INSIGHTS: No professional misconduct finding for General Practitioner’s ‘grave error of judgment’

November 13, 2018

Author

Shannon Mony
Principal

An experienced and well-respected NSW General Practitioner with an otherwise unblemished record has faced disciplinary proceedings brought by the Health Care Complaints Commission (HCCC) before the Civil and Administrative Tribunal of New South Wales (the Tribunal).[1]

While the Tribunal found that Dr Quan’s conduct was improper and unethical, the Tribunal did not uphold a finding of professional misconduct. The Tribunal considered that Dr Quan had made a grave error of judgment in unusual circumstances and as such Dr Quan escaped serious penalty. He was instead issued with a caution.

 

Key Takeaways

This set of circumstances is a reminder of the professional obligations of medical practitioners, under the Health Practitioner Regulation National Law 2010 (NSW) (the National Law) and in particular, of the need to ensure accurate clinical record keeping and to comply with both the Regulations in relation to prescribing [2]  and the National Law.[3] It provides a reminder of what constitutes ‘unsatisfactory professional conduct’ and illustrates that a timely and thoughtful response to allegations can be a key factor in the outcome for the practitioner.

Background Facts

Dr Quan is a medical practitioner and a director of a General Medical Practice in Sydney, known as Holdsworth House Medical Practice (Holdsworth House).

Prior to the disciplinary proceedings, Dr Quan had a flawless reputation as a medical practitioner for over 30 years.

Dr Quan and representatives of the medical practice met with a person who called herself a registered pharmacist (PE), who sought to rent rooms at Holdsworth House for the purpose of operating a ‘hydration Clinic’ (the Clinic). PE told Dr Quan and the practice representatives that the business owned and operated by PE, would offer intravenous infusions and intramuscular injections of vitamins, minerals, antioxidants and other similar products. None of the directors of Holdsworth House including Dr Quan were involved in the operation, ownership, or management, of the Clinic.

Following an agreement for a trial tenancy of the Clinic, PE requested that Dr Quan write prescriptions for various drugs so that the Clinic would have stock when it opened. Over the course of two days, Dr Quan wrote prescriptions for ‘Myers cocktail’ in the names of Patient A, B and C, all of whom were staff members at Dr Quan’s practice, performing the role of receptionists. A ‘Myers cocktail’ is an intravenous preparation combining vitamins and minerals and is used in ‘rehydration’ services. The fifth prescription was in the name of patient D, who was then Dr Quan’s Practice Manager. Further prescriptions were written by Dr Quan in the name of PE for a Myers cocktail, parenteral Glutathione and Vitamin B12.

Soon after, the Clinic opened, and PE treated her first client. Neither Dr Quan, nor any of his employees was involved in any assessment or treatment of any of PE’s clients.

Around two weeks later, PE and a registered nurse (RN) employed by the Clinic, administered a Myers cocktail infusion, and an intramuscular injection of Glutathione to a female client. At no time was Dr Quan aware of the client, or involved in any of her care.

The client presented to a Sydney public hospital reporting fever, painful muscles, abdominal pain and low blood pressure. She was hospitalised with a suspected systemic infection (endotoxaemia) following the infusion at the Clinic. The source of the problem was unknown, but the possibilities included contamination of the injection during preparation in a pharmacy, or poor sterility by the RN at the time of administration.

The Pharmacy Regulatory Branch (PRU) was notified of the hospitalisation of the client, and an investigation commenced, involving interviews of PE and the RN, and seizure of all stock held by the Clinic. When contacted by the PRU, Dr Quan acknowledged he had written the prescriptions and expressed remorse and regret at his actions in relation to the Clinic.

In response to questions by the HCCC, Dr Quan admitted in writing to filling out the prescriptions, and expressed embarrassment and shame for his uncharacteristic actions. After being invited to comment on an expert report commissioned by the HCCC, Dr Quan apologised for his lack of judgment and lack of diligence, acknowledging his grave error, stating that the matter had caused him great distress and remorse.

The Allegations Against Dr Quan

Four complaints were made against Dr Quan, by the HCCC under the National Law: –

  • Improperly writing prescriptions for five patients,
  • Non- compliance with the appropriate regulation for prescription of a Schedule 4 medication, [4]
  • Failure to keep appropriate clinical records for the staff members and pharmacist under the regulation,[5]
  • That the above three complaints were of a sufficiently serious nature to justify suspension or cancellation of his registration and constituted professional misconduct.

Dr Quan admitted that he was guilty of unsatisfactory professional conduct and fully disclosed the first three allegations in writing to investigators. He did not concede complaint (4), that the behaviour constituted professional misconduct. Therefore, an inquiry was necessary to determine whether Dr Quan’s conduct constituted professional misconduct as defined in s139E of the National Law, and the appropriate orders to be made.

The National Law

In considering whether Dr Quan’s conduct fell significantly below the standard, the Tribunal noted that “unsatisfactory professional conduct” of a registered health practitioner, pursuant to the National Law s139B (1)(a) includes each of the following: –

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Expert Evidence

Three medical practitioners provided written expert reports.

A report obtained from Dr Kertesz, an expert General Practitioner, that was accepted and relied upon by the Tribunal, strongly criticised Dr Quan’s failure to keep proper medical records when prescribing, and opined that his actions were significantly below the required standard reasonably expected of a practitioner of an equivalent level of experience to Dr Quan. The report considered that if the prescriptions were written at PE’s request, and without the consent of the staff members, but for the purpose of ensuring the Clinic would have stock (rather than to treat the individuals for whom the prescriptions were written), then Dr Quan’s conduct was significantly below the required standard.

Dr Quan’s lack of awareness regarding parenteral Glutathione as a Schedule 4 drug, was ‘not surprising’, but the expert was critical of Dr Quan’s failure to research the drug that he had prescribed. It was also noted that Dr Quan had admitted that while he asked his staff members if they were interested in attending the Clinic, he knew that the large quantities he had prescribed would predominantly be used for stock, and not for the staff members whose names were on the prescriptions. Based on information from PE’s website, Dr Quan was under the (false) impression that each client of the Clinic would have an ‘online’ consultation with a medical practitioner before the intravenous or intramuscular administration of any drugs. Dr Quan had also received a recommendation from a medical practitioner about PE.

The report concluded that Dr Quan’s error of judgment was due to being misinformed and possibly pressured by other health care providers who he thought, had expertise in areas of medicine, other than his own.

The Findings

In the Tribunal’s view, Dr Quan’s conduct was improper and unethical.[6] This was due to: –

  • The failure to obtain proper consent from the staff patients when writing prescriptions
  • The failure to take a proper medical history from those in whose names the prescriptions were written
  • The failure to keep proper medical records, and
  • Prescribing a Schedule 4 drug without checking the relevant regulations.

However, the Tribunal found that Dr Quan was not guilty of professional misconduct.

In reaching the above conclusions, the Tribunal relied on the following factors:

  • Dr Quan’s conduct occurred in unusual circumstances and was for a limited period of two days
  • Dr Quan erroneously relied upon the representations on PE’s website that patients would be assessed by a medical practitioner prior to receipt of IV therapy
  • Dr Quan inappropriately but innocently relied upon the advice of his Practice Manager at the time, about PE’s credentials
  • Dr Quan, immediately upon being contacted by the PSU, acknowledged his role in writing the prescriptions
  • Dr Quan made a full disclosure to the HCCC when his conduct was investigated in 2016
  • Dr Quan had at all times expressed genuine remorse, shame and embarrassment for his conduct
  • There was no direct financial gain to Dr Quan, albeit Holdsworth House would benefit from the rental received from the Clinic
  • Dr Quan took steps to re-educate himself, and
  • Dr Quan’s peers and senior members of the profession expression of support for him and confidence in his character.

The appropriate order was found to be a caution, rather than a reprimand or fine, and Dr Quan was ordered to pay half of the HCCC’s costs.

This article was written by Principal Shannon Mony and Solicitor Rosemary Blanden. Please contact them if you have any questions or if you would like further information.

[1] Health Complaints Commission v Quan [2018] NSWCATOC 111.

[2] Poisons and Therapeutic Goods Regulation 2008 (NSW), Part 3- Restricted substances (S4), Division 3 -Prescriptions.

[3] The Health Practitioner Regulation National Law 2010 (NSW) sections 139B(1)(a) and 139B(1)(l) and the Good Medical Practice: A Code of Conduct for Doctors in Australia (The Code).

[4] Poisons and Therapeutic Goods Regulation 2008 (NSW) Part 3 Division 3.

[5] Health Practitioner Regulation National Law 2010 (NSW).

[6] Section 139B(1)(l) the Health Practitioner Regulation National Law 2009 (NSW), and the Good Medical Practice: A Code of Conduct for Doctors in Australia particularly 3.5 of the Code (which deals with the informed consent of a patient) and 8.4 (which deals with keeping proper medical records).


Disclaimer: This information is current as of November 2018. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.