Journal of the New Zealand Medical Association, 28-November-2008, Vol 121 No 1286
Professional Misconduct (Med07/76D)
The Doctor was charged with professional misconduct by the Director of Proceedings. The charge alleged that:
Between 1 March 2003 and 30 April 2006 while being in a de facto relationship with his partner (NN) the Doctor:
The Tribunal found the Doctor guilty of professional misconduct.
The main facts relating to the charge were not in contention.
The Doctor is a registered medical practitioner, practising as a general practitioner, one half day per week. Between 1998 and 2006, he was in a relationship with NN and in December 2002, she moved in to live with the Doctor in a de facto relationship. They continued to live together until late May 2006, when they parted somewhat acrimoniously.
In 1999, NN’s GP prescribed her an anti depressant, Cipramil 20mg. NN said she did not take that medication. Between January and June 2002, NN attended counselling, at the Doctor’s request, for self esteem and historical relationship issues.
Soon after NN started living with the Doctor, he diagnosed her with depression. Up until that point, NN said she had not previously been diagnosed with depression. The Doctor said this diagnosis was a result of many factors, including her history, various conversations, and his observations of her mood fluctuations, her impulsive behaviour and alcohol consumption. The Doctor made no record of his diagnosis. He said that NN wrote him letters from time to time which assisted him to form the view she was suffering from depression.
From 24 April 2003, the Doctor regularly prescribed Aropax 20mg tablets for NN. There were a total of 30 prescriptions dispensed over a period of three years.
During the period he was living with NN, the Doctor also prescribed a number of other medications for NN. These included 13 prescriptions for Paradex (an analgesic), 9 prescriptions for Trisequens (hormone replacement) and 2 prescriptions for Losec (for gastric problems).
In early April 2006 NN presented to an emergency mental health team, who noted she appeared withdrawn and tearful with feelings of hopelessness and low energy and motivation. She was assessed for suicidal thinking with the background of low mood and relationship strain. She was referred to a community mental health team.
An assessment by a psychiatric registrar on 19 April 2006 did not reveal symptoms of major depressive disorder. It was thought she may be suffering from an adjustment disorder with depressed and anxious moods. A programme of reduction of Aropax from 40mg a day to 10mg was planned over the next two weeks, with a view to introducing a mood stabiliser.
On 8 May 2006 at a second community mental health consultation with the psychiatric registrar, it was agreed that the Aropax would cease and NN would try sodium valproate for her mood.
At a further community mental health consultation in early June the psychiatric registrar increased NN’s mood stabiliser, and then at a consultation on 24 July 2006 it was reduced with a view to ceasing. The psychiatric registrar confirmed that at the time of the last assessment, it was felt NN did not meet the criteria for any mental disorder. The most appropriate treatment was thought to be individual psychotherapy for the management of psychosocial stressors.
NN reported no diagnosis of mood disorder or depression, and was not on any medication for such.
Reason for Finding
Diagnosis of depression—The Tribunal was satisfied the Doctor undoubtedly diagnosed his de facto partner with depression. The Tribunal considered that had the Doctor been truly objective, he would have realised he could not be involved in his partner’s care, given the complexity of the issues she was facing. He would have ensured that independent professional advice was sought. The moment he made a diagnosis, he inevitably and foreseeably became involved in a continuing course of mental health treatment for NN.
The Tribunal was well satisfied that the diagnosis of depression was not one that should have been made by the Doctor in the circumstances, particularly given the absence of any reliable evidence that there was another health professional involved in caring for NN.
The Tribunal considered the established facts amounted to malpractice, and professional misconduct.
Failed to keep records of consultations or treatment—The Doctor, in the agreed summary of facts, accepted that no record of the diagnosis, or treatment, was undertaken. He accepted his record keeping was not “conventional”. It merely consisted of letters from NN. There was no record whatsoever of the Doctor’s own observations, or his reasons for reaching them.
This situation involved a long term mental health situation. The Tribunal concluded that there was a sufficiently serious departure from accepted standards as to amount to professional misconduct.
Prescription of Aropax on 30 occasions—Aropax is used for the treatment of depression, anxiety disorders, panic disorders and obsessive compulsive disorders. The Tribunal considered in the context of a diagnosis of depression on an ongoing basis, and also on the basis of an untested assumption that there was a GP seeing the patient from time to time, the continuous prescribing of Aropax over a period of years was most unwise. There was a sustained and potentially risky or even dangerous situation in the continued prescribing of the Aropax.
The Tribunal concluded that the facts were established, and that they amounted to malpractice, and the bringing of discredit on the profession, and professional misconduct.
Prescribing of other medications—The fourth particular related to the prescribing of other medications including Paradex (an analgesic), Trisequens (for hormone replacement) and Losec (for peptic ulcers).
The Tribunal was particularly concerned about the prescribing of the first two medications. They were of a different character from Aropax, but nonetheless, they involved potential risk. Paradex is a medication which should not be prescribed for patients who are potentially suicidal, who are on antidepressant medicines, or where there are issues as to the intake of alcohol. Drug dependency can also occur.
The Tribunal also had some concerns over the prescribing of Trisequens. The Doctor prescribed Trisequens for NN for a period of approximately three years. Trisequens is used for hormone replacement therapy. When prescribing hormone replacement therapy it is recommended that practitioners monitor their patients. Investigations, in particular mammography, should be carried out in accordance with currently accepted screening practices. These investigations were not referred to at all by the Doctor in his evidence.
The Tribunal was satisfied that the Doctor’s conduct fell well below the accepted standards and amounted to negligence, and professional misconduct whether the 4 particulars were considered separately or cumulatively, professional misconduct was established.
The established particulars raised significant concerns about the Doctor’s ability to identify ethical dilemmas and professional boundaries. The scale of error which arose here was such that the Tribunal could not be confident that those issues would necessarily be limited to a family situation.
The Tribunal considered that the disclosed facts also revealed potentially wider problems relating to the Doctor’s practice in connection with women’s health and mental health, as well as record keeping.
The Tribunal ordered that the Doctor be censured, pay a fine of $7,500 and pay costs of $3,000.
The Tribunal further ordered the Doctor to undertake education with regard to professional boundaries within the next six months and confirm to the Medical Council of New Zealand that he has done so.
The Tribunal recommended that the Medical Council of New Zealand undertake a competence review of his practice with regard to women’s health, mental health and record keeping, and, dependent on outcome any requirement of that competence review is to be complied with by the Doctor as a condition of practice.
The Tribunal directed that details of this decision were to be published in the New Zealand Medical Journal and on the Tribunal’s website.
The Doctor appealed the Tribunal’s substantive decision to the High Court. The High Court upheld the Tribunal’s overall finding of professional misconduct, but quashed the Tribunal finding in relation to the fourth particular. The High Court reduced the fine to $5,000, but upheld the other penalty orders. (Dr E v The Director of Proceedings and Anor (High Court, Wellington, CIV-2007-485-2735, Ronald Young J, 11 June 2008).
The full decisions relating to the case can be found on the Tribunal web site at www.hpdt.org.nz Reference No: Med07/76D
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