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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-13 Daily Xml
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Parliamentary Committees

STATUTORY AUTHORITIES REVIEW COMMITTEE: MEDICAL BOARD OF SOUTH AUSTRALIA

Adjourned debate on motion of Hon. J. Gazzola

That the report of the committee on an inquiry into the Medical Board of South Australia be noted.

(Continued from 24 October 2007. Page 1127.)

The Hon. SANDRA KANCK (19:53): Every year I get complaints about the Medical Board of South Australia. When the Statutory Authorities Review Committee's interim report into the Medical Board of South Australia was tabled in March 2006 it contained some very strong recommendations, including recommendation No. 4 that the Medical Board of South Australia be stripped of its powers to investigate complaints and undertake disciplinary hearings in relation to medical practitioners, providers and medical students. I greeted that news with a congratulatory media release. Finally, it looked like we would have moves to hold the Medical Board accountable for its failures to adequately investigate complaints of malpractice and inappropriate behaviour against doctors.

However, the final report, tabled in July last year, sees the committee backing away from this. In the Presiding Member's foreword it states:

In my view medical practitioners are best qualified to assess the clinical judgment and practice of other practitioners. This can lead to a perception that doctors protect their own and, in some areas of great specialty, it means peers assessing the performance of their friends and close colleagues. I am not satisfied that non-practitioners, whatever their experience in the health system, can truly make an adequate assessment of whether doctors have acted appropriately in a medical sense. I am gravely concerned that such a model has the potential to imperil the lives of patients by substituting a less than optimal judgment in the interests of transparency.

I note that a number of members of the Statutory Authorities Review Committee, who heard the majority of evidence, were replaced after the 2006 election, and perhaps the new composition is the cause of this apparent backing away from the earlier position.

The inquiry started hearing evidence in October 2004, shortly after the passage of legislation which included reform of the Medical Board. The interim report highlighted the reluctance of the board to be forthcoming with information—and little has changed. Since the committee finished hearing evidence, I have continued to be made aware of very disturbing ways in which the Medical Board conducts its business.

Perhaps the Statutory Authorities Review Committee thought that the new act would solve the problems. However, peer review has not worked in the past and it is unlikely to work in the future, as other medical practitioners have a conflict of interest in censuring, if they are required to censure, other practitioners. During the enquiry, Mr Hooper, the Registrar of the Medical Board, spoke of the need to look at the legal consequences of any decision which the board may hand down.

All practitioners pay indemnity insurance and, if a medical practitioner is found guilty of inappropriate treatment, there is a strong likelihood that indemnity payouts will occur, with a consequent rise in premiums for doctors. Conversely, when an indemnity claim is not settled in this way, the premiums are unlikely to increase.

The board hearings are quasi judicial, requiring experts from the field of medicine to present their view as to whether the actions of the person being complained about were adequate. If the board hears evidence of the practitioner being complained about in the absence of someone with specific expertise in that speciality, there is potential for the findings of the board to be flawed. A mix of people with a clinical and non-clinical judgment is better placed to give a balanced judgment.

I will proceed with some examples. I suggest that, while there may have been some change in the manner in which the Medical Board operates, which change appears to have satisfied the Statutory Authorities Review Committee, the board is still not acting satisfactorily for it to protect the health and safety of the public.

I am going to spend some little time on one particular instance around one particular practitioner. It involves two separate instances of charges of unlawful sexual intercourse with daughters of family friends, including a 13 year old. There were two separate trials regarding two different people. This doctor was the perpetrator in both instances. However, despite the challenges, he was still working in a field of medicine which is predominantly accessed by women.

Indeed, the young woman who came to me to complain about her treatment by the Medical Board obviously had no knowledge of the charges at the time she visited this doctor. I am sure if she had the knowledge she never would have walked inside. However, she told me that she was uncomfortable at the time of her medical examination by him because he seemed to leave his hand just a little too long on her upper thigh and she wondered why an examination for spider veins on her legs required him to touch her upper thighs. That was not the reason, by the way, for her complaint to the Medical Board. It was one of those after the event 'aha' moments of insight when she found out a little bit more about this doctor's history.

In mid-2006, after the first finding of guilt by the court, this practitioner had limitations placed on his practice by the Medical Board, including that he was not to treat anyone under 18 years of age; he was to have another person present when treating women—and I note that the only other person in that practice who fulfilled that requirement was the medical practitioner's wife, who was also the receptionist; and he was only to perform certain procedures on the face and legs.

When I contacted the Medical Board to ask why these limitations were not put in place earlier—that is, before the finding of guilt in the first case—their answer was that the bail conditions imposed by the court were adequate. I wonder which of his patients knew about either the charges or the bail conditions, particularly as the man's name was suppressed. With all these factors, I had concerns for the safety and welfare of patients he was treating, as I was aware of this but the general public was not.

I contacted the Registrar about this but found no relief, being informed that there was nothing more that the Medical Board could do. However, when I read the act, it was clear to me that there was action that could have been taken. The board had the power to suspend the medical practitioner, but it chose not to, instead putting these practice limitations on him. The practice limitations were not known to the public, so any members of the public who visited that doctor were not in a position to report any breaches.

The woman who came to see me about the Medical Board's treatment of her complaints was also informed by the board that it does not police any of these practice limitations. The reason the board gave to her for that was that it does not have the resources to do this. So, how is the board protecting the interests of the public? If the board is not in any way checking to see that the doctors are observing the limitations the board imposes, there seems little point, in the first instance, in imposing the limitations. Perhaps the logic of the Medical Board was that the doctor concerned was appealing the sentence, so it had to assume that, even though the court had found him guilty, he was still innocent. Over a period of years, this doctor went all the way to the High Court with his appeals.

I became aware of the fact that, as well as his practice on Payneham Road, he had also been practising at Surrey Downs. Because I had some anecdotal information that this doctor might have breached the practice conditions imposed on him—and, might I say, the breach was minor; but, nevertheless, it was a breach—I telephoned the Surrey Downs practice and asked whether they had been told about the bail conditions or the practice limitations. They were very cagey and referred me to their company in Canberra. So, I tracked that company down via the White Pages and phoned it and received a similar response. To this day, I do not know whether the medical practice at Surrey Downs was aware that either bail conditions had been in place at one time and then practice limitations. It appears the doctor is under no obligation to let anyone else know.

I found out, from contacting the Medical Board, that the board does not see it as part of its duty to inform potential employers of such limitations. So, how was the public interest protected in this particular case? The only one who got protection was the doctor concerned, and surely the role of the Medical Board is to ensure that the public get the best results.

The High Court decision was handed down mid-December, and this man's name no longer appears on the Medical Board's website as a practising doctor. In order to confirm this, I telephoned the Medical Board, and I was informed that this doctor's licence has been completely suspended. My constituent, in an email to me, said, 'I used to naively believe that the doctor you saw was competent or else they wouldn't be practising.' She learnt to her cost that this is not the case.

My experience of this one case leads me to believe that having doctors investigate doctors leads to a great deal of tolerance of behaviour that ought not to be tolerated. I have been made aware of other irregularities relating to limited registration. From time to time, under the Controlled Substances Act 1984, medical practitioners who have not adhered to that act are prohibited from prescribing certain drugs. Contraventions of this act are printed in the Government Gazette. However, some of the medical practitioners who are gazetted as not being able to prescribe certain pharmaceuticals still had full registration at the time this was printed, while others had limited registration.

Another constituent rang the Medical Board last year to find out what limitations were imposed on a specific medical practitioner. This person was initially denied any information by the board. After some insistence, the Medical Board's staff member suggested that he see the Registrar, who would explain. This constituent met with the Registrar who advised that the medical practitioner had asked to be given limited registration as protection from drug addicts.

It does not seem very plausible, especially when the name of the medical practitioner appeared in the Gazette as having contravened the Controlled Substances Act. So, why was the Medical Board covering for him? Patients have to be very well-informed about how the system works to ensure their own wellbeing. So, who reads the Government Gazette on an ongoing basis?

In another instance, a man suffering significant back pain visited his medical practitioner and was told to take Panadol, which made no difference to his condition. One of my staff members, a friend of the man concerned, was able to check and found out that this medical practitioner had limited registration, which had been gazetted under the Controlled Substances Act. She suggested that he see a different medical practitioner, where he received appropriate pain management and ongoing treatment. So, we had one happy customer, but not everyone has friends who would know where to look for that information.

These quite recent anomalies and the inability of the general public to obtain information about limitations could lead one to conclude that the Medical Board is still conducting its activities without regard for the health and wellbeing of the public. So, I am concerned that the Statutory Authorities Review Committee appears to have backed down on recommendation 4 of its interim report of March 2006. I seek leave to conclude my remarks later.

Leave granted; debate adjourned.

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