| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and WHITESIDE [2013] WASAT 18 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) DR H HANKEY (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)
HEARD : 1, 2 AND 3 MAY 2012 AND 18 AND 19 JUNE 2012 WRITTEN SUBMISSIONS 16 AUGUST 2012 AND 8 OCTOBER 2012
DELIVERED : 6 FEBRUARY 2013 FILE NO/S : VR 108 of 2011 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
JOHN STANLEY WHITESIDE
Respondent
Catchwords: Vocational regulation Medical practitioner Allegation of competency matter Disciplinary matter General practitioner General medical practitioner Specialist Practising competently
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Legislation: Health Insurance Act 1973 (Cth)
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 17
Health Practitioner Regulation National Law (WA), s 31
Medical Practitioners Act 2008 (WA), s 30, s 37(1), s 38, s 77, s 77(a), s 77(b), s 80, s 104, s 104(1), s 104(2), s 105(1), s 118, s 118(g) Result: Application dismissed
Summary of Tribunal's decision: The Medical Board of Australia alleged that Dr John Stanley Whiteside is unable, as a result of a lack of medical knowledge and skill to practise safely and competently as a general medical practitioner. The allegation followed a Professional Services Review of Dr Whiteside's practice under the Health Insurance Act 1973 (Cth) which resulted in a number of complaints to the Board. There was also a separate complaint from a patient that Dr Whiteside had inappropriately prescribed thyroid hormone supplementation.
The Tribunal considered the evidence against the Practitioner. The Tribunal found that Dr Whiteside was, on his own admission, guilty of some of the conduct alleged, including failing to take and record an adequate medical history and failing to make adequate clinical notes. However, the Tribunal did not consider that this amounted to a 'competency matter' under the Medical Practitioners Act 2008 (WA).
The Tribunal dismissed the application.
Category: B
Representation: Counsel:
Applicant : Ms F Stanton
Respondent : Ms F Vernon
Solicitors: (Page 3)
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Ong v The Dental Board of Western Australia (unreported, WASC, Library No 960442, 25 August 1995
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 The respondent (Practitioner) has been a medical practitioner for over 35 years. He practised for 12 years as a general practitioner until 1988, when he began specialising in myofascial medicine. In December 1996, the Practitioner was awarded a fellowship with the Australasian College of Nutritional and Environmental Medicine. He currently specialises in the area of myofascial medicine and nutritional and environmental medicine. He practises from his clinic 'Myo Med' which has premises in Inglewood, Western Australia. 2 A review of the Practitioner's practice was undertaken in April and May 2009 by the Professional Services Review Committee under the Health Insurance Act 1973 (Cth).Following that review, Dr Warwick Ruse made a complaint about the Practitioner to the applicant (Board) in a letter from dated 17 July 2009. A further complaint was made to the Board by a person to whom we will refer in these reasons as Patient 22. Patient 22's complaint is dated 5 January 2010 and was received by the Board on 8 January 2010. 3 On 2 August 2010, prior to the Board's application to the Tribunal, the Practitioner gave a written and signed undertaking to the Board in the following terms: 4 I, JOHN STANLEY WHITESIDE, Medical Practitioner, do hereby voluntarily undertake that: 1. I will restrict my practice of medicine to the treatment of myofascial medicine and nutritional and environmental medicine consistent with the teachings of the Australian (sic) College of Nutritional and Environmental Medicine (ACNEM) only; 2. I will not change or amend in any way any treatment prescribed, recommended or provided to any patient by any other medical practitioner save for the prescription of bio-identical hormone replacement therapy in place of synthetic hormone replacement therapy; 3. I will advise each patient that, in addition to seeking treatment from me for their medical (Page 5)
complaint or complaints, the patient is advised to consult their general practitioner about the complaint or complaints; 4. I will provide written notice to all patients at each patient consultation that: 4.1 I am restricted by a voluntary undertaking provided to the Medical Board of Western Australia to practice (sic) only in the area of treatment of myofascial pain and nutritional and environmental medicine; 4.2 I am not able to provide treatment or advice in respect of any area of medicine other than the treatment of myofascial pain and nutritional and environmental medicine; and 4.3 I am required by my undertaking to advise the patient to consult a general practitioner in relation to the patient's medical complaint or complaints and to advise the patient to inform me of the identity of their general practitioner in order that I may keep their treating general practitioner informed of all myofascial, nutritional and environmental treatments provided to the patient; 5. In relation to all treatment provided to all patients, I will, as soon as practicable after consulting with each patient, provide a detailed report to the patient's general practitioner regarding the consultation and the treatment provided to the patient; and 6. If it becomes apparent to me that I will be unable to comply with paragraph 5 of this undertaking because the patient does not have a treating general practitioner or has failed to provide advice of the identity of the patient's treating general practitioner, I will immediately cease treating the patient until the patient has advised me of the (Page 6)
identity of the patient's treating general practitioner.
The application to the Tribunal 5 The Board then brought an application dated 15 June 2011 to the Tribunal under s 104(2) of Medical Practitioners Act 2008 (WA) (MP Act). The Board seeks an order pursuant to s 118(g) of the MP Act that the Practitioner's registration be cancelled and the Practitioner's name be removed from the register. In its application, the Board contends that the Practitioner is unable, as a result of a lack of medical knowledge and/or skill, to: and that the Practitioner therefore does not have sufficient knowledge and skill to practise safely and competently as a general medical practitioner. 6 The Board sets out in its application its grounds for its concern about deficiencies in the Practitioner's medical knowledge and skill. The grounds include a schedule (Schedule) containing the names of 22 patients and details of the Practitioner's alleged deficiencies beside each of the names of those patients. The Schedule is reproduced below, although we have identified each of the patients by number only (including Patient 22). Those particulars are set out in the application as follows: (Page 7)
3) Advising patients to cease anti-hypertensive medication initiated by other general practitioners (Schedule Patients 16 and 20). 4) Prescribing thyroid hormone supplementation so as to cause oversupplementation of thyroid hormones (Schedule Patients 1, 3, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 19, 20 and 22). 5) Failing to investigate the underlying causes of abnormal thyroid function when it was demonstrated (Schedule Patients 2 and 6). 6) Lacking knowledge of the potential effects of replacing or supplementing a patient's thyroid function against a background of normal thyroid function. 7) Prescribing dehydroepiandrosterone (DHEA) without justification (Schedule Patients 1, 3 and 14) 8) Supporting a patient's decision to cease the drug Tamoxifen notwithstanding that she had a known history of oestrogenreceptor positive breast cancer, and prescribing to that patient an oestrogen supplement notwithstanding her known history of oestrogenreceptor positive breast cancer and failing to clear this with the patient's oncologist (Schedule Patient 14). 9) Failing to exclude malignancy or polycystic disease notwithstanding a complaint of breast tenderness and swelling (Schedule Patient 22). 10) Prescribing testosterone unnecessarily and in excessive quantities (Schedule Patients 4, 11, 14 and 18). 11) Failing to treat a complaint of erectile dysfunction and failing to advise a patient that his erectile dysfunction was likely caused by prolonged treatment with Fluoxetine (Schedule Patients 11 and 17). 12) Failing to appreciate the need to embark on an appropriate plan of management in light of (Page 8)
elevated fasting blood sugar, including in a case of poorly controlled type 2 diabetes (Schedule Patients 2 and 15) and failing to investigate an elevated blood sugar level (Schedule Patient 4). 13) Failing to investigate the cause of elevated ferritin (Schedule Patients 2 and 15). 14) Failing to investigate abnormal liver function (Schedule Patient 2). 15) Failing to institute appropriate vitamin D supplementation (Schedule Patient 2). 16) Failing to investigate elevated serum cortisol (Schedule Patient 2). 17) Inappropriately prescribing cortisol (Schedule Patient 12). 18) Prescribing vitamin B12 intramuscular injections without any justification (Schedule Patients 6, 8 11 and 14). 19) Prescribing thyroid hormones and hydrocortisone in an elderly, osteoporotic and hypertensive patient (Schedule Patient 16). 20) Supporting a parent's decision not to vaccinate her child without giving adequate advice or warnings about that decision (Schedule Patient 6). 21) Prescribing testosterone without any justification (Schedule Patient 18). 22) Failing to ensure that all of a patient's complaints are properly dealt with, either by providing appropriate medical treatment or by making appropriate referrals (Schedule Patients 17 and 22). 23) Failing to obtain and record an adequate medical history (Schedule Patients 15 and 22). 24) Failing to make an appropriate plan of management for treatment of patients' conditions (Schedule Patients 2, 9, 10, 11, 15, 17, 19 and 21). (Page 9)
25) Failing to make adequate clinical notes. 7 The Schedule attached to the Board's application is substantially in the following terms:
| Patient 1 | | | Patient 2 | • Failure to implement any management strategy in respect of elevated fasting blood sugar. • Failure to investigate cause of abnormal thyroid function. • Failure to investigate cause of elevated ferritin. • Failure to investigate abnormal liver function (particularly in light of raised ferritin and, patient being 15 kilograms overweight). • Failure to record blood pressure. • Failure to make an appropriate plan of management in relation to suboptimal blood lipids. • Failure to implement vitamin D3 supplementation despite severely depleted vitamin D. • Failure to investigate elevated serum cortisol. | | Patient 3 | | | Patient 4 | | | Patient 5 | • Failure to record patient's blood pressure and properly evaluate the risk of hyperlipidaemia. | (Page 10)
| Patient 6 | • Unwarranted thyroid hormone supplementation. • Failure to investigate cause of abnormal thyroid function. • Unwarranted prescription of vitamin B12 supplementation by intramuscular injections in a patient with normal levels of vitamin B12. • Supporting patient's decision to withhold vaccinations from her young child. | | Patient 7 | | | Patient 8 | | | Patient 9 | • Unwarranted thyroid hormone supplementation. • Use of thyroid supplementation as a treatment for hyperlipidaemia. • Failure to make an appropriate plan of management in relation to suboptimal blood lipids. • Failure to appreciate merits of treatment with statin drugs to control abnormal lipids. | | Patient 10 | | (Page 11)
| Patient 11 | • Failure to properly investigate a complaint of chest pain. • Unwarranted prescription of vitamin B12 supplementation. • Unwarranted testosterone supplementation. • Failure to institute a plan of management in relation to a complaint of declining erectile power. | | Patient 12 | • Unwarranted thyroid hormone supplementation leading to significant thyroid overreplacement. • Unwarranted supplementation with cortisol, leading to a blood cortisol level significantly above the upper limit of normal, increasing the patient's risk of osteoporosis, thereby aggravating the patient's presenting symptom of anxiety, depression, irritability and declining libido. | | Patient 13 | | | Patient 14 | • Unwarranted thyroid hormone supplementation. • Unwarranted prescription of DHEA. • Unwarranted prescription of vitamin B12 intramuscular injections. • Unwarranted prescription of testosterone. • Supporting patient's decision to cease Tamoxifen when she had a known history of oestrogen receptor positive breast cancer. • Prescribing oestrogen supplement in a patient with a known history of oestrogen receptor positive breast cancer without raising the matter with the patient's oncologist, despite raising with the oncologist the prescription of progesterone. | (Page 12)
| Patient 15 | • Inappropriate oversupplementation of thyroid hormones - expressing belief that this is an appropriate treatment for weight loss. • Failure to take a satisfactory patient history. • Failure to implement appropriate management plan for a Type 2 diabetic despite an episode of prolonged cellulitis. • Failure to record the patient's blood pressure. • Failure to consider risk factors for cardiovascular disease. • Failure to make an appropriate plan of management in relation to suboptimal blood lipids. • Failure to investigate cause of elevated ferritin. | | Patient 16 | • Over-prescription of thyroid supplementation in a patient with a history of osteoporosis and heartbeat irregularities. • Inappropriate prescription of hydrocortisone in elderly hypertensive osteoporotic patient. • Failure to properly treat hives. • Advising patient to discontinue antihypertensive medication initiated by her general practitioner in light of elevated blood pressure. | | Patient 17 | • Failure to appreciate that 7 years of treatment with the drug Fluoxetine may have been responsible for lack of libido and erectile dysfunction and failure to advise the patient in this regard or refer to a consultant psychiatrist for alternative drug therapy. • Failure to appropriately treat erectile dysfunction or provide advice as to treatment. • Failure to provide treatment or referral for continuing depression. • Failure to make an appropriate plan of management in relation to the patient's suboptimal blood lipids. | | Patient 18 | • Inappropriate prescription of testosterone. |
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| Patient 19 | • Inappropriate thyroid hormone supplementation. • Failure to consider cardiovascular risk factors, including taking the patient's blood pressure and recording her weight. • Failure to make an appropriate plan of management in relation to suboptimal blood lipids. | | Patient 20 | • Inappropriate thyroid hormone supplementation. • Failure to record patient's blood pressure despite the patient being known to suffer from hypertension and requiring three different hypertensive agents. • Inappropriately advising the patient to cease statins. • Inappropriately advising the patient to cease antihypertensive medications. • Failing to advise the patient's general practitioner of significant changes to medication. | | Patient 21 | • Failing to make an appropriate plan of management in relation to the patient's suboptimal blood lipids. | | Patient 22 | • Inappropriate thyroid hormone supplementation. • Failing to take a satisfactory patient history. • Failure to carry out any assessment of the patient's complaint of heartbeat irregularities, including measuring pulse rate. • Failure to investigate and exclude malignancy and/or polycystic disease in a patient with breast tenderness and swelling. |
Applicable law 8 The Health Practitioner Regulation National Law (Western Australia) (National Law) is set out in the schedule to (Page 14)
the Health Practitioner Regulation National Law (WA) Act 2010 (Act). The Board is established pursuant to s 31 of the National Law. 9 Section 17 of the Act relevantly provides that if a complaint or matter was 'being dealt with under a former Act' immediately before the participation day in relation to the National Law, 1 July 2010, the matter should be dealt with by the Board. The MP Act is a former Act for the purpose of s 17 of the Act and the complaint was being dealt with under the MP Act. 10 Further, the complaints against the Practitioner were received by the Board after the enactment of the MP Act and before the participation day for the National Law. Accordingly, under s 17(2)(b) of the Act, the complaint or matter is to continue to be dealt with by the Board under the MP Act.
The MP Act 11 Section 104(1) of the MP Act relevantly provides that if the Board decides to take action on a complaint relating to a 'competency matter' the Board is to, amongst other things, refer the complaint for investigation to a committee established under s 80 of the MP Act which is called the professional standards committee. However, under s 104(2) of the MP Act, if the Board decides that the subject matter of the complaint is sufficiently serious to warrant suspension or cancellation of a medical practitioner's registration, the Board may, instead of referring the complaint to the professional standards committee, make an allegation to the Tribunal. 12 Section 77 of the MP Act defines a competency matter as follows: The following are competency matters (a) that a person does not have sufficient knowledge and skill to practise medicine safely and competently either generally or in a particular area of medicine in which the person is practising or is likely to practise; (b) if the person is a specialist, the person does not have sufficient knowledge and skill to practise his or her specialty. 13 Section 118 of the MP Act sets out the powers of the Tribunal in relation to a finding of a competency matter and provides as follows: (Page 15)
If, in a proceeding commenced by an allegation under this Act, the State Administrative Tribunal is of the opinion that a competency matter exists in relation to a medical practitioner, the Tribunal may do one or more of the following (a) decline to make an order under this subsection; (b) order that the medical practitioner comply with such conditions as the Tribunal may impose on the registration of that person; (c) order that the medical practitioner complete an educational course specified by the Tribunal; (d) order that the medical practitioner report, at intervals specified by the Tribunal, on his or her medical practice to a medical practitioner nominated by the Board and specified in the order; (e) order that the medical practitioner obtain advice on the management of his or her medical practice from a person nominated by the Board and specified in the order; (f) order that the medical practitioner be suspended from the practice of medicine for a period, not exceeding 2 years, specified in the order; (g) order that the medical practitioner's registration be cancelled and name be removed from the register. 14 The Board is seeking an order pursuant to s 118(g) of the MP Act.
The specific allegation against the Practitioner and the issue for determination 15 We have already referred to the specific allegation against the Practitioner, which reads as follows: The [Board] contends that the [Practitioner] is unable, as a result of a lack of medical knowledge and/or skill, to: • provide a satisfactory level of medical care to patients presenting with common but serious or potentially serious conditions; and • give accurate medical advice to patients in relation to matters commonly arising in general practice and that the [Practitioner] therefore does not have sufficient knowledge and/or skill to practise safely and competently as a general medical practitioner. (Page 16)
16 Under s 77(a) of the MP Act, the Board may bring an application in respect of what counsel for the Practitioner refers to as the first limb of s 77(a), namely the Practitioner's lack of ability to practise medicine safely and competently generally. Alternatively, the Board could apply in respect of the second limb of s 77(a), namely the Practitioner's lack of ability to practise medicine safely and competently in a particular area of medicine in which the Practitioner is practising or is likely to practise. 17 Section 77(b) of the MP Act deals with competency matters in respect of specialists. A specialist is a person who is registered under s 38 of the MP Act as a specialist in a specialty. A speciality is a branch of medicine prescribed under s 37(1) of the MP Act to be a specialty. The Practitioner was at the relevant time registered generally as a medical practitioner under s 30 of the MP Act, but is not registered under s 38 as a specialist. 18 The Practitioner contends that the legislature recognised that a practitioner may limit the area of medicine in which he or she practises, even though the practitioner is not a specialist within the meaning of the MP Act. This contention is based on the words in s 77(a) of the MP Act 'or in a particular area of medicine which the person is practising or likely to practise' coupled with the separate provision dealing with the competency of specialists contained in s 77(b) of the MP Act. The Tribunal accepts this contention. 19 It is necessary then to consider under which limb of s 77(a) of the MP Act the allegation is being brought by the Board. Is the Board alleging that the Practitioner: (a) does not have sufficient knowledge and skill to practise safely and competently in the area of myofascial medicine and nutritional and environmental medicine; or (b) does not have sufficient knowledge and skill to practise safely and competently in the area of general practice, that is as a general practitioner; or (c) does not have sufficient knowledge and skill to practise safely and competently as a medical practitioner at all? (Page 17)
20 Clearly, the Board is not pursuing the first alternative. The Board in its submissions to the Tribunal says that the Practitioner's area of practice, namely myofascial medicine and nutritional and environmental medicine, is not discrete from general medical practice and that his competency cannot be assessed having regard only to that practice area. The Board then says that the issue is whether the Practitioner has sufficient knowledge and skill to practise safely and competently in general medical practice. 21 We do not understand the Board to be pursuing the second alternative either. The Board says that in its closing submissions (at para 18) that the Practitioner does not practise in an area of specialty recognised under the National Law. General practice is an area of specialty recognised under the MP Act and now under the National Law. 22 This leads the Tribunal to conclude that the Board's allegation is that the Practitioner does not have sufficient knowledge and skill to practise medicine safely and competently at all. That, the Tribunal considers, is the issue for determination.
Practising medicine safely and competently 23 The word 'competently' in s 77(a) of the MP Act is not defined. Section 30(2)(c) of the MP Act, dealing with general registration of medical practitioners, provides that the Board must be satisfied that the applicant is, 'competent to practise medicine (that is, the person has sufficient physical capacity, mental capacity and skill to practise medicine)'. 24 The concept of incompetency was discussed in Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992). Owen J concluded that incompetency is usually suggestive of a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual or sporadic shortcomings. In Ong v The Dental Board of Western Australia (unreported, WASC, Library No 960442, 25 August 1995), Murray J also considered the meaning of the expression 'incompetence' and said: Incompetence, in my opinion, involves the view that such falling short of the proper standards of care and skill thought to be required on the occasion in question reveals a lack of knowledge or skill justifying an adverse judgment about the practitioner's professional capacity or fitness to practise in the particular field of expertise involved. (Page 18)
25 However, those observations, while useful, in both cases were made in the context of disciplinary proceedings, where it was necessary to show that the practitioners in question were guilty of acting incompetently or carelessly. In the case of a competency matter under the MP Act, the word 'competently' is, in the Tribunal's view, used in a broader sense to indicate the standard of knowledge and skill in the practice of medicine which a practitioner must reach and maintain. The Tribunal considers that the standard of skill and judgment by which a practitioner should be measured is the standard of skill and judgment expected of a practitioner of equivalent seniority and experience by fellow practitioners and members of the public. 26 Both s 77 and s 118 of the MP Act make use of the present tense, namely in s 77 'that a person doesnot have sufficient knowledge and skill' and in s 118 'the State Administrative Tribunal is of the opinion that a competency matter exists' (Tribunal's emphasis). This is in contrast to a 'disciplinary matter' defined in s 76(1) of the MP Act. A disciplinary matter includes that a person in the course of his or her practice as a medical practitioner acted incompetently (Tribunal's emphasis). 27 Accordingly, while a disciplinary matter is considered to have occurred at a particular time, a competency matter must be considered to exist in the context of the practitioner's current practice. 28 It is for the Board to satisfy the Tribunal that a competency matter exists in respect of the Practitioner. In considering the Board's evidence, the Tribunal must feel an actual persuasion of the existence of the facts in issue under the Briginshaw principle or approach (Briginshaw v Briginshaw (1938) 60 CLR 336).
The hearing 29 The hearing of this matter took place over five days, on 1, 2 and 3 May 2012 and on 18 and 19 June 2012. 30 At the outset of the hearing on 1 May 2012, the Practitioner gave a further undertaking in addition to his undertaking which he gave on 2 August 2010. The Practitioner agreed that he would not prescribe thyroid hormones in the future, but would simply make recommendations if he considers that the prescription of thyroid is warranted for a patient's care (T:1314; 01.05.12). However, this undertaking did not change the Board's position, seemingly because the misuse of thyroid hormones was only one of the (Page 19)
allegations made against the Practitioner in the application. Accordingly, the matter proceeded to a full hearing. 31 The parties tendered six exhibits at the hearing on 1 to 3 May 2012. Exhibit 1 is a book of evidence tendered by the Board (BE). The BE comprises seven volumes and includes copies of some of the Practitioner's clinical notes, witness statements from the Practitioner and expert witness statements from Professor Bernard PearnRowe and Dr Jeremy Coleman. 32 Exhibit 2 was tendered by the Practitioner and is a supplementary witness statement of the Practitioner dated 30 April 2012. 33 The Practitioner also tendered a copy of the web site home page of Myo Med dated 30 April 2012 (Exhibit 3) and a copy of the Practitioner's disclosure document (Exhibit 4). 34 The Board submitted a copy of an immunisation exemption conscientious objection form as Exhibit 5. The parties also submitted a conferral of experts report dated 22 April 2012, which was marked as Exhibit 6 (Expert Conferral). 35 The Practitioner was called as a witness on 1 May 2012 (T:28113; 01.05.12), and continued to give evidence on 3 May 2012 (T:233-315; 03.05.12). 36 On 2 May 2012, the two expert witnesses gave evidence jointly. Professor Pearn-Rowe gave evidence for the Board and Dr Coleman gave evidence for the Practitioner (T:116-230; 02.05.12). 37 Professor Pearn-Rowe BSc (Hons); MBBS (Lond); FAMA has been a general practitioner in Perth for 37 years, and has previously been the Chair of the Royal Australian College of General Practitioners in Western Australia and the President of the Australian Medical Association in Western Australia. Professor Pearn-Rowe is a professor at the School of Medicine at the University of Notre Dame, a general practitioner in private practice and a convenor of the Federal Australian Medical Association Council of General Practice (BE p1404). 38 Dr Jeremy Coleman MBBS (Hons); FRACP is a consultant physician and allergist. Dr Coleman graduated from Sydney University in 1979 with Honours and trained as a general physician with a sub-specialty in immunology and allergy interests. He has been in private practice for 25 years and has a (Page 20)
particular interest in decreasing inflammation by correcting hormone imbalance by using sex steroid hormones (BE p1506). 39 On 3 May 2012, the proceeding was adjourned until 18 and 19 June 2012 to allow the parties to undertake further examination of the witnesses. 40 On 18 June 2012 the Practitioner tendered a further bundle of documents as Exhibit 7, which contained character references and other materials. 41 Over the course of the hearing on 18 and 19 June 2012, the Practitioner, Dr Coleman and Professor Pearn-Rowe all gave further evidence. 42 At the conclusion of the hearing on 19 June 2012, both parties were ordered to file closing submissions and the Tribunal's decision was reserved pending the receipt of those further documents. The Board's closing submissions were received on 16 August 2012 (Board's Closing Submissions). The Practitioner's closing submissions were received on 8 October 2012 (Practitioner's Closing Submissions).
The Board's case in support of its allegation against the Practitioner 43 The Board did not, under s 104(1) of the MP Act, refer the complaint to the professional standards committee or order the Practitioner to submit to an assessment under s 105(1) of the MP Act. The Board instead made its allegations to the Tribunal under s 104(2) of the MP Act. This was because the Board decided that the subject matter of the complaints is sufficiently serious to warrant suspension or cancellation of the Practitioner's registration. 44 The Board submits that to determine the outcome of its application, the Tribunal needs to consider whether the Practitioner has sufficient knowledge and skill to practise safely and competently in general medical practice and whether the conditions such as those currently imposed by the Practitioner's voluntary undertakings are sufficient to ensure the safety of his patients. 45 The Board says that the Tribunal's role is to undertake an assessment of the nature of the deficiencies in the Practitioner's knowledge and skill and whether such deficiencies in knowledge and skill can and will be remedied by the Practitioner. (Board's Closing Submissions at para 24). The Board says that the (Page 21)
evidence put before the Tribunal represents 'examples of incompetency alleged by the Board' (Board's Closing Submissions at para 53). 46 The Board accepts that the undertaking given by the Practitioner is protective of patients to a degree, it says that the undertaking cannot be wholly protective of patients. This is because the undertaking requires the Practitioner to ask the patient to see their own general practitioner about all of the same complaints they bring to him. However, the Board says, the patient's safety depends upon the patient being willing to go to the expense and inconvenience of consulting two practitioners in respect of every complaint as it arises. The situation, it says, is not analogous to that of one practitioner formally referring a patient to another practitioner. In that situation, the first practitioner will monitor the outcome of making that referral and will receive correspondence from the practitioner to whom that referral was made. If the Practitioner's patients do not consult their general practitioner, or if the Practitioner's correspondence does not identify issues requiring attention by the general practitioner because of a lack of knowledge and skill on his part then, the Board says, the patient is left at risk. Potential risks to patients include proceeding without a proper diagnosis, or proceeding with inappropriate treatment, or proceeding with one form of treatment without knowledge of all of the available treatment options for their condition.
The evidence before the Tribunal and the Tribunal's findings in relation to the evidence 47 We will now deal with the individual complaints specified in the Board's application.
Ground 1 failing to respond appropriately in the light of findings of hyperlipidaemia or otherwise suboptimal blood lipids and failure to properly assess cardiovascular risk factors including failing to take and record blood pressure 48 This ground arises from the Practitioner's treatment of Patients 2, 5, 9, 10, 15, 17, 19, 20 and 21. The Tribunal has approached this ground under its separate components.
Hyperlipidaemia or otherwise suboptimal blood lipids 49 It is common ground between the experts that there is a relationship between thyroid function and blood lipids. It is accepted that the Practitioner routinely tests his patient's lipids. (Page 22)
50 The Board says that when a medical practitioner tests a patient's lipid profile, particularly on a regular or routine basis, then the patient may well expect that the issue of his or her lipids is being dealt with by the practitioner who is ordering those tests and receiving those test results. As Dr Coleman put it: … (the patient would think) 'this doctor is keeping an eye on my cholesterol' (T:164; 02.05.12). 51 The Practitioner accepts that in the past he did not manage patients' suboptimal blood lipids as he understood this to be the province of that patient's general practitioner and not an area of his responsibility. He confirms, however, that he discusses matters with his patients that might improve their blood lipids, such as improvements to diet and exercising (for example, BE p1421 at para 90 in respect of Patient 2). He says that his current practice is that, when he becomes aware of a patient's suboptimal blood lipids, he advises the patient's general practitioner of that issue in writing (BE p1417 at para 72 and p1428 at para 129). 52 We not turn to the specific criticisms in relation to the Practitioner’s treatment of each patient with hyperlipidaemia, Professor PearnRowe said, in crossexamination, that the important conversation that the Practitioner should have had with Patient 2 was to reduce weight (T:436; 19.06.12). 53 The Tribunal agrees with Dr Coleman's suggestion that this conversation would more likely than not have taken place (T:137; 02.05.12). 54 It is noted that Patient 2 is herself a senior medical practitioner. 55 According to Professor PearnRowe, the required management for Patient 5, at the very least, is that this patient should be urged to modify her diet to reduce her fat intake and increase physical activity (BE p1338). 56 The Practitioner accepts that Patient 5's lipid result in January 2007 showed elevated cholesterol levels and he gave evidence that he would normally give patients with those sorts of cholesterol levels dietary advice (T:77; 01.05.12). 57 The Board asserts that notwithstanding the thyroid hormone supplementation that the Practitioner prescribed for Patient 5 and any dietary advice provided, Patient 5's lipids remained suboptimal when retested in October 2007, and in particular, her LDL and (Page 23)
HDL levels were relatively unchanged. However, between January and October 2007, Patient 5's cholesterol fell from 6.3 to 5.5 and her LDL fell from 3.9 to 3.4 (BE p302 and 303). Professor PearnRowe said that 'the more conservative members of my profession would allow these results as just being acceptable', although he adds that the Practitioner 'has conspicuously failed to thoroughly investigated [sic] the possible presence of other cardiovascular risk factors' (BE p1338). 58 The Practitioner says that he did not consider it to be his role to manage the hyperlipidaemia of Patient 9 (BE p1426 at para 123). The Practitioner does, however, believe that he discussed Patient 9's lipids at a consultation on 8 December 2007, because he noted the result and it was his standard practice to give his patients a copy of their test results (T:238; 03.05.12). 59 The Practitioner also denied using thyroid supplementation in the case of Patient 9 to treat or manage hyperlipidaemia (T:238; 03.05.12). He says that he would not consider it appropriate to use supraphysiological doses of thyroid to treat cholesterol (BE p1427 at para 125). 60 It is also alleged that the Practitioner failed to appreciate the merits of controlling abnormal lipids with statin drugs. Professor PearnRowe and Dr Coleman both gave evidence that in cases of persisting adverse lipid results, advice about statins was required. It can be inferred from the Practitioner's evidence that he has misgivings about prescribing statins. However, it is clearer that the Practitioner appreciates the merits of using statins to treat patients with abnormal lipids. He said 'No, I think it is quite clear that statin drugs reduce cholesterol' (T:279; 03.05.12). 61 The Practitioner says that if a patient consults him in an effort to relieve ongoing pain and the patient's history is that the pain complained of started or worsened after the statins were commenced, his first step was to prescribe Coenzyme Q10 (T:277; 03.05.12). He also says that he would inform patients that their pain might be a side effect of the statins, with a view to the patient discussing with his or her usual general practitioner whether to discontinue the statins (T:277, 279; 03.05.12). 62 The experts agree that statins have side effects. Professor PearnRowe says that side effects from statins are rare (T:472; 19.06.12). Dr Coleman spoke of emerging evidence that statins are associated with increased risk of diabetes. He said that in patients who have inflammatory conditions and are on statins, (Page 24)
there is a possibility that adrenal function may be compromised because of excessive decrease in cholesterol (BE p1519). 63 Professor PearnRowe conceded that there would be no risk in stopping a statin for a trial period to establish whether the statin was causing the pain (T:417418; 18.06.12). His concern is centred around the possibility that a patient could 'fall through a therapeutic crack' (T:419; 18.06.12). He says that as long as 'somebody knows what is happening and is responsible for management of this aspect of the patient's condition, it doesn't concern me' (T: 419; 18.06.12). 64 The Board says that the Tribunal should find that it is incompetent for a practitioner who is testing the lipid levels of a patient to fail to inform the patient about the option of treatment with statins. However, when it was put to Professor PearnRowe (T:419; 18.06.12) that if the Practitioner was ensuring that the Patient had a general practitioner and that the Practitioner reports to that general practitioner, he agreed that this would satisfy his concern that 'people were not being allowed to fall through the cracks'. 65 The Practitioner maintains that he did not consider it his role to manage the hyperlipidaemia of Patient 10 (BE p1427 at para 128). 66 The allegation against the Practitioner in respect of Patient 10 is that he was seeking to manage hyperlipidaemia using thyroid hormones. The Practitioner denies this (T:244; 03.05.12) and says that he was using thyroid supplementation in the case of Patient 10 to treat andropausal symptoms (T:244; 03.05.12).
Cardiovascular risk factors 67 According to Professor PearnRowe, in order to understand the implications of lipid results, a practitioner needs to be able to view the results against the background of all of the patient's cardiovascular risk factors, including matters such as their weight, their family history of cardiovascular disease and their blood pressure (BE p1365). 68 The Practitioner accepts in the case of Patient 15 that he should have informed her general practitioner of the issues arising as a result of his investigations and states that this now routinely occurs (BE p1432 at para 156). (Page 25)
69 The Practitioner says that he did not at that time consider that it was his role to give his patients advice on their cardiovascular disease risk factors. 70 The Board's criticism of the Practitioner in relation to his care of Patient 17 is summarised by Professor PearnRowe who said that, although the Practitioner noted this patient's suboptimal lipids in his note dated 5 July 2007 (BE p756), there is no record of the Practitioner having spoken to the Patient about this. Professor PearnRowe also points out that the Practitioner did not bring the matter to the attention of a cardiologist to whom the Practitioner had referred Patient 17 (BE p1372). 71 While the Tribunal accepts that the Practitioner's records do not disclose any record of a conversation with his patient, that does not necessarily lead us to the conclusion that the conversation did not take place. It is not disputed that the cardiologist subsequently reported to the Practitioner that he had ordered a number of investigations and would be seeing Patient 17 at some later date (BE p762). 72 The Practitioner accepts in the case of Patient 19 that he should have informed her general practitioner of the issues arising as a result of his investigations. 73 Patient 19 was referred to a cardiologist who reported on 29 August 2007 that he was aware of the latest blood test results and that he had discussed 'lifestyle matters which may assist weight loss' with the Patient (BE p830). 74 The Board considers that the Practitioner has an obligation to reinforce that message. Professor PearnRowe says (BE p1376) the Practitioner's failure to prescribe statins for Patient 19 was 'indefensible'. However, at the hearing, Professor PearnRowe retracted this evidence (T:453; 19.06.12) although he thought that it was 'incumbent upon [the Practitioner] to check that that was the cardiologist's view'. 75 Dr Coleman supported the cardiologist's approach of lifestyle measures and weight loss (T:453; 19.06.12). 76 Patient 21's coronary risk ratio rose from 3.4 to 6.3 between July 2007 and March 2008, while she was receiving thyroid treatment from the Practitioner. At the hearing, the Practitioner accepted the Board's criticism that he failed to assess her overall risk of ischemic heart disease. He said that he had assumed that (Page 26)
Patient 21's suboptimal blood lipids were being managed by her general practitioner, but he accepts that he should have formally ascertained that this was the case (BE p1439 at para 192).
Blood Pressure 77 The Practitioner accepts that he failed to record the blood pressure of Patients 2 and 5. He says that he did record Patient 20's blood pressure on one occasion (BE p1438 at para 188) and Patient 15's blood pressure (BE p1433 at para 157). 78 The Practitioner's evidence is that, in the past, the blood pressure was recorded by his nurses and he would review the results. He says that he now personally measures his patients' blood pressure at the time of implementing their management plan. He says that his current practice is that, in each case, if a raised blood pressure is recorded, either his nurse or he notifies the patient and requests that they report to their general practitioner for any follow up treatment. He says that his current practice is to himself write to the patient's general practitioner, informing him or her of the raised level (BE p1417 at para 7172). 79 In relation to Patient 2, the Practitioner was asked whether he undertook a formal assessment of cardiovascular risk factors and he replied that he did not. He said: In this case, I possibly didn't. Normally it is done by my nurse, but I would have handled this as a oneoff and that is also an omission that has now been corrected with my current protocol. (T:51; 01.05.12)
The Tribunal's finding Ground 1 80 The Tribunal finds that the Practitioner failed to treat patients' suboptimal blood lipids. However, we consider that the reason for this is that he did not consider it to be his role to do so. There is no evidence to suggest that the Practitioner was unable to recognise suboptimal blood lipids or that he was ignorant of the appropriate treatment. 81 The Tribunal also considers that the Practitioner's failure to properly assess cardiovascular risk factors has been established. However, there is nothing to suggest that the Practitioner does not understand the importance of properly assessing cardiovascular risk factors, including the importance of knowing the blood pressure of his patients. There is also nothing to suggest that he is (Page 27)
unable to interpret and understand the significance of blood pressure readings.
Ground 2 advising a patient to cease treatment with statin drugs which had been commenced by another practitioner 82 This ground arises from the Practitioner's treatment of Patient 20. 83 The Practitioner concedes that he suggested a 'trial off [Patient 20's] cholesterol and antihypertensive medications'. He said that his reason for doing so was 'evidence of liver damage and early insulin resistance'. He concedes that he should have advised Patient 20's general practitioner of this action. He says that it is his practice now to do so (BE p1438 at para 189 and BE p149 and BE p1439 at para 190).
The Tribunal's finding Ground 2 84 The Tribunal finds that the conduct alleged in this ground has been established. However, the Tribunal considers that the Practitioner had a justifiable reason for this conduct and his error was only that he failed to advise the patient's general practitioner of his actions.
Ground 3 advising patients to cease antihypertensive medication initiated by other general practitioners 85 This ground arises from the Practitioner's treatment of Patients 16 and 20. 86 Patient 16 was taking the drug Karvezide, having recently been started on that drug by her general practitioner because of the possibility of a transient rise in her blood pressure. 87 Patient 16 reported that this drug was making her feel nauseous and the Practitioner concedes that it is possible that he discussed with her the possibility of her ceasing that medication (BE p726). 88 The Board maintains that the Practitioner actually advised Patient 16 to do so, based on a note which the Practitioner made at the time: Discussed. Try no Karvezide. Keep home BP (BE p692). 89 The Practitioner says that he remembers quite clearly that his advice to Patient 16 was to check her blood pressure at home and (Page 28)
take the measurements to her general practitioner and discuss whether or not 'you can have a trial off the Karvezide' (T:271; 03.05.12). 90 He said that he considered that it would be 'inappropriate' to 'interfere with her blood pressure medication' (T:269; 03.05.12). 91 The circumstances in the case of Patient 20 are similar to those in respect of Patient 16. The Practitioner's note reads (BE p873): Trial off Betaloc, Avapro and Pravachol. Home BP machine. Check on waking, after stress. 92 The Practitioner concedes that he discussed with Patient 20 a trial period without those medications. However, he added that what he told Patient 20 was in the same terms as his advice to Patient 16, namely to discuss the matter with the patient's general practitioner.
The Tribunal's finding Ground 3 93 The evidence before the Tribunal shows that the issue was discussed but does not support a finding that the Practitioner advised Patient 16 to cease her antihypertensive medication. Also, there is insufficient evidence to support a finding that the Practitioner advised Patient 20 to cease her medication.
Ground 4 prescribing thyroid hormone supplementation so as to cause oversupplementation of thyroid hormones 94 This ground arises from the Practitioner's treatment of Patients 1, 3, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 19, 20 and 22. The Board criticises the Practitioner for prescribing thyroid hormone supplementation for patients whose thyroid hormone levels were normal.
The experts’ view on thyroid hormone supplementation 95 The experts differed as to when thyroid hormone supplementation is appropriate. Professor PearnRowe does not consider it appropriate to provide thyroid hormone supplementation when the measured thyroid hormone results are conscionably within the normal range. 96 On the other hand, Dr Coleman supports the use of thyroid hormone supplementation even if the thyroid stimulating hormone and thyroid hormone levels are within the reference range if he (Page 29)
considers, based on a number of symptoms and the patient's clinical presentation, that thyroid hormone deficiency may be an appropriate differential diagnosis. Dr Coleman provided the Tribunal with a clinical picture of a patient with an underactive thyroid. Symptoms include dry skin, loss of outer third of eyebrow, hair loss, puffy face, disordered thinking and difficulty in losing weight (T:123; 02.05.12). 97 The Practitioner expresses a similar view. However, the Practitioner also includes infertility as one of the symptoms of low thyroid function (T:35; 01.05.12). 98 It is therefore clear that the experts disagree about prescribing thyroid hormones for patients when their measured thyroid hormone results are comfortably within what would be regarded as a normal range. The experts, however, did agree that inducing hyperthyroidism by overreplacing thyroid hormones can give rise to palpitations and atrial fibrillation, which can be insidious (T:152 and 185186; 02.05.12). They agree that the risks are low, although Professor PearnRowe points out that 'the stakes are also extremely high' (BE p1324).
The Patients 99 In the case of Patient 1, the Practitioner prescribed thyroid hormone supplementation even though her thyroid stimulating hormone measurement was not high and did not suggest hypothyroidism. The Practitioner accepts that he prescribed Patient 1 a trial of thyroid supplementation in an attempt to assist her to become pregnant. 100 Dr Coleman is highly critical of the Practitioner's record keeping practices but is not critical of the Practitioner's treatment of Patient 1. He disagrees with the Board's contention that treating Patient 1 with thyroid hormone supplementation was unwarranted (BE p15111512). 101 Dr Coleman was, however, more critical of the Practitioner's treatment of Patient 3. He said that he had difficulty in understanding why the Practitioner considered that thyroid treatment would benefit Patient 3 (T:154; 20.05.12). The Practitioner's response was that he prescribed thyroid treatment for Patient 3 because of Patient 3's persistent pain. 102 Turning to Patient 4, Dr Coleman observed that 'on their numbers' he would not treat this patient with thyroid replacement. However, he says that if the patient had a 'constellation of (Page 30)
symptoms' suggesting that thyroid supplementation may be beneficial, he would endorse the treatment for a period of time and assess the clinical response (BE p1516). 103 There is disagreement between the experts with regard to the Practitioner's treatment of Patient 6. Patient 6 was, according to Professor PearnRowe, in an advanced state of thyroid failure and all of her symptoms could be explained on that basis (BE p1339). However, he considered that the Practitioner's treatment was 'extremely aggressive' and 'unnecessarily heavy handed' (BE p1340). Dr Coleman, on the other hand, described the treatment as 'a good starting dose' (T:167; 02.05.12) but he said that it would need to be adjusted according to her clinical response. At the hearing, Professor PearnRowe conceded that he could understand a practitioner wanting to treat the condition aggressively, as long as it was not to the point of overtreating the patient (T:454; 19.06.12). 104 In regard to the Practitioner's treatment of Patient 7, Dr Coleman expressed the view that it would have been appropriate to say to the patient that the treatment being offered could possibly impact on her preexisting osteoporosis. He could see no justification in increasing Patient 7's thyroid prescription. The Practitioner accepts that he was principally guided by Patient 7's presentation and did not give adequate attention to the blood test results (BE p1425 at para 114). 105 According to the Practitioner's summary sheet, Patient 8 had a history of suffering from anxiety and palpitations before the Practitioner instituted thyroid hormone supplementation (BE p382). The Practitioner agrees that oversupplementation with thyroid hormones is a cause of palpitation and he said that he began treatment at levels below the recommended dosage (T:107; 01.05.12). Dr Coleman gave evidence that palpitations would to him be a 'point against thinking about thyroid treatment' (T:190; 02.05.12). He did not say that he would not institute thyroid hormone treatment, but he said that he would first consider her other hormones, oestrogen and progesterone (T:190; 02.05.12). 106 Patient 9 presented with symptoms of fatigue. The Practitioner conceded that the patient did not have a constellation of symptoms consistent with hyperthyroidism but he considered that there was a justification for a trial of thyroid (T: 236; 03.05.12). 107 Dr Coleman said that: (Page 31)
Looking at the numbers alone, I would say no. Taking the history, understanding what the patient's complaints are and with the knowledge that there is an emerging concept that patients with fibromyalgia or myofascial disease may have low levels of thyroid hormone at the tissue level, I can understand why [the Practitioner] might have instituted treatment, but I don't have the full history. (T:145; 02.05.12) 108 The Board submits that there was no clinical justification for the commencement of thyroid hormone supplementation in the case of Patient 10. The Board says that the Practitioner has a 'practice of seeking to bring patient's TSH levels within a particular range which differs from the reference range' (Board's Closing Submissions, at para 141.) 109 The Practitioner concedes that he did not record Patient 10's clinical symptoms. However, the fact that there is no record of Patient 10's symptoms does not mean that the Practitioner failed to consider those symptoms. Also, the fact that the Practitioner takes into account test results when considering treatment for a patient does not necessarily lead to the conclusion that the Practitioner ignores or does not take into consideration the patient's other symptoms. 110 So far as regards Patient 13, Professor PearnRowe considers that the Practitioner's treatment of this patient 'appears to have been a reasonable therapeutic intervention' (BE p1357). Professor PearnRowe also notes that this patient discontinued her thyroid medication at the suggestion of her general practitioner because she was experiencing palpitations. Professor PearnRowe's criticism of the Practitioner in respect of Patient 13 is limited to poor clinical note keeping. 111 In regard to Patient 14, the Board's summary of the criticism of the Practitioner is that he 'appears to be oblivious to the risk of osteopenia and osteoporosis being worsened by excessive thyroid hormone supplementation'. (Board's Closing Submissions, at para 145). However, the conduct complained about is that the Practitioner prescribed levels of thyroid hormone so as to cause oversupplementation of thyroid hormones. In the case of Patient 14, Professor PearnRowe says that there was no oversupplementation (T:466; 19.06.12). 112 In respect of Patient 15, the Board says that he prescribed thyroid hormone supplementation to help this patient to lose weight. (Page 32)
113 Dr Coleman considers that this patient's thyroid hormone levels were within the normal range and he says that there is very little evidence to support prescribing thyroid hormone to support weight loss. He says that the Practitioner's treatment of this patient would not cause harm, but he does not consider that the patient will lose weight (T:219220; 02.05.12). 114 The Practitioner's evidence is that he was treating Patient 15 for myofascial pain (T:261; 03.05.12). 115 The Board's criticism of the Practitioner in respect of Patient 16 is that he prescribed thyroid hormone supplementation when he notes that one of her presenting symptoms was heart palpitations. He also said that he knew that the patient was osteoporotic (T:268; 03.05.12). 116 The Practitioner said that he aims to treat the patient's symptoms, not the patient's test results (T:267; 03.05.12). He concedes that he could not identify from his notes any clinical reason why he prescribed thyroid hormone supplementation for this patient (T:267; 03.05.12). 117 In the case of Patient 19, the Practitioner gave evidence that he trialled treatment with thyroid hormone supplementation in an effort to treat this patient's myofascial pain, depression and fatigue (T:291; 03.05.12). The Board says that there is nothing in the Practitioner's notes to indicate what possible symptoms of hypothyroidism were being treated. 118 The Practitioner's response is that he had concluded that there was little that he could do for this patient but he said that this 'doesn't mean to say I can't try. I've been mainly treating her fatigue and her depression but I have not really helped. I have been able to help her with her pain' (T:290; 03.05.12). 119 In relation to Patient 20, the Practitioner says that the patient was gaining weight and that he considered it was worthwhile to prescribe a trial of thyroid hormone supplementation (BE p1438 at para 187). The Board's concern is that the Practitioner was unable to point to any other symptoms which would have been relevant to his decision to commence such therapy. The Board says that this demonstrates a 'glaring gap' in the Practitioner's knowledge in that he was 'clearly unaware that thyroid hormone supplementation was not justified in an attempt to achieve weight loss'. (Board's Closing Submissions at para 166). (Page 33)
120 What the Practitioner actually told the Tribunal was this: Trouble losing weight could be related to thyroid , although I take note of what Dr Coleman said yesterday, and I certainly was of the opinion at that time that weight loss was made easier if the thyroid function was optimised, but I'm happy to review all of that. (T:299; 03.05.12) 121 Patient 22 had been suffering from anxiety and had disclosed palpitations as a presenting symptom. Her TSH was in the middle of the normal range. The Board submits that Professor PearnRowe and Dr Coleman both agreed that anxiety was a contraindication for commencing thyroid hormone supplementation. 122 Dr Coleman in fact said that it was a 'relative contraindication' (T:385; 18.06.12). That was his response when it was put to him that 'any medical practitioner professing expertise in nutritional and environmental medicine would regard anxiety as a contraindication for thyroid hormone supplementation' (T:385, 18.06.12). 123 With regard to Patient 22, the Practitioner agrees that the prescription of thyroid hormone supplementation was not warranted (BE p1440 at para 197 and T: 301; 03.05.12).
The Tribunal's finding Ground 4 124 The Tribunal finds that the Practitioner did not prescribe thyroid hormone supplements without justification. In all cases except Patient 22, the Practitioner had a reason for his actions, albeit that on subsequent review he might have considered his actions to be without justification. In the case of Patient 22, the Tribunal's view is that the Practitioner simply cannot recall what the reason for his actions might have been. We refer later in these reasons to the Practitioner's note taking.
Ground 5 failing to investigate the underlying causes of abnormal thyroid function when it was demonstrated 125 This ground arises from the Practitioner's treatment of Patients 2 and 6. 126 The Board submits that a medical practitioner professing expertise in nutritional and environmental medicine who is known to prescribe thyroid hormones should understand the causes of an underactive thyroid. The Board contends that the Practitioner has (Page 34)
failed to investigate these causes and presented evidence in respect of two patients, namely Patients 2 and 6. 127 In the light of Patient 2's test results for November 2006, which showed hypothyroidism, the Practitioner prescribed thyroid hormone supplementation. Both Professor PearnRowe and Dr Coleman believe that Patient 2's hypothyroidism would require further investigation. Professor Pearn Rowe was critical of the level of thyroid hormone supplementation, which he said was 'an extraordinarily high dose of thyroid supplementation for someone whose thyroid state was only borderline subnormal' (BE p1328). 128 Dr Coleman on the other hand says that he considers the Practitioner's prescribed dosages to be modest and he agrees with the Practitioner's strategy (BE p1499). He agrees with Professor PearnRowe that the Practitioner should have conducted further investigations to get a better understanding of the cause of the hypothyroidism. However, he says that the Practitioner 'appeared to come up with a reasonable management plan in terms of correcting (Patient 2's) hypothyroidism' and he considers that the criticism of the Practitioner is 'illfounded' (BE p1501). 129 In regard to Patient 6, the Board does not express any concern about the Practitioner's treatment, but expresses concern about the fact that the Practitioner did not investigate the cause of Patient 6's hypothyroidism. The Practitioner accepts that he should have done so (T: 83; 01.05.12). 130 Professor PearnRowe was strongly critical of the Practitioner's approach in this case and Dr Coleman did not disagree. However, Dr Coleman added that 'obviously, (the Practitioner) was really concerned about this patient and she had been unwell for a long time' (T:169; 02.05.12).
The Tribunal's finding Ground 5 131 The Tribunal accepts, on the Practitioner's own admission, that he failed in the case of both patients to investigate the underlying causes of those patients' abnormal thyroid function.
Ground 6 lacking knowledge of the potential effects of replacing or supplementing a patient's thyroid function against a background of normal thyroid function 132 The Board expresses concern that the Practitioner gave evidence that he was unaware of a patient ever having insidious atrial fibrillation. The Board says that the Practitioner, professing (Page 35)
special expertise in thyroid hormone supplementation, should know of the potential unwanted effects of thyroid hormone supplementation. The Board says that this is clear evidence of the Practitioner's incompetence. 133 What the Practitioner said at the hearing was that he had not seen a case where a patient had been unaware of palpitations and atrial fibrillation. He was then asked whether he agreed that palpitations and atrial fibrillation can be insidious. He did not agree, although he added that he would be prepared to defer to the opinion of Professor PearnRowe (T:3839; 01.05.12).
The Tribunal's finding Ground 6 134 The Tribunal does not consider that the evidence supports a finding against the Practitioner on this ground.
Ground 7 prescribing DHEA without justification 135 This ground relates to the treatment of Patients 1, 3 and 14. 136 The Board relies on the opinion of Professor PearnRowe in respect of this ground who says that DHEA is not commonly used in every day general practice. He says that whether there is any therapeutic role to justify the addition of DHEA is extremely controversial and generally not part of mainstream modern general practice. He says the justification for the use of DHEA as a routine and semiroutine health supplement is at best extremely weak and is associated with a very small but nonetheless significant risk. He says that by increasing levels of sex hormones (which he considers the main reason to prescribe DHEA) there appears to be a very small chance of increasing the risk of the sex hormone related cancers like breast cancer and prostate cancer (BE p1324). 137 Dr Coleman, on the other hand says that there are many respected references to DHEA which he says is required for proper ovulation. He says that there is almost no evidence that DHEA is associated with breast cancer or prostate cancer 'as far as I can tell from reading the literature and I do extensive reading in this area' (BE p1497 and 1498). He agrees, though, that any patient who is on hormone supplementation needs to be monitored both clinically and with measurement of hormones. 138 At the hearing, Professor PearnRowe said that, subject to believing that DHEA has a benefit, then if a patient has a low (Page 36)
DHEA test result then it would not be unreasonable to prescribe DHEA (T:467; 19.06.12). 139 He also gave evidence that he does not believe that, in the case of Patient 14, the prescription of DHEA and testosterone would have been harmful to her but were of very dubious benefit (BE p1360).
The Tribunal's finding Ground 7 140 The Tribunal does not consider that the evidence supports a finding against the Practitioner on this ground.
Ground 8 supporting a patient's decision to cease the drug Tamoxifen, notwithstanding that she had a known history of oestrogenreceptor positive breast cancer, and prescribing to that patient an oestrogen supplement notwithstanding her known history of oestrogenreceptor positive breast cancer and failing to clear this with the patient's oncologist 141 This ground arises from the treatment of Patient 14. 142 Patient 14 was taking Tamoxifen which had been prescribed for her by her breast surgeon. The Practitioner's notes in relation to this patient indicate that in March 2007 he may have suggested to this patient that she cease taking Tamoxifen (BE p581). He initially said that he 'did not play any part in (Patient 14) making her decision to cease Tamoxifen' (BE p1431). 143 However, under crossexamination he conceded: 144 The Practitioner denies that he in any way influenced the patient in what he said was her decision to cease taking Tamoxifen. He insists that she made that decision herself after discussions with her breast surgeon. This is supported by a letter which the patient wrote to the Board on a date unknown in which she confirmed that the Practitioner 'played no part in my decision to cease Tamoxifen' (BE p 1278). 145 The second part of this ground is that the Practitioner prescribed Patient 14 an oestrogen supplement notwithstanding her (Page 37)
known history of oestrogenreceptor positive breast cancer and failing to clear this with the patient's oncologist. 146 The Practitioner says that the patient consulted him because she had 'progesterone and oestrogen deficiency' symptoms. He said that he wrote to the patient's oncologist who informed him that he was 'quite comfortable with me prescribing progesterone'. The patient had consulted him again at a later time and asked whether he would prescribe oestrogen. He said that he did so and that he regrets it (T:256; 03.05.12).
The Tribunal's finding Ground 8 147 The Tribunal considers that the first part of the conduct alleged in this ground is established. However, the Tribunal also considers that the Practitioner believed that his recommendations to this patient were being reviewed by the patient's other medical advisers and that his actions did not arise from a lack of skill and judgment.
Ground 9 failing to exclude malignancy or polycystic disease notwithstanding a complaint of breast tenderness and swelling 148 This ground arose out of the treatment of Patient 22. 149 The Practitioner's evidence in respect of this ground is that it is part of his questionnaire to ask when the patient had their last breast check by their general practitioner and the date of their last mammogram. He says it is a routine part of his program to advise patients to continue to see their general practitioner for this advice. Patient 22 apparently did not complete this section of the questionnaire. The Practitioner says that he recalls suggesting to Patient 22 that she undergo a thermogram to check her breasts. He says that he normally suggests this if a patient has any objections to a mammogram. 150 The Practitioner acknowledges that his clinical notes do not record any of this (BE p1440). 151 Both experts agree that a breast examination should have been undertaken (T:388; 18.06.12). 152 Dr Coleman says that because in his notes the Practitioner writes 'breasts sore initially but settling now' he presumes that the patient's breast tenderness is related to hormonal changes (BE p1525). (Page 38)
The Tribunal's finding Ground 9 153 The Tribunal considers that the conduct alleged in this ground is not established.
Ground 10 prescribing testosterone unnecessarily and in excessive quantities 154 This ground arises in connection with the Practitioner's treatment of Patients 4, 11, 14 and 18. 155 Dr Coleman gave evidence that the side effects of testosterone are 'probably very little' (T:364; 18.06.12). 156 He went on to say: The main side effect of too much bioidentical testosterone in someone who doesn't need it, they might have extra acne, very possibly they might be a little bit aggressive. Over the long term their testes will shrink. (T:364; 18.06.12) 157 He said that prescription of testosterone is inappropriate without testosterone levels having been tested. 158 He considered that a normal dose of testosterone is somewhere between 80 and 120 milligrams per day and that a dose of 400 milligrams per day is a high dose (T:365; 18.06.12). 159 The Practitioner's view is that testosterone 'doesn't damage' (T:287; 03.05.12). 160 He says 'There is not a problem with testosterone given correctly in these very modest doses' (T:288; 03.05.12). 161 In respect of Patient 4, Professor PearnRowe says that a rise in the testosterone levels of the magnitude experienced by Patient 4 after supplementation could not be desirable (BE p1335). The Practitioner claims that the elevation in testosterone levels could be explained on the basis of the time of day that the patient underwent the test. Dr Coleman agreed and the Board accepted this. However, the Board's criticism is then directed at the quality of the Practitioner's notes which do not permit an examination of the timing of the test and that it is unclear whether the Practitioner ceased prescribing testosterone or gave further advice as to how the testosterone should be taken. 162 Patient 11 is dealt with in Ground 11. (Page 39)
163 In regard to Patient 18, the Practitioner said that he presented with low energy, sleep disturbance, anxiety and decreased libido (T:287; 03.05.12). In the circumstances, the Practitioner considered that a trial of testosterone was warranted. The Practitioner concedes that he may not have tested Patient 18's testosterone levels and he concedes that, if this was the case, it was an error to prescribe testosterone. He asserts, however, that this is not his usual practice (T:286; 03.05.12).
The Tribunal's finding Ground 10 164 The Tribunal does not consider that the conduct alleged in this ground is established.
Ground 11 failing to treat a complaint of erectile dysfunction and failing to advise a patient that his erectile dysfunction was likely caused by prolonged treatment by Fluoxetine 165 This ground arose with Patients 11 and 17. 166 The Practitioner treated Patient 11's complaint of erectile dysfunction with testosterone. The Practitioner said that he believed it appropriate to begin immediately with testosterone replacement and follow this up later if there were still problems (BE p1429 at para 136). 167 Professor PearnRowe did not consider it likely that Patient 11's testosterone levels, which were within the reference range, would be a cause of erectile dysfunction and is critical of the Practitioner for failing to consider using drugs specifically designed to treat erectile dysfunction such as Viagra (BE p1354). Dr Coleman agreed that a drug such as Viagra would have been appropriate (BE p1521). 168 At the hearing, Professor PearnRowe conceded that a note written by the Practitioner in Patient 11's clinical notes '? Viagra' indicated that the Practitioner had considered Viagra in relation to this patient's treatment (T:447; 19.06.12). 169 In connection with Patient 17, Professor PearnRowe and Dr Coleman both gave evidence that the Practitioner should have known that the longterm treatment with Fluoxetine disclosed by Patient 17 could have been responsible for his erectile dysfunction. 170 The Practitioner did concede that he failed to recognise a side effect of Fluoxetine but submitted that this failure could not be said to render him incompetent. (Page 40)
The Tribunal's finding Ground 11 171 Again, the Practitioner has conceded that there was an omission in his treatment of Patient 17, being a failure to recognise a side effect of a drug, and the Tribunal finds accordingly. The Tribunal does not consider that the other aspects of this conduct are established.
Ground 12 failing to appreciate the need to embark on appropriate plan of management in light of elevated fasting blood sugar, including in a case of poorly controlled Type 2 diabetes and failing to investigate an elevated blood sugar level 172 This ground arises in connection with the treatment of Patients 2, 15, and 4. 173 In the case of Patient 2, the Board alleges that the Practitioner failed to implement any management strategy in respect of elevated fasting blood sugar. It has already been noted that Patient 2 is a senior medical practitioner. She lists her complaints as tiredness, lack of motivation and drive, little interest in things, depression, dry skin/eczema, occasional panic attacks, difficulty sleeping and lower back pain. 174 The Practitioner organised a range of pathology tests including a fasting glucose level, upon which the pathologist commented that diabetes was likely but required a confirmatory test (BE p89). The Practitioner also ordered a fasting insulin test. 175 Professor PearnRowe gave evidence that the results of these tests indicate that it is very likely that Patient 2 was a diabetic and he considered that it was necessary for Patient 2 to be informed of the implications of these results and be advised of the longterm health implications of diabetes (BE p1327). |