phone number of Dr Van Rensburg's clinic in Hobart Street which is noted on the front page of the medical questionnaire which Patient B completed and which is exhibit 9 in VR 109 of 2019. That screen shot identified the call having been made at 8.00 pm on 31 May 2018.
On the basis of Patient B's evidence and exhibits 7 and 9 we find that Dr Van Rensburg contacted Patient B about her notification by telephone on 31 May 2018, at which time he effectively reiterated his offer to treat her for free if she returned to his weight loss management program and told her that his response to the notification would be dropped off to her by his secretary.
Visit on 1 June 2018
Patient B gave evidence that in the evening on Friday 1 June 2018 she answered a knock on her door and was shocked when she answered the door to see that it was Dr Van Rensburg. She gave evidence that she felt 'very uncomfortable' upon seeing him at her door.[390] She gave evidence that he handed her a yellow envelope which, upon opening it, she found contained a letter to her and a draft response to her notification.
[390] Exhibit 1, VR 109 of 2019.
On the basis of Patient B's evidence we find that Dr Van Rensburg came to Patient B's house on the evening of 1 June and provided her with an envelope containing a letter and a copy of his draft response to AHPRA regarding her notification.
In the draft response, Dr Van Rensburg responded to the concerns that Patient B had raised with AHPRA. Relevantly, it also states:
1. I just want to sincerely apologise again for the delay in contacting her and the uncertainty she experienced.
2. I would like to make up for the inconvenience she endured. It should not have happened, and I am very upset by it. If [Patient B] can contact me I will discuss various options with her and hopefully we can come to some arrangement.
3. I will give her my personal mobile number in case she needs me at any time to prevent any possible repetition of the above if she takes up my offer.
[4] If [Patient B's] GP wants to meet/talk with me I can explain in detail – doctor to doctor – what the treatment involves and [Patient B]'s case in particular.[391]
Does this conduct amount to a breach of professional boundaries?
[391] Exhibit 8, VR 109 of 2019.
The only evidence before us that refers to Dr Van Rensburg being counselled by AHPRA not to contact Patient B about the notification is contained in the letter of 23 May 2018. In that letter, by its terms, he is requested not to contact the notifier (our underlining). While it may have been prudent for Dr Van Rensburg to have acceded to that request, it was not couched in language that, in our view, would have conveyed to the reader that contacting the notifier was somehow prohibited or would be viewed as an act of professional misconduct.
There is no evidence before us that Dr Van Rensburg asked Patient B to withdraw her complaint or give false evidence at any hearing that may result from the complaint. While referring to her as his favourite patient and offering to treat her for free if she returned to his practice might be regarded as an implicit attempt to win her over so that she would withdraw the complaint, we cannot find that to be the only inference open on the evidence. In our view another inference is available which is that, believing that his medical care was appropriate, and believing in his approach to weight loss management (as he does), he was offering to treat her for free because he believed in his care and was sorry that she had ended up in hospital and was trying to resolve her grievance.
The Board says that in contacting Patient B as he did, Dr Van Rensburg breached professional boundaries.
The Board submitted that his conduct amounted to a breach of s 3.2.6 of the 2014 Code, which applied at the time.
Section 3.2.6 of the 2014 Code provides that a good doctor‑patient partnership requires high standards of professional conduct which involves:
Recognising that there is a power imbalance in the doctor‑patient relationship, and no exploiting patients physically, emotionally, sexually or financially.
The Board has not made any submissions about why we should regard contacting Patient B as we have found Dr Van Rensburg did, amounts to exploitation of Patient B.
The Board did not identify by reference to evidence of any medical practitioners, that it was generally understood in the profession in May and June 2018 that it would be wrong and exploitative and a breach of professional boundaries for a medical practitioner to contact a patient after coming to know that a notification had been made to AHPRA about their conduct in relation to that patient.
Section 8.2 of the 2014 Code refers to professional boundaries. It provides as follows:
Good medical practice involves: Maintaining professional boundaries; never using your professional position to establish or pursue a sexual, exploitation or other inappropriate relationship with anybody under your care…; and avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress.
In our view, it might arguably be the case that in attending her home without notice and providing Patient B with a copy of his response to the complaint to AHPRA, Dr Van Rensburg was expressing personal views that caused Patient B distress. Patient B's evidence was that she was made to feel 'very uncomfortable' which, in our view, is different in character from distress which means 'extreme anxiety, sorrow or pain'.[392] Even if we were to find that his visit caused Patient B distress, setting out a response to a complaint and apologising for a delay in responding and for uncertainty and inconvenience experienced by Patient B is, in our view, different in character from the 'expressing of personal views' to which s 8.2 is directed. In our view, in that respect s 8.2 would capture, for example, a situation in which a doctor informed a patient that the doctor believed the patient's lifestyle was immoral, thereby causing the patient distress.
[392] Macquarie Online Dictionary.
We note that s 8.10 of the 2014 Code provides:
… Good medical practice involves:
8.10.1 Cooperating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to your work.
While the Board has not alleged that Dr Van Rensburg has failed to cooperate with its inquiry, in our view, communicating with Patient B despite having been requested by AHPRA to refrain from doing so would not of itself constitute a failure to cooperate with AHPRA's inquiry.
We also note that s 3.11 of the 2014 Code provides:
Patients or clients have a right to complain about their care. When a complaint is made or a formal notification is received by a Board, good medical practice involves:
Acknowledging the person’s right to complain.
Providing information about the complaints system.
Working with the person to resolve the issue locally where possible.
3.11.4Providing a prompt, open and constructive response, including an explanation and, if appropriate, an apology.
3.11.5Ensuring the complaint does not adversely affect the person’s care. In some cases, it may be advisable to refer the person to another doctor; and
3.11.6Complying with relevant complaints law, policies and procedures.
We regard attending at Patient B's home in the evening to have been ill advised. However, in light of the requirements of s 3.11 of the 2014 Code and having regard to the fact that Dr Van Rensburg's draft response contained an apology of sorts and an attempt to explain his medical care, the mere fact that Dr Van Rensburg made contact with Patient B about the complaint cannot be regarded as a breach of professional boundaries.
Conclusion Issue 12: Has Dr Van Rensburg breached professional boundaries with Patient B?
It follows that we find that the Board has not made out this allegation.
Proposed orders
In light of the findings set out in these reasons we propose to make orders in the following terms regarding Dr Van Rensburg's conduct:
In VR 161 of 2018
1.The Tribunal finds that Dr Van Rensburg behaved in a way that constitutes professional misconduct within the meaning of s 196 (1)(b)(iii) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law(WA) Act 2010 (National Law) in that, in respect of Patient A, he:
(a)failed to provide adequate patient management in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(b)failed to keep adequate clinical records in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(c)breached professional boundaries in a way which fell substantially below the standard reasonably expected for a registered health practitioner of an equivalent level of training and experience; and
(d)wrote a letter to Dr Glendenning dated 8 May 2015 which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.
In VR 109 of 2019
1.The Tribunal finds that Dr Van Rensburg:
(a)behaved in a way that constitutes professional misconduct within the meaning of s 196(1)(b)(iii) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law(WA) Act 2010 (National Law) in that, in respect of Patient B, he failed to provide adequate patient management in a way which fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and
(b)behaved in a way that constitutes unprofessional conduct within the meaning of s 196(1)(b)(ii) of the National Law in respect of PatientB by failing to keep adequate clinical records in a way which is of a lesser standard than that which might reasonably be expected of a registered health practitioner of an equivalent level of training and experience.
The parties should confer about the precise terms of the orders. The parties should also confer about orders programming the matter for the hearing in relation to penalty. If they wish to seek assistance of the Tribunal to mediate in relation to that issue the Tribunal will make a mediator available to assist.
Orders
The Tribunal makes the following orders:
1.The parties are to confer about the precise terms of the orders to be made consequent upon the findings in relation to conduct and provide the Tribunal with an agreed minute of proposed consent orders or, failing that, their separate minutes of proposed orders by Monday 31 July 2023.
2.The parties are to confer about orders programming the proceedings to hearing of penalty and provide the Tribunal with an agreed minute of proposed consent orders or, failing that, their separate minutes of proposed orders by Monday 31 July 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Deputy President Judge Glancy
30 JUNE 2023
ts 118 – 119, 11 March 2022.
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