Medical Board of Australia v Bhamjee

[2013] QCAT 259

CITATION: Medical Board of Australia v Bhamjee [2013] QCAT 259

PARTIES:	Medical Board of Australia (Applicant)
v
Yusuf Bhamjee (Respondent)

APPLICATION NUMBER: OCR203-11

MATTER TYPE: Occupational Regulation

HEARING DATE: 31 May 2012 & 20 – 24 May 2013

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham
Assisted by:
Dr David Evans
Ms Jennifer Felton
Dr Stephen Pozzi

DELIVERED ON: 25 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

Upon both Mr Bhamjee’s admissions and the evidence led by the Board, the Tribunal finds Mr Bhamjee has engaged in professional misconduct and makes the following orders:

1. Mr Bhamjee’s registration as a medical practitioner in Australia is cancelled from 2 February 2011.

2. Mr Bhamjee may not apply to be registered as a medical practitioner in Australia before 2 February 2016.

CATCHWORDS:

OCCUPATIONAL REGULATION – MEDICAL PRACTITIONER – PROFESSIONAL MISCONDUCT – where the Board made allegations of unprofessional conduct over a period of more than 3 years and involving a range of different types of unprofessional conduct – where, after hearing the Board’s evidence, the practitioner conceded the Board’s allegations – where the parties agreed on the disciplinary finding that should be made and made a joint submission on penalty – whether the proposed sanction should be imposed.

Health Practitioner Regulation National Law Act 2009 (Qld), Schedule 1 ss 1, 5 & 159.

Medical Practitioners Registration Act 2001 (Qld), s 141.

APPEARANCES and REPRESENTATION:

APPLICANT: Ms P. Feeney, of Counsel, instructed by Moray & Agnew Solicitors.

RESPONDENT: Mr Bhamjee represented himself.

REASONS FOR DECISION

[1]    Mr Bhamjee qualified as a doctor in South Africa. He was first registered to practise in Queensland on 9 September 2006, as a special purpose registrant to fill an area of need.[1] These proceedings concern his professional practise as a GP between 27 February 2007 and 27 November 2010 at three clinics in South East Queensland.

[1]        Medical Practitioners Registration Act 2001 (Qld) s 141(1).

[2]    The Board suspended Mr Bhamjee’s registration on 2 February 2011.[2] Shortly afterwards he applied to the Tribunal to review that decision. In December 2011, the Tribunal refused his application to stay the suspension. By then, the Board had commenced disciplinary proceedings making numerous and serious allegations of professional misconduct against Mr Bhamjee. After he was suspended, Mr Bhamjee returned to South Africa and now works under supervision in a public hospital.

[2]        Health Practitioner Regulation National Law Act 2009 (Qld) s 159.

[3]    The review and disciplinary proceedings have progressed together through the Tribunal and this decision will determine both matters. Their progress has been delayed by logistical difficulties in accommodating a party located in another country. The scale and scope of the Board’s case, also, changed over time, leading to inevitable delays. Although the matter first came on for hearing on 31 May 2012, after some evidence, the hearing was adjourned to allow the Board to clarify its case and to schedule a time that Mr Bhamjee could return to Australia to participate in the hearing in person.

[4]    The hearing resumed on 20 May 2013. By the end of the fourth day of the hearing, the Board had led most of its evidence and Mr Bhamjee was in the process of giving his evidence. He told the Tribunal he had been reflecting on his conduct. At the parties’ request, the Tribunal then adjourned the hearing to allow the parties to engage in mediation.  Their discussions, presided over by Ms Stilgoe, Senior Member, were productive. When the matter came back before the Tribunal, the parties made brief submissions for agreed findings and a jointly proposed sanction.

[5]    During the hearing, the Board further amended its Application and some allegations were not pursued. Mr Bhamjee conceded all the allegations in the final version of the Board’s application. He accepted that conduct constituted professional misconduct. The parties proposed the Tribunal should cancel Mr Bhamjee’s registration, effective from the date of suspension (2/2/11), and declare that he cannot apply to be registered to practise in Australia for 5 years from that date.

[6]    For the reasons that follow, the Tribunal has decided to make the findings and endorse the sanction jointly proposed.

The conduct

[7]    The Board made numerous allegations of unprofessional conduct that fell into three broad categories. The details of the allegations are contained in the further amended Application filed by leave during the hearing, and in the helpful and comprehensive summaries prepared by the Board’s legal representatives for the Tribunal’s assistance. These reasons contain no more than an overview of the nature of the allegations, sufficient to demonstrate why cancelling Mr Bhamjee’s registration is the appropriate sanction.

(a) unprofessional conduct in diagnosis and treatment of patients’ conditions and management of their care

[8]    The first category of allegation relates to Mr Bhamjee’ diagnosis and treatment of his patients’ conditions and the management of their care, including record keeping. This category of allegation involved 16 patients. For some of them, the Board alleged Mr Bhamjee had failed to properly diagnose the patient’s condition. For others, the Board did not dispute the diagnosis, but alleged Mr Bhamjee had not adequately investigated or appropriately treated their condition.

[9]    It goes without saying that improper diagnosis or treatment presents a risk to the public and calls into question Mr Bhamjee’s suitability to practise. Whether the diagnosis was disputed or not, the Board’s investigations were hampered by the inadequacy of Mr Bhamjee’s records for many of the patients. This presented the Board, and, therefore, the Tribunal with a difficult task in determining the basis upon which Mr Bhamjee treated his patients.

[10]    For many of the patients involved in this category, Mr Bhamjee’s clinical records did not reveal a proper basis for his clinical decisions. This is a difficulty that Mr Bhamjee confronted during his evidence, as he sought to explain his treatment of the patient. Where the records were inadequate, the Board proceeded on the basis that the appropriate investigation or treatment was not undertaken or, if it was, Mr Bhamjee’s conduct was unprofessional because of his failure to properly record those matters.

[11]    The expert evidence led by the Board from Dr Brian Kable and Dr John Turnbull strongly supported the Board’s case. As matters have transpired, it has not been necessary for the Tribunal to make specific findings in relation to each allegation of improper diagnosis or treatment.

[12]    Because of the role played by poor record keeping in many of the allegations, something should be said about the importance of the clinical record.

[13]    During his evidence, Dr Kable explained the critical role played by record keeping. He described the clinical record as an aide memoire to the author, but also an important record for other practitioners who take over the patient’s care. He said the record should explore the patient’s presenting symptoms and the context in which they occurred and any other episodes or history that might be relevant. When presenting for the first time, a GP should take a much more detailed history from the patient, recorded in summary form. After examination, the GP should record the examination findings and the treatment and management plan. In the main, Mr Bhamjee’s records for these patients failed to achieve that standard.

(b) inappropriate and excessive prescription of restricted medications

[14]    The second category of allegations relates to Mr Bhamjee prescribing medications not clinically indicated or prescribing them at levels grossly in excess of what would be considered necessary for the patient’s condition. For seven of the patients, this involved medications used for pain relief, such as narcotics. For another 9 patients, the drugs involved were anabolic steroids and testosterone medications, prone to abuse for non-therapeutic purposes such as body building.  After hearing evidence from one of those 9 patients, the Board did not proceed further with allegations in relation to his treatment. There was a therapeutic purpose which had not been recorded, at the patient’s request. 

[15]    During his evidence, Mr Bhamjee said he had no prior experience in prescribing such medications, which were not available on prescription in South Africa. This does not excuse his failure to properly inform himself about proper prescribing practices.

[16]    The Tribunal recognises the names of quite a few of the patients involved in this category of allegation. They are familiar names because they have appeared in the evidence led by the Boards in disciplinary proceedings against other doctors and also pharmacists who practice in the same locality. In any case, the records of Mr Bhamjee’s prescriptions to these patients provide ample basis for concluding that some of his patients were drug dependant and others were seeking medication for non-therapeutic purposes. It is also reasonable to infer that some patients had targeted him because of his liberal prescribing practice.

[17]    The Tribunal appreciates the difficulty faced by practitioners in Mr Bhamjee’s position. Patients of that type can be very manipulative and, sometimes, aggressive and intimidating. Ms Rebecca Thompson, of Medicines Regulation and Quality Examination (a unit of Qld Health formerly known as the Drugs of Dependence Unit) gave compelling and empathetic evidence about the reality faced by many GPs. She also explained the support offered by the unit to those GPs who seek their advice, and the strategies they encourage, including the GP voluntarily surrendering their endorsement to prescribe those drugs in order to avoid servicing this category of patient. Ultimately that is what Mr Bhamjee did, although, it must be noted, he prescribed a restricted drug to three patients after he had surrendered his endorsement to do so.

[18]    Mr Bhamjee told the Tribunal that he felt duty-bound to treat the pain his patients described and which he considered to be genuine. He found it hard to say no to them. At times, some patients were visiting him daily.

[19]    He claimed he was not aware his prescribing was excessive. He said he was trying to wean some of his patients off high levels that other GPs had prescribed in the past. This explanation is self-serving and unconvincing in the face of the record. There was no evidence pattern of reduced prescribing; in most cases it was the reverse. Mr Bhamjee had no difficulty in immediately ceasing prescribing to one patient after an intervention by Medicare about his treatment of that patient.

[20]    Ms Thompson was in the process of producing an analysis of Mr Bhamjee’s prescribing pattern with a cohort of practitioners in similar localities. Given the course the hearing took, that was not received by the Tribunal. It is appropriate to observe, however, the Tribunal’s appreciation of the work undertaken by Ms Thompson to assist the Tribunal. Had the matter required adjudication, the analysis under preparation would have provided a most useful context in which to assess the evidence about Mr Bhamjee’s practise.

[21]    Mr Bhamjee informed the Tribunal that, if he was able to practise in Australia in the future, he would not want to hold the endorsement to prescribe such drugs. That is a matter the Board should consider if and when Mr Bhamjee applies to be registered again. The Tribunal accepts Mr Bhamjee’s indication of intention as his recognition that he did not adequately manage that aspect of his professional practice and, at the time of the hearing, felt he did not have the personal characteristics or training that would enable him to manage this patient cohort.

[22]    Although the Tribunal understands the difficulties faced by GPs who are targeted by drug dependent patients or those who trade in substances for non-therapeutic use, it is concerning that Mr Bhamjee did not realise he was being targeted or, if he did, that he did not seek assistance to deal with this aspect of his practice. If Mr Bhamjee does apply to be registered again, the Tribunal recommends the Board consider whether conditions should be imposed about the prescription of such medications.

(c) breaches of prescribing requirements

[23]    The third category of allegation is breaches of the Health, Drugs and Poisons Regulation; either failure to observe the conditions that applied to his authority to prescribe medication or failure to provide notices as required. These are not matters of form only. These requirements are the mechanism by which Qld Health seeks to control access to potentially dangerous drugs in the community. They enable the regulator to oversee how certain medications are being prescribed and how at-risk patients are being treated. Non-compliance with the requirements of the regulation undermines the beneficial purpose of that regulatory framework.

[24]    Mr Bhamjee said he received little training in prescribing requirements during his induction by the agency who recruited him to Australia. Accepting, for the purpose of argument, that the training was not detailed and comprehensive, it is Mr Bhamjee, not the agency, who bears the responsibility of ensuring that he is complying with his legal and professional requirements. Evidence was led, however, that proved Mr Bhamjee was provided with information and he was in contact with the DDU and understood he could seek their assistance.

[25]    With the privilege of recognition as a professional, comes the burden of professional responsibility, including understanding the legal and ethical boundaries within which the professional practises. Mr Bhamjee cannot shift that responsibility to the agency which recruited him.

[26]    There were some other allegations that did not neatly fall into any of those categories. The Board alleged that Mr Bhamjee did not meet the expected standard in writing scripts; because details, including directions for use, were omitted or illegible. It also alleged that he inappropriately self medicated. Finally, it alleged he was unprofessional in his dealings with a colleague with whom he was in conflict. Mr Bhamjee accepted that he threatened one with physical violence and, in an email exchange, used demeaning and derogatory language to describe a colleague and other staff. Mr Bhamjee did not contest those remaining allegations.

[27]    In themselves these examples of unprofessional conduct are concerning. The Tribunal considers Mr Bhamjee should consider how it was that he found himself engaging in such conduct and what strategies he can adopt in future to manage stress in his occupation.

The disciplinary findings

[28]    The Tribunal had already heard evidence that substantiated the allegations maintained by the Board when Mr Bhamjee conceded them. The allegations relate to his professional conduct when he worked at three clinics in South East Queensland between 27 February 2007 and 27 November 2010. That is a sustained period of unprofessional conduct and, somewhat unusually, the allegations span a number of different types of unprofessional conduct.   

[29]    The Board contended Mr Bhamjee’s conduct fell substantially below that which would reasonably be expected of a general practitioner, so as to amount to professional misconduct.[3]

[3]Health Practitioner Regulation National Law Act 2009 (Qld) Sch 1, s 5 - definition of professional misconduct, paras (a) & (b).

[30]    It submitted Mr Bhamjee had failed to maintain “a high level of medical competence and professional conduct”[4] and “contribute to the effectiveness and efficiency of the health care system”[5] by ensuring the services he provided were “necessary and likely to benefit”[6] his patients.

[4]Affidavit of Anne Morrison, Exhibit AM-75: Good Medical Practice: A Code of Conduct for Doctors in Australia, p 1222.

[5]Affidavit of Anne Morrison, Exhibit AM-75:Good Medical Practice: A Code of Conduct for Doctors in Australia, p 1229.

[6]Affidavit of Anne Morrison, Exhibit AM-75:Good Medical Practice: A Code of Conduct for Doctors in Australia Affidavit, p 1229.

[31]    Mr Bhamjee did not contest that characterisation of his conduct.

[32]    It is possible that some of the particular allegations could, alone, constitute professional misconduct. Given the way in which this matter has progressed, it is not necessary to consider that point. Mr Bhamjee has conceded all allegations made in the further amended Application. It could not be contested, reasonably, that those allegations, aggregated, demonstrate his conduct fell substantially below the relevant standard.

[33]    The Tribunal finds that Mr Bhamjee has engaged in professional misconduct as alleged and particularised in the further amended Application.

The sanction

[34]    The parties agreed that Mr Bhamjee’s registration should be cancelled. Given the variety and scope, degree and period of unprofessional conduct, no other sanction is appropriate.

[35]    The parties submitted Mr Bhamjee should be precluded from reapplying for registration for a period of 5 years from the date of suspension (2 February 2011). That is a generous concession by the Board, which acknowledges that Mr Bhamjee developed and demonstrated increased insight about his conduct during the course of the hearing. Insight is relevant to the practitioner’s prospects of improving his practise and, therefore, is a factor that promotes the public protection objective of the disciplinary process.

[36]    5 years out of practice is a significant sanction and, under current rules, will call into question Mr Bhamjee’s eligibility for registration because he cannot demonstrate recency of practice. The Board will, therefore, have to enquire into his competence as a medical practitioner. It is possible that Mr Bhamjee will be required to undergo some further training or examination process to demonstrate his competence.

[37]    Mr Bhamjee is currently working under supervision in a public hospital in South Africa and hopes that can continue. The Board indicated that his work in that position is something it could consider on any future application by Mr Bhamjee to become registered.

[38]    The parties did not ask the Tribunal to impose any other pre-condition to registration or to impose conditions upon any future registration. The Board has the power to impose conditions on registration it considers to be necessary or desirable.[7] That should be assessed at the time of application. The Board will be best placed to critically assess Mr Bhamjee’s suitability to be registered and to develop conditions, such as supervision, monitoring and restricted scope of practice, to ensure public safety and maintenance of professional standards.

[7]        Health Practitioner Regulation National Law Act 2009 (Qld), Sch 1, s83.

Process

[39]    Although the hearing was scheduled for 5 days, by the end of the 4th day it was evident further hearing dates would have to be devoted to the matter if Mr Bhamjee maintained his contest. In the lead up to the hearing, Mr Bhamjee produced dozens of written submissions which, effectively, put everything in issue. Ms Feeney of counsel and her instructing solicitor Ms Houston, who acted for the Board, must be commended for their considerable efforts to concisely present and to manage an unwieldy case involving dozens of volumes of evidence in relation to numerous patients. Their summaries provided a fair overview, supported by detailed reference to the evidence and offered the Tribunal a sensible structure within which to consider the Board’s case.

[40]    No doubt, this also assisted Mr Bhamjee who struggled as a self represented person to handle the leviathan. The process of listening to and questioning the Board’s witnesses provided him with a different perspective and, it seemed to the Tribunal, led to his frank statement that he had been reflecting on his conduct and his position in the proceedings.

[41]    The Board’s proposition to mediate and both parties willingness to attempt to resolve matters even at that late stage, inevitably saved both further delay and cost in these proceedings. The Tribunal’s flexible procedures provide parties in this jurisdiction with procedural pathways that are not offered within a formal adversarial process. It is pleasing that, with the assistance of one of the Tribunal’s highly skilled mediators, the parties were able to take advantage of that option.

Orders

[42]    Upon both Mr Bhamjee’s admissions and the evidence led by the Board, the Tribunal finds Mr Bhamjee has engaged in professional misconduct and makes the following orders:

1. Mr Bhamjee’s registration as a medical practitioner in Australia is cancelled from 2 February 2011.

2. Mr Bhamjee may not apply to be registered as a medical practitioner in Australia before 2 February 2016.