Medical Board of Australia v Dolar
[2012] QCAT 271
•16 May 2012
| CITATION: | Medical Board of Australia v Dolar [2012] QCAT 271 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Maria Angeles Dolar (Respondent) |
| APPLICATION NUMBER: | OCR166-10 |
| MATTER TYPE: | Occupational regulation matters |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Kong Goh Dr Dana Wainwright Mr Michael Yau |
| DELIVERED ON: | 16 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Dr Dolar is reprimanded in respect of the conduct. 2. The following conditions are imposed on Dr Dolar’s registration: 2.1 Dr Dolar is subject to professional supervision by a general medical practitioner approved by the Board in writing with the supervision to focus on ethical prescribing practices. 2.2 The supervision must be carried out on the following basis: 2.2.1 The supervisor must have full knowledge of these conditions; 2.2.2 In carrying out the supervision, the supervisor must report any concerns about Dr Dolar’s prescribing practices to the Board within 24 hours; 2.2.3 The supervisor and Dr Dolar must meet each week at Dr Dolar’s place of practice to enable review of Dr Dolar’s prescribing practices for patients, at which meetings Dr Dolar must make available to the supervisor her patient records; 2.2.4 If it is not possible in any given week for the supervisor and Dr Dolar to meet in person: a. The meeting must occur by telephone, with Dr Dolar to have provided to the supervisor prior to the meeting her patient list for the week and any records for those patients that the supervisor may request; and b. Dr Dolar must notify the Board if the weekly meeting with the supervisor takes place by telephone; 2.2.5 The supervisor must be reasonably available by telephone or in person or by email as is appropriate to discuss any issues raised by Dr Dolar regarding her practice of medicine; 2.2.6 Dr Dolar must provide at the end of each day to the supervisor the clinical record for any patient for whom she has that day prescribed any medication and make herself reasonably available to discuss such patients with the supervisor by telephone or in person or by email as is appropriate. 2.3 Dr Dolar agrees to allow a Board representative at her expense to attend any medical practice at which she is associated or employed to inspect her patient records for the duration of the conditions of supervision. 3. Dr Dolar may not apply to the Tribunal to review these conditions for 1 year from the date of these orders. 4. Dr Dolar must pay the Board’s costs of and incidental to the proceedings including investigation costs to be assessed. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – where the doctor prescribed steroids and other medications without properly investigating whether they were necessary – where the doctor admits unsatisfactory professional conduct – where doctor an older practitioner – where the parties are in agreement on sanction – where terms of endorsement will severely curtail the doctor’s scope of practice – where doctor’s practising will be closely supervised – whether proposed sanction appropriate in the circumstances Health (Drugs and Poisons) Regulation 1996, s 5 Health Practitioners (Professional Standards Act) Act 1999, ss 123, 125, Schedule definitions Pharmacy Board of Australia v Booy [2011] QCAT 522 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
These proceedings involve disciplinary action[1] by the Medical Board of Australia against a doctor in relation to prescription of steroids and other medications to 7 patients. Dr Dolar has admitted unsatisfactory professional conduct in relation to each patient. The parties have made a joint submission about sanction based on those admissions alone.
[1]Section 125 Health Practitioners (Professional Standards Act) Act 1999, under which proceedings are brought.
The Tribunal accepts the parties’ request it proceed on that basis. It is an efficient use of the limited resources of the Board and the Tribunal and minimises the costs Dr Dolar will have to bear out of these proceedings.
The parties have asked the Tribunal to take into account the effect of conditions that Queensland Health has recently imposed on Dr Dolar’s ability to prescribe medication. They significantly curtail the purposes and circumstances in which she may prescribe steroids or restricted drugs.
With one material variation, the Tribunal considers the sanction proposed by the parties is appropriate given the terms of her endorsement, Dr Dolar’s admissions, her evidence about the circumstances in which she issued the prescriptions and the steps she has taken since to address factors that contributed to her conduct.
The conduct
Dr Dolar, a 72 year old doctor, has practised as a medical practitioner in the Philippines, the United States and, since 1973, in Australia. The proceedings involve 7 patients over 5 years. The patients fall into two distinct categories both in type and in point of time.
The first three patients have a personal connection to Dr Dolar. Their scripts were written in the period between late 2005 and mid 2007. She insists there was a therapeutic basis for the medication she prescribed to these patients, although she admits she should have taken further steps to investigate their conditions and should have referred them to a specialist endocrinologist or physician for assessment.
The patient GG, an elderly friend who lived in Fiji, consulted her on a visit to Australia. She wrote two scripts for Andriol and provided them to his son-in-law, a pharmacist. At the time, Dr Dolar considered she had sufficient indication from the patient’s treating doctor in Fiji[2] and from her own knowledge of GG’s health status (she had access to some medical records) to prescribe testosterone hormone replacement therapy. She admits she should have independently tested his testosterone levels and referred him to a specialist endocrinologist or physician.
[2]A letter from the patient’s doctor in Fiji is exhibit MAD2 to the Affidavit of Dr Dolar filed on 3 June 2001.
The patient RJ is a compounding chemist (and the first patient’s son-in-law). Dr Dolar wrote 3 scripts for Sustanon cream (Dec 2005, Aug 2006 and February 2007). Dr Dolar and RJ were associated through the Australian College of Nutritional Environmental Medicine. He complained of fatigue and fertility problems and showed her pathology results[3] that revealed impaired liver function.
[3] Affidavit of Dr Dolar filed on 3 June 2001, pp 7, 8.
As a compounding chemist, RJ handled hormones, in particular oestrogens. Dr Dolar concluded he had absorbed some of the hormones and this impaired his liver function. Dr Dolar admits unsatisfactory professional conduct because she did not undertake blood tests, record the pathology results, independently test his testosterone levels or refer him to a specialist endocrinologist or physician.
[10] The patient ED is her brother. He resides in the Philippines. Dr Dolar issued 2 scripts for Primoteston cream (May 2006 and July 2007). Dr Dolar relied on ED’s account that his regular doctor had commenced Primoteston treatment for a prostate condition and had recommended both a renal suppository and trans-dermal treatment (the cream). He told her he could not always obtain the cream in the Philippines. Dr Dolar admits unsatisfactory professional conduct in failing to independently verify the need for the cream and failing to involve his treating practitioner or referring him to a specialist endocrinologist or physician.
[11] The second category of patients started seeing Dr Dolar in May 2008 and fit a different profile. Three of them presented as body builders, the fourth was aggressive and intimidated Dr Dolar. It is not clear from the material if he also presented as a body builder.
[12] In hindsight, Dr Dolar says she appreciates that she prescribed in combinations and quantities that exceeded personal needs and without establishing a therapeutic basis for doing so. There is some basis for accepting Dr Dolar’s explanation that some of the entries for these patients are double entries caused by the interface of the patient data software with the printer.[4]
[4] Affidavit of Dr Dolar filed 3 June 2011, exhibit MAD10.
[13] Nevertheless, the quantities prescribed and the combination of drugs requested should have put her on notice. They exceeded therapeutic doses (for Sustanon and Primoteston). The combination of different types of steroids for one person is not usual therapeutic practice.
[14] Given all four patients first saw Dr Dolar in May 2008 it is reasonable to assume the patients targeted the practice she worked at and continued to consult her because of her willingness to prescribe the drugs requested without assessment.
[15] The patient RK, a social body builder and the son of other patients of Dr Dolar, was already taking Andriol and androgen steroids[5] for that purpose when he consulted Dr Dolar. She admits she prescribed Sustanon, Primoteston, Deca-Durabolin and Andriol (May, June, August, and October 2008 and January and April 2009). She said she believed she was prescribing in the volume necessary for his personal use and took some limited steps to confirm he was using them himself. She admits she prescribed Sustanon and Primoteston in excess of the therapeutic limit recommended for these steroids and that she should have undertaken blood tests to establish his need for them, before prescribing the medications. She agrees she should have referred him to a specialist endocrinologist or physician.
[5]Androgen is the general term for any one of a group of hormones which governs the development of the sexual organs and the secondary sexual characteristics of the male (including testosterone). Black’s Medical Dictionary 42nd ed, Dr Harvey Marcovitch (ed).
[16] The patient JM was another body builder who consulted her during a similar period – May 2008 to July 2009. Dr Dolar prescribed some 14 medications for him, most of these were steroids of one form or another. Again, Dr Dolar said she believed she was prescribing in the volume necessary for his personal use and did not think the patient might be selling scripts. Although she took limited steps to investigate his testosterone levels, she did not follow this through. She admits she prescribed Sustanon and Promoteston in excess of the therapeutic limit recommended for them. She agrees she should have followed up the testosterone level tests that she ordered. She agrees she should have referred him to a specialist endocrinologist or physician.
[17] The patient ST also saw Dr Dolar in 2008, between May and June. Dr Dolar said this patient was aggressive and threatening. In 2006, Dr Dolar was assaulted by a patient. She was hospitalised with her injuries and changed clinics shortly afterwards. She felt this affected her response to the patient ST.
[18] There were some indications in earlier testing that this patient had low testosterone levels. She banned him from attending the medical clinic after he was caught attempting to steal syringes and was verbally abusive to staff. She admits she should have had him independently assessed. She admits she should have acted on her concerns at the first consultation.
[19] The patient RP, a professional body builder, also started seeing Dr Dolar in May 2008. Until August 2009, Dr Dolar prescribed him a range of steroids for body building purposes. This patient told her he took adulterated impure veterinary preparations if he could not get legitimate scripts. Dr Dolar was concerned about his health. He presented with blatantly obvious signs of oedema: extremely puffed eyes, swollen ears, face and tongue, tender muscles and thick ankles. Dr Dolar prescribed steroids with the intention of diverting him from veterinary supplies. She admits it was inappropriate to prescribe the steroids in those circumstances and that she should have referred him to a specialist.
[20] After investigating Dr Dolar’s prescriptions to the 7 patients, in October 2009, Queensland Health[6] cancelled Dr Dolar’s endorsement to prescribe Testosterone, Nandrolone[7], and Human Chorionic Gonadotrophin[8]. It restored her endorsement in August 2010, subject to conditions.
[6]The endorsement to prescribe medications is governed by the Health (Drugs and Poisons) Regulation 1996.
[7]One of the anabolic steroids, with the property of building protein. Black’s Medical Dictionary 42nd ed, Dr Harvey Marcovitch (ed).
[8]This is a glycoprotein hormone secreted by the placenta in early pregnancy and stimulating the corpus luteum within the ovary to secrete oestrogens, progesterone and relaxin. Black’s Medical Dictionary 42nd ed, Dr Harvey Marcovitch (ed).
[21] RP consulted Dr Dolar again between March and September 2010 for pain relief prescribed Oxycontin and Endone for RP, who complained of severe pain caused by his body-building and a past motor vehicle accident. These drugs have the potential to be misused or abused. Dr Dolar prescribed them in quantities that should have alerted her to the possibility that he might on-sell the drugs. She cancelled her last script after she discovered RP had given her a false residential phone number and, thereafter, refused to see him. She admits she should have conducted further investigations before prescribing those medications.
[22] As a result of this further prescribing to RP, Queensland Health cancelled Dr Dolar’s endorsement completely. Since February 2011, until her endorsement was most recently restored, Dr Dolar was unable to prescribe all controlled drugs, restricted drugs and schedule 2, 3 and 7 poisons. In February 2012, Queensland Health restored her endorsement subject to the limitations set out in the schedule to these reasons.
Disciplinary findings
[23] Dr Dolar has admitted unsatisfactory professional conduct. In determining sanction, the Tribunal must make its own findings about the conduct admitted by Dr Dolar.
[24] She has described the circumstances in which she prescribed to each of the seven patients. The most concerning conduct involves the 4 patients who all started to consult her in 2008. The Tribunal is sceptical about her explanations, particularly for these patients, because the combinations of drugs she prescribed have little therapeutic basis.
[25] The common theme in Dr Dolar’s explanations for all 7 patients is her willingness to act on scant indications from previous test results or the patient’s own account, without properly investigating their condition. She apparently took no steps to ensure that the doses she prescribed did not exceed therapeutic recommendations. She did not monitor the impact on the drugs on her patients.
[26] This is professional conduct of a lesser standard than her professional peers or the public might reasonably expect.[9] It also demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care in the practise of her profession.[10]
[9]Health Practitioners (Professional Standards) Act 1999, sch definition of unsatisfactory professional conduct para (a).
[10]Health Practitioners (Professional Standards) Act 1999, sch definition of unsatisfactory professional conduct para (b).
[27] Dr Dolar was either naïve in her dealings with her patients or willing to turn her face from obvious indications that her patients could be on-selling the drugs she was prescribing to them. She prescribed medications open to misuse or abuse and which had a value on the illicit drug market. The abuse of steroids in the body-building community, particularly on the Gold Coast, where she practised, is a matter of public notoriety. She seemed to consider prescribing steroids for non-therapeutic, body building purposes was an acceptable practice. She was reckless in prescribing steroids in quantities and combinations that, in some cases, would have put the patient’s health at risk, had the patient consumed them all.
[28] The limited enquiries she made to see whether the patient RK was using all the medications she prescribed personally suggests that she was aware of the risk. Her response to the risk with this patient and the others was entirely inadequate. The Tribunal finds this aspect of her conduct is misconduct in a professional respect.[11]
[11]Health Practitioners (Professional Standards) Act 1999, sch definition of unsatisfactory professional conduct para (d).
Sanction
[29] The parties made a joint submission that the Tribunal should reprimand Dr Dolar and impose conditions on her registration for 12 months. The proposed conditions require stringent oversight of Dr Dolar’s prescribing practises. Each day she must provide a supervisor approved by the Board with the clinical record for any patient for whom she has prescribed any medication that day. Each week she must meet with the supervisor to review her prescribing practices. If the meeting cannot happen in person, it may proceed by phone, but Dr Dolar must notify the Board. Dr Dolar must meet all the costs of supervision. The supervisor must report any concerns to the Board within 24 hours.
[30] The purpose of a disciplinary sanction is not to punish the practitioner, although that may be the effect of the sanction.[12] The purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession, and to protect the public. Each case must be considered on its peculiar facts and circumstances to determine what sanction best achieves those purposes.
[12]“Disciplinary penalties are not imposed as punishment but rather in the interests of the protection of the community from unsuitable practitioners. In determining what order the Court should now make, regard should primarily be had to the protection of the public and the maintenance of proper professional standards”: Legal Services Commissioner v Madden(No 2) [2008] QCA 301 at 122; see also The New South Wales Bar Association v Evatt [1968] HCA 20; Southern Law Society v Westbrook [1910] HCA 31.
[31] Recently, the Tribunal has decided a number of cases involving pharmacists who have dispensed steroids in excessive quantities and combinations.[13] While pharmacists might be considered the last line of defence against misuse or abuse of these medications, those prescribing them must surely be at the front line. Although regulated by different professional boards, they share common professional obligations in relation to the supply of drugs liable to misuse and abuse. Regrettably, neither party adverted to the decisions relating to pharmacists in their submissions. In most of them, the Tribunal has imposed a short period of suspension but has suspended the order provided the pharmacist is not subject to further disciplinary action in a specified period.
[13]Pharmacy Board of Australia v Booy [2011] QCAT 522; Pharmacy Board of Australia v Brenton [2011] QCAT 302; Pharmacy Board of Australia v Donnelly [2011] QCAT 584; Pharmacy Board of Australia v Smith [2012] QCAT 186.
[32] In this case, a suspension is certainly open, whether the order itself is suspended or not. The Tribunal has determined not to impose a period of suspension for a number of reasons.
[33] Firstly, Dr Dolar, at nearly 73, is towards the end of her professional life. It is unlikely that she will practise for very much longer.
[34] Secondly, the actions taken by Queensland Health in relation to Dr Dolar’s endorsement have significantly curtailed Dr Dolar’s practice during the course of these proceedings. For 10 months (October 2009 to August 2010) she could not prescribe Testosterone, Nandrolone, and Human Chorionic Gonadotrophin. In February 11, Queensland Health cancelled her endorsements for all controlled drugs, restricted drugs and schedule 2, 3 and 7 poisons[14]. Since then her practice has been severely limited. Dr Dolar has mainly consulted patients seeking a second opinion regarding their present management or patients seeking continuation of management commenced by another specialist.
[14]As defined in the Health (Drugs and Poisons) Regulation 1996, s 5.
[35] Thirdly, Dr Dolar has already taken important steps to increase her knowledge and skill about prescribing generally and about strategies for dealing with difficult patients. She undertook 4 counselling sessions with Dr Brian Kable about prescription writing and the use of steroid medications. She has completed a short course offered by Monash University on issues in general practice prescribing. Dr Dolar has also successfully undertaken a course offered by the Cognitive Institute on mastering difficult interactions with patients. That is of particular importance given Dr Dolar’s past experiences and her feelings of intimidation when dealing with at least one of these patients. What Dr Dolar has learned from this training will be reinforced by an onerous and ongoing and supervision requirement.
[36] Fourthly, Dr Dolar is now subject to stringent limitations on her endorsement to prescribe that will contain her scope of practice accordingly. In summary, those limitations are:
a)She may only prescribe schedule 8 medicines for the treatment of patients requiring palliative care, where the therapeutic need has been directed by a doctor with a relevant specialty who has consulted with the patient;
b)She is prohibited from prescribing Human Chorionic Gonadotrophin; restricted drugs of dependency listed in Appendix 8 of the Health (Drugs and Poisons) Regulation 1996; and any schedule 4 medicine containing pseudoephedrine as the active ingredient;
c)She may only prescribe testosterone or nandrolone for the treatment of patients 65 years or older where the therapeutic need has been directed by a doctor with a relevant specialty who has consulted with the patient;
d)She may only treat patients at her current place of employment; and
e)She must report six monthly to the Drugs and Poisons Policy and Regulation Unit providing details of all prescriptions, to ensure compliance with the limitations.
[37] The combined effect of the proposed supervision conditions and the requirement for specialist direction for schedule 8 drugs and steroids is an active and ongoing mechanism to reduce the risk that Dr Dolar might inappropriately prescribe medications again. They achieve the purposes of disciplinary proceedings: to uphold professional standards, maintain public confidence and protect the public.[15]
[15] Health Practitioners (Professional Standards) Act 1999, s 123.
[38] It seems those limitations will apply to her endorsement until Dr Dolar can persuade Queensland Health they are no longer required.
[39] The parties proposed the supervision conditions on Dr Dolar’s registration should apply for 12 months. Given Dr Dolar’s age, she may not practice for much longer.
[40] Nevertheless, the Tribunal is unwilling to impose conditions that lapse after 12 months. The parties did not oppose alternative orders indicated by the Tribunal. Their effect is that the supervision conditions will apply until removed by the Tribunal. Dr Dolar may not apply to the Tribunal to review the conditions for 12 months from the date of this order. When she does, she will have to demonstrate to the Tribunal that the conditions are no longer necessary.
[41] The Tribunal reprimands Dr Dolar for her conduct and imposes supervision conditions on her registration that will apply until the Tribunal otherwise orders.
Schedule
| Column A | Column B | Column C |
| Function | Medicines or class of medicines | Limitations |
| Prescribe | Medicines listed in schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons | Prescribing is limited to the treatment of patients requiring palliative care where the therapeutic need for the drugs has been directed by a doctor holding specialist registration as a geriatrician, physician or oncologist and who has consulted with the patient. |
| Prescribe | Medicines listed in schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons, excluding: 1. Human Chorionic Gonadotrophin 2. Restricted drugs of dependency listed in Appendix 8 of the Health (Drugs and Poisons) Regulation 1996 3. Any schedule 4 medicine containing pseudoephedrine as the active ingredient | Nil |
| Prescribe | Scheduled medicines containing testosterone and nandrolone | Prescribing is limited to the treatment of elderly patients (those of at least 65 years of age) where the therapeutic need for the drugs has been directed by a doctor holding specialist registration who has consulted with the patient. |
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