MEDICAL TRIBUNAL OF NSW REASONS Deputy Chairperson: Tribunal Members: Judge A. Balla Dr E Kok DrGDore Dr A Glass, PhD Matter no: 40033 of 2012 Applicant: Respondent: Counsel for the Applicant: Counsel for the Respondent: Health Care Complaints Commission Dr Zeitoun Athour Mr P Griffin Mr P Strickland, SC Judgment Date: 20 December 2013
PURSUANT TO CLAUSE 7 OF SCHEDULE 5D OF THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) THE TRIBUNAL HAS MADE A NON PUBLICATION ORDER IN RESPECT OF ANY MATERIAL WHICH MAY IDENTIFY ANY PATIENT OR THEIR FAMILY MEMBERS III!ii Outline...2 What is rapid opioid detoxification?... 2 TheComplaint... 3 Resolving the Particulars which are denied by Dr Athour... 7 Particular I... 7 Particulars12 and 13... 7 Particular15... 9 Particular19... 9 Particulars25 and 26... 10 FactualFindings... 10 Risks... 10 Unsatisfactory professional conduct... 13 Professional misconduct... 14 1
Outline Dr Athour is a general practitioner. The Complaint arises out of Dr Athour s treatment of 14 patients, who were heroin addicts, with rapid opioid detoxification. He performed the procedure in the patients homes, usually on Saturdays, with members of the patient s family attending as support persons. On one occasion he performed the procedure in a hotel room. The Tribunal is to first determine whether Dr Athour is guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal s findings in relation to these issues are set out in these Reasons. The matter has been listed for further hearing on 4 March 2014 for submissions from the parties in relation to the appropriate protective Orders. What is rapid opioid detoxification? Professor Saunders, who is a highly experienced consultant physician in Internal Medicine and Addiction Medicine, defined detoxification as the process by which a person decreases his or her use of an addictive drug in a supervised manner so that the withdrawal syndrome is minimised. He described two procedures. The first type of detoxification is standard opioid detoxification. The patient ceases use of an opioid drug under supervision. The withdrawal syndrome starts 6 to 24 hours later. The symptoms increase in severity over time, usually finishing after around five days if the patient is addicted to heroin. The patient is given medication to suppress and alleviate the symptoms, which are similar to a moderate bout of the flu together with anxiety, depression and a craving for the opioid drug. While the procedure is an unpleasant experience it rarely causes severe illness and is virtually never life threatening. The second type is rapid opioid detoxification which is designed to shorten the withdrawal period to between 24 and 48 hours. An opioid antagonist is administered to precipitate the withdrawal. The symptoms are significantly more severe than those caused by the first type of detoxification. Patients can become very hypertensive and there can be profuse vomiting, diarrhoea and abdominal pain. Drugs are administered to suppress these reactions. During the procedure undertaken by Dr Athour, a Naltrexone implant was inserted through an incision into the abdomen for ongoing relapse prevention. There are well-recognised complications from rapid opioid detoxification including cerebral oedema causing acute confusion and delirium, dehydration and electrolyte disturbance. Acute
hospitalisation may be required for complications such as encephalopathy, cardiac arrhythmias and renal failure. There have been a number of deaths due to rapid opioid detoxification in New South Wales. The Complaint The Health Care Complaints Commission says that: Dr Athour treated the 14 patients without having adequate training, knowledge or experience. This was a breach of the NSW Medical Board s Code of Professional Conduct (the NSW Code of Conduct) and the Medical Board of Australia s Code of Conduct for Doctors in Australia (the National Code of Conduct). Dr Athour admits this Particular in relation to 13 of the patients. In relation to Patient L he disputes the date on which the rapid opioid detoxification occurred. Dr Athour admits that the treatment was a breach of the Codes of Conduct. (Particulars I and 2) Dr Athour provided rapid opioid detoxification to the patients in unlicensed premises. Dr Athour admits this Particular. (Particular 3) Dr Athour failed to ensure there was an appropriate level of care available to each of the patients in the event of a severe reaction, including: (a) access to basic resuscitation equipment; (b)the capacity to retain a patient in in-patient care overnight. This was also a breach of the NSW Health Rapid Detoxification From Opioids - 2005 Guidelines (the ROD Guidelines). Dr Athour admits these Particulars. (Particulars 4 and 5) Dr Athour failed to ensure that each of the patients had been opiold free for at least 48 hours prior to initiating rapid opioid detoxification. This was also a breach of the ROD Guidelines. Dr Athour admits these Particulars. (Particulars 6 and 7) 3
. Dr Athour failed to undertake and/or record a detailed assessment of the drug and alcohol use history of the patients prior to undergoing the detoxification. This was also a breach of the ROD Guidelines. Dr Athour admits these Particulars. (Particulars 8 and 9). Dr Athour failed to obtain and/or record a detailed medical and psychiatric history in relation to each of the patients. This was also a breach of the ROD Guidelines. Dr Athour admits these Particulars. (Particulars 10 and 11). Dr Athour failed to adequately medically assess each of the patients for contraindications to rapid opioid detoxification including: (a) cardiac disease; (b)chronic renal impairment; (c) decompensated liver disease; (d)current dependence on benzodiazepines, alcohol or stimulants; (e)history of psychosis; This was also a breach of the ROD Guidelines. Dr Athour denies some of these Particulars. (Particulars 12 and 13). Dr Athour noted in one of the patient s records that the patient suffered from epilepsy. He provided rapid opioid detoxification without: (a) ascertaining and/or recording any information regarding recency of seizures; (b)undertaking research regarding safety of rapid opioid detoxification in epileptic patients and/or failing to record the results of such research; (c) seeking advice regarding safety of rapid opioid detoxification in epileptic patients from specialists in the area of addiction medicine and/or failing to record the results of such enquiries. Dr Athour admits this Particular. (Particular 14). Dr Athour failed to conduct or refer any of the patients for a psychological assessment prior to administering rapid opioid detoxification treatment. This breached the ROD Guidelines. 4
Dr Athour denies that he failed to conduct a psychological assessment of the patients prior to administering rapid opioid detoxification but admits that he did not refer any of the patients for psychological assessment and admits that his conduct was a breach of the Guidelines. (Particulars 15 and 16). Dr Athour failed to conduct or refer any of the patients for a psychosocial assessment prior to administering rapid opioid detoxification treatment to assess the following: (a)why the patient has presented for treatment; (b)the patient s level of motivation and commitment to abstinence; (c) current circumstances including employment and living circumstances; (d)social and emotional supports. This was a breach of the Guidelines. Dr Athour admits that he did not refer any of the patients for a psychosocial assessment and admits that he breached the ROD Guidelines. (Particulars 17 and 18). Dr Athour failed to obtain informed consent from any of the patients in relation to undergoing rapid opioid detoxification by failing to and/or record the following: (a)provide a careful explanation of what is involved including the risks; (b)advise the patient that use of Naltrexone in detoxification is off indication; (c) provide the patient with written information regarding the treatment; (d) discuss alternative treatment options; (e)obtain signed consent from the patient. This was a breach of the ROD Guidelines, the NSW Code of Conduct in respect of one of the patients and a breach of the National Code of Conduct in respect of the rest of the patients. Dr Athour admits the Particular except that he denies that he failed to (a) explain to patients what was involved in rapid opioid detoxification including the risks and (d) discuss alternative treatment options. Dr Athour admits he breached the ROD Guidelines and Codes of Conduct. (Particulars 19 and 20). Dr Athour failed to provide adequate psychological counselling and psychosocial support to each of the patients following their procedures. Dr Athour admits this Particular. (Particular 21) 5
. Dr Athour failed to provide adequate follow-up care including post-withdrawal management options to all of the patients following their procedures. Dr Athour admits this Particular. (Particular 22). Dr Athour failed to make and/or maintain adequate clinical records for all of the patients with respect to: (a) medical and psychiatric history (b)drug and alcohol use history (c) medical assessment (d)psychological and psychosocial assessment (e)any clinical opinion reached by the practitioner (f) plan of treatment (g)nature of treatment. This contravened the relevant Regulations and Codes of Conduct. Dr Athour admits these Particulars. (Particulars 23 and 24). Dr Athour failed to make any record in his clinical notes for consultations where a Medicare claim was processed, as follows: (a)consultations on 11 July 2010, 20 May 2011, 31 May 2011, 7 June 2011 and 21 June 2011 in respect of Patient K (b)consultations on 31 July 2010 and 1 August 2010 in respect of Patient L. (C) consultation on 6 August 2010 in respect of Patient M. That conduct contravened the HPR Regulation and the National Code of Conduct. Dr Athour denied these Particulars (Particulars 25 and 26). Dr Athour failed to obtain approval under the Special Access Scheme (SAS) in accordance with s19 of the Therapeutic Goods Act 1989 (Commonwealth) to use Naltrexone implants in the treatment of all of the patients. Dr Athour admits this Particular. (Particular 27)
Dr Athour inappropriately prescribed MS Contin without the proper authority to drug dependent persons, contrary to s 28(3) of the Poisons and Therapeutic Goods Act 2008 (NSW) on five occasions. Dr Athour admits this Particular. (Particular 28) Resolving the Particulars which are denied by Dr Athour It is common ground that the onus of proof on the balance of probabilities is on the Health Care Complaints Commission. However in making factual findings the Tribunal has had regard to the following: "The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the Tribunal". Briginshaw v Briginshaw (1938) 60 CLR at 362. Particular 1 There is an issue as to the date on which Patient L underwent rapid opioid detoxification. Dr Athour said it occurred on 28 July 2010 (his first statement), 31 July 2010 (his cross examination) and I August 2010 (his second statement). In circumstances where the Complaint says "on or about... 28 July 2010" the Tribunal finds Particular 1 has been proven. Particulars 12 and 13 Dr Athour does not fully admit that he failed to adequately medically assess each of the patients for contraindications to rapid opioid detoxification including: (a) cardiac disease; (b)chronic renal impairment; (c) decompensated liver disease; (d)current dependence on benzodiazepines, alcohol or stimulants; (e)history of psychosis; In relation to (a) cardiac disease, Dr Athour agrees he failed to require any of the patients to undergo an ECG which was necessary to make an adequate medical assessment. 7
In relation to investigating whether the patients had (b) renal impairment or (c) decompensated liver disease, Dr Athour concedes that an adequate medical assessment required a blood test and says that this was done in relation to Patients G and J. He concedes that he failed to adequately medically assess the other patients in relation to these conditions. The Tribunal finds that Dr Athour did adequately medically assess those two patients in respect of those two conditions. In relation to (d) current dependence on benzodiazepine, alcohol and stimulants, Dr Athour admits that he did not make an adequate assessment in relation to benzodiazepines. Dr Athour does not admit that he did not make an adequate assessment of the patients current dependence on alcohol or stimulants. Counsel for Dr Athour referred to the medical records of Patient H. The history taken five days before the procedure includes "Currently using heroin I gram iv. Has been using six month. Denies using any other drugs. Smokes IO/d Etoh Nil" which was a reference to alcohol being nil. Counsel for the Health Care Complaints Commission did not refer to the individual records of the 14 patients. It was his submission that asking each patient was not sufficient - Dr Athour should have attempted to verify the information he was given by each patient. The Tribunal is satisfied that the taking of the history from the patient in relation to alcohol and stimulants is an adequate assessment. Dr Athour says that he did adequately medically assess each of the patients in relation to (e) history of psychosis. He asked the patients whether they had any psychological or psychiatric history, any admissions to a hospital for the treatment of psychiatric issues and/or any history of depression or schizophrenia. There is no evidence from any of the patients before the Tribunal. In relation to (e), counsel for the Health Care Complaints Commission submitted that Dr Athour should have sought to verify the history he was given by speaking to any other treating practitioner. This submission was not supported by references to the records of any patient showing that Dr Athour was informed of the identity of other treating practitioners. The Tribunal is not satisfied that the Health Care Complaints Commission has established any of the Particulars which were not admitted by Dr Athour. []
Particular 15 Dr Athour admits that he did not refer any of the patients for a psychological assessment before administering rapid opioid detoxification. He says that he conducted the psychological assessment of each patient himself by asking each patient whether they had any psychological or psychiatric history, whether they had had any admissions to hospital for psychiatric issues and whether they had a history of depression or schizophrenia. The Tribunal finds that this does not amount to an adequate psychological assessment which is required before undertaking rapid opioid detoxification. Dr Athour does not have any qualifications in psychology or psychiatry nor did he give evidence of having any particular expertise in conducting psychological assessments. He did not use any written document or any standard test. As discussed further below, in 2008 Dr Athour worked at Psych n Soul (a drug and alcohol treatment centre) performing rapid opioid detoxification where the two hour assessment was undertaken by a psychologist. The whole assessment, including the questions about these issues, undertaken by Dr Athour took 20 minutes. The potential risks to a patient suffering from a significant psychiatric disorder are discussed further below. The Tribunal finds that Particular 15 has been proven. Particular 19 Dr Athour denies that he failed to obtain informed consent from any of the patients in relation to undergoing rapid opioid detoxification by failing to record and/or: (a) provide a careful explanation of what is involved including the risks; (d) discuss alternative treatment options. Dr Athour did give evidence of some of the risks discussed with the patients. However the Tribunal is satisfied that Dr Athour did not appreciate all of the risks attached to performing the procedure at a person s home and could not have explained them to the patients nor obtain their informed consent to those risks. In relation to alternative treatment options, Dr Athour said he asked the patients why they wanted to undergo rapid opioid detoxification. Usually they told him they wanted to go overseas and did not want to be using drugs, or they were dissatisfied with spending years on the Methadone program being unable to work or they did not want to attend each day or second day at a clinic or
pharmacy to obtain their Methadone dose or they wanted a rapid solution to their drug use. There is no evidence of a detailed discussion of the advantages and disadvantages of all of the alternative treatment options It is common ground that Dr Athour did not record any of these matters in the patients notes. The Tribunal finds that Particular 19 has been proven. Particulars 25 and 26 Dr Athour says that he did make a record in his clinical notes in relation to each of the consultations detailed in Particular 25. Counsel for the Health Care Complaints Commission conceded that there was an entry in the computer records of the Plus 1 Medical Centre (where Dr Athour was working at the time) for most of the dates. In relation to the other dates, the Tribunal is satisfied that there is a written document and that the written documents are a record in the relevant clinical notes. The Tribunal finds that these Particulars have not been proven. Factual Findings In addition to the findings set out above, the Tribunal finds that the Health Care Complaints Commission has established those Particulars which have been admitted by Dr Athour. Risks Dr Athour was born in Turkey and is 56 years of age. In 1987 he graduated in Germany with an MBBS. He worked in Europe until he migrated to Australia in 1988. In 1996 Dr Athour obtained registration as a medical practitioner in New South Wales. Dr Athour is not vocationally registered. He has worked in various positions as a general practitioner In 2007 Dr Athour commenced working at the Plus I Medical Centre which is a general practice. He saw the 14 patients at this practice before he undertook each of their procedures. 10
In 2007 Dr Athour also commenced working at the Barbara Street Clinic, which is an Opioid Substitution Clinic. He exclusively works with pharmacotherapy patients requiring initiation or maintenance on methadone or buprenorphine. Dr Athour s training and experience in addiction medicine, at the time he performed the procedures the subject of this Complaint, was the following: attending a one day Methadone Prescribers course in 2003 at Westmead Hospital. As has already been noted, in 2008 Dr Athour worked at Psych n Soul for 4 months performing rapid opioid detoxification one day a week. He was trained by Dr Tan whom he was replacing at the practice. The patients had been assessed by others as being suitable to undergo the procedure. Dr Athour only undertook the final medical assessment and then performed the procedure on three patients a day. Dr Tan explained the procedure to him, he observed Dr Tan performing a number of procedures and Dr Tan observed him performing procedures. He cannot remember being told about or shown any policy or procedure manuals. Relevantly for these proceedings Dr Athour says that Dr Tan told him that patients undergoing rapid opioid detoxification were required to be abstinent from drugs for a period of 12 hours before the procedure, rather than the 48 hours required by the Guidelines. In addition Dr Tan used Naltrexone implants so he had assumed the implants had been approved for use. The Tribunal is satisfied that Dr Athour s conduct raises the following concerns: There is no evidence of Dr Athour taking any meaningful steps to ensure that he had any real understanding of the rapid opioid detoxification procedure and the risks associated with undertaking the procedure. Professor Saunders has given evidence, which we accept, that there would have been a lot of information available to Dr Athour both in the professional literature and in government guidelines. There was a real risk of serious and potentially fatal complications so that the practice of carrying out the procedure in a family home or hotel room was inappropriate and dangerous. As Dr Athour concedes the procedure should be done in an environment where there is access to basic resuscitation equipment and the capacity for the patient to remain in inpatient care overnight. In addition, after Dr Athour left, there was no qualified person monitoring the progress of each of the patients. This would include taking the patient s pulse, blood pressure and respiratory rate and using the opioid withdrawal rating scales. 11
There was also the risk of distress to that family member at seeing the symptoms experienced by the patient. Dr Athour failed to ensure that each of the patients had been opioid free for at least 48 hours prior to initiating rapid opioid detoxification. Professor Saunders said that the severity of the withdrawal syndrome would be less if the person had been opiold free for at least 48 hours. The Guidelines state "Failure to observe these intervals can lead to severe withdrawal reactions and other serious complications. It is not acceptable to compromise safety in the hope of a good outcome." Dr Athour did take a short history from at least some of the patients before the procedure. He said he spent 20 minutes with each patient. The Guidelines set out best practice for a comprehensive assessment. It is clear that Dr Athour s usual practice fell well short of these requirements. In addition to the matters already discussed he did not develop a treatment plan. He did not take a sufficient history to exclude those patients for whom rapid opioid detoxification was contraindicated - for example his failure to undertake an adequate psychological assessment and past psychiatric assessment meant that he could not exclude a patient with a significant psychiatric history. Such patients were not appropriate candidates for rapid opiold detoxification because in the detoxification process some patients become very anxious and very depressed. They may also become depressed as a result of Naltrexone treatment. That risk should not be imposed on a person who has a history of depression, bipolar disorder or other significant psychiatric disorder. Dr Athour provided rapid opioid detoxification to a patient with epilepsy without undertaking research regarding the safety of the procedure in epileptic patients and he did not seek advice regarding the safety of rapid opiold detoxification in epileptic patients from specialists in the area of addiction medicine. Professor Saunders expressed concerns about the procedure being administered on a patient with a history of epilepsy. Dr Athour admits that he did not refer any of the patients for a psychosocial assessment before undertaking the procedure. The Guidelines provide that a relative contraindication for rapid oploid detoxification is unstable social circumstances. The Guidelines state that a patient who is homeless or in highly unstable social circumstances requires a comprehensive plan to stabilise his or her circumstances before the procedure is undertaken. 12
Dr Athour failed to provide adequate follow-up care including post-withdrawal management options to all of the patients following their procedures. The Guidelines provide that vigorous attempts to follow patients are indicated after rapid opioid detoxification. Generally patients should be seen daily for three days then at weekly intervals. The aftercare should include medical monitoring and counselling. None of the patients were provided with this level of care. Dr Athour s inexperience and lack of training meant that he was unaware that he needed to obtain approval under the Special Access Scheme to use Naltrexone implants in the treatment of all of the patients. Dr Athour s inexperience and lack of training meant that he inappropriately prescribed MS Contin without the proper authority to drug dependent persons on five occasions. Unsatisfactory professional conduct Dr Athour admits that he is guilty of unsatisfactory professional conduct. The Health Care Complaints Commission says that Dr Athour is guilty of unsatisfactory professional conduct under s 139B (1) (a), (b), (c) and (I) of the National Law in that he has engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Health Care Complaints Commission did not press the final ground - that Dr Athour engaged in improper or unethical conduct relating to the practice or purported practice of medicine. The Tribunal has made findings as to the conduct of Dr Athour, the errors in his skills, judgement and care which are demonstrated by that conduct and the significant risks to the health and safety of the patients that were created by his conduct. The Tribunal is satisfied that Dr Athour engaged in conduct which demonstrated that his knowledge and judgement in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal finds that Dr Athour is guilty of unsatisfactory professional conduct. 13
Professional misconduct Dr Athour admits that he is guilty of professional misconduct. The Health Care Complaints Commission says that Dr Athour is guilty of professional misconduct under section 139E of the National Law in that h practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner s registration; and/or (j) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner s registration. The Tribunal is satisfied that Dr Athour engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The Tribunal finds that Dr Athour s conduct amounts to professional misconduct. 14
Medical Tribunal of New South Wales Health Care Complaints Commission and Dr Zeitoun Athour Matter No: 40033 of 2012 Dr Esther Kok Member Dr Glenys Dore Member ~9T -C- Dr A Glass, PhD Member A Balla DCJ. Deputy Chair