Medical Board of Australia v Hodgkinson
[2021] QCAT 325
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- Unreported Judgment
- Medical Board of Australia v Hodgkinson[2021] QCAT 325
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Medical Board of Australia v Hodgkinson[2021] QCAT 325
Medical Board of Australia v Hodgkinson[2021] QCAT 325
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Hodgkinson [2021] QCAT 325 |
PARTIES: | medical board of australia (applicant) v peter hodGkinson (respondent) |
APPLICATION NO/S: | OCR347-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 22 October 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC, Assisted by: Professor P Baker, Dr D Khursandi, Ms M Ridley. |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – OTHER PARTICULAR CASES – inappropriate prescribing – inadequate records – characterisation of conduct – sanction Health Practitioner Regulation National Law (Qld) s 193B(2), s 196. Health Care Complaints Commission v Epstein [2015] NSWCATOD 21 Medical Board of Australia v Martin [2013] QCAT 376 Medical Board of Australia v Marzola [2020] SACAT 116 Medical Board of Australia v McCombe [2020] QCAT 511 Medical Board of Australia v Pearce [2018] VR 53 Medical Board of Australia v Singh [2017] WASAT 33 Medical Board of Australia v Tunbridge [2020] SACAT 34 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Minter Ellison solicitors. |
Respondent: | D Callaghan instructed by Avant Law Pty Ltd |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). Under s 126 of the Health Ombudsman Act 2013 (“the Act”), I constitute the Tribunal, and am acting with assessors Professor Peter Baker, Dr Diana Khursandi and Ms Margaret Ridley in accordance with the Act.[1]
- [2]The respondent was at the relevant time a registered medical practitioner, and hence a registered health practitioner for the purposes of the National Law. The applicant alleges that the respondent engaged in professional misconduct, in that, in relation to the prescription of certain medication to one or more of three patients, he failed to obtain informed consent, including by the provision of inadequate or inappropriate counselling, information or advice; prescribed the medications inappropriately; maintained inadequate clinical records; and provided inadequate assessment, treatment, management or follow up.
- [3]The Tribunal has been provided by the applicant with material about the matter, and submissions in writing. The respondent is legally represented, and has provided submissions in writing and filed an affidavit by the respondent, and two affidavits of referees. The parties have provided an agreed statement of facts for the proceeding, and agree in proposing findings and as to the appropriate sanction to be imposed.
Background
- [4]From the agreed statement of facts, and other material before the Tribunal, the relevant facts, which the Tribunal accepts, appear to be as follows. The respondent is now about sixty years old. He was first registered as a medical practitioner in 1987, and practised as such for over thirty years. He has since retired from practice, and holds non-practicing registration. At the relevant time he was in general practice in a provincial area, where he had worked for many years. Prior to this matter, he has had no disciplinary matters brought against him. Other members of the practice where he worked speak highly of him.
- [5]During the period January 2015 to August 2016 the respondent saw three patients on a number of occasions, during which he prescribed to each of them compounded peptide substances and similar medications (described in detail in the annexure to the referral) in circumstances where such medication was not appropriate for the patients, but had been prescribed for them at their request. The substances were of the kind used for body-building or performance enhancing, or to mitigate adverse effects of other parts of the compound. He did not document in the clinical records for their consultations that he had informed the patients of the clinical rationale for using them, and the risks they posed, and appropriate information about alternative treatments and their risks and benefits, and there is no other evidence that this had occurred. Some of the items in the compounds had no established therapeutic benefit. He did not document any relevant examinations or assessments of the patients, any treatment or management plan for the patients, or any rationale for the dose and duration. He prescribed these compounds not because of any diagnosed medical conditions but because they were requested by the patients. There was also no systematic testing to follow up the effects of these compounds on the patients, and to ascertain if they were suffering harm from them. More details of the allegations in relation to the specific patients, and the specific compounds prescribed, are provided in the annexure to the statement of agreed facts. That this conduct was contrary to the applicant’s Code of Conduct for Doctors in Australia was also admitted.
- [6]The respondent’s conduct was the subject of a notification to the Office of the Health Ombudsman in November 2016. This was referred to the applicant, and an investigation was commenced. In connection with this, an independent opinion report dated 8 August 2019 was obtained from an expert endocrinologist, and an independent opinion report dated 2 November 2019 was obtained from a general practitioner. After considering this and other material, the applicant formed a reasonable belief that the respondent had behaved in a way that constituted professional misconduct, and notified the Office of the Health Ombudsman of this pursuant to the National Law s 193(1)(a)(i) on 10 June 2020. The Health Ombudsman asked the applicant to continue to deal with the matter under the National Law, and as a result the applicant referred the matter to the Tribunal on 6 November 2020.
Medical Evidence
- [7]The specialist endocrinologist expressed in his report the conclusion that the respondent’s performance was unsatisfactory, and fell substantially below the standard reasonably expected of a health practitioner of an equivalent level of training or experience. He identified six compounds which would not have been prescribed by endocrinologists in the manner exhibited by the respondent, and he explained in detail problems with a number of the individual substances in the compounds which made their use inappropriate in general, or in the absence of specific conditions not revealed by the clinical records. He identified a number of adverse effects of their use for some of them, and described the use of one of the substances (human growth hormone) as irresponsible. He expressed the opinion that compounded medications were being prescribed where there was no appropriate indication, or no clinical indication where benefit might outweigh risk, and where the doses were excessive and monitoring inadequate.
- [8]He said that for one patient there was no documentation of what had been prescribed in this way, or any justification for it, and that this was off-label prescribing without evidence of justification or consent. There was no indication established for any of the substances, doses and frequency appear excessive, and monitoring deficient. Quantities prescribed raised the question of whether a patient was passing on some of the compounds. There were extensive investigations ordered, but they were essentially normal. Aspects of the prescribing were said to reflect a practitioner working beyond his level of competence. Similar comments were made about the prescribing for the other two patients.
- [9]The general practitioner consulted noted that the records contained no justification for these compounds, or explanation of the risks of using them, or any rationale for them. This was described as inappropriate care. She said that the active ingredients would ordinarily be prescribed by endocrinologists for specific conditions not shown to be present, and that it was well known that these compounds are abused by body builders and some athletes. The prescribing of such complex compounds was said to be outside the scope of the average general practitioner. The respondent’s performance was said to be unsatisfactory and substantially below the standard reasonably expected of a medical practitioner of his experience.
Respondent’s evidence
- [10]The respondent has filed an affidavit, in which he said that two of the patients concerned came to him and asked him to prescribe these compounds, which they said they had previously been prescribed by another doctor, who had retired. They were taking them because of their supposed effect of slowing the aging process. They provided him with a book which spoke positively of their benefit, and they seemed themselves to be healthy, and so he went along with them, and prescribed the compounds they sought. He said the third patient was a friend of the other two, and they had suggested the compounds for her. He proceeded on the basis that they knew what they were doing, and evidently made no effort to obtain independent confirmation of the value of these compounds, or to exercise any independent professional judgment. He also considered that they were in this way giving informed consent. As soon as concerns were raised with him about prescribing these compounds, he stopped, and contacted the pharmacy dispensing them to cancel any repeats. He has since undertaken a range of self-education courses. He accepted that such prescribing was inappropriate, and that he would not have prescribed these compounds if he had properly informed himself about them. He also accepted that his documentation was inadequate. He does not dispute that this amounted to professional misconduct.
Characterisation of conduct
- [11]In the light of the independent expert evidence, the Tribunal accepts that this conduct overall was substantially below the standard reasonably expected of a registered medical practitioner of his level of training and experience. It is therefore professional misconduct for the purposes of the National Law. Such a conclusion is consistent with the characterisation adopted in other cases involving inappropriate prescribing to which I have been referred, such as Medical Board of Australia v Tunbridge [2020] SACAT 34 and Medical Board of Australia v Singh [2017] WASAT 33.
Sanction
- [12]In imposing a sanction, the health and safety of the public are paramount.[2] Disciplinary proceedings are protective, not punitive in nature.[3] Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards, and the maintenance of public confidence.[4] Insight and remorse on the part of the respondent are also relevant.[5] What matters is the fitness to practise of the respondent at the time of the hearing.[6] A list of factors which may, in a particular case, be relevant, was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].
- [13]The parties both seek the same outcome. This is a similar situation to a joint submission as to sanction. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31]. I do not propose to depart from the outcome proposed by the parties.
- [14]In the present case, the conduct persisted for over eighteen months, and ceased only when the respondent was contacted by the authorities. It involved more than one patient, but only three, and it does not appear that the respondent was knowingly prescribing harmful substances; his position was that he had abdicated his professional responsibility. He is no longer practicing, and says he does not intend to return to practice. In view of his conduct after he was contacted, it appears that he has now developed insight into the situation, and is remorseful, so there is no particular need for personal deterrence. Nevertheless, it is important to impose a sanction which will provide general deterrence, and in view of that consideration, I agree that a period of suspension is appropriate. As well, it is appropriate that the respondent be reprimanded, to demonstrate publicly that his conduct in this respect was quite inappropriate. That is a sanction of some significance in itself.
- [15]In other matters involving inappropriate prescribing, a range of sanctions have been imposed. In Tunbridge (supra) the conduct extended over twenty patients and eight years, and the practitioner initially sought to defend such prescribing. His records and monitoring were inadequate. By the hearing he was no longer registered, but was reprimanded, and disqualified from registration for two years. In Singh (supra) the practitioner prescribed a range of drugs for weight loss, physical conditioning or body building on a significant scale over seven years, where the drugs were not appropriate for any established medical conditions. He defended himself before the Tribunal, and showed no insight or remorse, and the Tribunal was concerned at the risk of further offending. By the time of the hearing his registration had lapsed, and a period of disqualification from applying for registration of ten years was imposed.[7] In Medical Board of Australia v Pearce [2018] VR 53 inappropriate prescribing to six patients resulted in a reprimand and a suspension for four months, and the imposition of conditions.
- [16]On the other hand, in Health Care Complaints Commission v Epstein [2015] NSWCATOD 21, a practitioner who had engaged in inappropriate prescribing to forty patients without indications and without examinations was reprimanded, and conditions were imposed restricting his ability to prescribe certain medications.[8] In Medical Board of Australia v Marzola [2020] SACAT 116, improper prescribing for eight patients over a number of years resulted in a reprimand, a fine and the imposition of conditions, but no suspension. In Medical Board of Australia v McCombe [2020] QCAT 511 the practitioner, who had been improperly prescribing to nine patients over seven years, was reprimanded, but not suspended, in view of his early and frank admissions to the relevant conduct, and significant steps to demonstrate insight and remorse, and to guard against further inappropriate prescribing. There are distinguishing details for all of these decisions, but they suggest that the sanction proposed by the parties is within the appropriate range.
- [17]I acknowledge the assistance provided by the assessors in this matter. The decision of the Tribunal is:
- The respondent’s conduct, as particularised in the referral, was overall professional misconduct.
- The respondent is reprimanded.
- The registration of the respondent as a medical practitioner is suspended for a period of three months from the date of the Tribunal’s decision.
- The parties bear their own costs of the proceeding.
Footnotes
[1] The Act s 126. For their function, see s 127.
[2] National Law s 3A, s 4.
[3] Legal Services Commission v Madden (No 2) (2009) 1 Qd R 149 at [122].
[4] Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79].
[5] Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143].
[6] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].
[7] And upheld on appeal: Singh v Medical Board of Australia [2019] WASCA 51.
[8] The outcome in Medical Board of Australia v Dolar [2012] QCAT 27 was similar.