Pradhan v Medical Board of South Australia No. Scciv-02-47

PRADHAN v MEDICAL BOARD OF SOUTH AUSTRALIA

[2002] SASC 77
Full Court
Coram: Prior, Nyland and Gray JJ

PRIOR J: I agree with Justice Gray. The orders made by the Tribunal were entirely appropriate given the findings of incompetence and the absence of confidence in the practitioner’s capacity to train or retrain to a satisfactory level during any period of suspension.
The appeal should be dismissed.
NYLAND J I agree the appeal should be dismissed for the reasons expressed by Gray J.
GRAY J This is an appeal by a practitioner (“the practitioner”) from orders made by the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) pursuant to s 66 of the Medical Practitioners Act 1983 (“the Act”). On 31 January 2002 the Tribunal ordered the cancellation of the practitioner’s registration on the general and specialist registers.
Background
The practitioner is a specialist ophthalmologist. A patient complained to the Medical Board of South Australia (“the Board”) after consulting the practitioner between September 1996 and December 1997. The Board then complained to the Tribunal pursuant to section 58 of the Act alleging unprofessional conduct.
The conduct was said to have included negligent and incompetent treatment, improper and unethical diagnoses and the undertaking of inappropriate unnecessary and unwarranted treatment.
On the fifth day of the Tribunal hearing a number of the matters of complaint were admitted. The Board withdrew the remaining allegations. The practitioner admitted that he had engaged in conduct that was both incompetent and unprofessional[1]. This conduct included a number of inappropriate and incompetent diagnoses. One such diagnosis led to the recommendation that cataract surgery be undertaken. Such surgery was unnecessary. Fortunately the surgery did not proceed. On another occasion inappropriate and unnecessary laser treatment was performed.
[1] The Tribunal summarised the practitioner’s admitted misconduct as follows:
The practitioner’s conduct was considered by expert ophthalmologists to have fallen short of the standard of practice followed by competent medical specialists of good repute. Whilst the patient suffered no injury as a result of his conduct, the treatment exposed the patient to unnecessary risk.
The Tribunal was satisfied that the admitted conduct was incompetent and unprofessional.
The Tribunal described the practitioner’s professional background in the following terms:
“The respondent is 64 years of age. He obtained his primary degree in 1961 and his specialist’s qualification in 1963. He became a Fellow of the Royal Australian College of Ophthalmologists in 1968. Since then he has practised in Whyalla and later in Adelaide as an ophthalmologist. Although he was and remains in private practice, he has held hospital appointments from time to time. He has also undergone additional overseas training from time to time. Arising from an association with Professor Fred Hollows, he has provided voluntary ophthalmological services to underprivileged people. In recognition of his work in country areas, he has been made an Honorary Fellow of the American Association of Ophthalmologists. His wife has medical qualifications, and is currently in practice as a general practitioner.”
It was brought to the Tribunal’s attention that the practitioner had previously been found guilty of unprofessional conduct (the “prior unprofessional conduct”). That conduct occurred between 1993 and 1995. In February 1999 the practitioner pleaded guilty to the prior unprofessional conduct.
The prior unprofessional conduct included unnecessary, incorrect and incompetent diagnoses which led to unnecessary and incompetent cataract surgery and laser treatment. The Board reprimanded the practitioner and required several undertakings:
- to provide to the Board plans for continuing education and training and to submit evidence of completion of such programs on a six-monthly basis until the end of 2000.
- to undergo retraining
- to have his practice audited at the end of 1999 and 2000
The practitioner did not fully comply with his undertakings. The audits were limited to an assessment of referrals and failed to address procedure carried out by the practitioner.
This Appeal
The Tribunal noted that the conduct the subject of this appeal preceded the Board’s reprimand:
“Although the conduct with which we have to deal preceded the reprimand of the Board, at the time of that conduct the respondent knew he was under investigation with respect to the two other patients. Indeed, in response to the investigation, the respondent attended weekly clinics run by Professor Douglas Coster, Professor of Ophthalmology at the Flinders Medical Centre, from 13 November 1996 for almost six months. This was, as his then counsel observed to the Board, ‘a retraining exercise’. He then sought a medical audit of his practice and a report of Dr Alan Tye was subsequently tendered to the Board.
Dr Tye’s audit report of 23 March 1988 shows the excessive use of some treatment in some areas, but then, in the words of Professor Crock in a report to the Board, ‘an evolution of practise methods, modalities of investigation and treatment patterns’. Yet, after a number of months of weekly attendances at Professor Coster’s clinics, the respondent was still performing unnecessary and unjustified treatment, in the form of laser trabeculoplasty.”
In submissions to the Tribunal, counsel for the practitioner accepted that substantial restrictions should be placed on the practitioner’s right to practise. It was said that these should include the obligation to refer certain matters to other practitioners for treatment and to seek second opinions when dealing with particular diagnoses. The practitioner offered to keep and make available to the Board records of the cases referred for second opinion. The practitioner offered to have his practice subjected to a yearly audit.
Counsel for the practitioner acknowledged that the restrictions proposed by the practitioner would substantially curtail his practice:
“They [the restrictions] are not intended to be exhaustive, they are intended to be as near as one can get to addressing the problems that he’s had. I don’t necessarily warrant the drafting of them; they are an attempt to define as clearly as possible those areas that Dr Pradhan acknowledges to be his limitations and to ensure that he doesn’t get into trouble again. I say again that they do amount to a significant reduction of his professional practice, he estimates something in the order of 60%. I don’t need to be necessarily exhaustive. The Supreme Court has indicated that you are indeed a specialist tribunal. There are two medical practitioners on the tribunal; they may well individually feel that some extra condition may be appropriate and some clearer definition of the boundaries between those procedures, whether they be described as surgical or not, which he may be able to continue to perform.
I say also on instructions that even a short period of suspension is likely to be disastrous for his practice and although your duty is to protect the public, that, in my respectful submission, can be done with something short of a period of suspension or indeed deregistration.”
The Tribunal rejected the submission of counsel for the practitioner and held:
“The question must also be asked: given the number and extent of the restrictions proposed, can the respondent be trusted to practise competently in the areas that remain?
In the end, protection of the public and maintenance of public confidence in the standards of the profession must be the paramount considerations. The relevant authorities and principles were recently discussed by the Full Court of the Supreme Court of South Australia in Craig v Medical Board of South Australia[2]. In our view, an imposition of conditions restricting the respondent’s right to practise, whether of the kind proposed by his counsel or of any other kind, would fail adequately to address the issue of his proven incompetence in core areas of an ophthalmologist’s practice. This is because we consider that his incompetence in those areas affects and undermines his fitness to practise generally. Nor in our view would a suspension of is registration for up to one year provide sufficient protection to the public. This is because we have no confidence in the respondent’s capacity to train or retrain to a satisfactory level during any period of suspension. We conclude that the respondent is and will remain, now and in the foreseeable future, unfit to practise.”
[2] (2001) 79 SASR 545
The Appeal
Grounds
On appeal, the following complaints were advanced:
-       the cancellation of the Appellant’s registration, was manifestly excessive.
-     In making its decision, the Tribunal:
.       failed to take into account adequately or at all a period of re-training voluntarily undertaken by the practitioner following his earlier acceptance of unprofessional conduct which retraining partially took place after the dates and times of the treatment of the patient;
.       erred in finding that the treatment of the patient and of the other patients was evidence or sufficient evidence to support findings for present incompetence or unfitness to practise;
.       erred in finding that at the time of the hearing, if conditions had been imposed restricting the practitioner’s right to practise, that he could not be trusted to practise competently in these areas that remain ... in the absence of any, or any sufficient, evidence supporting that conclusion;
.       erred in finding that the imposition of conditions upon the practitioner’s right to practise and/or a suspension of his registration for up to one year would not, in the circumstances, provide sufficient protection to the public in the absence of any, or any sufficient, evidence in support of that finding;
.       erred in finding no confidence in the practitioner’s capacity to train or re-train to a satisfactory level during any period of suspension and/or that the practitioner ‘is and will remain, now and in the foreseeable future, unfit to practise’, in the absence of any, or any sufficient, evidence in support of such a finding.
The practitioner submitted that the appropriate order to have been made was suspension for a period of one year or less. However it was acknowledged that even if that course were followed, the practitioner would be unable return to practise without the Board’s approval.
Retraining
It was complained that the Tribunal failed to take into account re-training undertaken by the practitioner following the finding of prior unprofessional conduct.
The Tribunal specifically considered the retraining that had been undertaken and observed:
“... we have no confidence in the respondent’s capacity to train or retrain to a satisfactory level during any period of suspension.”
The practitioner’s incompetent and unprofessional conduct continued from 1993 to 2000. Patients were exposed to unnecessary and incompetent treatment. They were put at risk. The conduct related to the same or similar areas of practice. The conduct continued despite the retraining offered and undertaken and the provision of practice audits. Evidence was placed before the Tribunal from practising ophthalmologists of the practitioner’s conduct being a departure from proper professional practice.
The Tribunal also noted that undertakings given by the practitioner to the Board at the time of the earlier complaints had not been fully complied with. It observed that an analysis of prior unprofessional conduct demonstrated that the conduct the subject of this appeal could not be regarded as an isolated departure from proper standards of medical practice. The Tribunal was entitled to conclude that it did not have confidence in the appellant practitioner’s capacity retrain to a satisfactory level during any period of suspension.
Incompetence
The Tribunal’s finding that the practitioner “is and will remain, now and in the foreseeable future, unfit to practise” was challenged.
There was a considerable body of evidence from a number of specialist ophthalmologists to support the Tribunal’s finding. It is to be recalled that the practitioner acknowledged that he should be restricted to only 40% of his professional practice.
Professor Crock gave evidence that he had serious concerns about the professional competence of the practitioner. He emphasised matters of poor judgment, unnecessary treatment and spurious claims being made to justify treatment. Professor Crock said:
“that the delivery of eye health care as demonstrated by [the practitioner] in this one case falls so far outside the accepted range of specialist ophthalmic practice that the Medical Board ought conduct a formal audit to determine if his standard of care involves not only simple over-servicing but any element of medifraud.”
Counsel for the Board placed particular reliance on the practitioner’s responses in an interview with an officer of the Board. Professor Crock’s opinion was that the responses demonstrated a lack of insight and understanding by the practitioner of and with respect to his difficulties.
The concessions made by the practitioner and the substantial body of evidence before the Tribunal supported the finding that the practitioner was unfit to practise. It has not been suggested that the Tribunal had regard to any irrelevant material or that it failed to have regard to all relevant material. No error of law has been shown in the approach taken by the Tribunal. The challenge to this finding must be rejected.
The Extent of Incompetence
The Tribunal’s finding that the practitioner could not be “trusted to practise competently in these areas that remain” was challenged.
It was said that there was insufficient evidence to support this finding. The Tribunal concluded that it considered the practitioner’s incompetence affected and undermined his fitness to practise generally.
The practitioner’s acknowledged incompetence continued despite reprimand. The incompetence occurred in circumstances where the practitioner failed to recognise or acknowledge his unprofessional practices. The Tribunal’s conclusion that the practitioner’s fitness to practise was undermined generally and materially so was fully justified.
Manifestly excessive
It was submitted by counsel for the practitioner that suspension for a period of up to one year would provide sufficient protection to the public.
In Craig v Medical Board of SA[3] the court was concerned with an appeal by a practitioner who had treated an anorexic patient and then continued a personal relationship with her after the professional relationship had run its course. The Tribunal suspended the doctor’s right to practise for six months and required that him to be supervised on his return to practise for a period not exceeding 12 months. In that case, the court addressed the issue of the protection of the public in the following terms:
“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.”
[3] [2001] 79 SASR 545 at 543-4
The protection of the public necessitates the maintaining of proper standards of medical practice. The public are entitled to be assured that appropriate standards are being maintained by the profession.
The suggested restrictions to practise would involve patients in further consultation and further expense. The practitioner made no offer or suggestion as to how patients could be protected. As the proposed restriction would affect much of the practitioner’s practice such further consultations and expense cannot be said to be in the public interest. To the contrary they are against the public interest.
In Pillai v Messiter [No 2][4] Kirby P said:
“The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed.”
[4] (1989) 16 NSWLR 197 at 201
The tribunal was entitled to find that cancellation was warranted. The departures from proper standards by the practitioner in this matter are serious and repeated. His conduct was outside the accepted range of proper and competent specialist ophthalmic practice. The patient concerned was unnecessarily put at risk by the practitioner’s conduct. The cancellation of registration was not a manifestly excessive penalty in this case. Cancellation of registration was an appropriate order.
This appeal must be dismissed.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 The Tribunal summarised the practitioner’s admitted misconduct as follows:
“In the result, we are left with the following conduct which the [practitioner] concedes was incompetent and unprofessional:-
- On 2 September 1996, a finding of high intraocular pressure and a diagnosis of ocular hypertension.
- On 12 and/or 28 October 1996, a diagnosis of ocular hypertension.
- On 13 December 1996, treatment of the left eye by way of focal argon laser.
- Following consultations on 17 February 1997, 1 March 1997 and 15 March 1997, a diagnosis of glaucoma.
- On 29 April 1997 and 6 May 1997, the undertaking of laser trabeculoplasty to the right eye and the left eye respectively
- Following consultations on 11 August 1997, 24 November 1997 and 15 December 1997, a recommendation that the patient undergo cataract surgery to the left eye.”
2 (2001) 79 SASR 545
3 [2001] 79 SASR 545 at 543-4
4 (1989) 16 NSWLR 197 at 201

“In the result, we are left with the following conduct which the [practitioner] concedes was incompetent and unprofessional:-
- On 2 September 1996, a finding of high intraocular pressure and a diagnosis of ocular hypertension.
- On 12 and/or 28 October 1996, a diagnosis of ocular hypertension.
- On 13 December 1996, treatment of the left eye by way of focal argon laser.
- Following consultations on 17 February 1997, 1 March 1997 and 15 March 1997, a diagnosis of glaucoma.
- On 29 April 1997 and 6 May 1997, the undertaking of laser trabeculoplasty to the right eye and the left eye respectively
- Following consultations on 11 August 1997, 24 November 1997 and 15 December 1997, a recommendation that the patient undergo cataract surgery to the left eye.”

[2002] SASC 77

8 March 2002