Medical Board of Australia v O'Sullivan
[2011] QCAT 135
•14 April 2011
| CITATION: | Medical Board of Australia v O’Sullivan [2011] QCAT 135 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Kathryn Mary O’Sullivan (Respondent) |
| APPLICATION NUMBER: | OCR074 -10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by Assessors: Dr Eleanor Milligan Dr Eileen Mary Burkett Dr David Morgan |
| DELIVERED ON: | 14 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
Dr O’Sullivan’s registration is suspended for a period of 6 months, which period is to be suspended after the expiration of 3 months.
Dr O’Sullivan must not be the subject of disciplinary action for a period of 18 months if she is to avoid being dealt with under s 250 of the Health Practitioners (Professional Standards) Act 1999 for the suspended period of suspension.
The following conditions are imposed on Dr O’Sullivan’s registration:
(a) Dr O’Sullivan must participate in and complete by 30 June 2012, or such later date as may be agreed with the Board, (at her own expense) an ethical decision-making training program approved by the Board, for the purpose of developing and reinforcing her understanding of professional responsibilities and ethical decision-making skills.
(b) By 15 May 2011 or such time as the parties might agree, Dr O’Sullivan must engage (at her own expense) a psychologist, counsellor or colleague approved by the Board to act as her mentor/counsellor, for the purpose of:
(i) Addressing her conduct in this case, being the matters the subject of the Board’s referral notice and before QCAT: and
(ii) Reinforcing her appreciation and understanding of professional responsibilities and ethical decision-making skills.
(c) Dr O’Sullivan must (at her own expense) attend meetings with the mentor/counsellor every month for a period of at least 12 months to discuss the matters referred to in conditions 3 (b)(i) and (ii).
(d) Dr O’Sullivan must authorise the mentor/counsellor to provide reports to the Board every 3 months for a period of at least 12 months (at her own expense) detailing the date of the meetings, a summary of the issues discussed and any concerns the mentor/counsellor may have.
(e) Dr O’Sullivan must authorise representatives of the Board to inspect her patient records at such time or times as the Board shall determine for the purpose of monitoring her compliance with these conditions and the Board’s guidelines relating to unconventional medical practice.
(f) Dr O’Sullivan must provide the Board with copies of the clinical records of patients as nominated by the Board (at her own expense) at such time or times as the Board shall reasonably determine for the purpose of monitoring her compliance with these conditions and the Board’s guidelines relating to unconventional medical practice.
(g) Dr O’Sullivan must authorise insurance funds and Medicare Australia to provide information to the Board about her treatment of patients for the purpose of monitoring compliance with these conditions and with the Board’s guidelines relating to unconventional medical practice.
(h) Dr O’Sullivan must notify the following persons of these orders in writing within 7 days of their imposition:
(i) Any employer, CEO (or equivalent), partner or registered medical practitioner of any health care facility where she works;
(ii) Every person who is or may be responsible for booking consultations with her;
(iii) Locum, recruitment or other agencies with whom she is registered; and
(iv) Other entities she contracts with to provide a medical service.
Dr O’Sullivan must provide each person described in condition 3(h) with a copy of the attached information and acknowledgement sheet and ask him/her to sign it. Dr O’Sullivan will take all reasonable measures to ensure that each document is returned to the Board by post, email or facsimile within 7 days of it being signed.
(j) Dr O’Sullivan must inform the Board of the name/s of the person/s described in condition 3(h) that she has notified of these conditions in writing within 2 days.
(k) Dr O’Sullivan must comply with conditions 3(h), (i) and (j) now and in the future before changing her position, employment or practice.
The Board must approve the mentor/counsellor and the ethics course within one month, or such later date agreed by the parties.
Dr O’Sullivan may not apply for review of these conditions for a period of 18 months.
The suspension of Dr O’Sullivan’s registration must cease to be recorded in the Board’s register after the end of the operation period of 18 months.
The disciplinary action and conditions imposed on Dr O’Sullivan’s registration must be recorded in the Board’s register for the period for which the conditions are in force.
Dr O’Sullivan must pay the Board’s standard costs and outlays on the District Court scale to be agreed or assessed.
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – where Doctor practiced unconventional medicine to treat a Naturopath with cancer – where Naturopath proposed the treatment – where Doctor collaborated with Naturopath to treat other cancer patients – where Doctor did not follow Guidelines on Unconventional Medicine – where Doctor provided Naturopath with access to medical supplies and drugs – where Doctor prescribed the Naturopath a medical substance she knew or should have known was not for her personal use – whether Doctor accepted she had a duty of care to the Naturopath and the other patients Health Practitioner Regulation National Law 2009, ss 205, 226 Medical Board of Queensland v McFarlane [2000] HPT cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009.
REASONS FOR DECISION
This case involves a medical practitioner’s involvement in unconventional medical practices. These are practices that lie beyond the range of conventional practice because there is insufficient scientific evidence of their efficacy and safety. The Medical Board of Queensland adopted Guidelines on Unconventional Medical Practice in order to inform medical practitioners of the standards of practice expected of them should they choose to practice outside the norms of standard medical practice.[1] In this case the allegations against Dr O’Sullivan include her failure to follow those Guidelines.
[1] Transitional provisions which mean these guidelines applied at the relevant time.
Dr O’Sullivan, a medical practitioner for some 30 years, faces disciplinary proceedings because of her treatment of and involvement with Jill Newlands, a naturopath who had breast cancer.
It appears that Dr O’Sullivan initially encountered Ms Newlands as a patient. She sought Dr O’Sullivan’s assistance to administer a course of treatment which she had resolved upon after conducting her own investigations. The treatment involved infusions of bicarbonate of soda. Dr O’Sullivan described Ms Newlands as having a forceful personality. She did not seek advice, merely assistance.
Dr O’Sullivan concedes there is no reasonable scientific evidence to support the treatment, nor a reasonable scientific expectation that it would have resulted in a favourable outcome for Ms Newlands. She also concedes that she did not appropriately investigate Ms Newland’s condition; nor did she advise her of her conventional treatment options and their associated risks.
Dr O’Sullivan accepts that she did not fully explain the treatment was an unconventional medical practice, although it can be expected that Ms Newlands was aware of that. Nor did Dr O’Sullivan fully explain the extent to which the treatment had been evaluated. She did not adequately document Ms Newland’s informed consent to the treatment. Each of these matters is covered by the standards of practice adopted by the Guidelines.
Ms Newlands may well have been resolute about her course of treatment and disinterested in any advice Dr O’Sullivan might have given. This did not absolve Dr O’Sullivan from her professional responsibility. Ms Newlands sought the services of a medical practitioner and they were provided. It was Dr O’Sullivan’s responsibility to ensure that her patient was properly advised, regardless of how informed and resolute she appeared to be.
More concerning is that, after that initial experience with Ms Newlands (December 2007 and February 2008), Dr O’Sullivan became drawn in to improperly enabling Ms Newland’s treatment of others.
In February 2008, Dr O’Sullivan gave Ms Newlands permission to use her account number to order medical supplies from a health care supplier. This gave her access to certain medical supplies and pharmaceuticals she used to administer treatment to her own patients. It also gave her access to restricted and controlled drugs.
In November 2008, Dr O’Sullivan wrote Ms Newlands a prescription for heparinised saline, with two repeats, without examining her. In the circumstances that applied, Dr O’Sullivan either knew or should have known it was not for Ms Newland’s personal use.
In December 2008, Dr O’Sullivan treated two of Ms Newland’s patients who were seriously ill with cancer. In company with Ms Newlands, she intravenously administered Miracle Mineral Solution (MMS), a mixture of sodium chlorite and citric acid. Broadly speaking, her breaches of the Guidelines in the treatment of those patients are the same as those breaches relating to her treatment of Ms Newlands.
Dr O’Sullivan says she regarded them as Ms Newland’s patients, not her own. This may partially explain why she followed none of the practices required by the Guidelines. It is not consistent, however, with making a claim for payment from Medicare for the services that she performed. In any case, the treatment occurred in her facility and with her assistance.
Dr O’Sullivan relied entirely on Ms Newlands to assess, advise and formulate a course of treatment for these two patients. It seems, initially, she intended only to provide a facility in which the treatment could take place but eventually played a more active role. Again, Dr O’Sullivan presents a picture of having succumbed to pressure from Ms Newlands.
From assisting Ms Newlands in her self-prescribed treatment, Dr O’Sullivan progressed to being an active participant in or facilitator of Ms Newland’s own practice. Dr O’Sullivan’s dealings with Ms Newlands were unacceptable. However forceful Ms Newlands might have been, Dr O’Sullivan chose the extent to which she facilitated Ms Newlands’ self-determined treatment and her treatment of others.
As well as breaching the Guidelines, Dr O’Sullivan blurred the distinction between Ms Newlands as a patient and Ms Newlands as a naturopath. Dr O’Sullivan used her position as a medical practitioner to provide Ms Newlands with supplies and facilities she would not otherwise have had access to. Ultimately she found herself directly assisting Ms Newlands to treat others.
The Tribunal accepts Dr O’Sullivan’s motivation was a desire to help not harm. She has a lengthy and unblemished record of service as a doctor. Dr Ryan, who observed her over some years as a colleague, has attested to her empathetic practice and desire to treat patients holistically, taking into account the full range of the patient’s personal circumstances. Her empathy is no doubt valued by her patients. Her attention to the full context in which health issues arise is uncontroversial. Neither her attitude nor her approach led to these disciplinary proceedings.
A concerning feature of Dr O’Sullivan’s affidavit material is the apparent transfer to others of a duty of care that properly rested with her. She considered that responsibility for Ms Newland’s treatment lay with Ms Newlands, not with her. Her duty of care to the patients she treated with Ms Newlands, she placed with Ms Newlands as well.
Shortly after her affidavit was filed, Dr O’Sullivan indicated her intention to resolve these proceedings without contest of most matters and in a timely way. Her co-operation with the Board has been significant. The Tribunal takes her concession of the disciplinary charges to indicate her genuine acceptance, now, of her personal responsibility in relation to these matters. The conditions she has agreed to abide by, acknowledge further guidance or ethical decision-making is called for.
The Tribunal is satisfied Dr O’Sullivan’s conduct is unsatisfactory professional conduct in the following respects:
a) It is of a lesser standard than might be reasonably expected of her by the public or her professional peers;
b) It demonstrates a lack of judgement or care in the practice of her profession;
c) It is discreditable to her profession;
d) It involved the provision of health services that were excessive, unnecessary or not reasonably required;
e) It was improper and unethical.
There are a number of previous cases involving unconventional medical practice, but the circumstances of each were quite different leading to a substantial range in penalties.[2] None have been brought to the Tribunal’s attention which are directly comparable.
[2]Medical Board of Queensland v McFarlane [2000] HPT – cancelled never to be reregistered; Medical Board of Queensland v Pluta [2009] HPT 5 – undertakings to comply with conditions; Medical Board of Queensland v Raddatz [2000] HPT – cancelled, re-registration subject to conditions; Medical Board of Queensland v Tarvydas [2010] QCAT 246 – cancelled re-registration only after certain conditions met.
The parties have jointly proposed orders that involve a period of suspension (6 months) which is partially remitted (after 3 months) provided she is not subject to further disciplinary proceedings in the next 18 months. Given the multifaceted nature of the disciplinary charges, Dr O’Sullivan could well have faced a longer period of suspension. However, she has had some 30 years of medical practice without complaint. Six months is a significant penalty for any practitioner and will serve as a deterrent to others. Partially remitting the suspension recognises her significant co-operation in these proceedings. It will also provide an ongoing deterrence for Dr O’Sullivan while she complies with other orders proposed by the parties.
The parties propose Dr O’Sullivan’s registration is subject to comprehensive and quite onerous conditions. The conditions require Dr O’Sullivan to undertake ethical decision-making training and to participate in intensive mentoring over a 12 month period. She must allow Board, insurance funds and Medicare Australia access to patient records to monitor compliance with the Guidelines relating to Unconventional Medical Practice. She must notify those who employ her or provide her with booking services about the conditions. The conditions apply for 18 months.
The parties have already discussed suitable courses and mentors. Present indications are that they will be agreed shortly. The Tribunal is satisfied that the proposals under discussion between the parties will ensure Dr O’Sullivan has access to appropriately qualified and experienced advice. That will satisfy the purpose of protecting the public, maintaining professional standards and maintaining public confidence in the profession.
The parties have sought orders about the period for which these disciplinary orders are recorded on the Register. These proceedings are dealt with as if the Health Practitioners (Professional Standards) Act 1999 had not been repealed.[3] Under s 242 of that Act the Tribunal was required to decide these matters. Under the national registration system, the provisions of the National Law will govern the Registers. The Tribunal has decided to make the orders sought. While the Board has powers to include or remove certain information from the Register,[4] it must also give effect to the Tribunal’s decision.[5]
[3] Health Practitioner Regulation National Law 2009, s 289(2)(b).
[4] Health Practitioner Regulation National Law 2009, s 226.
[5] Health Practitioner Regulation National Law 2009, s 205.
0