Professional Misconduct and Innappropriate Prescribing - Medical Board of Australia v Saykao
Zara Officer, Special Counsel
A recent case from the Victorian Civil and Administrative Tribunal (VCAT) underlines the importance for doctors to establish and then to document that a therapeutic need exists when issuing prescriptions, particularly when prescribing substances that are open to abuse. It also underscores the importance of
keeping adequate clinical notes. Failure to do so may expose a practitioner to findings of unprofessional conduct. The case also provides an example of conditions being imposed that are apparently unrelated to the original complaint.
Dr Saykao was born in Laos and wanted to be a doctor from the age of 12. He completed his medical studies at Monash University in 1980 and is reportedly only the second Hmong
to gain a medical qualification in the world, and the first to be involved in primary care of patients. Most of his patients came from the Hmong community and in recent years his practice expanded to include a number of refugee and immigrant groups.
He practices medicine in Victoria and assists members of the Hmong community bridge the gap between cultural and western medicine, spending much of his out of clinic time responding to emails from members of the Hmong community concerned or confused about advice they have received from their own medical practitioners. These activities are mentioned in the decision, but were not the subject of the complaint.
Complaint
The complaint against Dr Saykao concerned a patient to whom he inappropriately prescribed anabolic steroids and other androgen medication on many occasions.
The allegations were threefold:
1. that Dr Saykao failed to take all reasonable steps to ensure that a therapeutic need existed before prescribing anabolic steroids and androgen medication. It was alleged he prescribed excessive anabolic steroids when he knew or ought to have known that they were being used for non-therapeutic purposes;
2. that the clinical notes of Dr Saykao's consultations with his patient were non-existent and/or inadequate; and
3. that on or about 18 February 2009 Dr Saykao pleaded guilty in the Magistrates Court in Victoria to 14 charges of prescribing a drug of dependence without ensuring a therapeutic need.
Facts
The patient had first attended Dr Saykao's practice on 26 May 2006 and requested growth hormone to increase vigour. Dr Saykao obtained certain pathology results from the patient's previous doctor on 30 May 2006 and then prescribed Genotropin 2.0mg in injectable form. This was subsequently prescribed in June and September 2006.
Dr Saykao did not conduct blood or other medical tests to ascertain whether there was a genuine therapeutic need.
In 2007 the same patient attended Dr Saykao and over ten separate consultations during the period July to September 2007 Dr Saykao provided prescriptions for testosterone related medication. Dr Saykao did not take a fully documented clinical history or examination. He did not conduct tests to ascertain the patient's testosterone levels. There were no clinical notes of the patient's clinical history, symptoms or clinical examination findings or a diagnostic conclusion. There was no recorded discussion of possible alternative treatment. There was no established androgen deficiency indicating a need for the prescriptions.
Two different pharmacists voiced concerns to Dr Saykao about dispensing the medications prescribed, on the basis of the quantity and the frequency of the patient's request for the medication. Ms Lang, pharmacist refused to dispense further prescriptions. The second pharmacist, Mrs Hose, raised concerns but Dr Saykao confirmed that she should continue to fill the prescriptions.
Both pharmacists contacted the Department of Health in Victoria to express their concerns about Dr Saykao's prescribing to the patient. An investigation ensued and an application was made to the then Medical Practitioner's Board of Victoria. The matter proceeded to the Victorian Civil and Administrative Tribunal (VCAT) for hearing.
Findings
VCAT made the following findings:
1. that Dr Saykao had engaged in professional misconduct by inappropriately prescribing anabolic steroids and other androgen medication to his patient.
2. that Dr Saykao had engaged in unprofessional conduct and that his clinical notes of his consultations with this patient were non-existent and/or inadequate.
3. that Dr Saykao engaged in unprofessional conduct on the basis that a finding of guilt was made against him in the Magistrates Court in respect of 14 charges of prescribing a drug of dependence without ensuring a therapeutic need. (Dr Saykao had pleaded guilty in the Magistrates' Court. No conviction was entered but Dr Saykao was placed on a good behaviour bond and ordered to pay $1,400 to the Victorian Bushfire Fund.)
Penalty
Dr Saykao had altered his practice of prescribing drugs such as testosterone. He refused to give repeat prescriptions and if more than one injection was required he kept the drugs in a securely locked cupboard and asked the patient to return to him personally for further injections.
Consequently the parties at the commencement of the hearing handed up a joint submission as to determination and penalties.
Dr Saykao was cautioned and reprimanded for his prescribing to the patient and for his clinical note taking. Conditions were placed on Dr Saykao's registration. These include:
• A requirement that Dr Saykao undertake further education in relation to dealing with difficult patients and in prescribing practices.
• A requirement to undertake a period of supervision by an experienced full time senior general practitioner with experience in integrated medicine. The topics to be covered to include an understanding of potential boundary issues when providing information to others in his community and assist them with their communication with their medical practitioners.
• A requirement to report to the Medical Board of Australia with respect to these conditions.
The Tribunal noted an apparent lack of understanding by Dr Saykao about prescribing anabolic steroids particularly when faced with a difficult and demanding patient. Therefore, the order for further education and supervision of this aspect of his practice is appropriate. Those conditions were proffered jointly by the
parties. The conditions in italics were inserted by VCAT, not on the motion of the parties.
There is nothing in the reasons for decision suggesting that the patient was of Hmong background or that Dr Saykao had assisted that patient with their communications with other medical practitioners.
Therefore the conditions inserted by VCAT for Dr Saykao's supervision to cover potential boundary issues concerning the Hmong community do not appear to relate to the issues which were dealt with in the complaint, namely prescribing practices. VCAT noted that Dr Saykao had an interest in integrated medicine and noted also that he is a Shaman. On that basis they required the supervisory general practitioner to have experience in integrated medicine.
Dr Saykao had informed the Tribunal that he provided his Hmong community members with information and assisted them in communicating with their medical practitioners, but he did not provide them with medical advice. Dr Saykao's strong commitment to the Hmong community was noted, as was his out of clinic time responding to emails from members of the community concerned or confused about advice they received from their own practitioners. On that basis, although unrelated to the complaint, VCAT determined it was appropriate that the topics to be covered in his supervision include an understanding of potential boundary issues when providing information to his community members when assisting them in their communication with their medical practitioners. As at the date of publication we are unaware of any
appeal from this aspect of the orders.
Zara Officer
Special Counsel
T: +61 2 9390 8427
E: zara.officer@holmanwebb.com.au