Doc failed to disclose conflict of interest, Tribunal finds


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A GP has been reprimanded after signing a patient up to a multi-level marketing scheme

The Medical Board has announced that a Queensland specialist general practitioner has been reprimanded, and conditions imposed on her registration, after she failed to disclose a conflict of interest.

The Queensland Civil and Administrative Tribunal found that Dr Valerie Cole had behaved in a way which constituted unprofessional conduct.

The patient went to see Dr Cole in September 2010, complaining about persistent fatigue. During that consultation, Dr Cole recommended products from USANA Health Services, a Utah-based provider of nutritional supplements, meal replacements and skin care products.

USANA, which distributes its products via a network marketing scheme, is listed by MLM Companies as a multi-level marketing program.

Associate members of this scheme can purchase products at special prices and earn commissions from sales.

Dr Cole was a member of the USANA network marketing scheme and had earnings from her association of $73,431 and $71,457 in the 2010 and 2011 financial years respectively.

The Australian Health Practitioner Regulation Agency received a notification that Dr Cole had facilitated the patient to become an USANA associate.

She had invited the patient and the patient’s husband to her home to meet with her and her own husband, to discuss the USANA scheme.

She also attended other meetings with the patient in 2011 about the scheme, including presenting at a function organised by the patient and the practice’s receptionist.

When the patient expressed concerns about working with her doctor to promote USANA products – saying she wished for the relationship to remain a doctor/patient relationship – Dr Cole met with her and the practice receptionist to discuss the concerns.

It was agreed that the patient would continue to work with the receptionist on USANA products, but this agreement ended in October 2011.

At around this time, the patient resigned from the marketing scheme and told USANA that she had been “unethically induced” into joining.

Dr Cole stopped treating the patient on 31 March 2011.

The Medical Board notes that Dr Cole had been previously cautioned, in 2008, by a Professional Standards Panel of the Medical Practitioners Board of Victoria about a failure to advise a patient of her financial interest in similar circumstances.

At this time she had been told not to allow her “passion” for USANA products result in inadvertent pressure on patients to purchase expensive products from an organisation with which she had a financial relationship.

The panel recommended that she undergo counselling with her medical indemnity insurer around recommending treatments in which she had a financial interest.

“The misconduct of Dr Cole was multi-faceted,” noted Judge Suzanne Sheridan.

“There were clearly failures to identify and disclose in recommending treatment using USANA products. There were also failures to fully explain the nature of the Scheme prior to having [the patient] sign the forms.

“The Tribunal does not accept that the nature and extent of the conflict must have been ‘patently obvious’ to [the patient] once she signed the forms ‘because at that time she became fully apprised’.

“At the time of signing the forms, [the patient] clearly did not fully understand the Scheme. At that time, she did not understand she was signing to become an associate of the Scheme, as distinct to a preferred customer.

“In fact, the need for the holding of subsequent meetings which were at the instigation of Dr Cole would suggest to the contrary.

“There was a power imbalance because of the therapeutic relationship and there was exploitation from the treating relationship.”

Judge Sheridan noted that in an email to Dr Cole dated 24 March 2011, the patient referred to having been “vulnerable” at the relevant time, stressed by her continuing fatigue and upset at the fact that her husband was living away from home for work.

The Tribunal accepted Dr Cole’s assertion that the exploitation should be regarded “at the less serious end of the cases” because while there was a vulnerability and a power imbalance, the patient was not so overpowered that she did not feel able to sever the business relationship.

Dr Cole admitted breaching the Board’s Good Medical Practice Code of Conduct for Doctors in Australia and the Australian Medical Association’s Code of Ethics, however, did not admit that she failed to adhere to the previous caution given by the panel.

The Tribunal found there was a clear conflict of interest and Dr Cole’s conduct was unethical.

The Tribunal did not consider the previous action taken by the panel to be an aggravating factor in respect of determining the seriousness of Dr Cole’s conduct, but it did consider it a relevant factor in determining sanction.

In deciding the appropriate sanction, the tribunal referred to the fact that Dr Cole had previously been dealt with by a panel for not fully disclosing her conflict of interest in recommending USANA products; and that even though Dr Cole had received counselling, she was before the Tribunal for conduct involving a failure to fully disclose her conflict of interest which suggested that she still failed to understand appropriate boundaries.

It also took into consideration that Dr Cole took the step of cancelling her USANA membership, as well as directing those working at her practice to cancel their memberships, which was evidence of insight.

She has not earned an income from USANA Health Sciences since 7 December 2015, according to a letter provided by USANA and presented to the Tribunal.

The tribunal reprimanded Dr Cole for behaving in a way that constituted unprofessional conduct, placed conditions on Dr Cole’s registration to remain disengaged from the scheme for a period of 12 months and ordered her to pay the Board’s costs.

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