Consultation via telephone

06 November 2019

Health Care Complaints Commission v Goyer [2019] NSWCATOD 121

A medical practitioner was recently found guilty of professional misconduct in relation to his practice of consulting patients and prescribing medications via telephone.

In Health Care Complaints Commission v Goyer, the medical practitioner operated a business under the name of Medical Weight Loss Institute (MWI). MWI provided its service using a model of ‘telemedicine’. Patients were not seen in person, but conferred with staff via telephone or ‘online’.

The relevant complaints agitated by the HCCC related to the medical practitioner’s prescription of drugs to 25 patients who were seeking to lose weight. The prescriptions included compounded phentermine capsules, diethylpropion capsules, sublingual drops of Human Chorionic Gonadotrophin (hCG) as well as injectable hCG.

The medical practitioner was the medical director of MWI from its inception and employed various consultants which included nurses, dieticians and personal trainers. Patients would first speak to a consultant, and then would have a consultation with a nurse who obtained a medical history and then ordered blood tests. After receipt of the blood tests, the medical practitioner would have a telephone consultation with the patient, at which time he took a further history, and then prescribed for the client. The patient received an information booklet and was told if they had adverse symptoms from the medication prescribed to contact MWI. The follow up was provided by the various consultants, which again included personal trainers or dieticians. The practitioner admitted that he not engage with some of the patients’ relevant general practitioners. He also agreed that some of the patient records obtained from the patient’s general practitioners for the purpose of the complaint, revealed conditions which contra indicated the prescribing of the drugs.

The failure to personally examine the vulnerable cohort of patients before prescribing stimulant medication lies at the heart of the complaints against the practitioner. The practitioner made concessions in relation to this aspect of the complaint, which was also the subject of criticism in the relevant expert evidence. The practitioner acknowledged that his conduct, including his failure to physically examine any patient prior to prescribing for such patient, constituted unsatisfactory professional conduct, but challenged whether it amounted to professional misconduct.

The Civil and Administrative Tribunal of New South Wales found that the practitioner’s conduct was sufficiently serious to warrant the suspension or cancellation of his registration.

The Tribunal found that the practitioner’s conduct in prescribing compounded stimulant medication for this cohort of particularly vulnerable patients, without a physical examination was inappropriate. Further, his conduct in prescribing was particularly problematic in the case of those patients whose own disclosure in nurse consultations revealed medical conditions which contra indicated such prescribing, such as at least two patients who suffered from hypertension.

The Tribunal also found that the prescribing involved five different drugs, two of which were prescribed in compounds by the practitioner, and for which he had no evidence as to their safety or efficacy. Further, the prescribing involved hundreds of prescriptions provided to patients without any adequate risk assessment.

The Tribunal also found that the practitioner paid scant or no regard to his obligation to obtain informed consent from patients before prescribing stimulant medication. That obligation was not fulfilled by recommending, if he did so, that a patient consult their own general practitioner. The provision of information in a booklet, even if received by every patient, did not fulfil the practitioner’s obligations to ensure a proper and real consent from each patient.

The practitioner was also considered to have failed to appropriately monitor patients after prescribing phentermine and hCG, in that he did not monitor or assess pulse blood pressure, change in weight, allergic reactions or abnormal heart rhythms. Further the practitioner did not necessarily discuss with his patients the risks or benefits associated with the prescribing of the medication. Criticisms were also made about the practitioners’ medical record-keeping.

The Tribunal were not persuaded by the practitioner’s reliance on other employees to ‘fill the gaps’ in his patient’s care. The practitioner was not engaged in any oversight of the employees or the advice they provided. For the majority of the operation of MWI he conducted his role as medical director from his own premises at North Sydney and accessed information from a record-keeping system kept ‘in the cloud’ that was considered unreliable.

The decision reinforces the importance of a face to face consultation and examination by a medical practitioner, and the practitioner’s personal responsibility for same. It also confirms the obligation of the medical practitioner to obtain a proper medical history and informed consent.

This article was written by Melinda Conry, Special Counsel.

Melinda Conry

Special Counsel | Sydney
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