In early 2016 the South Australian Health Practitioners Tribunal delivered a decision that touched on a number of aspects of professional misconduct of a medical practitioner, including a complaint in relation to the practitioner selling the patient a product described as a ‘nutritional and detoxification program at a cost of some $3,500.00’.
The Tribunal is presently considering a complaint in relation to a chiropractor, for his participation in the promotion and retail of a weight loss program and supplements. Local media have described the program as “promising that people could lose a kilo a day without strenuous dieting or excessive exercising“.1
There is a history of concern and suspicion attaching to medical and health practitioners selling products and programs to patients, particularly when such products are considered “alternative” or step away from the mainstay of that practitioner’s professional expertise. The essence of the complaint in most cases appears to be a perceived conflict of interest that a practitioner will have in relation to the sale of such products – in many cases the sheer cost of products attract a charlatan gloss. But in my view the conflict is a side issue and the core of the complaint is the absence of any properly informed consent of a patient purchasing and using the product(s).
The issue of consent relates to both knowledge that the products or programs do not have the endorsement of the medical community and have not been subjected to rigorous testing and trials (as pharmaceutical medicines often do), but also that there may be other more suitable products or methods available in the circumstances. The mere fact that a trusted ‘doctor’ or health practitioner recommended a program will be sufficient in many patients’ minds to satisfy themselves that such product is warranted and likely to be beneficial.
The facts of Siow are relatively simple.
The Patient was diagnosed with S1 Nerve Sheath Sarcoma in February 2008. On 20 March 2009 the Patient was advised by his oncologist that it had metastasised to his lungs, and he had merely “months” to live. In fact he died on 25 April 2009.
The Patient consulted with Dr Siow on two occasions only, namely 23 March 2009 and 8 April 2009. Thereafter Dr Siow was overseas and the patient died from his illness. Note the first appointment was only three days after the Patient received the grim prognosis from his oncologist.
Dr Siow sold the Patient nutritional supplements, which was said to have raised the Patient’s hopes. It was also said that Dr Siow’s advice and supplements deterred the Patient from accepting mainstream palliative care options at a critical time.
The gravamen of the complaint against the practitioner was that he had unreasonably, without any proper foundation, raised the hopes of the patient and caused him to embark on a nutritional supplement regime which was of no benefit to him in the circumstances.
Practitioners who prescribe medication, and utilise treatment techniques which are widely accepted, are recommending treatment methods that have usually been independently and rigorously tested with clearly identified actual or potential risks and side effects.
The risks faced by a Practitioner developing his or her own (non-pharmaceutical) product include:
- Patient may form unrealistic expectations about outcome/benefit believing it to have met the same standards/testing as pharmaceutical medicine;
- Practitioner may hold a biased belief about the utility or efficacy of such product;
- Perceived conflict of interest about the utility of the product for a Patient, having regard to the potential fee benefit to the Practitioner in selling same;
- Potential that a Patient is not aware or properly informed about that product in comparison to other treatment options;
- The product may not be appropriately tailored for that patient; and
- Patient may not be fully apprised of long term cost.
In short if the product does not meet the Patient’s expectations, realistic or otherwise, the Practitioner is exposed to complaints or claims that they were not properly informed about the product.
The requirements for informed consent, I suggest, are at their highest when a practitioner is seeking to depart from traditional treatments and medicines. It is not just the upfront costs a patient is asked to outlay, but the ongoing costs and likely benefits in association with same.
The Medical Board of Australia’s Code of Conduct has a number of provisions which ought be considered in whether the retailing of products to that patient is warranted in a particular circumstance. The following sections are highlighted to demonstrate the nature of the issues which can arise.
Clause 1.4 While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice…
If a treatment program does not form part of established standard practice, a practitioner ought be careful about how such a product is raised or recommended to a patient, and the extent to which any consent is properly informed – having regard to a patient’s entitlement to rely on the doctor/patient relationship.
Clause 2.1.1 Formulating a implementing a suitable management plan.
Clause 2.2.6 Providing treatment options based on the best available information.
Clause 2.2.12 Ensuring that your personal views do not adversely affect the care of your patient.
A practitioner retailing his/her own products must be careful to ensure that an unwavering belief in one’s own product and a “one size fits all approach” does not prevent the patient from being recommended the best treatment available. Is the Practitioner’s own product the best treatment option for this Patient, or indeed will it have any known or proven benefit at all?
Clause 3.3.4 Discussing with patients their condition and the available management options, including their potential benefit and harm.
Clause 3.5.3 Ensuring that your patients are informed about your fees and charges.
This includes appropriate explanations about the long term costs, especially if selling consumables such as nutrient supplements or weight loss powders.
Clause 3.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients…emotionally…or financially.
Consequences for a practitioner
Not only does this type of conduct give rise to concern in the disciplinary arena, it could also sound in damages for negligence and breach of the consumer law provisions. One can imagine that the conduct would be infinitely more serious if one adopted an alternative regime of dietary or nutritional supplements, as an alternative to necessary and warranted medical pharmaceutical intervention, which resulted in a worsening of the patient’s condition (or failure to regain health). That was not the case in Siow. In that case, the only real physical danger posed was that it was said that the patient’s suffering was not alleviated as promptly as it could have been, as he initially refused palliative care measures when admitted to the Lyell McEwen Hospital immediately prior to his death. Imagine if a patient had had prospects of recovery, but instead of mainstream oncology treatments he instead had adopted an alternative treatment regime of dietary supplements which had no proven or demonstrable benefit in the circumstances.
The sale or supply of products may also affect a Practitioner’s entitled to indemnity pursuant to a professional indemnity policy, in the event of a claim. Things to check include:-
- Does this fall within the definition of services being provided to a patient?
- Is there an exclusion denying cover for practices or procedures outside the Practitioner’s designated field of practice?
- Is there any exclusion for the supply or endorsement of products?
- Is there any exclusion or condition in relation to contractual liabilities, guarantees or warranties which may apply?
It may be that a separate products liability policy is needed by a practitioner to cover him/her for any liability arising from the sale or supply of products.
Contrary to media reporting, the case of Siow highlights orthodox legal principles relating to medical practitioners obtaining the informed consent of patients. Practitioners who are considering administering unorthodox treatments must clearly obtain and record the informed consent of their patient, detailing the advice given, options explained, and be alive to any issues of capacity. Practitioners recommending treatments outside their area of expertise should ensure they have offered a referral to a qualified practitioner, and obtained the properly informed consent of the patient. Despite the introduction of such safeguards, a Practitioner will always risk heightened exposure to complaint and claim by departing from the well-trodden path.
This article was written by Anna Jackson, Partner.
1Tory Shepherd, The Advertiser dated 28 January 2016.