Medical Board of Australia v Sykes
[2012] QCAT 293
•10 July 2012
| CITATION: | Medical Board of Australia v Sykes [2012] QCAT 293 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Mark Stephen Sykes (Respondent) |
APPLICATION NUMBER: OCR277-11
| MATTER TYPE: | Occupational regulation matters |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by Dr Sandra Congdon Mr Trevor Jordan Dr David Rosengren |
DELIVERED ON: 10 July 2012
DELIVERED AT: Brisbane
ORDERS MADE: | 1. Dr Sykes is reprimanded for the unprofessional conduct the subject of these proceedings. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the registrant prescribed pseudoephedrine to a patient with a drug dependency – where the registrant had a clinical purpose for prescribing the medication – where there was no evidence to support the use of the medication for that purpose – where the registrant sought a psychiatrist’s opinion on the patient’s treatment regime – where the registrant misinterpreted the psychiatrist’s opinion – where the registrant did not take adequate steps to otherwise manage the patient’s illness in light of drug dependency – whether the registrant’s conduct constitutes professional misconduct OCCUPATIONAL REGULATION – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – COSTS – whether the matter could reasonably been dealt with by a panel of the Board – whether the registrant should pay the Board’s costs of and incidental to the application Health Practitioners (Professional Standards) Act 1999, s 255(1) Health Practitioner Regulation National Law Act 2009, Schedule, ss 3(2)(a), 5 Medical Board v Alroe [2007] QHPT Richards DCJ 19/09/07 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Dr Sykes has practised as a general practitioner since April 1982. His treatment of one of his patients, between June 2009 and October 2010, with pseudoephedrine (PSE) led to Queensland Health cancelling his endorsement to prescribe that medication. On the information gathered by Queensland Health, the Board imposed a condition on Dr Sykes’ registration prohibiting him from dealing with any restricted drugs or poisons containing PSE.
The nature and circumstances of Dr Sykes’ treatment are not in dispute but the parties do not agree about either the findings the Tribunal should make or the sanction that should be imposed. The parties requested, nevertheless, that the matter proceed on the basis of the material filed, without an oral hearing, because there was no factual dispute to be resolved.
The matter is brought under the Health Practitioner Regulation National Law (Queensland). The Board is required to refer to the Tribunal any matter that involves professional misconduct to the Tribunal. It alleged that this is a case of professional misconduct.
Dr Sykes disputed that. He conceded he engaged in unprofessional conduct which, his counsel submitted, could have been dealt with by the Board or a panel under other provisions of the National Law (Queensland). The Tribunal accepts that submission. This case involves treatment of a single patient. Although it warrants disciplinary action, it was unnecessary to refer it to the Tribunal. The findings made and the penalty imposed in this case could have been made by a panel. Bringing the matter to the Tribunal has increased the time and cost involved in finalising this matter, a matter the Tribunal has taken into account in determining how the costs should be dealt with.
The conduct
Dr Sykes had treated the patient and his family for some years. He was aware of the patient’s substance abuse problems and that he was still actively using intravenous drugs at the time he treated him with PSE. He says the patient had frontal lobe damage as a result of an organic brain injury. He was provided with a copy of a medico-legal report prepared by Dr John Flanagan which recorded his diagnosis as an Axis 1 diagnosis of Stimulant Dependence, Probable Attention Deficit Hyperactivity Disorder and Possible Cognitive Disorder (not otherwise specified) due to brain injury and infarction. Although there was not conclusive evidence of ADHD there was some evidence of associated impulse control deficits. In his report, Dr Flanagan noted the treatment of ADHD relies heavily on therapeutic stimulants, but this was contraindicated in people with a history of intravenous substance abuse.
The Tribunal accepts Dr Sykes’s evidence that he commenced prescribing PSE to the patient, believing that this medication may be of therapeutic benefit in managing the patient’s condition. This is evident from his referral of the patient to Dr Flanagan and the associated correspondence about his treatment.
He first referred the patient to Dr Flanagan the year before. In June 2009, he wrote to Dr Flanagan and then again in early August, within a fortnight of commencing treatment. He informed Dr Sykes that he was giving the patient scripts for oral Sudafed in order to minimise the patient’s craving for illicit amphetamines. He revealed the dose he was then prescribing (120mg four times a day). He observed that the patient’s impulsive behaviour seemed to diminish in response. He sought Dr Flanagan’s approval to commence Ritalin CR, which he thought would also be beneficial.
After reviewing the patient on Dr Sykes’s referral, Dr Flanagan noted that the patient continued to use intravenous amphetamine, although less so since being prescribed Sudafed, and stated that approval for stimulants could not be obtained for a person with a previous history of IV abuse, much less if they are still using.
Dr Sykes did not take this to be a direction to cease using PSE. Dr Flanagan’s advice was indirect. Dr Kable, who provided a report to the Board, read Dr Flanagan’s reply as indicating a view that the patient’s problem was substance abuse, not frontal lobe dysfunction or ADHD. He noted this was not overtly spelt out. Dr Kable also said that Dr Flanagan implied that the medication (PSE) was not appropriate. Dr Flanagan did, however, clearly recommend that the patient was referred to a psychiatrist with treatment of substance abuse specialty or referral to a drug and alcohol service for withdrawal and rehabilitation. With hindsight, Dr Sykes conceded he should have interpreted the report as advising against treatment using PSE.
Dr Sykes also agreed he did not have a proper basis for the treatment. Dr Kable described it as a last ditch attempt to help the patient and his family. He considered this a somewhat hazardous route to take in light of the patient’s ongoing intravenous drug use and his failure to comply with earlier attempts at rehabilitation and detoxification. Dr Kable stated there is no evidence that PSE is a suitable treatment for impulsive behaviour as it is demonstrated in ADHD or in treating frontal lobe damage. Dr Sykes has not led any evidence to the contrary. Although Dr Kable accepted that Dr Sykes had a clinical purpose in mind, he considered he was misguided in his belief and was exploited by the patient.
Dr Sykes was aware of the risks inherent in the course he adopted. He was conscious the patient associated with people involved in drug dealing. He took some trouble to control the patient’s access to PSE because of his concern that he might divert it to other purposes. He monitored the patient closely. He dispensed on a weekly basis. He monitored the dispensing frequency by directing him to present his scripts to a limited number of pharmacies. He counselled the patient about ADHD and the role of stimulants in treating his condition. The Board has not led any evidence that the patient did divert any PSE. It could not be said that Dr Sykes disregarded his responsibilities in prescribing the medication.
Nevertheless, it should have become evident to Dr Sykes that the patient was exploiting his willingness to prescribe PSE. Over time the dosing escalated and the frequency of prescriptions increased. There were steps he could have taken to manage the situation.
Dr Kable considered Dr Sykes should have withdrawn his support for the trial and referred the patient to another psychiatrist with skills in managing patients with substance abuse problems. He noted that Dr Sykes not enquire with the Drugs of Dependence Unit to see whether the patient was doctor shopping or using other medication. Dr Kable also considered Dr Sykes should have conducted regular urine screens to ensure that the patient was being compliant with the trial.
Dr Kable noted Dr Sykes did not use the GP Psych Support Service of the Royal Australian College of General Practitioners. This service, which is available to all GPs whether or not they are members of the college, provides advice about treatment options and management difficulties when a GP cannot get timely access to a psychiatrist. That may well have been an issue for Dr Sykes, who practised in relative isolation in Yeppoon with limited access to specialists.
Dr Sykes had a genuine but misguided clinical purpose in prescribing PSE to the patient. He did seek specialist input at the commencement of the treatment in June 2009, but misinterpreted the advice he was given. He adopted a course of treatment for which there was no demonstrated basis. He relied on the patient’s self reporting about his symptoms and level of use, without independently evaluating the efficacy of the treatment. He maintained the treatment over a lengthy period, more than 16 months, in the face of escalating dosage and more frequent demands for scripts. He failed to follow the advice given by Dr Flanagan to refer the patient to a psychiatrist with treatment of substance abuse specialty. He did not take other steps, such as those identified by Dr Kable, to monitor the patient’s use of other substances, whether illicit or prescribed by another practitioner. He did not seek alternative sources of advice.
The findings
Dr Sykes accepts his conduct amounts to unprofessional conduct in that it was professional conduct of a lesser standard than that which might reasonably be expected of him by the public or his professional peers.[1] Further, he provided health services of a kind not reasonably required for the patient’s well being.
[1]Health Practitioner Regulation National Law Act 2009, Schedule, s 5, definition ‘unprofessional conduct’.
The Tribunal is not satisfied that it amounts to professional misconduct. The Board alleged it was so, because it was either:
(a) conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; or
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below that standard.[2]
[2]Health Practitioner Regulation National Law Act 2009, Schedule, s 5 definition ‘professional misconduct’.
The report of Dr Kable, presented by the Board in support of its case, does not support a finding of professional misconduct. He considered Dr Sykes’s treatment was not supported by evidence and that Dr Sykes was exploited by the patient. However, he accepted Dr Sykes had a genuine clinical purpose and that this was an isolated example of extensive prescription of PSE, not a systemic issue for Dr Sykes, who had not been targeted by other drug seekers.
The Tribunal does not accept Dr Sykes’s conduct was substantially below the relevant standard. Although Dr Sykes issued many separate scripts for PSE, this was done in the context of a single treatment regime. These are not multiple instances of unprofessional conduct. In fairness, this is better characterised as a single and continuous episode of unprofessional conduct.
The sanction
The Board has proposed Dr Sykes’s registration is suspended for between 9 and 12 months. Recognising Dr Sykes’s co-operation in these proceedings, the Board proposed the Tribunal suspend that order for 18 months, subject to Dr Sykes complying with conditions that require him to undergo further training about dealing with drug dependent patients, completing a course on prescribing and participating in a mentoring program.
The Tribunal considers that penalty is excessive in the circumstances. It is not supported by the cases that the Board relied upon,[3] which involve different or more serious offending.
[3]Medical Board v Alroe [2007] QHPT Richards DCJ 19/09/07; Medical Board of Queensland v Smith [2006] QHPT 002; Pharmacy Board of Australia v Heron [2011] QCAT 424; Pharmacists Board of Queensland v Coffey [2008] QHPT Griffin SC DCJ 14/10/08.
The case against Dr Alroe, although a single incident of inappropriate prescribing, involved the circumvention of the methodone program without any procedures being put in place to ensure the patient’s safety. Dr Alroe prescribed methodone for a drug dependent patient with a history of drug abuse and psychiatric illness, including suicide attempts and schizophrenia. The patient sought admission to a methodone program that was oversubscribed. Dr Alroe prescribed methodone without taking a comprehensive history or ensuring he was not receiving drugs from any other source. He did not keep notes of his consultation or rationale for his treatment and did not consult the drugs of dependence unit. The patient died from a methodone overdose a few days after he saw Dr Alroe. The coroner found insufficient evidence for any person to be charged with a criminal offence. The Tribunal found Dr Alroe’s evidence about the consultation as confusing and inconsistent and that he was not a credible or reliable witness. Dr Alroe had been the subject of other serious disciplinary proceedings which were unrelated. Dr Alroe was not then registered. The Tribunal directed that he could not be re-registered for a further 16 months and required him to undertake further training about prescribing practices before reapplying. Conditions were to be imposed on his future registration.
In the case involving Dr Smith, the Tribunal found him to be a long term and perhaps habitual prescriber of narcotic medications to many drug dependent patients. The Tribunal did not accept all of his explanations. It described his conduct as a haphazard and dangerous course of action.
The two other cases relied on by the Board involved pharmacists. Both involved multiple sales. In one, sales were made to ten customers recorded on Project Stop, a database of sales to persons suspected of securing PSE for amphetamine production. In the other, the pharmacist failed to record sales of PSE more than 1,000 times over 2 years. Neither involves similar facts to this one.
The Tribunal has not been referred to a case with similar facts to this one, and has been unable to identify any either in Queensland or other states or territories of Australia. The principles of disciplinary sanction are well established: to maintain professional standards and confidence in the profession and to protect the public. The Tribunal must exercise its functions with regard to the objectives of the National Law, which include to ensure only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.[4] The Tribunal has taken that, and the other objectives, of the National Law into account in determining sanction.
[4] Health Practitioner Regulation National Law Act 2009, Schedule, s 3(2)(a).
Given its finding about his motivation, the Tribunal gave serious consideration to cautioning Dr Sykes. He is a well regarded practitioner and has provided references attesting to that and to his character. He has also practised for almost 30 years without any prior disciplinary proceedings.
However, the Tribunal determined a reprimand is the more appropriate sanction given the length of the treatment, Dr Sykes’s failure to independently assess its efficacy in any way and his failure to respond to clear signs that the regime was being exploited by the patient. A reprimand must be publicly recorded on the Board’s register. This is not a trivial penalty. The Tribunal notes the Board has the power to decide, in the future, that it is no longer necessary to record a reprimand on the public register.[5] Although it is a matter for the Board, if Dr Sykes practises in the future as he did before this course of conduct, that might reasonably be taken to be an indication that publicly recording the reprimand is no longer required.
[5] Health Practitioner Regulation National Law Act 2009, Schedule, s 226(3).
The Tribunal is not persuaded anything would be served by Dr Sykes undergoing a course in prescribing. In the absence of the parties identifying a suitable professional development activity relating to dealing with drug dependent patients, the Tribunal will not require Dr Sykes to undertake one. It is incumbent on Dr Sykes to ensure that he maintains knowledge of and makes use of current sources of advice and assistance. These proceedings, no doubt, have reinforced the importance of doing so. The Tribunal is not persuaded more is needed by way of a formal activity or mentoring.
The Board has asked for an order that Dr Sykes pay its costs of these proceedings. The Tribunal can make such order as it considers appropriate.[6] The Board fulfils a public interest function in bringing these proceedings and, where a disciplinary ground is made out, it might usually anticipate an order in its favour. This matter could have been dealt with by a panel of the Board. The process would have been less costly had the Board taken that path. This was not a matter that had to be referred to the Tribunal. It seems it may have been done so under a misunderstanding about what law applied, in the context of the transition from a state based to a national scheme of regulating medical practitioners.
[6] Health Practitioners (Professional Standards) Act 1999, s 255(1).
Dr Sykes had no control over where these proceedings were brought. He has co-operated extensively in these proceedings. The Tribunal has found his resistance to the orders proposed by the Board was well founded. In the circumstances, the Tribunal does not consider it is appropriate that Dr Sykes meets the Board’s costs of the proceedings and declines to make the order requested by the Board.
The Tribunal’s order is:
1. Dr Sykes is reprimanded for the unprofessional conduct the subject of these proceedings.
2