Pharmacy data showed doc practised while suspended

tribunal hearing legal case

A doctor has appealed his suspension, saying that he should be allowed to reduce COVID-19-related strain on the health system by seeing his patients

The case was an appeal against a decision by the Medical Board to take immediate action to suspend the registration of the medical practitioner, which it did on 9 May 2019, affirming the decision in April this year.

The doctor appealed the decision on 9 June 2019, though the appeal was delayed for reasons including the doctor’s awaiting health assessment, and then by the COVID-19 pandemic.

The Tribunal noted that the 61-year-old doctor had a regulatory history that extends over 30 years and has included other VCAT proceedings, most recently in 2018, when his registration was suspended.

It was following this suspension, which was for six months commencing 1 November 2018, that in February and March 2019, two people made notifications alleging that, among other things, the doctor was still practising medicine.

On 30 April 2019 investigators executed a search warrant at his clinic and on 9 May 2019, immediate action took place.

“In its decision the Board recorded that it had formed a reasonable belief that [the doctor] practised medicine during the suspension period,” the Tribunal noted.

“That included that he provided treatment and/or a medical certificate dated 1 March 2019 to a named patient; that he provided treatment and prescribed medication for another named patient; that he prescribed to numerous patients (including a family member who was relevant to the 2018 VCAT decision); that he issued backdated prescriptions; that he gave instructions to pharmacists and/or verbal orders in relation to dispensing medications to patients; and that he fraudulently prescribed to patients under the names of other medical practitioners.

“The Board formed a reasonable belief that [the doctor] posed a serious risk to persons and that it was necessary to take immediate action to protect public health or safety.”

The Tribunal also noted that the immediate action decision refers also to two declarations made by the practitioner during the suspension period to the effect that he was not practising.

In December 2019, the doctor was charged with 37 offences under the National Law.

The majority of these charges concern his activities during the suspension period, and include holding himself out as being registered when he was not, and obstruction of an inspector when the April 2019 search warrant was executed.

“The remaining charges concern [his] conduct from May to August 2019–after the Board took immediate action on 9 May 2019 to suspend his registration,” the Tribunal noted.

“It is alleged that [he] held himself out as being registered when he was not registered. Those matters are to be heard by the Magistrates’ Court of Victoria, possibly towards the end of this year.”

The October 2018 suspension had followed a notification in 2014 made on behalf of the entity having responsibility to enquire into the provision of Medicare services by medical practitioners.

Among other things, the Professional Services Review Committee decided in May 2015 that the doctor be reprimanded and counselled; that he be disqualified from rendering services under the Medicare Benefits Schedule for two years; and that he repay Medicare benefits to the Commonwealth in the order of approximately $450,000.

The 2014 notification raised concerns about his treatment of close family members and his use of intravenous antibiotics.

Following an investigation, the Board referred allegations to VCAT, where he admitted engaging in professional misconduct: that between 1 December 2011 and 20 November 2012, he provided medical care to one or more close family members in avoidable circumstances – on 141 occasions.

He also admitted to exposing patients to harm via treatment with an intravenous injection of the antibiotic Keflin in a residential setting, treating 23 patients with antibiotics intravenously in a residential setting over a period just short of 11 months.

The Tribunal noted that this conduct was a repetition of conduct for which he had previously been sanctioned – and that the inappropriate treatment of family members commenced within months of him completing a reflective report in 2011 about what he had learned from counselling ordered by a previous Panel Hearing.

Evidence presented at VCAT included witness statements made by pharmacists who, during the suspension period, were asked to dispense medications prescribed by the doctor, and who had relevant conversations with patients and sometimes the doctor as well.

There were “numerous” copy prescriptions attached to these witness statements.

The doctor had declared in December 2018 that he was not practising and had not done so since 1 November; however by March 2019, AHPRA was requesting a written explanation for Medicare billing and prescribing data that said he may have continued to prescribe.

He said many were written in October 2018 for patients on long-term medications.

However, AHPRA pointed out that the data indicated several scripts were original ones.

The doctor’s response was “to the effect that the data was wrong about the date of the prescriptions (that is, the actual date was before 1 November 2018) or wrong about the name of the prescribing doctor. He said there were a few scripts that he had been unable to retrieve”.

In around April 2019 AHPRA requested several pharmacies to provide copies of original scripts issued during and around the time of the suspension period – and reviewed a sample of these scripts.

They included scripts handwritten and signed by the doctor on 13 December 2018; dated in October 2018 but dispensed between November 2018 and February 2019; and three written on another doctor’s pad, but with the same signature as the doctor in question, two dated February and one March 2019.

The search warrant unearthed notes taken on dates during the suspension period and more than 10 scripts for a close family member – one of the same people the 2018 VCAT decision related to – dated 31 October 2018, the day before the suspension took effect.

The doctor said that he has strong support from his community of similar cultural background, and contrasted this with complaints made by family members, which he said were malicious or vexatious.

The doctor “submits that the stressors for patients have increased during the COVID-19 crisis and that, as the crisis has put a strain on the health system, he should be allowed to look after his patients,” the Tribunal noted.

It noted that the suspension had impacted the doctor significantly, including financially, given that some years ago he had been the victim of fraud which forced him into bankruptcy.

It heard that he had experienced several episodes of “severe” mental illness over the years, but his psychologist and psychiatrist say he is now fit to make a graduated return to work.

“The Board more or less reached the same conclusion after an investigation,” the Tribunal noted, adding that his mental state was among the matters to consider.

The Tribunal noted that he attributed his “poor choices” to his mental health condition and his commitment to his patients, which he said he saw as in the style of an “old school” family doctor who was driven by a commitment to his patients.

It did not accept that he believed his actions during his suspension to be “only minor” given the number and nature of the documents and scripts he wrote, and of the interactions he had with pharmacists.

The Tribunal added that it had a reasonable belief that he poses a serious risk to persons, and that immediate action was necessary to protect public health or safety, and confirmed the Board’s decision in suspending him.

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