Medical Board of Australia v Conron (Review and Regulation) [2023] VCAT 15

Introduction

This case was heard by the Victorian Civil and Administrative Tribunal (VCAT) concerning the issue of self-treatment, the treatment of family members and the substandard treatment of patients by a medical practitioner. The Tribunal held that the medical practitioner engaged in professional misconduct when he treated, prescribed medication, and requested medical investigations for a close family member. However, the Tribunal found that self-treatment and providing substandard care to patients amounted to only unprofessional conduct by the medical practitioner in the circumstances of the case.

Facts

Dr David Conron was a general practitioner who served the community for 57 years before retiring in July 2019. Dr Conron had difficulty adapting to some of the changes that occurred over his later years in practice, such as adapting to computerised note-taking systems and not keeping up with continuing professional development (CPD).

On 24 June 2019, four doctors at the clinic where Dr Conron worked reported concerns about the standard of care provided by Dr Conron to his patients. The management raised the concerns with Dr Conron and notified the Medical Board of Australia (Board). As a result, Dr Conron, who had been planning to retire at the end of 2019, brought forward his retirement to July 2019 and surrendered his registration at that time.

In response, the Board commenced an investigation. The Board received an expert report indicating substandard clinical practice in relation to several patients. Accordingly, the Board commenced proceeding under the Health Practitioner Regulation National Law 2009 (Cth) (National Law) in August 2020.

The four allegations brought against Dr Conron were as follows:

• Allegation 1 – Dr Conron prescribed medications and requested medical investigations for himself on multiple occasions from 2008 to 2019. Dr Conron failed to comply with the 2009, 2010, and 2014 Codes of Conduct for Doctors in Australia (Codes).
• Allegation 2 – Dr Conron treated, prescribed medications, and requested medical investigations for a family member on multiple occasions from 2009 to 2019, violating the 2006 Guidelines, the 2010 Code, and the 2014 Codes.
• Allegation 3 – Between January and May 2019, Dr Conron failed to meet the standard of treatment reasonably expected of a registered medical practitioner concerning three patients, in violation of the 2014 Code:
  • Patient 1 – Dr Conron refused to administer whopping cough vaccine to a woman who requested to be immunised when there was no reason to refuse it;
  • Patient 2 – Dr Conron failed to examine a patient during a consultation properly. He did not recommend that the patient have another ultrasound within 1-3 days despite the patient having symptoms of deep vein thrombosis. The patient was admitted to ICU within a week of the consultation with Dr Conron and was subsequently diagnosed with deep vein thrombosis;
  • Patient 3 – Dr Conron prescribed Scheduled 8 poisons numerous times but did not obtain a permit from the Department of Health and Human Services.
• Allegation 4 – Between March and May 2019, Dr Conron failed to maintain accurate, up-to-date, and legible medical records for two patients, which violated the 2014 Code.

Dr Conron admitted that his conduct concerning all four allegations was unprofessional and fell below the standard that might be reasonably expected by the public or his peers, as defined under section 5 of the National Law. However, considering the seriousness of allegations 1 and 2, the Board contended that Dr Conron’s conduct amounted to professional misconduct. Accordingly, the Board believe that a reprimand and a three-month ban from applying for re-registration was appropriate.

Under section 5 of the National Law, professional misconduct of a registered health practitioner, includes:

• unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
• more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
• conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Findings

Allegation 3

In the case of Patient 1, Dr Conron made a recommendation against administering a Boostrix immunisation to a woman in her third trimester of pregnancy. However, the Commonwealth’s immunisation guidelines had changed to recommend this. He acknowledged his error and accepted responsibility for not staying up to date with the guidelines.

In the case of Patient 2, the patient presented symptoms of deep vein thrombosis. Dr Conron’s treatment was found to be insufficient, as he only wrote a handwritten annotation on a report and did not recommend a repeat ultrasound or advise on taking aspirin or using a compression stocking. He acknowledged that this was not enough. Nonetheless, it was agreed that Dr Conron’s management did not cause the patient’s deterioration.

In the case of Patient 3, Dr Conron overlooked the expiration of a permit and prescribed Schedule 8 drugs in breach of section 34C(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The Tribunal noted a similar incident occurred in 2014 for which Dr Conron had received education on Schedule 8 prescribing.

Allegation 4

Allegation 4 relates to inadequate clinical notes of his consultation concerning two patients, Patient 2 and Patient 4. Dr Conron acknowledged that his notes were inadequate according to current standards. Regarding patient 4, who was a long-term patient of Dr Conron, Dr Conron simply noted that there was no change in the patient’s condition. He stated that this was a common practice many years ago but acknowledged that it is no longer accepted.

Allegation 2

The Codes and guidelines in place during the period of these allegations clearly stated that doctors should avoid treating members of their family members. The Codes advise doctors to avoid treating members of their own family due to a lack of objectivity, possible discontinuity of care, and risks to the doctor and patient.
The records show that Dr Conron played a much more significant role in the overall medical care of his family member (CFM) than just providing scripts in emergencies. Dr Conron prescribed psychotropic drugs more frequently than CFM’s regular GP and often prescribed for CFM’s chronic issues. The Board argued that the extent and duration of Dr Conron’s treatment of CFM over a 10-year period increases the risk of sub-optimal care. The Tribunal agreed that the level of involvement by Dr Conron in treating CFM created some risks for CFM’s overall medical care because of the fragmented care received by CFM. Furthermore, treating family members poses a genuine potential to distort objective patient care, particularly involving complex medical issues.

Allegation 1

The Tribunal found that Dr Conron self-treated and self-prescribed from June 2008 to April 2019, ordering 5 self-investigations and recording 107 surgery consultations, compared to 25 consultations with other doctors. Additionally, Dr Conron self-prescribed four tablets of a Schedule 4 drug in 2009 following prostate surgery. He admitted that this was a violation under regulation 48 of the Drugs Poisons and Control Substances Regulations 2006 (Vic), which has since been repealed and replaced by regulation 105 of the Drugs Poisons and Control Substances Regulations 2017 (Vic).

Overall, the Tribunal did not view the self-treatment as being as severe as the long-term treatment of a close family member. Dr Conron’s medical issues were less complex, and the Codes for self-treatment are not as explicit as those for treating close family members. The 2009, 2010, and 2014 Codes state that good practice involves seeking independent and objective advice when needing medical care and being aware of the risks of self-diagnosis and self-treatment.

The Tribunal determined that Dr Conron’s conduct in self-treating and self-prescribing was below the standard expected by the public or his peers, constituting unprofessional conduct under the National Law. However, Dr Conron’s self-treatment fell short of being considered professional misconduct.

Determinations

Section 196(2)(a) of the National Law sets out the determinations that can be made in professional disciplinary proceedings. The primary objectives of these proceedings are to protect the public, maintain professional and ethical standards, and uphold the profession’s reputation. Accordingly, an order that temporarily prohibits the practitioner from applying for registration may be imposed when serious breaches occur. The Tribunal considered factors such as remorse, delay, prior incidents, and proportionality.

Reprimand

In Dr Conron’s case, the Tribunal noted Dr Conron’s prompt resignation when his colleagues raised complaints as demonstrative of insight. However, the Tribunal also noted that the decision was primarily motivated by the complaints and not by a realisation that his self-treatment and treatment of a close family member (CFM) were below professional standards. Therefore, a reprimand was deemed necessary to acknowledge unprofessional conducts (comprised by Allegations 1, 2 and 4) and professional misconduct (Allegation 2) by Dr Conron.

Disqualification

The long-term treatment of CFM was deemed the only issue warranting disqualification. The other allegations were deemed less severe and did not warrant disqualification.

The Tribunal held that Dr Conron fell short of following modern professional requirements regarding treating a close family member. However, the Tribunal found it unnecessary to impose a three-month disqualification on Dr Conron from applying for re-registration.

The Tribunal considered that it may have been difficult for CFM to obtain the medication promptly for acute conditions otherwise than through Dr Conron. In addition, the treatment of CFM by Dr Conron followed the treatment path already started by CFM’s general practitioner, which is not the same as prescribing drugs of addiction to close family members. More importantly, the Tribunal pointed out that general deterrence is the primary consideration for disqualification. The Tribunal reasoned that the initiation of disciplinary proceedings, such as in this case, acts as a deterrent. Nonetheless, the Tribunal noted that their conclusion might have been different if Dr Conron had not taken steps to resign.

Compliance Impact

This case illustrates the consequences of medical practitioners in not staying up to date with the applicable legislations and the Codes of Conduct for Doctors in Australia (Codes). This case also demonstrates the importance of Continuing Practice Development (CPD) to keep up with the evolving technological environment, professional standards, and regulatory requirements in the medical field.