Medical Board of Queensland v Sinnathamby

[2009] QCAT 37

CITATION: Medical Board of Queensland v Sinnathamby [2009] QCAT 037

PARTIES:	Medical Board of Queensland (Applicant)
v
Mr Sivalingam Sinnathamby (Respondent)

APPLICATION NUMBER:   HPF009-09  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     14 December 2009

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham

DELIVERED ON: 14 December 2009

DELIVERED AT:      Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:      

1.     The Registrant is reprimanded.

2.     The Registrant is fined $1,500.00.

3.     The Registrant is to pay the Board’s costs of the investigation and the proceedings on the standard basis to be agreed or assessed.

4.     The Registrant’s registration is subject to the following conditions for a period of three years from the date of this order:

a. The Registrant will only prescribe controlled drugs (Schedule 8) and restricted drugs (Schedule 4) in accordance with an approval if the approval of the Drugs of Dependence Unit Queensland Health (“DDU”) is required under sections 120 and 213 of the Health (Drugs and Poisons) Regulation 1996 (Qld) respectively;

b.   The Registrant consents to the DDU reporting to the Medical Board of Queensland (“the board”), following notification to the Registrant in each instance, any occasion where there is actual or suspected non compliance with clause 4(a);

c.   The Registrant must practice in accordance with the Board’s policy relating to Unconventional Medical Practice;

d.   The Registrant will keep a register containing details of any treatment to patients that falls within the scope of the Board’s policy on unconventional Medical Practice, to include the following information:

              (i)     the date of the treatment;

             (ii)     the name of the patient;

            (iii)     any relevant patient history and details of the physical examination of the patient;

            (iv)     the Registrant’s diagnosis of the patient;

             (v)     confirmation that informed consent had been obtained from the patient prior to treatment being administered; and

            (vi)     details of the treatment administered to the patient.

e.   The Registrant will provide a copy of the register to the Board at the following intervals:

              (i)     every three months from the date of this order for the first 12 months;

             (ii)     every six months from the date of this order for the second 12 months; and

            (iii)     three years from the date of this order.

f.    The Registrant will allow a representative of the Board to inspect the register described in clause 4(d) and the clinical records of his patients at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions;

g.   At his expense, the Registrant will provide the Board with copies of the register described in clause 4(d) and copies of the clinical records of his patients as nominated by the Board at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions;

h.   The Registrant will authorise the Health Insurance Commission to release to the Board any information about his treatment of patients, including prescriptions written by him;

i.     The Registrant will, within two days for receiving these conditions notify all of the following persons of these conditions:

              (i)     Partners or principals working in a practice with the Registrant; and

             (ii)     Any practice manager of any practice where the Registrant practices.

j.     Within two days the registrant will inform the Board, in writing, of the name/s of the person/s described in clause 4(h) that he has notified of these conditions;

k.   These conditions will be recorded in the register of the Board for the time they are in force.

CATCHWORDS : 

HEALTH PRACTITIONER – GROUNDS FOR DISCIPLINARY ACTION AGREED – excessive and inappropriate prescription of drugs of dependence – unconventional medical treatment – inadequate record of diagnosis and treatment.

HEALTH PRACTITIONERS – DISCIPLINARY ACTION – conditions imposed relating to prescription of drugs of dependence, record keeping and inspection of records. 

APPEARANCES and REPRESENTATION:

APPLICANT:	P D McCowan, McInnes Wilson
RESPONDENT:	C T Diehm SC, instructed by Quinlan Miller & Treston

REASONS FOR DECISION

1. The Medical Board of Queensland referred to the Health Practitioners Tribunal grounds it asserts for disciplinary action to be taken against Dr Sinnathamby. The Health Practitioners Tribunal has since been abolished and its jurisdiction transferred to the Queensland Civil and Administrative Tribunal under transitional provisions of the QCAT Act, specifically sections 256 and 271.

2. The referral to the Health Practitioners Tribunal is taken to be a proceeding before QCAT and QCAT has the functions and powers of the Health Practitioners Tribunal in relation to it. The referral relies on two grounds for disciplinary action. Certain admissions made by Dr Sinnathamby have largely resolved the issues. The parties agree grounds for disciplinary action exist pursuant to section 124 of the Health Practitioners (Professional Standards) Act 1999, and further, they are agreed as to the orders that the Tribunal should make.

3. There are nevertheless some matters still in contention which the parties agree have no bearing on what orders the Tribunal should make in this matter. The purposes of disciplinary proceedings are set out in section 123 of the Health Practitioners Professional Standards Act. They are to protect the public, to uphold standards of practice within the health professions and to maintain public confidence in the health professions.

4. The first ground relied upon relates to the patient, Adam McClelland, and his treatment during the period 24th of February 2006 to the 29th of August 2007.  Dr Sinnathamby accepts he excessively and inappropriately prescribed drugs of dependence to that patient in circumstances where the patient demonstrated addictive behaviour.

5. There are still some points of difference between the parties about what drugs were prescribed on particular dates.  Both accept little turns on this because, overall, what is agreed makes out the charge.  Orders proposed which address this charge allow reporting to the Board by the Drugs of Dependence Unit of Queensland Health on any occasion of actual or suspected non-compliance.  Dr Sinnathamby will also provide access to his records as required and authorise the Board to have access to records of the Health Insurance Commission. 

6. The essence of this ground is that Dr Sinnathamby failed to adequately manage the pressure this patient brought to bear upon him.  Dr Carter, who investigated and reported to the Board on this ground, acknowledged that it can be difficult to detect substance abuse in addicts. They can use clever techniques to avoid detection and such patients are notoriously difficult to treat and manage.

7. I accept the submission made by his counsel that Dr Sinnathamby did not act in a cavalier manner or with indifference.  His records do reveal his attempts to ensure the patient accessed rehabilitation programs.  It is also of significance that the charge relates to one patient only.  There was some evidence led about contact between Dr Sinnathamby and the patient's mother.  I do not consider it necessary to make any observation about that contact.

8. The second ground relates to the patient, Mr Hoff.  His treatment occurred between the 2nd and the 23rd of December 1996 and the 6th and 14th of January 1997.  The matter came to the Board's attention following settlement of a negligence claim made by Mr Hoff.  The treatment involved intravenous therapy infusions.  Initially the Board alleged this was EDTA chelation therapy. 

9. Dr Kable, who investigated and reported to the Board on this ground, found no evidence that EDTA chelation therapy had been used,  although some statements were made to Mr Hoff and his wife which indicated it was the treatment used.  In any case, the Board now proceeds on the basis that it accepts that the therapy used was intravenous vitamin therapy.  Further, the Board is not pressing particular 2.7 in relation to this ground which relates to a consent form.

10. The parties agree this is unconventional medical treatment.  The Board did not then have guidelines for the treatment, although Dr Kable asserts the guidelines later adopted reflect what was good medical practice at the time.  Dr Sinnathamby is not in a position to establish the clinical context in which this treatment occurred.  On that basis he admits the charges  that he commenced infusions in the absence of any clinical context.

11 .Dr Sinnathamby's position illustrates the substance of the balance of the Board's charge.  That is, the inadequate recording of his diagnosis and treatment of Mr Hoff and observations of the patient during the course of treatment.  Had Dr Sinnathamby's records reached the expected standard he may well have been in a position to contest that he commenced infusions in the absence of a clinical context.  Dr Kable expressed the view that the standard of the note keeping was well below that which could be expected by the public and by his professional peers.

12. The proposed orders address this ground by the requirement for Dr Sinnathamby to practice in accordance with the Board's policy relating to unconventional medical practice and to keep certain records relating to such treatment.  Further, the orders provide the Board with access to Dr Sinnathamby's records and to those of the Health Insurance Commission.

13. I was initially concerned that there was no scheduling for auditing Dr Sinnathamby's record keeping, generally, to ensure its adequacy.  Between 2005 and 2007, Dr Sinnathamby was monitored by the Board in relation to his record keeping.

14 .However, the records relating to the patient McClelland appear to be adequate.  The records relating to Mr Hoff predate the period that Dr Sinnathamby was monitored by the Board.  Given that, I do not see a need for a monitoring schedule in relation to Dr Sinnathamby's treatment generally.  However, in so far as it relates to unconventional medical practice I have amended the proposed orders to add the further requirement canvassed with counsel already.

15. I will make orders pursuant to section 241 and 242 of the Health Practitioners (Professional Standards) 1999 Act in the terms of the draft provided to me with that addition announced earlier.