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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-29 Daily Xml
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STATUTORY AUTHORITIES REVIEW COMMITTEE: MEDICAL BOARD OF SOUTH AUSTRALIA

Adjourned debate on motion of Hon. B.V. Finnigan:

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

(Continued from 13 February 2008. Page 1680.)

The Hon. SANDRA KANCK (00:52): The Medical Practice Act 2004 is 'An act to protect the health and safety of the public by providing for the registration of medical practitioners and medical students; to regulate the provision of medical treatment for the purpose of maintaining high standards of competence and conduct by the persons who provide it; and for other purposes.' As the main function of the act is to protect health and safety through registration, it is paramount that the intent of the act is put into practice and that the act is further amended to protect the public—at the very least along the lines of what is recommended in this report from the Statutory Authorities Review Committee. Those recommendations are, in fact, quite limited, but they are better than nothing.

When I last spoke on this issue I expressed concern that this final report from the committee had backed away from the strong recommendations made in the interim report that was made public 18 months earlier. Back in February I said, 'The interim report highlighted the reluctance of the board to be forthcoming with information—and little has changed.' Well, that was the case five months ago and, sadly, it is still the case today. Tonight I will look at some of the recommendations from this report, compare them against the minister's response to the report, and further compare that to the realities of the way the Medical Board continues to behave.

A number of the recommendations in this report are about the Medical Board's website. I challenge members of the Statutory Authorities Review Committee to check out the website of the Medical Board, if they have not already done so. I have checked it on and off now for a period of nine days just to make sure that my findings from the first occasion continue to be verified, and what it has showed me is that the Medical Board of South Australia has thumbed its nose at the Statutory Authorities Review Committee.

The first recommendation was that the board's online database search be altered to show if a medical practitioner has current conditions or limitations, and the reason. That is a laudable recommendation, but unfortunately the minister's response was, 'The issue of whether to publicly display all details of any conditions or limitations is a policy matter for the board to determine.' So, of course, the board has not implemented this. I think the minister's answer is a cop out, and I strongly recommend to the committee that they challenge him. To leave it up to the board as a policy matter can, and will, allow mistakes to be made.

The minister further said, 'Details on any conditions or limitations may be provided to a consumer by telephoning the registrar.' Well, I have to tell members that the minister has been conned by the Medical Board because, despite what the minister claims, consumers who have tried to get this information by phoning the registrar have had information denied to them.

I suggest that the chair of the committee, or one of the minister's staff, do the same and see what happens. So an actual visit to the Medical Board then becomes the only other way to access this information. As the boards are located in metropolitan Adelaide, the process of having to attend the Medical Board to obtain information discriminates against rural and remote health consumers. Can the public access the register at the board office? The answer is no. One of my staff did a little research for me a fortnight ago. She went to the Medical Board to view the register, specifically the register of persons removed from the register and the conditions and limitations of a specific general practitioner. She spoke to four different staff members.

First, she was told that the register was available on the web. She explained that the section she was looking for was not and, in any event, I observe that not everyone is computer literate and board staff should be made aware of this. Then she was told that she would need to apply in writing to the registrar, that any conditions imposed would be divulged only if they did not involve the private affairs of the doctor, and that this information was given to a person only if they were the patient of a specific doctor.

My researcher took with her a copy of page 14 of the latest annual report and she read out that particular recommendation. I was going read the exact words but, at this late stage, I cannot find the exact words. However, the annual report is quite specific about the register being publicly available. She subsequently showed this to the first three staff members who had effectively tried to fob her off and they were completely unaware of the contents of the annual report. Eventually she saw a fourth and more senior person who was also unaware of this statement in the annual report. What is even more interesting is that today, following the appearance of the members of the board at the SARC hearing yesterday, the annual report has completely disappeared off the website.

The board staff member reiterated that members of the public were able to view conditions or limitations imposed on a doctor only if it is their treating doctor, and that a letter must be written to the registrar who will determine whether the information is to be released. That is not what the act says, but this is typical of the unilateral and arrogant manner in which the board operates. The staff member explained that the registrar was on leave that week and that he usually handles such matters. So, after 40 minutes my researcher left with none of the information that she sought.

Recommendation 2 was that the online registration database search of medical practitioners be altered to show that the registration has been suspended or cancelled, if that is the case. The minister's response was that this was a good idea, but it is not possible with the board's current data system. The further excuse for not implementing it was the intended implementation of a national registration and accreditation scheme as proposed by COAG.

The Hon. I.K. Hunter: In 2010.

The Hon. SANDRA KANCK: Yes, that is exactly right. The 2006-07 annual report states that there was limited progress towards the development of an Australian index of medical practitioners and the project has now been discontinued nationally. That annual report was tabled in parliament on 23 October 2007, so the board can no longer use that as an excuse for the poor state of its website. One is left pondering what the excuse might be now. I think the minister has been poorly advised by the Medical Board. It does not take an enormous amount of effort to put a new field into a database. My previous two trainees would have been able to alter the Medical Board database.

Recommendation 3 was that guilty findings and decisions of the board and the tribunal be published in full both on the website and in the annual report with full names, unless a suppression order is in place. Minister Hill's response was that they are available, both on the website and in the annual report which is also on the website. As I pointed out, the annual report has disappeared off the website today.

Minister Hill informed the committee that the current board policy in relation to disclosure of names is done on a case by case basis but the board is to further consider this matter. It is true that information is contained in the annual report, but it is non-identifying information, so if you were contemplating visiting a particular doctor and wanted to know whether there were any black marks against that doctor, you would not be able to find this out from the annual report. I went through that process for a constituent who was going to have a breast augmentation and wanted to know whether there were any fly-by-nighters. I tried to find that information looking at the board website and could not find it.

In regard to decisions, I printed that section of the board's website, and it basically has five words: 'Decisions' and two headings, 'board hearings' and 'tribunal hearings'. Click on 'board hearings' and you get nothing, and click on 'tribunal hearings' and you get nothing. If the annual report still was on the website—which it is not, but it was yesterday—and if you were trying to access it yesterday you still would not have known from checking the website that you could access information in the annual report. There is nothing in the home page of the Medical Board website to indicate that that is the case.

There is a search engine, and I typed in the words 'annual report' and clicked to see what came up, and it came up with 13 different results for 'annual report'. I had already found it by another method but, when you have 13 different potential references, where do you start? It seems to me, just from that, that the board is more interested in protecting medical practitioners than assisting the public.

Until a few weeks ago, there was one decision on the board's website, that is, Henry Vincent Keogh v Colin Henry Manock, a decision dated 22 June 2005, but even that has now disappeared. In the last annual report, in the section on the Doctors Health Committee it is revealed there were 46 medical practitioners or students in the board's health program as a result of drug or alcohol abuse, psychiatric or physical illnesses, and a category called 'infected health care workers'. I can understand that privacy issues would be involved, but sometimes the lack of information available to the public can result in patient safety being compromised.

The act states under 'medical fitness to provide medical treatment' that 'a person or body must, in making a determination under this act as to a person's medical fitness to provide medical treatment, have regard to the question of whether the person is able to provide medical treatment personally to a patient without endangering the patient's health or safety'. I am aware of several matters, including the Dr Mauro case, where the MBSA was given sufficient information to know that the practitioner was impaired to a level where he was unable to provide safe care to patients. It was only when a serious event occurred and others (especially the Coroner) became involved, that appropriate action was taken by the board.

Recommendation 4 was that the board voluntarily implement an online medical practitioner profile to enable more comprehensive details of medical practitioners to be viewed. The suggestion was that the Massachusetts model be followed. The Massachusetts board of registration has a physician profile on each registrant, which includes any malpractice claims within the last 10 years, disciplinary actions (both hospital and board), and/or criminal actions. Minister Hill responded, as he did with recommendation 2, that some of this information was available on the website but such an enhancement would require significant upgrading of the board's database. Again, that is a cop-out.

In my speech in February I gave examples to illustrate the need for the public to have this information available. I gave a couple of examples, of which I will briefly remind members. In one, a doctor had bail conditions imposed as a result of charges of unlawful sexual intercourse with the daughters of family friends. Those bail conditions prevented him from treating women unless another person was present, and there were also limitations on the procedures he could perform. The board eventually imposed these same conditions, but did not ensure the conditions were met. Members of the public were not aware of these conditions and, as his business was cosmetic surgery, he mostly saw female patients.

The other cases involved two separate doctors with limited registration, each having the limitations imposed as a result of offences under the Controlled Substances Act. In each case a patient with severe back pain went to see their GP for pain management. The GP told them to take Panadol, to no effect. The limitations prevented this doctor prescribing stronger pain relief. Fortuitously, one of my staff was a friend of this person, so knew of the Gazette and the limitations and she suggested the person attend another doctor. The new GP provided appropriate medication and continues to treat this person's pain.

A constituent who was aware of limitations being imposed wanted to find the specific limitations imposed on a doctor. They were informed by the Medical Board they would need to visit the registrar in person to obtain this information. On visiting the registrar they were informed the person was a very fine medical practitioner who had requested the board not allow them to prescribe drugs of dependence as drug dealers were causing them problems—clearly a lie because the doctor had also been gazetted under the Controlled Substances Act for a breach of that act.

The inclusion of suspended or cancelled registration is extremely important. From the many constituents I have talked to about the secretive processes of the Medical Board, one in particular stands out. A man came to see me several years ago because he had been drugged and sexually assaulted on several occasions over an extended period by his treating psychiatrist. The then minister of health did a deal with the doctor: the doctor agreed to give up his right to practise, and he was not prosecuted. That doctor had worked for over 40 years and, having treated thousands of people, I find it hard to believe that he singled out just one patient.

People with mental health problems are often not given the same respect as others and, if they informed others of abuse, it might well be dismissed as being simply a function of the mental illness. The secrecy of the Medical Board removes a way of validating the experience of such patients who might have been abused by a doctor. Why should this psychiatrist be protected? It surely is a matter of public interest and safety when a doctor is suspended or deregistered for abusing a patient. Other states and territories, such as Victoria and Queensland, have this information available on their websites. This ensures consumers can know any information that may limit the extent of treatment they can obtain from a medical practitioner.

The South Australian Dental Board publishes on its website a list of conditions and/or limitations imposed on dentists. It is difficult then to comprehend that similar information is not available in regard to medical practitioners, as they deal with the whole body and not just the mouth. But the recommendation from SARC was that the board provide this information voluntarily—a sure guarantee that it would not happen, given the board's demonstrated unwillingness to be accountable. I wonder now if the committee is reconsidering the recommendation that it be voluntary.

Recommendation 6 was for regular criminal record checks of all medical students and registered medical practitioners, through either the provision of a national police certificate or consent to a criminal record check through the CrimTrac agency. The minister's response was that implementation of this would need further investigation. I would like to know how far that investigation has gone. There is certainly nothing about the Medical Board's website that would indicate any progress thus far.

I am skipping a few recommendations here and going to recommendation 13, which was that the board include on the website definitions of the terms 'medical unfitness' and 'fitness'. We have been assured by the minister this information is there. It is certainly not readily found, either by using the search function or manually searching through the pages for this information.

I again put the word 'medical fitness' into the search engine on the board's site and it came up with 36 results, which meant that anyone who wanted to know this would have to trawl through all of them. The question is: where do you start when you have 36 of them to go through? You could go through all 36 and still not get there. I can tell members that, after a lot of work, one of my staff was able to find it, but it was a laborious task and it should not be this hard.

Skipping through to recommendation 20, this was that the board engage an independent consulting firm to review all its processes to ensure that it is operating in a customer friendly and efficient manner. I think I have already given a range of examples to show that the board is failing on this front in a number of ways. Minister Hill's response to this recommendation is that the board has engaged independent consultants to review some of its processes.

Well, you would not believe it by looking at the website. Given what I and others have seen when looking at this website, it seems to me that either the consultant did a very poor job or the board has not taken the advice of the consultant. The board's new website is even less consumer customer focused than it was before. Instead of a complaints form, there is now a notification form, and many of the previous functions have gone. When people phone for information, it is denied; when people visit the board's offices, information is denied.

Going to recommendation 22, that was that the Medical Practice Act 2004 be amended to include a secondary lesser charge of unsatisfactory professional conduct. The minister indicated that the timing of the implementation of the national registration and accreditation scheme would determine the government's action, but should the implementation of the scheme be significantly delayed, amendments to include a charge of unsatisfactory professional conduct will be considered. We know that that national scheme has been delayed, in fact firmly put on hold, so I am waiting to see the amending legislation, Mr Hill.

Recommendation 23 was that certificates of good standing must not be issued to medical practitioners under current investigation or subject to disciplinary action or those being monitored by the Doctors Health Committee, and that such certificates must clearly display all past guilty findings by the board and the tribunal. The certificates of good standing that are available to medical practitioners confirm only that there is no current disciplinary action pending against the medical practitioner and that is simply not good enough. Doctors can also obtain something called a letter of good standing for a fee of $30. That does not appear to exist in any legislative framework and appears to be an invention of the board.

Skipping through to recommendation 35, which, in part, says that details of what happens at hearings should be on the website—and the minister advises that they are. I invite others to look and let me know where on the website they can be found. I have not succeeded in finding them. Recommendation 37 required the Medical Board to report back to the committee 12 months after the tabling of the report. I checked with the committee's researcher this morning. She advised me that the board appeared before the committee only yesterday. I wish I had known because I really would have liked to sit and listen, and I will be seeking a copy of the Hansard of that hearing.

Given what I have already said today, I imagine the committee might not have been impressed by them. I saw the newspaper reporting of it this morning and I am told that the board was less than candid in their responses to the committee—and I note the Hon. Mr Stephens is nodding his head. Overall, it appears that, while new legislation for the 2004 Medical Practice Act has been enacted, the Medical Board is still not doing what the act requires. Given past dealings with the board, it would also be beneficial for the SARC to seek feedback from medical practitioners and complainants about the way the board is functioning.

I mentioned the Natural Resources Committee with its inquiry into Deep Creek. We were deeply unsatisfied with the minister's response and with responses from the bureaucrats who advised the committee, and although the committee reported about eight, 12 months ago, we are still pursuing that. I recommend to the Statutory Authorities Review Committee that they should do the same.

Beyond the report I make observations about some aspects of the board's performance as a consequence of another matter drawn to my attention. While so often I see the board taking the side of medical practitioners against a patient who has complained about them, sometimes the board takes action against a medical practitioner that is inexplicable.

In January The Independent Weekly ran a story about Dr Ian Buttfield, a physician who specialises in pain management using opiates for the treatment of patients. Opiates are addictive. Some 20 years ago a friend of mine died from cancer and, as the cancer progressed and she knew it was terminal, she was on morphine. She said to me, 'Sandra, I am not addicted to morphine. I am addicted to pain relief.' There really is a difference.

The article from The Independent Weekly referred to Dr Buttfield and almost 200 of his pain management patients. The consequence of Medical Board intervention is that at least 25 of Dr Buttfield's patients were transferred out of his control to Warinilla as outpatients, where they are treated by doctors whose expertise is drug addiction, not pain management. That is an insult to all those patients. The article in The Independent Weekly states:

Adelaide orthopaedic surgeon Roger Paterson is aghast. 'He's the only person who provides the service. There's absolutely no-one else who gives this help to sufferers of chronic pain,' he said.

The Medical Board pursued Dr Buttfield over four years, during which time the doctor was unable ever to secure a face-to-face meeting with the board, despite written requests. I understand that, as well as refusing to meet with Dr Buttfield, the board has not spoken with any of his now former patients to ascertain their perspective on his treatment methods.

I met with Mr Greg Betross, husband of one of those patients. Trish has systemic vasculitis and, therefore, is not in a good state to visit me. Her condition results in a loss of blood to the extremities and the fracturing of bones. She has had over 40 operations and procedures to keep her partially mobile but with a great deal of pain, so much so that family members could not give her a hug.

After referral to Dr Buttfield and with X-rays showing her bones are disintegrating, for the first time in many years that pain was brought under control with prescription opiates. As a consequence of Medical Board intervention, rather than being a medical patient under treatment by a specialist pain doctor she is now regarded as a substance abuser, under treatment by ministers Hill and Lomax-Smith. Mr Betross is despairing of the intervention by the board and its ultimate outcome for all those patients.

Many of those patients and their families have been so badly impacted by the board's meddling that they have now formed a group called Dignity for Chronic Pain Sufferers and established their own website; so this will not be the last we hear of this particular Medical Board intervention.

There are further quotes from the article in The Independent Weekly that are worth putting on the record. The article states:

Dr Buttfield has a wide range of professional colleagues who admire his therapy and its success, but his unorthodoxy also attracted detractors in the medical field. His dosages, while allowing patients to resume something of a normal life, were criticised by powerful enemies on the Medical Board...Of course there are legalities and niceties, enemies and proprieties. This is a case with no winners. The Medical Board may get sick of itself and the health department may hurt its reputation, but in South Australia there will be a dozen dozen victims if their painkillers are left in a vial. A dozen dozen is a gross, and gross is the system which has this outcome.

How is it that the Medical Board of South Australia so often is not working for the benefit of health consumers when that is its brief? The real losers in this particular case are the patients who are now facing the indignity of being treated as drug abusers and the many patients who were getting pain relief and who have now had this denied.

SARC's interim report recommended 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; but, unfortunately, this final report has backed away from that. As far as I can see, there have been no changes to the Medical Board in any real sense since either report was tabled or the new act came into place.

The board's main function is to protect the public through registration and to make the register publicly available. Despite an extensive inquiry by the Statutory Authorities Review Committee and amendments to the act, the Medical Board of South Australia is still secretive and not even performing the basic function of the act, that is, making the register publicly available. This is a body that acts without accountability, and I say, 'Bring on the amendments, Mr Hill.'

The Hon. B.V. FINNIGAN (1:20): I thank members for their contributions on the motion. As the Hon. Ms Kanck noted, the board, or at least its chairman (Dr Mudge) and the registrar (Mr Hooper), appeared before the Statutory Authorities Review Committee yesterday. Members who have an interest in this area may wish to look that up. The purpose of those two people appearing was in accordance with the final report, that is, to report back to the committee 12 months later. Whether the committee will take any further action arising out of their appearance is still to be determined. I commend the motion to members.

Motion carried.

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