Ting v Medical Board of Australia
[2021] QCAT 53
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- Ting v Medical Board of Australia[2021] QCAT 53
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Ting v Medical Board of Australia[2021] QCAT 53
Ting v Medical Board of Australia[2021] QCAT 53
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ting v Medical Board of Australia [2021] QCAT 53 |
PARTIES: | JOHN YUK CHING TING |
| (applicant) |
| v |
| MEDICAL BOARD OF AUSTRALIA |
| (respondent) |
APPLICATION NO/S: | OCR076-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 19 March 2021 |
HEARING DATE: | 3 November 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC Assisted by: Dr A Thillainathan Professor J Searle Ms C Narayan |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – HEALTH AND PERFORMANCE ASSESSMENTS – review of decision of respondent to suspend registration – where applicant has a history of Medicare fraud and previous cancellation of his registration – where applicant maintained a heavy workload and relied on prescriptions – where applicant previously breached conditions that he limit patient numbers – where the applicant continues to lack insight into his unsatisfactory practices – whether the applicant poses a risk to patients – whether immediate action is necessary Health Practitioner Regulation National Law (Queensland) s 156, s 157, s 199 Health Practitioner Regulation National Law Act 2009 (Qld) s 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20 Traffic Regulation 1962 (Qld) s 172. Transport Operations (Road Use Management) Act 1995 (Qld) s 79(2AA) Colgrande v Health Ombudsman (No 2) [2017] QCAT 107 CJE v Medical Board of Australia [2019] VCAT 178 Pearse v Medical Board of Australia [2013] QCAT 392 Ting v Chief Executive, Queensland Health [2020] QCAT 265 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Ms L Nixon of TurksLegal |
REASONS FOR DECISION
- [1]This is a review of a decision of the respondent, on 7 March 2019, to suspend the registration of the applicant, a medical practitioner, under the Health Practitioner Regulation National Law (Queensland) (“the National Law”) s 156(1)(a). The decision is an appealable decision,[1] and the Tribunal has jurisdiction to decide the review,[2] which is conducted as a hearing de novo,[3] with the Tribunal arriving at the correct or preferable decision. The Tribunal has all the functions of the decision maker for the decision being reviewed.[4] In accordance with the National Law, the Tribunal sat with assessors.
- [2]The National Law provides, in s 156, so far as is relevant:
- (1)A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if—
- (a)the National Board reasonably believes that—
- (i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
- (ii)it is necessary to take immediate action to protect public health or safety; …
- [3]Prior to taking action under s 156, the respondent was required to comply with the show-cause procedure in s 157. The respondent says that it did so in this matter, and the applicant has not argued to the contrary. I am satisfied that s 157 was complied with.
Background facts
- [4]The applicant was registered as a medical practitioner on 21 December 1990, having taken a medical degree in Australia. On 19 September 1996 he pleaded guilty in the Southport District Court to one charge of defrauding the Commonwealth, in respect of claims under the Medicare bulk billing scheme with a value of over $11,000.[5] The offending involved forging the signatures of patients on about 400 occasions over eighteen months. The applicant was sentenced to twelve months’ imprisonment, to be released on a recognisance after two months. The sentencing judge referred to an absence of prior convictions, that he had cooperated with the investigation and entered an early plea of guilty, had showed remorse, had repaid the full amount, and that references had been tendered speaking highly of his skill as a doctor, and commitment to this patients.[6]
- [5]At the sentencing hearing, his counsel tendered a report from a psychiatrist, Dr Curtis, of 14 September 1996, prepared for use at that hearing.[7] Dr Curtis diagnosed an Adult Conduct Disorder, a Dependent Personality Disorder and Professional Inadequacy with Distressed Professional Syndrome. He regarded the applicant as a very immature, naïve person, with a dependent and overly compliant personality which put him at risk of distress and eccentric practice as a sole practitioner. He was under great family pressure to succeed and make money, and worked after hours for a locum service to augment his income. He described how his practice seemed to attract a client base of drug addicts, depressed people, domestic violence victims, and people with life problems generally, and he struggled to cope with the demands of these people.
- [6]The applicant closed his practice before he was charged, although not before he was investigated by police. After this he worked in the public hospital system, initially in Broken Hill, and then in Ipswich. In March 1997 the Medicare Participation Review Committee disqualified him from participation in the Medicare scheme for a period of five years.[8] The Committee said that the evidence before it indicated that the applicant was permanently unsuited to general practice, and should remain in the hospital system, where he had said he intended to work, and where colleagues spoke well of him.
- [7]The applicant did not stay at Ipswich long, however, because on 2 June 1997 the Medical Assessment Tribunal ordered that his registration be cancelled, because of the criminal conviction. This Tribunal has a copy of an affidavit of the applicant,[9] prepared for that hearing, in which he deposed that “I am not suited for private practice, as it was in private practice that I experienced real difficulties.” He also deposed: “Many of my clients in private practice were drug addicts and otherwise disadvantaged persons, and I was sympathetic and misguided towards such people.” Also before that Tribunal were two affidavits from superiors at the Ipswich Hospital, speaking favourably of the applicant’s ability and willingness to work,[10] and a number of affidavits from former patients, speaking well of him.[11]
- [8]In evidence he said that in 1998 he went to Brunei and worked in a hospital, but conceded that he probably did not tell the authorities there that he had been deregistered in Australia. On 18 May 1999 the Tribunal ordered that he be re-registered, on condition that he work only in the public health system until 30 June 2002, that he work under supervision for eighteen months and that if required by the Medical Board he work in a rural posting.[12] He was subsequently employed as a resident at the Toowoomba Hospital, where it was found that he was reluctant to accept the constraints on his actions in that position, and resisted directions not to act without approval from more senior doctors.[13] However, on 20 January 2000 the supervision condition was eased.[14]
- [9]The applicant remained in the public health system, and began the training programme for anaesthetics, passing the primary fellowship examination by April 2009 (HB 1550), but in 2013 he left the programme, he said for personal reasons. Thereafter he was for a time involved in some rural anaesthesia, and attained a fellowship in advanced rural general practice in 2015: HB 1551. In May 2016 there was a notification to AHPRA about unsatisfactory professional performance in anaesthetising a child, and in November 2017 conditions were imposed on his registration until July 2018.[15] In early 2017 he joined a GP practice where there were a large number of drug-dependent patients, and on 10 June 2017 he received a licence under the Queensland Opioid Treatment Programme (“QOTP”), having completed the prescribed training course for the programme: HB 1554. It appears that he took on a large number of those patients when another GP retired.[16] At the end of 2017 he moved to a different practice, still on the Redcliffe Peninsular, and it appears that many of those patients followed him to the new practice.[17]
- [10]In June 2018 his approval under the QOTP was extended for one month, and a condition was imposed, that he not admit any additional patients. This condition was breached, and as a result on 8 February 2019 the applicant’s endorsement to prescribe Schedule 8 drugs, and Schedule 4 drugs of dependence, was cancelled.[18] He sought a review of that decision by the Tribunal, but in July 2020 the decision was confirmed, by the Deputy President.[19] For the purposes of this proceeding, the outcome of that review must be accepted, so the Tribunal proceeds on the basis that the applicant cannot prescribe those categories of drugs.
The investigation
- [11]In July 2018 AHPRA received a complaint regarding an iron infusion performed by the applicant. This was investigated, and as a result two assessors visited the applicant’s practice on 11 December 2018, to assess his knowledge skill and judgment.[20] The assessors observed the applicant while he was seeing patients during the morning, and in the afternoon conducted a clinical practice interview. During the morning twenty-three patients were seen, and it was noted that the applicant was generally double booked.
- [12]Patient 1 was an elderly visitor from the north with chronic sinusitis, for which eventually a prescription was written for antibiotics, although with hesitation. The consultation was inefficient; for example, the patient’s blood pressure was taken twice, and found to be high, but this was left to his usual GP to treat. The assessor had the clear impression that the applicant was behaving differently from his usual way. In a statement[21] (Statement B) the applicant disagreed with the assessor, but did not mention taking the blood pressure twice, and advanced reasons why antibiotics were not useful for sinusitis, although he had prescribed one.
- [13]Patient 2 was an elderly woman with dementia, for whom a referral for an aged care package was written. Patient 3 was the husband of Patient 2, and seen with her, in brief consultations mainly of social chat.
- [14]Patient 4 was an elderly woman with a condition being managed by a specialist at a hospital, and the patient was just advised to wait for the next appointment at the hospital. The applicant offered to check with the hospital and telephone the patient, but the assessor noted that there was no system in place to remind him about such a follow up. In Statement B he said no reminder system was required on 11 December, which confirms its absence. Medication was prescribed for constipation, without a physical examination. At the hearing the applicant said that she was known to him and he did not examine her as a new patient, and claimed he did speak to the hospital later, and told the patient what they said.
- [15]Patient 5 was a young man who was recently released from prison, with chronic hip pain and a hepatitis C infection. The consultation was described as dysfunctional and confusing, with no clear separation of the different issues. The applicant wrote referrals for an ultrasound and an MRI of the hip, but expressed uncertainty during the consultation about the purpose of these tests. Patient 6, the mother of Patient 5, attended for blood test results. She had high blood pressure and high cholesterol, and had ceased medication because of side effects. This was described as a dysfunctional consultation, with the applicant eventually prescribing a different drug, but without discussion about it with the patient. In Statement B, and at the hearing, the applicant defended this on the basis of a policy at the practice of not changing the medication prescribed by a colleague, but this was a case where a change was required by side effects.
- [16]Patient 7 attended for prescriptions for Valium and Seroquel, which were provided. He complained of paraesthesia in the right hand after working as a fencer, and Celecoxib was prescribed, but without a clear diagnosis. The PBS restrictions on prescribing Seroquel and Celecoxib were apparently not complied with.
- [17]Patient 8 was an elderly man who attended for a prescription for Lipidil. The applicant appeared not to be familiar with his condition or history. Patient 9, his wife, also sought repeat prescriptions, but the applicant appeared confused about what medication she was on. Her blood pressure was high but the applicant did nothing about that, and significant weight loss was attributed to diabetes tablets. The assessor regarded this as a substandard consultation, with poor assessment of current symptoms and poor monitoring of on-going problems. He took the opportunity to remind the applicant of what he should do to prepare to see a patient, but the applicant did not put this into practice. In Statement B the applicant dismissed these comments as irrelevant.
- [18]Patient 10 attended for a prescription for medical cannabis for chronic back pain, but the relevant documentation could not be located, and he was asked to return the next day. The applicant provided an adequate explanation of the trial of cannabis, but wrong advice about whether the patient could drive. In Statement B, and other documents provided to the respondent, the applicant continued to assert that driving while taking medical cannabis is a grey area, although he noted that Queensland Health Policy was that patients should not drive while taking medicinal cannabis. It is an offence to have any detectable amount of cannabis in the body,[22] and as he acknowledged it can take days for the body to be free from it after any is taken, so the only appropriate advice is not to drive. It is not an answer to say (HB 1674) that some patients will drive anyway. In his oral submissions he adopted a better approach to driving, but this differed from his earlier behaviour and statements.
- [19]Patient 11 was a woman who requested a certificate for a day off work, being “tired”. The certificate was provided without further discussion, the woman being known to be in a stressful relationship.
- [20]Patient 12 also sought a renewal of prescriptions for back pain (provided) and had a recent wound on his arm. After some vacillation, the applicant examined the wound, which was superficial.
- [21]Patient 13 was the carer of an elderly man with cancer and sought a prescription for the man, which was provided but with the suggestion that the man be brought in in the future.[23] The patient also complained of various symptoms, and the applicant vacillated about what tests to order, and whether to do a physical examination, then did one like a medical student trying to impress an examiner.
- [22]Patient 14[24] attended for a first review of medical cannabis. An explanation was provided, apparently for the benefit of the assessor, which should have been provided at an earlier stage. The assessor regarded the consultation as a jumble of management, history and assessment, with a display of indecision about the treatment. In Statement B the applicant said it was the patient who was ambivalent, and that he was using a multi-modal pain management approach.
- [23]Patient 15 attended just to explain what had happened on an outpatient visit to a hospital. No management decisions were made, and the consultation was a waste of time.
- [24]Patient 16 was on the Methadone programme, and attended for a routine repeat. There was an unnecessary taking of blood pressure, which produced a result inconsistent with that taken by the practice nurse already, to which the applicant deferred. He declined her request for tablets for fluid retention, without assessing the reasons for the request, or examining her for signs, and refused a request for “something to help her sleep”, noting that she was already on multiple doses of Alprazolam, Serepax and Valium daily.
- [25]Patient 17 was an elderly female with heart failure, coming for a monthly review, and to find out the results of a recent, first bone density test, ordered after she had been started on Prolia.[25] She was asked to return monthly for monitoring.
- [26]Patient 18 was a female asthmatic attending for repeat prescriptions, and normally seeing someone else who was away. They were provided after a limited examination.
- [27]Patient 19 was a Methadone patient who had returned after been seen the previous day, and spoke of the applicant in glowing terms. The patient complained of trouble sleeping, although he was also on Seroquel and Olanzapine, and the applicant considered increasing the dose of the former, but suggested that he persist with sleep hygiene. The consultation was charged as item 36,[26] but it took less than 15 minutes, and involved no complex assessment or management.
- [28]Patient 20 was an obese female with osteoarthritic knee pain, for which she had trialled a steroid injection, with little benefit. The applicant gave was a wordy explanation of pain management, apparently for the benefit of the assessor, which belonged prior to the injection, but no discussion of her weight, or non-drug strategies. At the hearing the applicant said he gave her an iron infusion on a different day, although he did not explain why,[27] and that she had asked for the steroid injection. He also said that he had prescribed a particular drug for her although it can cause weight gain, for a use not PBS approved.
- [29]Patient 21 was a 77 year old man who had had a bone density test which did not indicate a need for Prolia, despite which it was discussed by the applicant, although no other preventative measures were mentioned. The patient complained of pain in the knees, and Panadol Osteo was prescribed, with no non-drug options being discussed, although the patient was reluctant to take drugs.
- [30]Patient 22 was a Type 1 diabetic who had recently had toes amputated, and came to receive test results, and for ordering further tests. The patient complained about the amputation and was angry, and the consultation was said to be disorganised and disjointed, although the management of this complex patient was described as adequate to competent.
- [31]Patient 23 was the daughter of Patient 22, also a diabetic, with hepatitis C, for which she had been tested at a hospital. The applicant contacted the hospital, and arranged the treatment, displaying a good knowledge of hepatitis treatment and the relevant systems, and good rapport with the patient.
- [32]The assessors noted that there were patients waiting before the arranged starting time of 9.30 am, to allow an introductory interview, which had to be cut short. The patients were seen in four hours, about six an hour, although some of them were complex, and it appeared to the assessors that he was taking time to do things for their benefit. They noted that there was a much higher throughput on other days; on the previous day there were 74 patients in 8 hours.[28] The software used in the practice booked in fifteen minute blocks, but the applicant was most often double booked, sometimes triple booked and occasionally quadruple booked. Other doctors at the practice did not do this. The appointment list did not allow any breaks during the period. When asked about the workload, he explained that it related to the end of his QOTP prescribing, but the assessors said that the records did not support that.
- [33]The applicant attributed his problems to heavy workload, leaving insufficient time for adequate assessment or management apart from prescribing. He appeared disorganised and time inefficient,[29] and there was concern about what corners he would cut if seeing many more patients. One assessor thought that he displayed sound medical knowledge, but some of his treatments were unorthodox.
- [34]The assessors also examined a sample of the applicant’s records of consultations. I do not propose to discuss all these in detail, but in general the notes were brief and did not demonstrate proper attention to non-drug options for treatments, or did not justify the use of drugs prescribed. In one case, involving the use of intravenous drugs, the management revealed by the notes was described as inadequate, and the use of that drug, and a drug prescribed in another consultation, were described as not justified by safe clinical practice, being two instances out of eight checked. The other assessor examined earlier notes for the patients seen, and found them difficult to follow and often a jumble of phrases or words, not presented logically.[30] It appeared that the applicant was taking on new patients rather than reducing his work load, particularly patients seeking medical cannabis.[31] The notes revealed instances of what appeared to be excessive investigations, and the prescription of drugs which were not justified by the circumstances recorded.
- [35]One set of notes examined was for a patient with Multiple Sclerosis causing severe body pain, who had been treated with three drugs, Largactil (an antipsychotic), Maxolon (an antiemetic) and Lignocaine (an anaesthetic) administered intravenously. Afterwards the patient became dizzy, and fell three times in the clinic. Her father had to be called to help her home. The assessor regarded the notes are showing no justification for such therapy, and the Tribunal assessors agreed that there was no justification for it. The justification for it offered by the applicant at the hearing was that it was to relieve distress in a patient already on a number of narcotic drugs, but the explanation was not satisfactory to the assessors, and this also concerned them. The comment of unacceptable management was justified.
- [36]One assessor noted that one patient was recorded as having attended on 16 October, 18 October, 4 December, 5 December and 10 December, for which two Item 36 and three Item 44 consultations had been charged. The records were said to justify only charging for a brief or standard consultation (Items 3 or 23) except for one day, and examination of the booking records indicated that between four and seven other patients had been booked to see the applicant during the half hour period when that patient attended on these days. Of the four patients booked for a fifteen minutes time slot on 10 December, two were charged as Item 36, although the notes were said not to justify such a long consultation. The assessor characterised this as suggesting over-servicing and Medicare fraud.
- [37]During the clinical practice interview, there was a discussion of chronic pain management, where it appeared the applicant’s understanding was limited to prescribing medication. The assessors considered he had ordered tests without adequate prior investigations, and provided an iron infusion to a patient who did not need one. (This latter patient was discussed by the applicant at the hearing, see below.) He did not demonstrate an understanding of risk/benefit analysis for treatments. When challenged about the inconsistency between the number of patients seen and his use of Medicare items 36 and 44 in billing, he offered no explanation. This was seen as suggesting Medicare fraud.
- [38]In a discussion the practice manager said she had spoken to the applicant about too brief records, attention to recalls, and seeing fewer patients, and said the patients either love him or hate him. One assessor overheard a patient, talking in the waiting room, say that the applicant had asked him to come in that day to help out, and that if he goes there is “nothing on the north side for drug addicts.” Overall, the assessors regarded the applicant’s performance as unsatisfactory, and recommended that conditions be imposed on him. They noted that he appeared to lack insight into his deficiencies, and was unwilling to do anything to correct them. He did not review earlier notes before seeing patients, or record adequate notes after seeing them. His diagnostics depended heavily on multiple investigations, and he had a rigid, narrow approach to complex information.[32] They also recommended that he be examined by a psychiatrist.[33]
- [39]In response to this assessment, the applicant made extensive written submissions to the respondent, including by Statement B. In them he was critical of the assessors who examined his practice in December 2018, but it appears that this was largely on the basis that they disagreed with him about the management of drug addicts, and of patients with chronic pain, about which he claimed special expertise, arising from his training in anaesthetics. He used this to justify large doses of various medications, and frequent consultations, said to be to achieve harm minimisation: HB 1673. He also said on that page: “The ability to prescribe drugs for uses beyond the official approved indications is commonly used to good effect by healthcare providers.” That strikes me as a dangerous belief.
Conditions imposed
- [40]On 20 December 2018 AHPRA sent a proposal to impose conditions, on which they invited submissions. In his response on 24 December he agreed to limiting patients to four per hour, but immediately proposed to destroy the value of this condition by also seeing patients attending just for scripts, not to be counted in the four and for which he offered not to charge, and that he would also see additional “urgent” patients, make home or nursing home visits and do care plans. This confirmed an absence of insight into the inadequacy of his approach. As a result, on 28 December 2018, AHPRA cautioned the applicant, and imposed conditions on his registration. In summary, these restricted him to seeing no more than four patients per hour, and required supervision, with the supervisor present at the practice, and present with him for at least one hour per week. As a result he ceased practice, saying he was unable to satisfy those conditions at that practice.
- [41]The applicant returned to practice on 12 February 2019, having arranged for the practice principal to be his supervisor. Queensland Health had cancelled his endorsement to prescribe Schedule 8 drugs, and Schedule 4 drugs of addiction on 8 February 2019, and the applicant received notice of this decision on the afternoon of 12 February 2019. He set about, as he put it, complying with that in a clinically safe manner by weaning patients off those drugs, and replacing them with alternative medication.[34] In practice he continued writing some such prescriptions over the next two to three weeks.[35]
- [42]His supervisor confirmed on 22 February that the applicant was seeing only four patients per hour, they are working on reducing prescribing of medication and he had reduced the pain management patients. Reports that he was complying with the restrictions were also provided on 12 March 2019 by the supervisor, and on 7 March 2019 by the practice manager. This however was not correct, and in his email of 2 March 2019 the applicant admitted that more than four patients per hour had been booked on 14, 15, 19 and 21 February, and had been seen on 15, 19 and 21 February 2019. There is an argument (which the applicant did not advance) that the condition referred to a rate rather than preventing him from seeing more than four patients in any particular hour, but on each of 15 and 19 February he saw more than 24 patients over six hours, so on any view the condition was breached on those days.
- [43]It was in this context that the respondent decided, on 7 March 2019, to suspend the applicant’s registration under the National Law s 156. This was done bearing in mind his failure to comply with the requirements under the regulations for Schedule 8 and Schedule 4 drugs of dependence, his failure to cease to prescribe them when his endorsement to do so was cancelled, and his failure to comply with the conditions imposed on 28 December 2018, in relation to the number of patients seen per hour. This was the decision the applicant seeks to review in this proceeding.
The hearing
- [44]At the hearing the applicant discussed a number of the patients on whom the assessors commented in the report of their investigation. Some of this discussion became rather technical, and the applicant did not seem capable of explaining matters in a way that I could understand. I found the Tribunal’s medical assessors particularly helpful here. It seemed to me that his explanations tended to ramble, and to wander off the point, which made them difficult to follow. The applicant mentioned the patient who had been given an iron infusion which the investigators considered unnecessary, and he maintained that the infusion was justified by her auto-immune disorder, quoting a research paper to justify that view. The paper discussed patients with three specific conditions, none of which this patient had, but the applicant claimed that the reasoning applied also to rheumatoid arthritis. He said she had mildly elevated CRP, which suggested an undifferentiated autoimmune condition rather than an infection. The Tribunal assessors agreed with the investigating assessors, that this infusion was unnecessary.
- [45]The applicant appeared to be something of an enthusiast for iron infusions. He also volunteered that Patient 17 needed one, and said that he did one or two a week. When speaking of Patient 17, he took the Tribunal to his records (HB 1091) where it emerged that he had, or would have, done something, but had not recorded it in the notes. He conceded that his notes could be deficient,[36] and said that was because he was seeing too many patients, and that he was happy to see only four per hour. He did not explain how he came to breach that condition, although he accepted that he had. He then spoke about the earlier practice he joined with the elderly GP who had a large number of drug addict patients, which he had to take on, and who then largely followed him to his new practice. He said he had to see them regularly, and described them as high maintenance patients. He could not explain how he could treat such patients properly without being able to prescribe Schedule 8 and Schedule 4 drugs of dependence.
- [46]The applicant also spoke about working in a rural setting, but could not explain satisfactorily how that would work while he lacked the drug endorsement.[37] He referred to a reference from a patient (HB 1677) and gave some of the history for him, and to a reference from a friend who was a pharmacist: HB 1678. He disputed the opinion of the assessors that giving a particular patient B12 was unnecessary, but the Tribunal assessors agreed that giving B12 to that patient was unnecessary. He claimed that in the future he did not want to be involved with complex patients, but did not suggest any way this could be ensured. He conceded that while suspended he had not been involved in any continuing professional development; he spent his time doing mathematical research, and tutoring in mathematics.
- [47]The medical records detailing prescriptions written by the applicant for Patient 15 caused the Tribunal’s assessors concern. The applicant had written prescriptions for the maximum dose 600 mg per day, but this was to be taken in four capsules, not how it is to be prescribed. He had written them as follows (HB 1044-7):
21 March 2018 150 mg capsules 4 times a day 12 weeks worth
30 May 2018 75 mg capsule before bed 11 months worth
7 August 2018 150 mg capsules 4 times a day 12 weeks worth
10 October 2018 75 mg capsules 2 twice per day 24 weeks worth
7 November 2018 75 mg capsules 2 twice per day 11 months worth
- [48]This approach appears to be disregarding issues of patient compliance. On questioning the applicant said he intended a dose of 675 mg per day, and that taking it four times a day did not matter. The Tribunal’s assessors did not agree, and regarded this as a most concerning approach to prescribing. At the same time, the applicant was prescribing the patient MS Contin, in lots of 28 (dose one per day) on 12 February, 21 March, 18 April, 9 May, 30 May, 14 June, 29 June, 7 August, 23 August, 18 September, 10 October (2 scripts) and 7 November 2018. When asked about this during the hearing, he could not explain why so much was prescribed. He agreed that his record keeping was not up to a good standard, but claimed that he was happy that the patient was not going to divert or misuse the medication.
- [49]The applicant spoke about a patient of his who suffered a fatal overdose after seeing him, not long after he had been released from prison. He had completed a form for the patient to be admitted to the QOTP, identifying the drugs taken on the basis of what the patient told him, although one drug he said he was taking, Pregabalin, was not listed on the form: HB 1877. He said that he did not check this information with the prison authorities, and conceded he should have done so. When discussing this patient, he did not give responsive answers to some questions he was asked.
- [50]Under cross-examination he conceded that he wrote an email to the respondent on 6 March 2019 about a patient seen on 26 February 2019, which referred to three scripts for Temazepam “owing” from 6, 15 and 28 February 2019: HB 519. He proposed to write the scripts “after my appeal against my … endorsement cancellation.” He claimed he had not been telephoned by the pharmacy at the time. If something like this happens it has to be regularised within twenty-four hours. As well, he had not seen the patient on 15 February, and a pack of Temazepam should last a month. Such behaviour is unsatisfactory. In written submissions on 5 November 2020 he gave this as an example of the difficulty caused to his patients by the cancellation of his endorsement.
- [51]Under cross-examination he admitted that, when speaking to the psychiatrist who prepared the health assessment on him, he did not disclose that at one stage he had self-prescribed Prozac in 1996, that he had been prosecuted for fraud and served time in prison, or that his registration had been cancelled as a result; he said this was because he was ashamed of his past.
- [52]The applicant was cross-examined about the iron infusion which was the subject of the complaint in July 2018, and his email to the respondent of 30 August 2018 in which he admitted that he had not used a tourniquet or flushed the needle with saline as these were not available on that day: HB 1342. He had not warned the patient about the possible complication, extravasation causing permanent skin staining, which eventuated. He accepted that it was his responsibility to ensure that all necessary equipment was available, and that his notes for that day were insufficient. Again, he blamed overwork.
- [53]The applicant claimed during the hearing that his knowledge of pharmacology and physiology from his anaesthetics training helped him to manage drug patients, but both the respondent’s assessors and the Tribunal assessors were dissatisfied with his management of them. He asked that he be allowed to practice on the basis of indirect supervision, seeing no more than four patients per hour, and accepted that he would not handle opiate patients, an academic concession in view of the loss of his endorsement. He offered to email clinical notes to his supervisor, and said he was trying to justify some return to practice.
- [54]In submissions he proposed avoiding matters which had attracted criticism, such as iron infusions and complex patients, but also spoke of his ability to deal with emergencies, in a way which suggested that in that situation he might not comply with conditions placed on him. That was similar to his approach to the cancellation of his prescribing endorsement, where he continued to prescribe such drugs, he said as part of a process of transitioning patients off their use in an orderly way. He claimed to understand, and to apologise for, what had not been done properly in the past, and he wanted to be able to move forward again.
- [55]In written submissions on 20 October 2020 the applicant proposed a return to rural medicine, on a part time basis and using telehealth consultations, and not seeing more than four patients per hour. He disputed the cause of death of the patient the subject of a Coroner’s enquiry, and raised the issue of the delayed notice to him of the cancellation of his drug endorsement.[38] He identified sixteen findings in Ting v Queensland Health (supra) with which he disagreed; I have not taken those findings into account in my reasoning, although to some extent my findings on relevant matters which overlap coincide with those findings. The fact of that decision is relevant however, and I have taken that into account, along with such of the findings as were set out in a Statement of Agreed Findings signed by the parties for the purposes of this proceeding. I cannot go behind or re-consider the earlier decision.
- [56]Most of these submissions I found very difficult to follow, and apparently not containing logical arguments presented in an understandable fashion. To the extent that I could understand bits of it, it largely advanced propositions I have already dealt with as being raised at the hearing. He did assert that there was no evidence that long term prescribing of Schedule 8 drugs represents any significant health risks. He referred to a research paper on “white coat hypertension”: that is, patients whose blood pressure goes up just because they are in a doctor’s office (to which he had attributed the blood pressure of Patient 9) although he did not appear to have followed the advice in that paper, or did not explain how he did so. There was a further short written submission provided after the hearing, which I have mentioned elsewhere, and which did not contain any new arguments.
Respondent’s submissions
- [57]The respondent submitted that, on all the material before the Tribunal, the correct and preferable decision was to confirm the respondent’s decision to suspend the applicant. The respondent submitted that the applicant’s persistence in submitting that there were justifications, in evidence based medicine, for the various actions criticised by the assessors showed that he continues to lack insight into the inappropriateness of his unconventional practices, so that he continues to pose a serious risk to the health and safety of the public. Also relevant was his long history of failing to comply with various regulatory restrictions on him, including the conditions placed on his registration, and in those circumstances he could not be trusted to comply with any conditions placed on him if he were allowed to practice.
- [58]The respondent also relied on the applicant’s admissions about the inadequacy of his patient notes, that he understood the serious nature of the breaches of the conditions on his registration, and the breaches of regulations consequent on the cancellation of his drug endorsement in February 2019, that he understood the effect of that cancellation, and that there had been breaches of the conditions as to the number of patients seen. Reliance was also placed on other admissions referred to earlier. The respondent noted that its assessors had not been cross-examined, that no independent evidence had been led to contradict them, and that the arguments of the applicant against their criticism of his actions were unconvincing.
- [59]The respondent submitted that in documents the applicant had admitted that he had a poor memory,[39] which made good notes all the more important. It appeared, from submissions he had made and from his behaviour in ceasing practice for a time, that he did not want to work under supervision, and that was consistent with his pressing for rural relieving work. That he did not tell his supervisor about the cancellation of his endorsement showed he was not willing to work transparently with a supervisor. The patient getting drugs from a pharmacy without prescriptions on the basis that the applicant would write them later was unsatisfactory, and consistent with his prescribing being guided by the patient. It was submitted that the applicant was just saying whatever he thought would assist his cause, and that it was not possible to identify a safe way for him to return to practice.
Consideration
- [60]The approach of the Tribunal to a matter such as this is well established. It was discussed by the Deputy President last year, in Loney v Nursing and Midwifery Board of Australia [2020] QCAT 486 at [5] – [10]. I entirely agree with what was said there, and would add only that his Honour in [6] was speaking about the criteria in s 156(1)(a)(i), and that it is also necessary to have a reasonable belief as to the necessity for immediate action, that is, action which does not await the conclusion of an investigation and disciplinary reference, in order to protect patient safety. As well, immediate action should be no wider than is necessary in the circumstances.[40]
- [61]When the applicant was inspected by the medical assessors, they were concerned by the quality of the care he was providing, as well as his inadequate records, and the fact that he appeared to be seeing too many patients for him to be able to care for them properly. A number of his treatments were regarded as unconventional, and the intravenous provision of three drugs was regarded by them, and by the Tribunal assessors, as unacceptable. To the extent that the applicant took issue with the adverse comments of the assessors, he generally failed to demonstrate to me or to the assessors that they were not justified, and in these circumstances, his persistent defence of what they regarded as unsatisfactory practices suggests a reluctance in the applicant to change his mode of practice. That is also concerning.
- [62]One other matter that concerns me is that the applicant has manifested, over a long period of time, a willingness to prescribe generously, perhaps as a reflection of the personality features identified in the health assessment. It is significant that the sort of practice the applicant had in 1995, with many drug addicts, which led to extensive fraud and his deregistration, was the sort of practice he developed again when he returned to general practice in 2017. He not only did not take steps to rid himself of such patients, he continued to take them on even as his authority to admit patients to the QOTP was drawing to a close, and at the new practice in Redcliffe he took on new patients who were chronic users of narcotic drugs, generally for chronic pain. That he attracted such patients indicates that his mode of practice was particularly attractive to such people. Indeed, my impression is that the applicant was frequently writing prescriptions just on the basis that the patients asked for them.
- [63]The applicant also has a long history of failing to keep proper patient notes, despite having run into trouble as a result. There was such a failure at the rural hospital in May 2016 and with the iron infusion patient in July 2018, which he acknowledged in August 2018, but in December 2018 he was continuing to make patient notes which were woefully inadequate. Clearly he was not motivated to remedy this by reducing his workload to a level which would enable him to write proper notes at the time, as well as to revise the history of each patient before a consultation, and to take time to investigate thoroughly the issues raised by the patient. His heavy reliance on writing prescriptions and on ordering tests of dubious usefulness was consistent with an imperative to deal with patients quickly, because of his excessive workload.
- [64]Whether this workload was motivated by a desire to give as many patients as possible the benefit of his expertise, or by a baser financial motive, as suggested by his apparent overcharging of Medicare, probably does not matter for present purposes. What matters is that the applicant has been clearly resistant to reducing his workload to enable him to practice properly. Even when conditions were imposed on him limiting the number of patients seen, he almost immediately breached them. That is another aspect of his behaviour which is of long standing: a failure to comply with limitations placed on his practice of medicine. It was observed in his hospital job in 1999, when in a relatively junior position he was doing things without the required approval of senior doctors; it surfaced in his failure to stay within his scope of practice in May 2016; and it was shown by his failure to stay within the limits imposed for the QOTP, to comply with the cancellation of his prescribing endorsement, and to comply with the conditions imposed by the respondent in 2019. In these circumstances, the Tribunal cannot have any confidence that, if he is allowed to practice subject to the conditions proposed by him, he would remain within those conditions.
- [65]There is another matter I should mention. The National Law s 156 also provides, as a ground for immediate action, s 156(1)(e): “The National Board reasonably believes the action is otherwise in the public interest.” It is in the public interest that the legislative provisions regulating the medical profession be observed, and accordingly it could be argued that, if a medical practitioner persisted in breaching those provisions, it was in the public interest to suspend the practitioner’s registration, even if the way in which the practitioner was practicing was otherwise quite safe for the public. That argument was not advanced by the respondent at any time, or raised at the hearing, and therefore I will not consider it further. The review will be decided under subsection (1)(a) only.
- [66]In the present case the nature of the risk is that a patient will suffer harm because of the prescription of unnecessary or inappropriate drugs, or unnecessary and inappropriate procedures, or that a lack of careful and thorough examination of the patient will result in a diagnosis being missed, with adverse consequences. There is also the risk that inadequate notes will rebound to the prejudice of the patient, if read on a later occasion, perhaps by someone other than the applicant. Broadly speaking, the risk is that if the applicant continues to practice, his patients will receive care which is not up to the standard the public is entitled to expect from an experienced general practitioner.
- [67]The evidence in this matter suggests that patients of the applicant have already experienced a manifestation of that risk. Particularly in view of the applicant’s history discussed above, there is reason to expect that the applicant, if allowed to resume practice, would continue to manifest, at least to some extent, the same failings that he has manifested in the past. In view of that, the likelihood of the risk eventuating seems to me to be relatively high; at least more than probable.
- [68]As to the consequences if the risk does eventuate, the absence of the prescribing endorsement should reduce the risk arising from excessive prescribing of dangerous drugs, but that was not the only inappropriate prescribing in the applicant’s history, in view of his use of unconventional treatments. In at least one case an iron infusion appears to have produced an adverse consequence, and a failure to treat high blood pressure appropriately can lead to serious adverse consequences such as stroke. A failure to conduct a physical examination when one is necessary may result in a failure of early detection of cancer. Overall, inadequate medical care can produce a range of adverse consequences, extending potentially to quite serious ones.
- [69]This is not to say that the applicant is generally incompetent. There were examples of patients treated where the assessors considered that the applicant displayed sound medical knowledge, and provided appropriate treatment. It may well be that some of his unconventional treatments were helpful, or at least harmless. But there were some aspects of the applicant’s mode of practice which posed a risk of harm to at least some of his patients, a risk which I have assessed as likely to eventuate in the future, and which could result in serious harm. I suspect he is not as good a doctor as he thinks he is. Overall, notwithstanding the limitation on his authority to prescribe, I believe that he poses a serious risk to persons, and that this belief is reasonable, in the light of the material before me.
- [70]In circumstances where the applicant appears to be resistant to changing his ways, and has already breached conditions imposed on him by the respondent in an attempt to raise the standard of his performance, I also believe that it is necessary to take immediate action to protect public health or safety, and that this belief is reasonable. This is also based on the material before me, and on the findings I have made. The same factors also mean that the protection of public health and safety will not be adequately achieved by the imposition of conditions, and that it is necessary, in order to protect the public adequately, for the applicant’s registration to be suspended.
- [71]Accordingly the decision of the Tribunal is that the decision of the respondent, of 7 March 2019, to suspend the registration of the applicant, is confirmed. I also order that, unless written submissions by a party seeking an order for costs are filed in the Tribunal and served within fourteen days from the date of this decision, the parties bear their own costs of the proceeding. If such submissions are filed and served, the other party may file and serve any submissions in response within fourteen days thereafter.
Footnotes
[1] National Law s 199(1)(h).
[2] Health Practitioner Regulation National Law Act 2009 s 6.
[3] Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) s 20; Pearse v Medical Board of Australia [2013] QCAT 392.
[4] The QCAT Act s 19.
[5] Sentencing remarks, Newton DCJ, 19 September 1996, HB (ie Hearing Book page) 1437.
[6] HB 1462 +.
[7] HB 1445.
[8] HB 1486. The Committee’s reasons state that the total amount obtained wrongfully from Medicare was $139,500, but all of it had been repaid. Five years was the maximum period of disqualification available under the relevant Act: HB 1494.
[9] HB 1514, sworn 18 April 1997. The quotations are from HB 1516.
[10] HB 1497 +.
[11] HB 1504 +.
[12] HB 1496. The reasons of the Tribunal start at HB 1491 but are incomplete.
[13] Letter, Director Emergency Department to Medical Board, 6 December 1999, HB 1535.
[14] HB 1541.
[15] Letter AHPRA to applicant, 30 November 2017, HB 1302. See also Exhibit 5, Exhibit 7. The applicant had anaesthetized a young child without IV access, without adverse consequences, but with a risk of complications, and acting outside his scope of practice.
[16] He said in evidence that he started with five patients, and ended with about 135.
[17] He said that he could not then access their medical records, but there is a process for transferring such records, which he did not follow, he said because of pressure of work.
[18] He conceded under cross-examination that he did not tell the practice principal at once of the cancellation of his endorsement, he said because he was so upset by it. He was told of the cancellation late on 12 February, and had not told him by 22 February 2019: HB 1392.
[19] Ting v Chief Executive, Queensland Health [2020] QCAT 265.
[20] Their report is at HB 1267.
[21] Statement B, dated 19 April 2019, provided to the respondent, at HB 1660. Parts of this are difficult to follow, as the applicant jumped between one series of patients and another.
[22] Transport Operations (Road Use Management) Act 1995 (Qld) s 79(2AA); Traffic Regulation 1962 (Qld) s 172.
[23] During the hearing the applicant said he did not know if it was correct for him to write a prescription in the absence of the patient.
[24] In the report, described as Patient 1 observed by the other assessor. For convenience I will number the patients consecutively.
[25] If she was receiving Prolia already there was no point to the test, but in submissions to AHPRA the applicant seemed to say that he did not order the test, it was the practice: HB 756.
[26] In Statement B, the applicant claimed that this was the assessor’s error, and Item 23 was charged (HB 1665); but if the patient was there just to praise him to the assessor, any charge was inappropriate. He did not dispute other apparent examples of overcharging.
[27] In his written submissions before the hearing, he suggested it was for her peripheral neuropathy, although the submissions also appear to suggest some iron deficiency.
[28] This was from the appointment book. At the hearing the applicant said he did not see so many.
[29] He was the same during his conduct of the hearing.
[30] The same could be said for much of the applicant’s written submissions, parts of which were incomprehensible or interspersed with irrelevancies.
[31] In a written submission to AHPRA of 28 December 2018 he said he had fifteen to twenty such patients: HB 755.
[32] The assessors noted that he disputed a particular medical proposition, and produced articles which he said supported his position, which in fact did the opposite. That suggests incompetence to me,
[33] He was seen by a psychiatrist who reported on 10 January 2019 that he had no psychiatric condition, disorder or disability which would preclude him from practice, but he had personality elements which limited his ability to set limits on the demands of patients: HB 1300.
[34] Written submission of applicant to respondent 2 March 2019, HB 623.
[35] HB 521 – 547.
[36] At one point under cross-examination, he accepted that his record keeping had been awful.
[37] At one point he suggested that he could fill in for a week without difficulty arising. In written submissions on 5 November 2020 he conceded that he would need the endorsement for rural relieving work.
[38] For the purpose of this proceeding, I take no account of any prescriptions written by the applicant before he actually received notice of the cancellation of his endorsement.
[39] He did this again in written submissions on 5 November 2020.
[40] Colagrande v Health Ombudsman (No 2) [2017] QCAT 107 at [10], [11]; CJE v Medical Board of Australia [2019] VCAT 178 at [25] – [29].