Download Do, Annette Dao Quynh - Medical Council of New South Wales

IN THE MEDICAL TRIBUNAL
OF NEW SOUTH WALES
COLEFAX Sc DCJ, DEPUTY CHAIRPERSON
DR M. GIUFFRIDA
DR M. WALKER
MS J. HOUEN
HEALTH CARE COMPLAINTS COMMISSION
V
.
DR ANNETTE DAO QUYNH DO
Matter No. 40005/11
29 APRIL 2013
REASONS FOR DECISION
Introduction
1.
Dr Annette Dao Quynh Do was born in New Zealand in 1968.
2.
In 1995 she obtained bachelor degrees in Medicine and Surgery from
the University of Auckland.
3.
Also in 1995 Dr Do was first granted conditional registration as a
medical practitioner in New South Wales. With some short
exceptions she was a registered medical practitioner in this State
continuously until 22 January 2009 when her name was removed from
the Register because she had not paid her annual registration fee.
-1-
4.
During the time of her registration Dr Do was not subject to any
practising conditions.
5.
In 2005 Dr Do met Mr Daniel Siebler (who was then living in
Melbourne) over the internet (not a dating site) and a relationship
through that medium commenced. At that time Dr Do was 37 years
old and Mr Siebler 27 years old.
6.
On 10 June 2006 Mr Siebler moved to Sydney to live with Dr Do in a
de facto relationship.
7.
On 29 July 2006 Mr Siebler started to develop severe debilitating
headaches and on 3 August 2006 Dr Do made a diagnosis of "cluster
headaches".
8.
On 18 June 2008 Mr Siebler died from a self-administered overdose of
amitriptyline.
9.
An inquest was subsequently held into Mr Siebler’s death.
10.
As a result of that inquest, the Health Care Complaints Commission
("the Commission") undertook an investigation into the conduct of Dr
Do.
2-
11.
This investigation resulted in the Commission filing a Notice of
Complaint with this Tribunal on 30 November 2010. An Amended
Complaint was filed on 21 March 2012.
12.
On 26 and 27 March 2012 the Tribunal conducted an inquiry and at
the conclusion of that inquiry reserved its findings in relation to the
Amended Complaint.
13.
On 10 May 2012 the Tribunal delivered its findings to the effect that it
was satisfied that the particulars of each of the 2 complaints in the
Amended Complaint had been made out. The Tribunal then adjourned
in order to conduct a further hearing as to what appropriate protective
orders ought to be made in the light of those findings.
14.
The date for that further hearing was fixed for 16 July 2012.
15.
Before 16 July 2012, however, the Deputy Chairperson who had
presided at the earlier Tribunal hearing retired and resigned her
judicial commission and consequently her Honour ceased to be a
qualified person to be a Deputy Chairperson of this Tribunal.
16.
On 16 July 2012 another Deputy Chairperson of the Tribunal, Colefax
SC DCJ, delivered a decision in which he held that, by reason of
section 165C of the Health Practitioner Regulation National Law
(NSW) ("the National Law"), the retirement of the previous Deputy
3-
Chairperson effectively terminated that previous inquiry and that a
differently constituted Tribunal would be appointed to consider
ab
initio the allegations made in the Amended Complaint.
17.
The further hearing of the Amended Complaint commenced on
Monday 29 October 2012 before this presently constituted Tribunal.
None of the members of this Tribunal were members of the earlier
Tribunal.
18.
In that hearing, the Commission was represented by Mr O’Donnell of
counsel. Dr Do appeared for herself unrepresented. Apparently (and
somewhat ironically) her professional indemnity insurer declined to
indemnify her because Or Do contended (contrary to one of the
allegations made against her in the Amended Complaint) that she was
not the treating practitioner for Mr Siebler.
19.
The hearing continued up to and including 31 October 2012 when it
was adjourned to enable the evidence of Dr Gronow to be obtained.
Dr Gronow had not previously been interviewed in connection with
the Amended Complaint. The significance of his evidence will be
obvious later in these reasons. The hearing resumed for a further three
days on 17 December 2012. The final hearing day was on 19 March
2013.
-4-
20.
Dr Do was not present for that final hearing day. However, before
that day she had been served with the detailed written submissions of
the Commission; and had herself filed and served detailed written
submissions.
21.
At the conclusion of the hearing the Tribunal reserved its decision.
The Tribunal also directed the Registrar to provide a copy of the
transcript of the final day of hearing to Dr Do.
22.
After the Tribunal reserved its decision, Dr Do on two separate
occasions sought to file further evidence and submissions. The
Tribunal refused leave for her to do so on each such occasion, having
regard to the well established principles of finality of litigation.
The Nature of the Complaint:
23.
The Amended Complaint contains two discrete complaints.
24.
Complaint 1 in the Amended Complaint alleges that Dr Do has been
guilty of unsatisfactory professional conduct within the meaning of
section 139B of the National Law.
25.
In general terms the complaint alleges that Dr Do:
(a)
has demonstrated that her knowledge, skill and judgment in the
practice of medicine is significantly below the standard
5-
reasonably to be expected of a practitioner of an equivalent
level of training or experience;
(b)
has contravened a provision or provisions of the Medical
Practice Regulation 2003; and
(c)
has engaged in improper or unethical conduct relating to the
practice or purported practice of medicine.
26.
Complaint 2 alleges that Dr Do has been guilty of professional
misconduct within the meaning of section 139E of the National Law.
27.
In relation to both complaints (or either of them), the Commission
contends that Dr Do’s registration should be either suspended or
cancelled.
28.
The particulars given for the two complaints are identical and (slightly
recast by us) are as follows:
(a)
Whilst a general practitioner in private practice in New South
Wales she commenced a de facto relationship with Mr Siebler
and that whilst in that de facto relationship she was his primary
medical provider.
(b)
In her capacity as Mr Siebler’s primary medical provider, Dr Do
regularly prescribed medication for Mr Siebler, including
X-2
morphine, pethidine, amitriptyline, other injectable pain relief,
psychotropic medications and various other medications and
regularly injected him with such medications. It is the first
three drugs that are of particular concern to the Commission. In
this regard, morphine and pethidine are drugs of addiction as
defined by the Poisons and Therapeutic Goods Act 1966. Many
of the other medications are prescribed restricted substances as
defined by the Poisons and Therapeutic Goods Regulation
2002.
(c)
Further, she failed to maintain adequate records of consultations
and services provided to Mr Siebler, including records of
prescriptions, particularly of prescribed restricted substances
including drugs of addiction.
(d)
Finally, she prescribed those drugs of addiction without proper
authority and in circumstances where Dr Do was, or ought to
have been, of the opinion that Mr Siebler was a drug-dependent
person.
29.
Dr Do disputes that she has been guilty of unsatisfactory professional
conduct or professional misconduct. Specifically, in relation to the
particulars of the two complaints, she:
-7-
(a)
admits that she was in a de facto relationship with Mr Siebler,
but denies that she was his primary medical provider (viz
treating general practitioner);
(b)
contends that the writing of the prescriptions and the
administration of (inter alia) morphine, pethidine and
amitriptyline by her was done either with the express or implicit
knowledge and approval of a number of specialists who really
were Mr Siebler’s primary medical providers - she was just a
facilitator; but
(c)
admits that she failed to maintain adequate records of
prescriptions which she wrote for Mr Siebler, including drugs of
addiction, but she says there were extenuating circumstances for
that.
The Legislative Framework:
30.
These proceedings are brought under Part 8 of the National Law.
31.
Section 13913(l)(a) of the National Law defines "unsatisfactory
professional conduct" of a registered health practitioner as, including:
"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."
-8-
32.
Section 139E of the National Law defines "professional misconduct"
as:
"(a) unsatisfactory professional conduct of a sufficiently
serious nature to justify suspension or cancellation of the
practitioner’s registration; or
(b)
33.
more than one instance of unsatisfactory professional
conduct that, when the instances are considered together,
amount to conduct of a sufficiently serious nature to
justify suspension or cancellation of the practitioner’s
registration."
The Commission has the onus of proving the matters alleged in the
Amended Complaint. The standard of proof is the civil standard.
However, because of the seriousness of the allegations and the gravity
of their consequences, the civil standard is that informed by the
principles articulated in Briginsliaw v Briginshaw (1938) 60 CLR 336.
See also Palmer v
Dolman
[2005] NSWCA 361; and Director General
of Department of Community Services, Re Sophie
[2008] NSWCA
250.
The Factual Background:
34.
In order to place the Amended Complaint in a proper factual context it
is necessary to expand upon the brief facts set out in the introductory
section of this decision.
35. Before doing so, it is helpful to say something about "cluster
headaches". They were described in the hearing by Professor Paul
Spira, a consultant neurologist who specialises in this condition:
"... [A] cluster headache is named cluster because of the fact
that it arrives in packets which in a normal cluster patient will
go on for something like about six to eight weeks, during which
time the individual suffers anywhere between two and six
headaches a day. Each one of them excruciating in its severity.
And each one of them is subsiding within something like 30 to
90 minutes ... [That] cluster will go on ... for about six to eight
weeks in a normal cluster case, during which time patients go
through hell. There’s no way of describing this pain; it has to
be one of the worst pains imaginable. I’ve seen grown men
literally beating their head against a wall for relief because they
find that a relief. The pain of hitting your head helps, excursion
(sic) helps to some extent, and these people never lie in bed,
they can’t keep still, they’re restless in pain, and once you’ve
seen cluster, you never want to witness it, let alone experience
it.
Each cluster patient is scared of the next headache, and they
know that their in for two or three, or four in a 24 hour cycle."
(T32)
In addition, Dr Do tendered a CD (exhibit 4) which showed three
people (including Mr Siebler) suffering cluster headaches.
36. As we have said, on 29 July 2006 Mr Siebler started to develop severe
debilitating daily headaches and on 3 August 2006 Dr Do made a
diagnosis of "cluster headaches". Notwithstanding the two dates to
which we have just referred, Dr Do wrote two prescriptions for
intramuscular injections of pethidine which were dispensed on 28 and
31 July 2006 - each for 5 ampoules. The date on which each was
-10-
prescribed is unknown but it must obviously have been written on or
before the date on which it was dispensed. It is not necessary for us to
resolve this anomaly - not least because it was not put to Dr Do in
cross-examination or otherwise. However, because of the importance
which we attribute to the prescriptions written by Dr Do and dispensed
for Mr Siebler, as the history will reveal, we take the opportunity of
here making the following observations. First, prescriptions are
usually written with an intention that they will be dispensed - and the
drugs so dispensed will be consumed. There is no reason for us to
believe that, with respect to the prescriptions to which we refer in
these reasons, Dr Do had any other expectation. Nor is there any
reason for us to believe that most, if not all, of the dispensed drugs
were not consumed by Mr Siebler. Our conclusion in this regard is
reinforced by the fact Dr Do was in serious financial difficulties and
Mr Siebler was largely, if not totally, financially dependent upon her.
It is unlikely (to say the least) that Dr Do would have incurred the
expense of paying for significant quantities of drugs, even those on the
PBS, unless she intended that they be consumed.
37. On 4 August 2006 Mr Siebler went to the Emergency Section of the
Blacktown Hospital. The next day (5 August) he and Dr Do attended
upon Dr Tang, a general practitioner. Dr Tang apparently told Mr
Siebler and Dr Do that he was unfamiliar with, and therefore reluctant
to treat, cluster headaches. (There was also a further consultation with
Dr Tang on 19 August 2006, but nothing of further significance arises
from that consultation - we have noted it, somewhat out of
chronological order, simply for completeness).
38.
On 7 August 2006 Dr Do wrote a further prescription of 5 ampoules of
intramuscular injections of pethidine for Mr Siebler which was
dispensed on that date. It is to be noted, however, given Dr Do’s
contention that she was not Mr Siebler’s primary medical practitioner,
that by this date she had written three prescriptions for pethidine
without any specialist intervention or advice.
39.
On 9 August 2006 Mr Siebler and Dr Do had a consultation with Dr
Grant Walker, a consultant neurologist. Dr Walker was the first of
seven specialists consulted in the relevant period by Mr Siebler at the
request of Dr Do.
40.
At the commencement of the consultation Dr Do handed a referral
letter to Dr Walker. The letter is not in evidence - Dr Walker did not
apparently keep the original and Dr Do did not keep a copy. Dr Do
submitted that Dr Walker had deliberately destroyed the original letter.
There is no plausible reason why Dr Walker would do so. We reject
that submission.
12-
41.
It is contended by Dr Do that this referral letter included a disclosure
that she was in a personal relationship with Mr Siebler. Dr Walker did
not recall the letter containing that disclosure. Further, he said that if
he had been aware of it, he would have strongly counselled Dr Do
against being the treating general practitioner. It is notable however
that in later consultations with other specialists Dr Do did expressly
reveal her relationship with Ivir Siebler.
Accordingly, and
notwithstanding Dr Walker’s lack of recollection on the topic, the
Tribunal is not satisfied that Dr Do did not reveal her personal
relationship with Mr Siebler to Dr Walker.
42.
Dr Walker took a history of left retro-orbital headaches. In a written
report to Dr Do dated 9 August 2006, he diagnosed Mr Siebler as
having a combination of "true cluster headache with super-imposed
abnormal illness behaviour". He noted that Dr Do had treated Mr
Siebler, amongst other things, with "significant analgesia". The
reference to "significant analgesia" was intended by him to be a
reference to pethidine. He recommended treatment with "Isoptin"
(verapamil) or "Deseril" (methysergide) for a two month period as
well as "Imigran" (sumatriptan) and/or oxygen "in the short term".
43.
Significantly, in his report Dr Walker stated that Mr Siebler "will
almost certainly require analgesia [which Dr Walker in evidence said
13-
he intended to mean pethidine], but given his abnormal illness
behaviour, I am not sure how one can possibly monitor that, apart
from being very careful not to get into a situation of medium term
Pethidine addiction ..". (emphasis added)
44.
Dr Walker in his evidence before the Tribunal accepted that he told Dr
Do in this consultation (consistently with his subsequent letter) that
pethidine would be an appropriate medication "in the short term" - by
which he told the Tribunal that he meant about 3-4 weeks. It is not
clear that that time frame was expressly provided to Dr Do in the
consultation. Dr Walker’s evidence was that he told her "several
weeks at most" - although that term was not repeated in the
subsequent letter. However, we have no reason to doubt the accuracy
of Dr Walker’s evidence in this regard. Dr Walker was emphatic in
his evidence that at no time either in this consultation, or in the few
telephone conversations thereafter, was there any reference by either
him or Dr Do to morphine being used to treat Mr Siebler. Again, we
have no reason to doubt the accuracy of Dr Walker’s evidence in this
regard.
45.
In our opinion, at the conclusion of this consultation, it would have
been reasonable for Dr Do to conclude that Dr Walker was satisfied
that short-term administration of pethidine (i.e. several weeks
14-
"s
most" - emphasis added) was an available treatment option (with
some risk) and that he had expressed no disquiet to Dr Do about
treating her own partner in this respect.
46.
Dr Walker did not see Mr Siebler again, although he did provide a
copy of the report which he wrote to Dr Do to the Blacktown Hospital.
47.
On 10 August 2006 Dr Do wrote two prescriptions for Mr Siebler.
The first of those prescriptions was dispensed on that date and was for
10 ampoules of intramuscular injections of pethidine. The second
prescription was dispensed on 14 August 2006 and was for a quantity
of tablets of morphine. Dr Walker had not made any reference to
morphine use. As with pethidine, Dr Do decided to use this drug
herself.
48.
On 14 August 2006 Dr Do wrote a prescription for Mr Siebler for 10
ampoules of intramuscular injections of pethidine. This prescription
was dispensed on 15 August 2006.
49.
Further, on 15 August 2006 Dr Do wrote three more prescriptions for
Ivir Siebler. The first was also dispensed on that day. It was for 10
further ampoules of injectable pethidine. The second was dispensed
on 16 August 2006. This was for 10 ampoules of injectable morphine.
15-
The third was dispensed on 17 August 2006. It was for 50 ampoules
of injectable morphine.
50.
At some point after the consultation with Dr Walker, but before 7
September 2006, Dr Do "contacted" Dr Gronow of the Sydney Pain
Management Clinic (probably informally by telephone - there is no
note in the clinic’s records) who apparently suggested medicating Mr
Siebler with "Lyrica" (pregabalin). This medication was not effective
(according to Dr Do) and consequently Dr Do arranged for Mr Siebler
to be examined by Professor Spira on 7 September 2006.
51.
In preparation for the examination by Professor Spira, Dr Do
completed a detailed referral letter of six pages in length dated 7
September 2006. A number of things should be noted about the
contents of that letter.
52.
First, it disclosed that Mr Siebler was Dr Do’s "partner".
53.
Secondly, it recorded that Dr Do had made a diagnosis of "cluster
headache".
54.
Thirdly, it recorded that she had initially prescribed "Tramal"
(tramadol) and then morphine and pethidine injections (this was
referred to six times in the letter - two references were made on the
16-
second page, the third was made on the third page, the fourth and fifth
on the fourth page and the sixth on the sixth page).
55.
Fourthly, it recorded that a few days after Mr Siebler saw Dr Walker
on 9 August 2006 his "... condition got worse, the attacks increased to
6-8 per day all requiring morphine or pethidine to stop the pain"
(emphasis added).
56.
Fifthly, it stated that because of those injections of narcotics Mr
Siebler had developed a dependency for them, which Dr Do was
"weaning" him off. (We note that this "dependency" - or addiction,
the distinction between the two being presently irrelevant - was
precisely what Dr Walker had warned of four weeks previously).
57.
Notwithstanding that Dr Do had prepared the detailed letter of referral,
Professor Spira said in his evidence that he did not fully read it in the
consultation. He accepted in cross-examination that he read "maybe
through half of it" (T40:35). If he intended that evidence to be
literally true, Professor Spira must therefore have read at least the
second page - which included the passage quoted at [55] above - and
possibly the third page. Professor Spira further said that as Dr Do, in
her capacity as the patient’s general practitioner (as he understood it),
was present at the consultation he would take an oral history from her
and Mr Siebler. Dr Do contends, but Professor Spira in his evidence
-17-
expressly and firmly denied, that in that consultation reference was
orally made by her to the fact that she was prescribing morphine and
pethidine. Whether or not it was orally referred to by her, there is no
doubt that it was revealed in detail in the letter of referral. In his
evidence before the Tribunal, Professor Spira also said that he had not
read the letter after the consultation. Further in that evidence,
however, Professor Spira accepted that Dr Do might reasonably have
expected him to have done so; and he apologised to her for not doing
SO.
58.
We noted at [55] above a particular passage from the letter of referral.
In our view that sentence is unambiguous. In cross-examination Dr
Do denied that that sentence was factually correct - notwithstanding
that it was written by her. It is however consistent with the history
subsequently given by Dr Do to Dr Gronow (to which we refer at [70]
below). Moreover, it is consistent with contemporaneous pharmacy
records and which are the basis for our findings at [47] to [49] above.
Bearing in mind the standard of proof required by Briginshaw
Briginshaw,
we are satisfied that the history in the letter was correctly
recorded by Dr Do.
59.
At the conclusion of the consultation Professor Spira asked Dr Do to
prepare a record of the dates on which Mr Siebler subsequently had
18-
these problematic headaches and the duration of them. A further
consultation was fixed for 15 September 2006.
60.
On 15 September 2006 Professor Spira had that second consultation
with Mr Siebler and Or Do. Amongst other things, Di Do provided
Professor Spira with the requested handwritten schedule. It was a
simple one-page document. On it Dr Do clearly recorded that on 9
and 10 September she had treated Mr Siebler with morphine. In his
evidence to this Tribunal, Professor Spira said that he had not read that
part of that document.
61.
Following this second consultation, Professor Spira wrote a letter to
Dr Do dated 15 September 2006. In it he expressed doubt as to
whether Mr Siebler was in fact suffering from cluster headache
because of"... some of the atypical features . . ." noted in his history.
Professor Spira raised the possibility that there may be a psychogenic
disorder "... which may of course be in association with cluster" (a
diagnosis not substantially different from Dr Walker’s). There is no
reference in that letter to Professor Spira being aware that Dr Do was
treating Mr Siebler with morphine or pethidine. Nor does it contain
any concern about Dr Do treating her partner in that manner.
62. Dr Do did not consult Professor Spira again.
-19-
63. We noted above that Professor Spira in his evidence denied knowing
that Dr Do was treating Mr Siebler with injections of morphine. We
find that denial problematic given:
(a)
the letter of referral - which was at least partially read;
(b)
the handwritten schedule - which was specifically requested by
Professor Spira;
(c)
the oral evidence of Dr Myers concerning a telephone
conversation he had with Professor Spira on 5 December 2006
(see [88] below); and
(d)
the draft letter prepared by Professor Spira on 11 March 2009
(to which we shall return at the conclusion of these reasons) in
which he wrote:
"... I was concerned to hear Dr Myers say that Dr Do had
continued to give Mr Siebler injections of morphine to
deal with what she regarded as cluster headaches."
(emphasis added)
64. Whether or not Professor Spira was (or ought to have been) aware by
this date that Dr Do was prescribing and injecting Mr Siebler with
morphine and pethidine, Dr Do could reasonably have believed that he
was so aware (and did not disapprove) because of the documents she
had handed to him. Further, she could reasonably have believed for
-20-
the same reason that he, like Dr Walker, made no objection to her
involvement in the treatment of her partner in that manner.
65.
On 16 September 2006 (i.e. the day after the second consultation with
Professor Spira) Dr Do wrote a further prescription for Mr Siebler
which was dispensed that day. It was for 50 ampoules of injectable
morphine.
66.
On 29 September 2006 Mr Siebler was examined by Dr Kwon, an eye
physician and surgeon. He subsequently sent a report to Dr Do dated
5 October 2006 but nothing of significance for the purpose of these
reasons arises from that examination or that report - other than that Dr
Do sought the advice of such a specialist and that Dr Kwon from his
report at least regarded the consultation as a consequence of a formal
referral. Any letter of referral to Dr Kwon was not in evidence before
the Tribunal.
67.
The day after the consultation with Dr Kwon (i.e. 30 September 2006),
a prescription written by Dr Do for Mr Siebler (the date of the
prescription is not known) was dispensed. This was for 10 ampoules
of injectable pethidine.
68.
On 10 October 2006 Dr Do wrote a prescription for Mr Siebler (which
was dispensed on 11 October) for a quantity of tablets of morphine.
21-
69.
On 24 October 2006 Dr Do and Mr Siebler had a formal consultation
with Dr Gronow. Dr Gronow is acknowledged to be one of
Australia’s most senior pain specialists - a fact known to Dr Do. Dr
Do had prepared a letter of referral. That letter was not as detailed as
the one prepared for Professor Spira but it did reveal that Mr Siebler
was Dr Do’s partner and that morphine was being used by Dr Do in
the treatment of Mr Siebler.
70.
Two matters regarding that morphine use should be noted. First, Dr
Do recorded that Mr Siebler used to have "... at least 2 attacks per
day, often 3 or 4, sometimes up to 6 a day, excessive use of triptans
had caused rebound headaches and when he does not use any med the
attack can last up to 3 hrs with very intense pain needing 30mg to
60mg of Morphine TM to control". Secondly, later in the letter when
setting out "Current medications" Dr Do listed, amongst other things,
"... Morphine 30 mg IM pm, recently almost daily" (emphasis added).
71.
In this consultation the following was noted by Dr Gronow:
(a)
Mr Siebler was being prescribed morphine 15-30 rng
intramuscularly after each cluster headache attack;
(b) Mr Siebler was living in a de facto relationship with Dr Do;
22-
(c) Dr Do and Mr Siebler were advised in the clearest and strongest
terms not to use intramuscular opiates and a transfer to
Physeptone 5 mg morning and night was recommended.
72.
On 27 October 2006 Dr Do wrote a further prescription for Mr Siebler
which was dispensed on 28 October 2006. This was for 5 ampoules of
injectable pethidine. Also on 28 October 2006 a further prescription
(the date of which is unknown) for the same amount of injectable
morphine was also dispensed.
73.
Notwithstanding Dr Gronow’s firm advice against intramuscular
opiate use, Mr Siebler apparently was continuing to have access to
such drugs because not only were the medications referred to in the
preceding paragraph were prescribed and dispensed but also on 31
October 2006 he overdosed on a combination of intramuscularly
injected morphine and "Methadone". This was his first relevant
overdose. Dr Do in her evidence denied that this was in fact an
overdose. Her denial is contrary to the contemporaneous records of
the hospital. We have no doubt that it was in fact such an overdose.
The fact of the overdose leads to the unavoidable conclusion that Mr
Siebler had ready and unsupervised access to the drugs prescribed for
him by Dr Do - notwithstanding her evidence to the contrary.
23 -
74.
On 2 November 2006, and despite the overdose two days earlier, Dr
Do wrote a prescription which was dispensed on that date for 50
ampoules of injectable morphine.
75.
Dr Siebler was reviewed by a psychologist from Dr Gronow’s clinic
on 7 November 2006 and a physiotherapist from that clinic on 8
November 2006.
76.
Also on 8 November 2006 Dr Do wrote a prescription which was
dispensed on 10 November 2006 for a quantity of tablets of morphine.
77.
On 14 November 2006 Dr Do wrote two prescriptions which were
dispensed on that date. The first was for 5 ampoules of injectable
pethidine. The second was for a quantity of tablets of morphine.
78.
Mr Siebler was supposed to be reviewed by Dr Gronow on 16
November 2006; however, that review did not occur. It would appear
that Mr Siebler was in the Blacktown Hospital with a perforated bowel
at that time. We note that Dr Gronow’s records do not record that he
was ever informed of the overdose by Mr Gronow on 31 October and the persistent contradiction of his earlier express advice.
79.
On 17 November 2006 Dr Do wrote a prescription which was
dispensed on that date for 5 ampoules of injectible pethidine.
-24-
80.
Mr Siebler was reviewed by Dr Gronow on 4 December 2006. Dr
Gronow’s notes record that he was told at that time that Mr Siebler
was taking up to 800 mgs of morphine a day. According to a report
dated 26 November 2012 which Dr Gronow prepared for the purposes
of this present Inquiry, there was then a long discussion concerning
the inappropriate use of opiates by Dr Do for this condition. Dr
Gronow recorded, and it is not in dispute, that he recommended that
Mr Siebler be admitted to the St John of God Hospital for in-patient
detoxification because of his dependency/addiction to those opiates.
This recommendation was not acceptable to Mr Siebler because of an
apparent phobia which he is said to have had concerning hospitals and
doctors. It was therefore agreed that Dr Gronow would provide a
program for Dr Do to wean Mr Siebler off opiates. This program
involved twenty steps (one step per week) - so that by the end of that
period he should have completely ceased using opiates.
Of
significance, the type of morphine to be administered was not to be
(even in part) intramuscular but was to be totally oral (i.e. tablets).
81.
The program as scheduled and prepared by Dr Gronow assumed a
current use of 800 mgs of morphine per day and therefore the starting
point for Step 1 was a reduction to 700 rugs per day. Or Gronow said
25-
in his evidence that the current use level was based upon express
information provided by Dr Do.
82. In the hearing, Dr Do challenged the accuracy of Dr Gronow’s
evidence concerning the alleged current use by Mr Siebler of opiates
as at 4 December. She denied telling Dr Gronow that Mr Siebler was
taking 800mg of morphine daily. She said the correct figure was in
fact 100mg. Dr Gronow however pointed to his contemporaneous
note and also to the starting point of Step 1 of the program (which was
given to Dr Do) as confirming the accuracy of that note. By having
regard to the letter given to Professor Spira by Dr Do, the experience
of Dr Gronow, the critical importance to him of getting the initial
current dose correct, his contemporaneous documents, the lack of any
immediate adverse reaction by Mr Siebler to Step 1, and the
contemporaneous pharmacy records, we find that Dr Do did tell Dr
Gronow that Mr Siebler was taking SOOmgs of morphine daily.
Moreover, if Dr Do had not so informed Dr Gronow, it is extremely
unlikely that such an "error" would have been unnoticed by her - the
more so because such an error could have had life-threatening
consequences to Mr Siebler, a risk of which she would clearly have
been alert to notwithstanding her denial in the witness box - yet she
made no complaint to Dr Gronow.
-26-
83.
Mr Siebler never saw Dr Gronow again after the consultation on
4
December 2006, even though some appointments were made - they
were either cancelled by Mr Siebler or Dr Do; or Mr Siebler just
didn’t turn up.
84.
At some point after the last consultation with Dr Gronow, Dr Do said
she decided to discontinue using morphine for Mr Siebter but to
increase the use of tramadol. Just precisely when that occurred (if it
occurred) is not clear on the evidence. But what is important to note is
that if it occurred, it was done without any specialist advice.
85.
One of the symptoms complained of by Mr Siebler during his
apparently debilitating headaches was vision impairment. Because
Professor Spira could find no neurological cause for that impairment
and suspected hysterical blindness, Dr Do arranged for Mr Siebler to
be examined on 5 December 2006 by Dr Myers, an ophthalmic
surgeon.
86.
Once again Dr Do prepared a letter of referral (dated 5 December
2006). Surprisingly, there was no reference in it to Dr Gronow or the
regime of "reduced" morphine that he had advised just the previous
day. It did disclose that Mr Siebler was her partner (in this instance
"fiancØe") and that she had been treating him with "narcotics
painkillers".
It further revealed that Professor Spira had been
-27-
consulted but he could not find a neurological cause for the vision
problem and that he (Professor Spira) suspected hysterical blindness.
87.
During the course of that examination, Dr Do informed Dr Myers that
earlier that day she had injected Mr Siebler with morphine. This was
of course directly contrary (yet again) to the advice given by Dr
Gronow. (During the hearing before this Tribunal it was revealed that
in fact Dr Do had injected Mr Siebler whilst in Dr Myers’ rooms, but
not in front of Dr Myers and without his knowledge. Dr Myers
expressed shock in the hearing that that had occurred.)
88.
After that consultation was concluded but on the same day, a
telephone conversation took place between Professor Spira and Dr
Myers. This conversation had been initiated by Dr Myers because of
his concern about Dr Do not only being the treating practitioner for Mr
Siebler (as it at least appeared to him) but also that that treatment
involved the administration of morphine by injection.
In this
conversation Dr Myers recalled Professor Spira acknowledging that he
was aware of Dr Do, at an earlier stage, prescribing morphine for Mr
Siebler. Professor Spira denied making any such acknowledgment.
At the conclusion of this conversation, both Professor Spira and Dr
Myers agreed that Dr Do required "serious counselling". Dr Myers
28-
agreed to undertake that task because of past associations he had with
her.
89.
On ii December 2006 Mr Siebler was again reviewed by the
physiotherapist and the psychologist at Dr Gronow’s clinic.
90.
On 13 December 2006 Dr Myers had a second consultation with Mr
Siebler at which Dr Do was present. At the conclusion of that
consultation Dr Myers had a private conversation with Dr Do in which
he clearly stated to Dr Do that she should not be Mr Siebler’s treating
general practitioner. The gist of his clear advice on that occasion was
re-stated by him in his evidence. It encapsulates the essence of the
Commission’s complaints against Dr Do:
"... I saw the narcotic as being quite inappropriate and I saw
your role, particularly maybe your lack of objectivity in
someone with a psychiatric illness, as perhaps leading you to
mismanagement." (T152:18)
Although Dr Myers could not recall in his evidence her response to
that advice, Dr Do, before the Tribunal, asserted that her response was
to deny to Dr Myers that she was Mr Siebler’s treating practitioner.
91.
On 26 December 2006 Dr Do wrote a prescription which was
dispensed that day for 5 ampoules of injectable morphine.
92.
On 2 January 2007 Dr Do again wrote a prescription which was
dispensed that date for 5 ampoules of injectable morphine.
29-
93.
On 5 January 2007 a prescription written by Dr Do (the date of which
is unknown) was dispensed in respect of 50 ampoules of injectable
morphine.
94.
On 10 January 2007 Dr Do wrote a prescription for 50 tablets of
amitriptyline with two repeats. The first prescription was dispensed
on 12 January 2007.
95.
In her evidence before this Tribunal, Dr Do stated that it had been her
decision, (as were her original decisions to prescribe pethidine,
morphine and tramadol) unassisted by any specialist advice, to
commence treating Mr Siebler with amitriptyline (T349).
96.
Amitriptyline is a tricyclic antidepressant.
It is a dangerous
psychotropic medication. In her evidence Dr Do acknowledged the
dangerous side effects which potentially could occur from high doses
of amitriptyline (T350f0. Those side effects include potentially fatal
cardiac arrhythmias and coma in overdose. There are also potentially
serious adverse interactions with central nervous system depressants
which included pethidine and morphine and a specific adverse
interaction with tramadol.
97.
In addition to these matters, we note that Dr Do was aware of the
interactions that amitriptyline could have with other medications
-30-
which Mr Siebler was, from time to time, taking and prescribed by
her, including promethazine, morphine, trainadol, olanzapine,
carbamazepine, gabapentin and pregabalin - "all of which are
potentially interactive in terms that they are psychotropic drugs that
work on different neurotransmitters .. ." (T379:15).
98.
On 24 January 2007 the second of the three repeats of amitriptyline
that Dr Do wrote on 10 January 2007 was dispensed.
99.
On 27 January 2007 Dr Do wrote a prescription which was dispensed
that date for 5 ampoules of injectable morphine.
100. In addition to Dr Myers "counselling" of Dr Do in mid-December
2006, Professor Spira also "counselled" her in a telephone
conversation in early February 2007. According to Professor Spira,
whose evidence on this topic Dr Do agreed with and we accept, he
pointed out in strong terms how inappropriate it was for Dr Do to be
medicating her partner with narcotic analgesia.
101. On 7 February 2007 Dr Myers wrote to Dr Do in which he concluded
that although there may have been an organic cause to Mr Siebler’s
underlying cluster headaches, there may also have been a significant
superimposed psychological/psychiatric component to his functional
31-
visual loss - a conclusion broadly shared by both Professor Spira and
Dr Walker in the letters of advice which they earlier sent to Dr Do.
102. On 15 February 2007 the third of the three repeats of amitriptyline that
Dr Do wrote on 10 January 2007 was dispensed.
103. On 22 February 2007 a prescription was written by Dr Do for 200
tablets of amitriptyline with four repeats. This prescription, including
the four repeats (if all filled) was therefore for a total of 1,000 tablets.
The first of these prescriptions was dispensed on 27 February 2007.
104. On 9 March 2007 Dr Do and Mr Siebler attended a consultation with
Dr Perica, a psychiatrist. At the commencement of the consultation,
Dr Do provided Dr Perica with a letter bearing that date. Although the
letter revealed that Mr Siebler was "living in defacto relationship", it
did not reveal that that relationship was with Dr Do. Apart from the
referral letter and some very brief notes made apparently by Dr Perica,
there was no evidence before this Tribunal from Dr Perica.
105. Significantly, however, in listing "current medications" there was no
reference in the letter Dr Do gave to Dr Perica to pethidine or
morphine.
There was however a reference to "Endep"
-
viz
amitriptyline. In her evidence concerning the involvement with Dr
Perica and the use of amitriptyline, Dr Do was asked why she did not
32-
reveal to him that in January 2007 she had prescribed morphine and
pethidine to Mr Siebler she said:
"Because at that stage he was mainly on Tramal, very rarely
that he needed something like morphine or pethidine. It wasn’t
like before when morphine or pethidine was used frequently. It
was very rarely that he used them." (emphasis added)
106. Dr Do’s evidence was that before she and Mr Siebler saw Dr Perica,
she had started on a low dosage of amitriptyline and then "slowly
worked it up" (T349:10) - and that it was Dr Perica who increased the
dosage of amitriptyline "to maximum". This seems at odds with the
significant amount of amitriptyline covered by the prescriptions
written by Dr Do on 10 January and 22 February 2007. However,
there is some support for Dr Do’s contention that it was his idea to
increase the dosage of amitriptyline in the very brief note which Dr
Perica apparently made on 9 March 2007.
107. On 12 March 2012 Dr Do wrote a prescription which was dispensed
that day for a quantity of tablets of morphine.
108. On 19 March 2007 Dr Do wrote a prescription which was dispensed
on 20 March for a further quantity of tablets of morphine.
109. On 20 March 2007 the first of the four repeats for arnitriptyline written
by Dr Do on 22 February 2007 was dispensed.
33 -
110. On 28 March 2007 the second of the four repeats for amitriptyline
written by Dr Do on 22 February 2007 was dispensed.
111. On 5 April 2007 Dr Do wrote a prescription which was dispensed that
day for 5 ampoules of injectable pethidine.
112. On 13 April 2007 Dr Do wrote a prescription which was dispensed
that day for 5 ampoules of injectable morphine.
113. On 16 April 2007 Dr Do wrote a prescription which was dispensed
that day for 10 ampoules of injectable pethidine.
114. On 30 April 2007 the third of the four repeats for amitriptyline written
by Dr Do on 22 February 2007 was dispensed.
115. On 1 June 2007 Mr Siebler saw Dr Perica for a second time.
116. On 9 August 2007 Mr Siebler was examined by Profession Mitchell, a
senior psychiatrist. Professor Mitchell was the seventh and final
specialist who saw Mr Siebler at the request of Dr Do. Professor
Mitchell was aware that Dr Do was Mr Siebler’s partner. Mr Siebler
was diagnosed with rapid cycling bipolar disorder. He was prescribed
vaiproate, haloperidol and diazepam.
117. On 3 September 2007 the final of the four repeats for amitriptyline
written by Dr Do on 22 February 2007 was dispensed.
34-
118. On 5 October 2007 a prescription for 200 tablets of arnitriptyline was
written by Dr Do with two repeats. The prescriptions were dispensed
on 8 October and 21 December 2007.
119. A second examination with Professor Mitchell had been arranged for
10 October 2007 but Mr Siebler did not attend.
120. On 28 October 2007 Mr Siebler was admitted to Blacktown Hospital
as a result of an overdose of medication for cluster headaches. This
was his second admission to hospital for an overdose of medication
dispensed on prescriptions written by Dr Do. Again, this strongly
suggests he continued to have ready and unrestricted access to the
medications prescribed by Dr Do.
121. On 26 February 2008 Dr Do contacted the mental health team at the
Blacktown Hospital with concerns about Mr Siebler.
122. Between 18 March and 4 April 2008 Mr Siebler was admitted as a
psychiatric in-patient where he was on a range of psychiatric
medication.
123. On 12 June 2008 Mr Siebler was admitted to Blacktown Hospital
following a further overdoes of amitriptyline and unknown quantities
of valproate and venlafaxine. He was discharged on 16 June 2008.
- 35-
This was his third admission to hospital for an overdose of medication
dispensed on prescriptions written by Dr Do.
124. Late on 18 June 2008 Mr Siebler took his fourth and final overdose of
medication dispensed on prescriptions written by Dr Do. On 19 June
2008 Mr Siebler was found dead on a building site at Kellyville. The
subsequent coronial investigation determined that he had died as a
consequence of ingesting at least two packets of amitriptyline. (We
pause to observe that a box of amitriptyline 50mg strength tablets
contains 50 tablets. Accordingly, 2 boxes is 5000mg - which is many
times the lethal overdose. Given Mr Siebler’s prior history of
overdoses, prudent practice in our opinion would have been to stop
prescribing amitriptyline and changing to a safer antidepressant. Mr
Siebler in any event should not have been given more than one script
at a time - and certainly not with repeats which could enable him to
build up a lethal store of medication.)
Was Dr Do as the de facto partner of Mr Siebler the primary medical
provider for him in the period covered by the Amended Complaint:
125. There is no dispute that Mr Siebler was relevantly the partner of Dr
Do and hence a member of her "immediate family".
126. For the following reasons we are firmly of the view that the
Commission has established that she was his primary medical
provider; and we reject the contention that Dr Do was merely a
-36-
facilitator or coordinator of his real primary providers, they being the
seven specialists we have referred to.
127. First, the "revolving door" visits to seven different specialists (not
only within specialities but between specialities) in quick succession
did not provide any one of those specialists with the opportunity to
effectively be Mr Siebler’s primary medical provider.
128. Secondly, the failure by Dr Do to adhere to the advice which those
specialists had the opportunity to provide. For example, the persistent
disregarding of the advice of Dr Gronow that injectable morphine
should under no circumstances be administered to Mr Siebler.
129. Thirdly, the decision by Dr Do in advance of consulting any specialist
to use particular medications. For example, her decision to administer
pethidine was taken before she consulted Dr Walker. Similarly, her
decision to administer tramadol was taken without reference to Dr
Gronow. Likewise, no specialist advised her to commence using
morphine or amitriptyline. All these decisions were (initially at least)
taken by Dr Do - and acted on.
130. Fourthly, in addition to the prescriptions which she wrote for
morphine, pethidine and amitriptyline, Dr Do wrote a very significant
number of other prescriptions for Mr Siebler in the period 7 August
-37-
2006 to 31 May 2008. The number and variety of those prescriptions
are part of Schedule B to the Amended Complaint. They run to almost
400 prescriptions. The nature of those prescriptions per se is not the
subject of complaint; but rather the Commission points to them to
show that in truth, quite apart from other considerations, it was Dr Do
who was the treating medical practitioner for Mr Siebler in the subject
period.
131. Fifthly, the Medicare billing records (almost 50 Medicare services
provided in which Dr Do claimed payment by reason of her being the
treating doctor); and the extensive PBS prescribing records.
132. Sixthly, Dr Do’s assertion in at least two documents that she was Mr
Siebler’s treating doctor. In this regard, in exhibit A Tab 18 page 386,
in a letter to the Blacktown Hospital she wrote, "... being his GP ......
Further, in exhibit A Tab 7, un-paginated but being in an e-mail to Mr
Siebler’s mother dated 10 August 2006, she wrote, "... and speaking
as his treating doctor ......
133. Finally, there was, perhaps unconsciously, an admission by Dr Do in
her evidence before the Tribunal ("... I am the doctor ...") (T350:2).
134. At the time Dr Do was the primary medical provider for Mr Siebler,
the New South Wales Medical Board had published a guideline
affl
concerning "Medical Practitioners Treating Relatives And Self’. It
was dated August 2001. It was in the following terms:
"1. Background
1.1 The New South Wales Medical Board is of the view that
wherever possible, medical practitioners should avoid
treating members of their immediate family, because in
these circumstances:
Professional objectivity may be compromised and
their judgment may be influenced by the nature of
their relationship with the patient.
Medical practitioners may fail to explore sensitive
areas when taking a medical history or may fail to
perform an appropriate physical examination.
The patient may feel uncomfortable disclosing
sensitive information or undergoing a physical
examination where the medical practitioner is a family
member.
Patient autonomy may be compromised when a
medical practitioner treats a member of their family.
The principles of informed consent may not be
adhered to when a medical practitioner treats a
member of their family.
2.
Policy
The Board endorses the following general principles:
2.2
It is not advisable for medical practitioners to initiate
treatment (including prescribing) for themselves or
immediate family members.
2.3
In emergency situations or isolated settings where there is
no help available, medical practitioners may treat
-39-
themselves or family members until another medical
practitioner becomes available.
2.4
It is not advisable for medical practitioners to serve as
primary or regular care providers for immediate family
members, although there are circumstances in which they
may work together with an independent medical
practitioner to maintain establishment treatment.
135. Although earlier in our reasons we noted that it might have been
reasonable given the circumstances then obtaining for Dr Do to
conclude that neither Dr Walker nor Professor Spira (initially at least)
had any problem with her treating Mr Siebler (as a family member)
with, respectively, pethidine or morphine, that is really quite beside
the point. Whether or not Dr Do reasonably thought that that was their
opinion, any such opinion would have been contrary to the policy of
the New South Wales Medical Board - and Dr Do knew that (T271).
Dr Do did not need Dr Walker or Professor Spira to tell her that her
treatment of Mr Siebler, especially with opiate injections, was
fundamentally inconsistent with the guidelines issued by the New
South Wales Medical Board.
136. In any event, Dr Do cannot have been under any misapprehension in
this regard following the "serious counselling" which she received
from Dr Myers in late 2006 and Professor Spira in early February
2007.
40-
137. We are satisfied that in this respect alone, Dr Do’s conduct in treating
Mr Siebler as a family member with pethidine, morphine and
amitriptyline in particular, but also more generally having regard to
the breadth of the medications prescribed by her, was not merely
unsatisfactory professional conduct but professional misconduct.
Has Dr Do demonstrated that her knowledge skill and judgment in the
practice of medicine is significantly below the standard to he reasonably
expected of a practitioner of an equivalent level of training or
experience?
138. As we have set out in some detail above, Dr Do, between late July
2006 and 19 June 2008, engaged in a prolonged treatment of Mr
Siebler. This treatment involved the use of highly addictive opiates
and powerful and dangerous psychotropic medication and in
circumstances where Dr Do knew Mr Siebler was drug dependent - if
not addicted.
139. The course of these medications was to say the least chaotic and
inconsistent.
140. The evidence actually reveals a continuing pattern of grossly
inappropriate polypharmacy with multi anti-migraine medications,
four different anti-psychotics and three benzodiazepines all of which
41-
work on the central nervous system and therefore interact with and
potentiate the central nervous system depressant effect of the
excessive use of potent opiates.
141. Dr Do deliberately ignored expert specialist advice (we exclude in this
regard Dr Walker and initially Professor Spira); and indeed withheld
vital information from most of those specialists.
142. We have no alternative but to accept the submission of the
Commission that Dr Do, in her treatment of Mr Siebler, was "erratic,
contradictory, irresponsible and destructive and was not based upon
carefully following the advice and recommendations of the specialists
consulted" (Complainant’s Submissions [34]).
143. In this regard no clearer example can be given than her decision to
embark upon treating Mr Siebler with amitriptyline. In doing so she
knew that he: was dependent on opiates; had overdosed recently on
such medication; and had unresolved psychological, if not psychiatric,
issues. Nevertheless, she embarked upon a course of prescribing large
quantities of this psychotropic medication without any reference to
any of the leading specialists she had only recently consulted.
144. We are satisfied that in doing so she has demonstrated that her
knowledge, skill and judgment in the practice of medicine is
-42-
significantly below the standard reasonably to be expected of a
practitioner of an equivalent level of training or experience.
145. Moreover, we regard that conduct to be not merely satisfactory
professional conduct but professional misconduct.
Did Dr Do fail to maintain adequate records of the consultations and
services provided to Mr Siebler?
146. Dr Do admits that she failed to maintain such records.
147. The requirement to keep such records is required by clause 5 of the
Medical Practice Regulation 2003 and clause 37 of the Poisons and
Therapeutic Goods Regulation 2002.
148. Dr Do was unable to provide any real explanation or excuse for her
failure in this regard.
149. Indeed, we regard the failure to keep these records as yet a further
example of her chaotic treatment of Mr Siebler.
150. Her failure to do so is made the more serious because of the large
number of different and potentially dangerous medications involved.
151. Dr Do’s lack of adequate record-keeping falls significantly below the
standard to be expected of a practitioner with an equivalent level of
training and experience.
43 -
152. In the overall context of the matters we have discussed, we regard this
as not merely unsatisfactory professional conduct but professional
misconduct.
Ultimate Conclusion:
153. In the opinion of the Tribunal each of the particulars to the two
complaints have been established.
154. Moreover, we are satisfied that not only do those particulars constitute
unsatisfactory professional conduct but also professional misconduct
within the meaning of section 139E of the National Law.
155. At the conclusion of the hearing we notionally set aside Friday 7 June
2013 at 2 p.m. for hearing submissions as to what protective orders
would need to be made if we found the complaints or any part of them
made out. We indicated that we would vacate that hearing date if we
found no part of the complaints to be made out.
156. Given our earlier conclusions, we confirm that further hearing date.
Addendum:
157. In the course of conducting its investigations, the Commission wrote
to Professor Spira on 19 February 2009, inter alia, requesting "a report
briefly detailing the treatment you provided to [Mr Siebler]".
44-
158. On 11 March 2009 Professor Spira prepared a draft letter for the
Commission. Before transmitting it, however, he sent a copy of it
(together with a copy of his letter of 15 September 2006 to Dr Do) to
Dr Klopfer of Professor Spira’s medical indemnity insurer. It would
appear that Dr Klopfer then requested a copy of Professor Spira’s
notes - which were supplied on 12 March 2009.
159. Later on 12 March 2009 Dr Klopfer sent a redacted version of
Professor Spira’s original letter to Professor Spira. The redacted
version removed references to:
(a)
Professor Spira’s knowledge that Dr Do was the partner of Mr
Siebler as well as the treating practitioner;
(b)
knowledge that Dr Do had administered injections of morphine
to Mr Siebler;
(c)
the contents of a conversation which Professor Spira had with
Dr Myers on 5 December 2006 which concerned matters (a) and
(b) above;
(d)
the contents of a telephone conversation he subsequently had
with Dr Do after that conversation with Dr Myers in which
there was also reference to (a) and (b) above;
45-
160. When providing the redacted document, Dr Klopfer advised Professor
Spira, inter alia,
"You should read this amended draft carefully and satisfy
yourself that its content is accurate and truthful before sending
it on your letterhead above your signature, or make any changes
as you see fit. If you wish, please feel free to call me or to
return the changes to me, before sending the response."
161. Professor Spira sent an engrossed version of Dr Klopfer’s redacted
document to the Commission.
162. On 7 November 2011 the Commission wrote to Professor Spira
specifically raising with him an allegation made by Dr Do that he had
been aware of the relationship between herself and Mr Siebler and that
he had indicated to her that the administration of narcotics was
acceptable treatment in the short term. The Commission sought
Professor Spira’s response.
163. Professor Spira then wrote again to Dr Klopfer on 9 November 2011
and indicated that he wished to send to the Commission the original
draft version of his letter of 11 March 2009.
164. On 2 December 2011 Professor Spira wrote to the Commission and,
amongst other things, enclosed a copy of that draft. In doing so he
said of that document:
"This was significantly edited by my professional indemnity
provider so that my final letter did not reflect, adequately, my
own actions with respect to the prescribing of opiates in Mr
Siebler’s case."
165. We make three observations in relation to this aspect of the matter.
166. First, the extract from the letter of 2 December 2011 was not entirely
accurate because it did not reveal the advice given by Dr Klopfer on
12 March 2009 that Professor Spits should only send the redacted
document if he were satisfied it was accurate and truthful.
167. Secondly, when this matter was raised directly with Professor Spira in
the hearing, he said that he was "not happy about the request to make
the alterations] but ... accepted it" (T28). Again, that answer did not
accurately reflect the advice of the insurer in relation to the redacted
document.
168. Thirdly, Professor Spira accepted that the redacted document "... left
out some important information" (T28). He stated that the contents of
the reacted and sent letter were "... accurate and truthful, they’re just
not complete" (T30).
169. We agree with the evidence of Professor Spits that the letter he sent
on 4 March 2011 "left out some important information". We think he
made an error of judgment in that respect.
47-
170. We have taken the step of highlighting this particular aspect because
we wish to make it clear to all who are required to provide information
to the Commission in the course of its enquiries that the withholding
of important information is to be discouraged.
DATED: 29 April 2013
JUDGE COLEFA.x Sc
Judge Colefax SC
Dr Michael Giuffrida
Dr Martine Walker
Ms Jennifer Houen
48-