Medical Board of Australia v Ferguson
[2015] QCAT 511
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- Unreported Judgment
- Medical Board of Australia v Ferguson[2015] QCAT 511
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Medical Board of Australia v Ferguson[2015] QCAT 511
Medical Board of Australia v Ferguson[2015] QCAT 511
CITATION: | Medical Board of Australia v Ferguson [2015] QCAT 511 |
PARTIES: | Medical Board of Australia (Applicant) v Ian Leigh Ferguson (Respondent) |
APPLICATION NUMBER: | OCR209-13 |
MATTER TYPE: | Occupational Regulation Matter |
HEARING DATE: | 4 August 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody Dr Debra Wardle Dr Jonathan Osborne Dr Trevor Jordan |
DELIVERED ON: | 12 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | THE TRIBUNAL ORDERS THAT:
|
CATCHWORDS: | PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – PROFESSIONAL COMPETENCE AND DILIGENCE – COGNITIVE IMPAIRMENT – where the respondent was a general practitioner – where the respondent possessed significant and relevant adverse historical disciplinary findings – where the applicant alleged that the respondent engaged in various medical practices inconsistent with contemporary professional medical standards – where the respondent exhibited deteriorated executive functioning affecting the complex decision-making – whether the respondent committed unsatisfactory professional conduct or professional misconduct – whether the Tribunal should make a finding of impairment – whether the respondent should be precluded from registering as a medical practitioner. PROFESSIONS AND TRADES – MEDICAL PROFESSION – GENERAL PRACTITIONER – COMPLAINTS AND DISCIPLINE – PROFESSIONAL COMPETENCE AND DILIGENCE – IMPECUNIOSITY AND HARDSHIP – COSTS – where the respondent was a general practitioner – where the applicant alleged the respondent engaged in conduct amounting to unsatisfactory professional conduct or professional misconduct – where the respondent sought to resist the proceedings before QCAT – where applicant was successful in establishing most allegations of disciplinary breaches – where the respondent resisted a costs order on the basis of impecuniosity and hardship – whether impecuniosity and hardship is a relevant consideration – whether a costs order should be made against the respondent. Health Practitioner Regulation National Law Act 2009 (Qld) Legal Practitioner’s Conduct Board v Ardalich [2005] SASC 478. Medical Board of Australia v Schulberd [2012] VCAT 1879 Tribunal v Medical Board of Queensland and DAP [2008] QCA 44 |
APPEARANCES and REPRESENTATION:
APPLICANT: C Wilson instructed by Rodgers, Barnes & Green
RESPONDENT: I Ferguson, self-represented
REASONS FOR DECISION
- [1]This disciplinary matter was referred to the Tribunal by the Medical Board of Australia (the Board) to decide whether Dr Ian Ferguson (the practitioner), has behaved in a way that is either (or both) substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience or inconsistent with being a fit and proper person to hold registration in the medical profession.[1]
- [2]The practitioner is 78 years of age and has been in general practice since 1963. He did not practice for seven years prior to July 2008 when he returned on conditional registration. His registration is currently lapsed.
THE HEARING
- [3]The Board was represented by counsel. Dr Ferguson appeared for himself.
- [4]The parties tendered an agreed bundle of documents and a statement of agreed facts. The Board relied on supporting affidavits and called four witnesses for oral examination. Dr Ferguson provided limited evidence consisting, in the main, of written explanations or excuses, as well as submissions after the formal closure of the proceedings. The Tribunal notes that the filing of written submissions after the closure of proceedings is highly irregular, and is likely to cause procedural unfairness to the opposing party. This is because the opposing party has not been provided a reasonable opportunity to receive, consider, and make submissions on the material.
- [5]The belated submissions furnished by Dr Ferguson include asserted but unproved contested facts of peripheral relevance about historical disciplinary issues.
- [6]For this reason the Tribunal declined to receive the submissions. It observes, however, that even if received they would not have altered the decision or orders of the Tribunal.
THE CHARGES
- [7]The disciplinary proceedings pertain to events taking place between 2009 and 2013 when the practitioner practiced at four different medical clinics.
- [8]The practitioner admits some of the charges and alleged facts, but disputes that his overall treatment or prescribing practices were substandard.
Charge 1
- [9]The referral consists of a range of allegations grouped together according to type.
- [10]Charge 1 relates to an alleged breach of a registration condition restraining Dr Ferguson from prescribing controlled or restricted drugs of dependency.
- [11]It alleges 33 contraventions over a 16 month period, ending 31 January 2012, involving the unauthorised prescription of restricted or controlled substances to 25 patients, including two children diagnosed with attention deficit hyperactivity disorder, for therapeutic purposes.
- [12]A number of the controlled or restricted drugs prescribed (Ritalin and Concerta both containing methylphenidate) were Schedule 8 drugs of dependency.
- [13]Dr Ferguson admits to prescribing the drugs but contests the lack of authority to do so. He explains he prescribed the Schedule 8 and Schedule 4 drugs as he had misplaced his list of scheduled drugs and did not know that those he prescribed were controlled. He reasoned that Concerta and Ritalin were not controlled because neither was a narcotic.
- [14]However, the primary submission advanced by the practitioner is that the conditions on his registration in 2008 under s 59 of the Medical Practitioners Registration Act 2001 (Qld) are ineffective because they were imposed on the false assumption that similar restrictions on his New South Wales Registration were valid. Dr Ferguson submits that because the decision of the Medical Tribunal to deregister him in 2011 was irregular his registration in Queensland in 2008 should have been unconditional.
- [15]Prior to 1998, Dr Ferguson had practised medicine without conditions for 34 years and had not been subject to any adverse disciplinary findings. After a partial tribunal hearing Dr Ferguson made full admissions of all charges of misprescription of restricted or controlled substances between 1995 and 1998 resulting in his deregistration. He did not challenge the validity of the 1998 conditions at that time.
- [16]In 2006 Dr Ferguson applied for reinstatement and gave evidence about the circumstances of his inappropriate drug prescriptions in 1999. He accepted there were shortcomings in his prescribing practices and indicated that if re-registered he would not prescribe Schedule 4 or Schedule 8 drugs.
- [17]He prescribed pethidine to his wife after she had been involved in a car accident resulting in unremitting back pain. He did not think that his wife was addicted to pethidine but after he had prescribed the maximum prescriptions he could lawfully prescribe he falsely issued prescriptions for pethidine under different names. He continued to issue deceptive prescriptions until 1998. His wife then started using heroin and died from an overdose in 2001.
- [18]Dr Ferguson told a tribunal hearing in 2006 that he complied with prescribing restriction placed on him. His evidence was accepted but application was rejected. Conditional reinstatement was finally granted in 2008 by the Medical Tribunal of New South Wales and the Medical Board of Queensland on identical terms to each other and the 1998 conditions.
- [19]Dr Ferguson’s conditional registration was again suspended in January 2014 for non-compliance with a registration condition prohibiting practice unless approved by the Board in 2013. The suspension was lifted on 11 March 2015. On 16 July 2015 Dr Ferguson’s registration lapsed due to failure to pay the annual licence fee.
- [20]Dr Ferguson also claims the decision of the Medical Tribunal was infected by legal, factual or discretionary error, because it was based on inaccurate evidence by performance assessors and practice supervisors. Dr Ferguson seeks compensation for “unjustified financial ruin” resulting from the improper subjection of his registration to conditions. Dr Ferguson asks for relief in the form of the immediate restoration of an unrestricted medical registration, the dismissal of the application of the Board, and compensation for consequential economic loss caused by the erroneous decision of the New South Wales Medical Tribunal.
- [21]There is no reason or power to reopen the 1998 conditions. In any event Dr Ferguson accepted his reinstatement in 2008 on the basis that he could not issue Schedule 8 and Schedule 4 prescriptions to ensure patient safety.
Charge 2
- [22]This alleged breach of condition is based on the failure to attend two fortnightly meetings with a supervisor. Condition 8 required Dr Ferguson to meet his supervisor on a fortnightly basis in person. Dr Ferguson admits missing the meetings because he felt the supervisor had become “unreasonably critical”, and there was a “personality breakdown”.
Charges 3, 4, 5, 6, 9, 10 and 11
- [23]These charges all involve to poor prescribing.
- [24]Charge 3 relates to prescribing S8 drug methylphenidate (Concerta) to three patients (one adult and two children) for ADHD symptoms on a total of seven occasions in a three month period in 2011.
- [25]Charge 4 is prescribing the same drug to the same patients over a nine month period between June 2010 and April 2011.
- [26]The medications prescribed by Dr Ferguson to these patients were S8 drugs of dependency. Accordingly, he was not authorised to prescribe them because of the conditions on his registration.
- [27]Charge 5 alleges four instances of inappropriately or excessive prescribing of Panadeine Forte to three patients. Panadeine Forte is a S4 medication which requires a prescription. It contains codeine phosphate (an opioid analgesic) which converts into morphine post-digestion. It is potentially addictive.
- [28]Dr Ferguson admits the facts alleged but denies that it was inappropriate or that the amounts were excessive.
- [29]He explains that the three patients (A, Y and X) were prescribed Panadeine Forte in the period 1 March 2009 to 31 July 2011 to help them deal with chronic pain based on assessed therapeutic need in the absence of any drug seeking behaviour indicators.
- [30]Charge 6 is admitted.
- [31]Charges 7 and 8 allege poor medical management in relation to diabetes and heart conditions in two patients (AA and BB) between June and July 2011 and 30 November 2010.
- [32]The facts of Charge 7 are admitted but denies that his examination and treatment of the patient was not acceptable.
- [33]Charge 9 relates to prescribing pseudoephedrine to four patients between August 2010 and July 2011. The prescribing is admitted but explained by Dr Ferguson. Neither the DDU nor “doctor shopping” hotlines were accessed and suspicions that should have been roused apparently were not.
- [34]Charges 10 and 11 are alternatives. It is alleged in each case that either Dr Ferguson prescribed Duromine capsules to overweight patients without adequate investigation or poorly documented 13 consultations. Dr Ferguson admits to inadequate record keeping but not to inappropriate prescribing or inadequate clinical examination.
THE EVIDENCE
- [35]An expert report by Dr Kable is relied on to support the allegations in charges 1-11. Dr Kable provides an independent opinion on the standards of Dr Ferguson’s conduct by reference to the statutory definitions and published regulations and guidelines. He says:
The admitted conduct of prescribing Methylphenidate on two occasions to the same patient when he was not a paediatrician or psychiatrist or have prior approval in charge 3 is substandard professional conduct.
The actions in charge 4 this is unprofessional conduct because as an experienced practitioner Dr Ferguson should have known of the responsibility and requirement when prescribing to indicate on the prescription any specified condition.
Overall Dr Ferguson’s professional conduct subject of charge 5 is of a lesser standard than the public and professional peers are entitled to expect because patient A was a known drug seeker. The prescription of large amounts of Panadeine Forte to him was excessive and inappropriate for the management of his condition. He should have referred him to the pain management clinic not just an addiction specialist.
Prescribing six tablets a day to patient Y for ongoing headaches is inappropriate and excessive where it had not been characterised or fully diagnosed. Panadeine Forte is not an appropriate medication for headache but does have opioid analgesic side effects but no enquiries were made to see whether patient Y was addicted.
Patient X was treated for osteoarthritis and Schermann’s disease affecting the vertebra. Neither condition requires opioid analgise such as Panadeine Forte. Panadeine Forte was provided in large quantities over a period of months. This is an inappropriate prescription for a simple muscular skeletal pain.
There were clear indications of drug seeking behaviour which should have but apparently did not alert Dr Ferguson.
As for charge 6 it is quite inappropriate to give a child of 20 months phenobarbitone because of its potential side effects.
Patient AA consulted Dr Ferguson in his mid-fifties with symptoms suggestive diabetes as well as a predisposing family history. However Dr Ferguson’s examination (charge 7) was perfunctory and simply referring him to Diabetes Australia was inadequate management for such a serious lifelong condition. The clinical notes were also substandard.
As to Charge 8 Dr Ferguson should have but did not investigate whether patient BB had a risk of stroke atrial fibrillation in need of anti-coagulation treatment.
The medications concerned in charge 9 contained Pseudoephedrine prescribing it to four patients for upper-respiratory and allergic conditions over an extended period of time is contra-indicated and inappropriate.
Dr Ferguson did not clinically examine or make any findings indicating that extensive ongoing prescriptions for Pseudoephedrine was needed. The prescriptions were inappropriate and excessive.
Patient DD displayed classic drug seeking behaviour which Dr Ferguson apparently failed to identify and despite not making any clinical examination or relevant findings prescribed Pseudoephedrine on an ongoing basis. This was inappropriate and excessive.
Patient EE had hay fever symptoms but was prescribed extensive supplies of Pseudoephedrine containing medication but later reported them stolen. This is classic drug seeking behaviour nonetheless Dr Ferguson prescribed 62 days of Pseudoephedrine containing medication in addition to the previous prescriptions she had had in the past which was unnecessary and inappropriate especially when there was strong indications that she was diverting or abusing the medication.
Dr Ferguson prescribed Pseudoephedrine containing medication to patient FF on an ongoing basis for hay fever despite classic drug seeking behaviour.
Likewise, the prescription of Duromine capsules to seven patients without taking any adequate clinical investigations (charge 10) was contrary to acceptable professional standards.
Duromine assists in weight reduction by reducing appetite. It has amphetamine like actions. As such it is high potential for abuse and intoxication. It requires careful monitoring because of a significant range of side effects and should not be supplied to patients with obesity or comorbidities.
Body mass indexes over 30 or 27 with comorbidities contraindicates prescription. Dr Ferguson prescribed Duromine to patients K, Q, R, T, U and V despite the high risk of harm it can do to morbidly obese people. The same applies to patient W who was overweight.
Dr Ferguson’s notes relating to the patients in Charge 10 (the focus of charge 11) were “very spare indeed” and did not contain sufficient relevant information to enable another doctor to take over their care. If the examination that should have been conducted were conducted they should have been recorded. If you did not contact the examinations then it was inappropriate medical practice. The negative presumption from the documentation is that the examinations were not conducted but if they were the clinical notes were deficient.
There should be the presence of acute pain to establish a need for prescribing Panadeine Forte. Otherwise a patient should be started on a low pain relieving medication which if ineffective can then justify graduation to Panadeine Forte.
The practitioner admits making the statement forming charge 12 viz but denies that he knew or ought to have known of its falsity or misleading tendency.
- [36]The Tribunal considers that the evidence of Dr Kable, to the extent that it is within the scope of his professional expertise and does not involve conclusions of law, is both credible and reliable. The Tribunal has not been presented with any countervailing evidence which would justify a discounting of the opinion of Dr Kable.
- [37]On 1 November 2013 Dr Julian Singleton and Dr Morton Rawlin conducted a performance assessment.
- [38]In their later report the assessors raised significant concerns about gaps in Dr Ferguson’s clinical knowledge and documentation. The most significant points raised by the assessors are:
- Apparent lack of insight into his deficiencies and apparent belief that he is being persecuted by the Board by restrictions on his registration;
- Hearing difficulties;
- Generally brief and unclear notes;
- Acknowledge difficulties with newer treatment modalities, medication therapies and investigations;
- Dysfunctional relationship with his supervisor;
- Only partial compliance with his conditions and did not appear to understand the requirement for structured supervision and how he would benefit for it;
- Dr Ferguson’s clinical notes required improvement and his clinical knowledge was below current appropriate standards for a general practitioner. He lacked insight into the shortfall in his clinical knowledge, awareness of how or willingness to improve it; and
- He was not reflective on his self-learning and clinical practice.
- [39]On 13 and 14 May 2014 Dr Keane administered a neuropsychological examination of Dr Ferguson. It appears that Dr Ferguson exhibits average performance across a range neuropsychological measures, with the notable exception of executive functioning. Dr Keane concluded that Dr Ferguson evinces substantial deficits in his executive functioning.
- [40]The Tribunal considers the evidence of Dr Keane to be credible and reliable. The Tribunal was impressed by the rigour and extent of the neuropsychological evaluations administered by Dr Keane, and her persuasive findings. The respondent failed to adduce any cogent countervailing evidence which would dissuade the Tribunal from relying on the evidence of Dr Keane. The Tribunal accepts the evidence of Dr Keane.
- [41]Executive functions refer to the powers or abilities of a person to acquire, collate, synthesise and process information, and make decisions based on that information. The expert evidence adduced during the hearing indicates that executive functioning is critical to efficacious performance as a medical practitioner. Significant deficits in executive functioning might be expected to substantially impair medical decision-making.
- [42]The expert evidence does not establish the cause of the depressed executive functioning. There is some evidence it may be the product of an adverse cerebrovascular incident or progressive evolutionary deterioration.
- [43]Notwithstanding the inconclusive evidence regarding the precise cause of the diminished executive functioning, the Tribunal is reasonably satisfied that it is likely to significantly impair Dr Ferguson’s ability to safely engage in appropriate medical practice.
THE SUBMISSIONS
- [44]The Board submits that the evidence sufficiently establishes the facts in support of its case to a probability standard and when taken together the proven circumstances in Charges 1 to 11 constitute professional misconduct based on the second limb of the statutory definition which may lead to a finding of unfitness without fault.
- [45]Counsel for the Board also reminds the tribunal that sanctions are imposed under the national law for protective not punitive purposes and referred to Medical Board of Australia v Schulberd[2] where professional misconduct was found in relation to a number of allegations of inappropriate prescribing of Schedule 8 medications in circumstances similar to those in Charges 5 and 9 and notes that in the Tribunal v Medical Board of Queensland and DAP[3] where a practitioner’s registration was cancelled for child sex offences some of which were attributed to his organic brain disorder.
- [46]Keane JA made obiter remarks to the effect that professional standards and disciplinary proceedings are concerned more ‘… with whether (the respondent) is entitled to the confidence of the public not whether he has forfeited that confidence through his moral blame worthiness … ‘.
- [47]The Board submits that if accepted the evidence demonstrates a serious clinical knowledge deficit and constitutes unprofessional conduct and makes the same submission in relation to the inadequate record keeping alleged in Charge 10.
- [48]No other orders are sought or made by way of sanction because Dr Ferguson has spent 14 months suspended from practice already because of a misunderstanding between his previous solicitors and the Board. In any event, registration lapsed on 16 July 2015 and the tribunal’s findings would no doubt be taken into account by the Board in the consideration of any re-registration application.
- [49]The Board does, however, contend for a finding of impairment in addition to professional misconduct based on unfitness in view of his assessed impairment, lack of insight, recidivism and the risks associated with persistent, inappropriate and unauthorised prescribing of controlled drugs of dependency.
THE FINDINGS
- [50]The tribunal is reasonably satisfied that the condition was breached as alleged in the first charge.
- [51]This was a serious default in light of Dr Ferguson’s post-1998 disciplinary history. Losing his reference list was bad enough but he compounded that lapse by taking an unacceptable risk with the safety of patients he prescribed drugs for without knowing for sure whether they were controlled or not.
- [52]At best it was a reckless disregard of the restrictions on his practice and at worst put 25 patients including two children in harm’s way. He appears to have learned little since 2001, has not kept pace with current practices generally, prescribing in particular, and done even less to change his behaviour. The Tribunal is satisfied that the offending behaviour comprising of Charge 1 is sufficiently grave to constitute professional misconduct.
- [53]The non-compliance alleged in Charge 2 is also made out. Dr Ferguson had no authority, justification or excuse for unilaterally ignoring the condition for any reason. The Tribunal is satisfied that the offending behaviour comprising of Charge 2 constitutes unprofessional conduct.
- [54]In addition the tribunal is reasonably satisfied having regard to the seriousness of the allegations and potential consequences for Dr Ferguson that the evidence adduced by the Board establishes professional misconduct constituted by the inappropriate prescribing alleged in Charges 3, 4, 5, 6, 9 and 10 (meaning that charge 11 is superfluous) and unprofessional conduct in relation to the poor medical management in charges 7 and 8.
- [55]The character of the conduct is not changed by his deteriorating executive functioning, age or lack of fault.[4]
- [56]Not even mental illness which causes or contributes to acts constituting unprofessional conduct can excuse it but may inform and mitigate disciplinary action.
THE IMPAIRMENT ISSUE
- [57]The Tribunal also finds on the evidence that Dr Ferguson is not currently fit to practice medicine in Queensland for the reasons identified by Dr Keane, and that a finding of impairment of executive function from some indeterminate period should be made under s 196(1)(b)(iv).
COSTS
- [58]There is no legitimate reason for not ordering Dr Ferguson to pay the Board’s costs. The Board has a mandatory duty to bring proceedings and it is funded by levies on the members. Dr Ferguson’s impecuniosity is a relevant but not weighty consideration in answering the question whether even though it might mean that the order will have little practical effect.
ORDERS
- [59]It is the decision of the Tribunal that:
- the respondent must not be registered as a medical practitioner until the respondent establishes, to the satisfaction of the Medical Board of Australia in accordance with the Health Practitioner Regulation National Law Act 2009, that he is fit to practice medicine.
- the respondent must pay the applicant’s costs of and incidental to the proceedings at an amount to be assessed.