As outlined above, on 14 December 2016 Dr Lucire wrote to the NSW Mental Health Review Tribunal requesting that Patient A's community treatment order be suspended "on the basis that [Patient A] is now well, is no longer a mentally ill person, and probably was not a mentally ill person at the time that she was hospitalised". She added that Patient A "has never suffered from a delusion". Dr Lucire explained that "[Patient A] consulted me because she was suffering serious adverse drug reactions to 300mg of Abilify, injected monthly, enforced by an order of the Mental Health Review Tribunal".
[2]
Complaint 1.3(a)
This particular is that Dr Lucire changed Patient A's diagnosis "without first sufficiently informing herself of Patient A's psychiatric history by speaking to her previous treating doctors and/or reviewing Patient A's medical records". Apart from the unsuccessful efforts to contact Dr Adey, who had retired, there is no evidence that Dr Lucire attempted to contact any other previous treating psychiatrists before 14 December 2016. There is some dispute about the efforts Dr Lucire made to obtain and review Patient A's medical records. On 6 September 2016, about two weeks after the first consultation, Dr Lucire requested Patient A's records from Hornsby Hospital. On 27 September 2016, Dr Lucire told Person C that:
At the moment I'm still waiting for the clinical records so I can study them very closely.
Dr Lucire says she did not receive anything from Hornsby Hospital until the end of January 2017. However, the evidence suggests that on 20 September 2016 Dr Lucire did receive a discharge summary from the Community Mental Health Service associated with Hornsby Hospital and limited prescribing records. That evidence includes a "Consent Form" requesting access to Patient A's medical records. Below Patient A's signature and address on the consent form is the date "5/9/2016" which Dr Lucire says is the correct date. However, Dr Lucire has signed as a witness and written the date "5/8/2016". That date is obviously incorrect because Dr Lucire did not see Patient A until 22 August 2016. In handwriting, which Dr Lucire says is not hers, "on 20.09.16" is written in the middle of the form. Dr Lucire denied that this was the date she received those records. She said she requested them on that date. Then she said, "You will have to ask my secretary. I didn't receive anything on 20 September 2016."
Dr Lucire's denial that she received anything from Hornsby Hospital before the end of January 2017 is also inconsistent with a letter from the hospital dated 12 January 2017. A complete copy of the records was sent with that letter. Confidential information about third parties was redacted. The author of the letter apologised for the "delay from your original request in forwarding the entire patient medical record and any inconvenience". That statement suggests that part of the records had been sent previously.
On 31 January 2017, nineteen days after the date of the letter from Hornsby Hospital referred to above, Dr Lucire received another letter from Hornsby Hospital. That letter stated that on 15 September 2016 Dr Lucire had faxed a letter seeking access to Patient A's records. The letter went on to say that on 20 September 2016 a copy of Patient A's Discharge Referral and Mental Health Assessment documents was sent to Dr Lucire. That date coincides with the handwritten date on the consent form. We find that Dr Lucire did receive those records on 20 September 2016, but that she does not recall that happening. We also find that Dr Lucire received further records on or about 12 January 2017, not on 30 or 31 January 2016 as she asserts.
Dr Lucire also requested records from two Melbourne hospitals, St Vincent's and Broadmeadows. However, as of 14 December 2016, she did not have those records. On 15 March 2017, Dr Lucire wrote to St Vincent's Hospital in Melbourne requesting medical records relating to Patient A's emergency admission in 2015.
Patient A's clinical notes from the time she lived in Victoria were not in evidence. Nevertheless, the Commission submits that "there are numerous references in the Hornsby Hospital notes to the clinicians there being aware of her history and having seen some material". Dr Lucire challenged that statement saying the references have not been identified. We agree that these references were not identified before the hearing and we have not assumed that Dr Lucire was aware of them.
Dr Lucire did not request Patient A's Medicare and PBS records until 26 May 2017. She received that material more than six months later, on 14 December 2017. Those records covered the period 1 January 2013 to 1 December 2016. Dr Lucire accepts that she received the Medicare records on time but says that she had to ask for the PBS records three times.
In the Commission's view, this history demonstrates the extent to which Dr Lucire was prepared to express strong clinical views without sufficiently informing herself of Patient A's psychiatric history. As of 14 December 2016, when Dr Lucire changed Patient A's diagnosis, she only had the Discharge Referral and Mental Health Assessment documents from Hornsby Hospital. However, looking back, she says she was not aware that she had those documents. We find that Dr Lucire formed the relevant opinion without first sufficiently informing herself as to Patient A's psychiatric history or reviewing her medical records. The factual basis of Complaint 1.3 is proven.
[3]
Expert evidence
We have concluded above that we need to assess Dr Slaughter's evidence carefully because of the risk that he had a conflict of interest and his opinions may not be objective. Two opinions in particular were closely scrutinised. The first is his opinion that Dr Lucire was "dishonest" in one respect and the second relates to his opinion that certain views Dr Lucire holds are "scientifically unacceptable".
In report 3.1 Dr Slaughter quoted the following passage from an email Dr Lucire sent to Patient A's daughter, Person C, (copy to Drs Noonan and Collins) dated 12 September 2016:
Please note that I do not deny that your mother is manic depressive with degrees of psychotic mania and psychotic depression and some people call that schizoaffective and that when she is unwell she is delusional and I have no doubt that she overspends.
In Report 3.1 Dr Slaughter expressed the following opinion in relation to that email:
I can only interpret this as a statement to the two doctors Noonan and Collins that she has known all the time that [Patient A] has suffered a chronic relapsing psychotic illness. I am of the opinion that Dr Lucire went to significant lengths, some dishonest, to conceal this because of her scientifically unacceptable views about anti-psychotic medications especially the more recent ones. (Emphasis added.)
The Commission does not rely on Dr Slaughter's opinion expressed in Report 3.1, that Dr Lucire went to considerable lengths to conceal a supposed belief or knowledge that Patient A had suffered a chronic relapsing psychotic illness. Dr Lucire wrote to Person C saying that she did not deny that her mother had, what some people call "schizoaffective" disorder. However, in the Commission's submission, she was not being dishonest when expressing that view. That is because the opinion was expressed only 20 days after Dr Lucire started treating Patient A. Even if that was her view then, she did not maintain that opinion. For example, when asked by the Medical Council delegates at the s 150 hearing whether the doctors who diagnosed schizophrenia were wrong, Dr Lucire said:
I've no doubt other people have made many diagnoses, but I think I've got the diagnosis right. I think the hypothymic personality explains an awful lot of it, and I think hypothymic personality plus adverse drug reactions to thyroxine, her steroids and other drug are to be considered.
In her outline of evidence to the Tribunal dated 20 July 2021 at [74], Dr Lucire expressed the view that Patient A did not exhibit symptoms of schizophrenia "or anything like it". Dr Lucire said that she and Patient A agreed that she had a hyperthermic temperament, which accounted for her unusual presentation and optimistic mood. In her view, Patient A remained ill with the adverse effects of Abilify which included peptic ulcers, eye pain, chest pain, exacerbations of psoriatic arthritis, body pain and unrelated large bowel polyps. She continued:
During the year that Patient A was under my care, I interviewed her in detail and found out that she had not ever suffered from schizophrenia or schizoaffective disorder or bipolar mania but from depression with psychotic symptoms which has to be excluded before a diagnosis of schizophrenia can be made. She was repeatedly accused of "lacking insight". However, that phrase is a red flag. It means that the patient and the doctor disagree about what is wrong with the patient. The doctor, in a position of power, blames the patient for lacking insight. It is possible for doctors to be wrong, even en masse.
We are unable to form a view as to why Dr Lucire expressed a contrary opinion in the 12 September 2016 email to Person C, but agree with the Commission that it does not necessarily suggest that she was being dishonest.
Dr Slaughter was also questioned about his opinion that Dr Lucire's views were "scientifically unacceptable". He was directed to the 23 August 2016 letter Dr Lucire wrote to Patient A's GP, Dr Elliot. Dr Slaughter volunteered that the basis for his opinion had come from information on Patient A held by the Hornsby Hospital and Manly Hospital. However, on reflection he again identified the 23 August 2016 letter as the source of that opinion.
Dr Slaughter agreed that Dr Lucire's view that Abilify can have side effects, is not unscientific. Insomnia and nausea can be side effects of Abilify, but he was not sure about eye pain. He agreed that it would be appropriate to investigate further if a patient reported the same list of side effects that Patient A had reported. When asked what was in the letter that disclosed an unscientific view, Dr Slaughter said he could not answer. Given that evidence, we give no weight to Dr Slaughter's opinion that Dr Lucire's views were "scientifically unacceptable". However, there is ample evidence, including from Dr Jeyasingam, that Dr Lucire's views on atypical antipsychotic medications were inconsistent with mainstream psychiatric literature. That is also our view.
Dr Slaughter's evidence that relates specifically to Complaint 1.3, is that Dr Lucire's diagnosis differs in a major way from the previous diagnosis of a Chronic Psychotic Illness with acute relapses when the patient has ceased medication. The diagnosis had been Schizophrenic Affective Disorder and Mania. With adequate treatment, Patient A returns to reasonable mental health but then begins to fail when she ceases taking the anti-psychotic medication. According to Dr Slaughter, these historical diagnoses are wholly inconsistent with Dr Lucire's opinion that Patient A had never suffered a psychotic illness or paranoid illness of the schizophrenic group.
In Report 3.1, Dr Slaughter stated that:
Medical practitioners, in this case Psychiatrist, have the professional right and professional responsibility to formulate their own diagnosis but these days it is nearly always using the DSM description. She has not complied with this. It is also dangerous to make a diagnosis without adequate justification or argument that is so opposed to an accepted diagnosis by a number of specialist practitioners and where subsequent treatment actions have shown improvement in the patient's mental state.
In addition it is important for the doctor to reflect on the recorded facts that ceasing these treatments for whatever reason is followed by relapse of the patient's symptoms.
I don't believe that Dr Lucire was in a position to make such a radical diagnosis from just obtaining a history from the patient, dismissing old history, other doctors' observations and those of the patient's own daughter but rather blame the patient's condition on the multiple side effects (some rare) that had been ascribed to modern medication.
Dr Slaughter elaborates on that opinion noting that "all medications . . . have side effects" but Hornsby Hospital attended to those as best they could. He went on:
My opinion is what Dr Lucire has termed iatrogenic symptoms was really that [Patient A] has a psychotic illness with an array of symptoms that Dr Lucire explained as being caused by the treating medications, that is she really never had a psychiatric illness only a variant of personality make up. I cannot agree with this i.e. damaged by psychiatric medications.
Dr Ryan sought to identify clear instances of documented hallucinations or delusions in the clinical records, but he could not find much information about the content of the delusions. Dr Ryan expressed the following opinion based on "the medical records that Dr Lucire examined":
. . . it was not unreasonable for her to come to the view, based on her own observations and other sources of information, that [Patient A] had never suffered delusions or hallucinations. On that basis, in my opinion, it was not unreasonable for her to come to the view that her prior diagnoses of schizophrenia, schizoaffective disorder or bipolar disorder may have been in error.
The fact that the records do not contain a specific description of the nature of the delusion does not mean that Patient A was not experiencing delusional thoughts. In our view, it was unreasonable for Dr Lucire to conclude that Patient A had never suffered delusions or hallucinations. She did not refer to the instances of delusions and hallucinations being recorded in the hospital notes and she did not speak with any previous psychiatrists.
Dr Ryan also made the point that, "to go further and say 'Oh, there's no evidence at all that she had schizophrenia', that seems to me to be overstating it". In that respect, Dr Ryan appears to be agreeing with Dr Slaughter.
Dr Ryan did not know of any exacerbation of psoriasis by an antipsychotic, that eye pain seemed to be an unlikely effect of an antipsychotic, that while it was conceivable that one could have a side effect that was interpreted as weakness of the muscles, "it wouldn't cause weakness of the muscles exactly" and he did not know of any antipsychotic that causes ear, face and scalp itching.
We accept the Commission's submission that Dr Lucire did not have sufficient information available to her to form the view, as early as 14 December 2016, that Patient A did not suffer from a psychotic illness or paranoid illness of the schizophrenic group, or that she should never have been diagnosed with a mental illness. The factual basis of Complaint 1.3 is proven.
[4]
Findings as to unsatisfactory professional conduct
When changing a diagnosis, especially where that diagnosis has been long standing, it is good medical practice to obtain as much relevant information as practicable. That information includes both the information contained in medical records and information obtained from speaking with previous treating doctors. It is relevant to note that Dr Lucire's experience at the time included the understanding that, at times, it may be relevant to contact another practitioner before altering a patient's diagnosis. That learning comes from the fact that, on 18 September 2008, a condition was imposed on Dr Lucire's registration. The condition was that she attend a senior psychiatrist to take advice on, among other things, the need for dialogue with the treating doctors before altering a patient's diagnosis and treatment.
As of 14 December 2016, when Dr Lucire changed Patient A's diagnosis to hyperthymic personality style with anxiety and depression, she had not spoken to previous treating doctors. She had Patient A's Discharge Referral and Mental Health Assessment documents from Hornsby Hospital, but had not reviewed any of Patient A's other medical records.
This particular is not about the correctness or otherwise of the diagnosis, but about the information on which a change of diagnosis should be based.
Apart from the opinions of expert witness and the professional members of the Tribunal's panel as to the appropriate standard of conduct, codes of conduct provide a guide. Good Medical Practice: A Code of conduct for Doctors in Australia, March 2014 states at 2.2.6 that:
Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:
Providing treatment options based on the best available information.
After between 6 and 10 appointments, Dr Lucire changed Patient A's diagnosis. Before taking such a significant step in relation to a new patient with a long history of mental illness, it is good medical practice to sufficiently inform oneself of the patient's psychiatric history. Dr Lucire did not do so. That conduct is significantly below the relevant standard. It is also improper in the sense that it is abnormal and irregular.
While those conclusions alone support a finding of unsatisfactory professional conduct, we also find this conduct to be unethical. Although it does not directly breach any code of conduct, in our view it is nevertheless unethical.
Complaint 1.3(a) is proven.
[5]
Complaint 1.3(b)
The factual elements of Complaint 1.3(b) are that Dr Lucire changed Patient A's diagnosis by inappropriately discounting or dismissing the psychiatric history of Patient A communicated to her by Person C and documented by her previous treating practitioners.
In September 2016, just a few weeks after first seeing Patient A, Dr Lucire initiated email contact with Person C. Person C wrote to Dr Lucire on 12 September 2016 outlining her understanding of her mother's psychiatric history:
I've witnessed my mother's unusual (at best, eccentric) behaviour my whole life. For the most part, however, she's been loving and caring and we've had a close relationship. But she deteriorated in 2013/14 to such an extent that she became completely unreasonable, illogical in her thinking and decision making, unpredictable, impossible to talk to, aggressive, manic, paranoid, unkempt (in stark contrast to her usual immaculate physical appearance), obsessed with her physical ailments and emotionally detached from my brother and me (again, in contrast to her usual loving nature). It's in this period of time that she moved house twice, spent what remained of her savings and otherwise acted erratically. Trying to help her has been an emotional and financial nightmare for me and the rest of the family. You can understand why I might feel anxious and worried about my mother not being on any medication and what state of crisis she might fall into again without ongoing care.
When asked about her reaction to Person C's email, Dr Lucire said that it demonstrated that Person C was not prepared to accept her mother's experiences. Dr Lucire admits that she discounted the significance of Person C's views.
In an email to Person C dated 12 September 2016, Dr Lucire responded to Person C's concerns about her mother's mental health:
Please note that I do not deny that your mother is manic depressive with episodes of psychotic mania and psychotic depression and some people call that to schizoaffective and that when she is unwell, she is delusional and I have no doubt that she overspends. I just didn't want to put it in that harsh way in my report because I think that she should have my report So that she does not have to repeat her experiences with medicines that did not agree with her and I think the code words are more kindly. We do not disagree that she has a serious condition. Your mother has different notions about causation and who knows she might be right up to a point because we do not know the vulnerability factors that cause some people to become psychotic under stress while others tolerate it better. However we do know the vulnerability factors for adverse drug reactions. . . .
However the new drugs are fraudulent and fraudulently promoted in Australia. Google Zyprexa fraud and RISPERDAL fraud and you will see that they are fraudulently promoted and did not do nearly as well in the clinical trials as their proponents here suggest. The fact that she has certain problems with Abilify that she has had for some time does not surprise me. She's been on a number of medications which have pretty much identical side-effects in some people or if they are given into (sic) high doses. The idea of making people better demands that you don't make them worse, that you don't change a mental illness into a neuroleptic psychosis and that you don't give them doses that harm them physically and harm their physical health.
On 12 September 2016 at 3.56 pm, Person C replied to a lengthy email from Dr Lucire saying, in part:
The symptoms you describe on page 7 cannot, I think, be side effects of Abilify. She has been complaining to me of those symptoms since 2013/14. In early 2015, I did indeed spend some time in Sydney trying to find specialists to diagnose and treat those symptoms.
It follows that by 12 September 2016, Dr Lucire was aware of Person C's observation that her mother had been exhibiting the symptoms that Dr Lucire ascribed to Abilify as early as 2013/2014. Dr Lucire suspected that Patient A's course of care had been determined based on unreliable representations by her daughter, Person C, regarding her medical history.
On 27 September 2016 Dr Lucire wrote to Person C, saying, in part:
Your mother ran away and moved out of the Hornsby area in order to escape the community treatment order because she found the injected Abilify to be intolerable and it gave her all sorts of symptoms face pain, angina, insomnia when injected. Since she did not get that injection, she has felt a lot better.
On 4 October 2016 Person C informed Dr Lucire that, "I do not know that [Patient A] has had periods of no medication; my understanding is that she was required to stay on "maintenance dose" of something like Orap for the rest of her life. Dr Adey and Dr Ingram will be able to provide more information about this." In a further email to Person C dated 4 October 2016, Dr Lucire wrote that, "unfortunately the situation with bipolar is that episodes cannot be prevented" and that "since we started preventing it, we have increased the number of illnesses each year''. Dr Lucire also submits that there were reasons to suspect that Person C was not acting in Patient A's best interests.
[6]
Expert evidence
Dr Ryan was not asked to express a view on this issue. Dr Slaughter was critical of Dr Lucire's failure to take Person C's account of her mother's history and symptoms into consideration.
[7]
Unsatisfactory professional conduct?
Counsel for Dr Lucire submits that there is insufficient evidence for the Tribunal to find that Person C communicated accurate information about her mother to various medical practitioners or that her motivation in doing so was altruistic. In those circumstances, Dr Lucire's suspicions about Person C and the accuracy of the information she gave to others were not unfounded. Counsel also submits that the Tribunal is not in a position to determine the trajectory of Patient A's medical history because the records available to the Tribunal are insufficient for that purpose.
The Commission's submission was that it was apparent from Dr Lucire's evidence that she formed a view about Person C based on what Patient A was telling her. She closed her mind or discounted important information provided by Person C that may well have been true. For example, Person C's communications cast doubt on Patient A's claim about new side effects, yet Dr Lucire confidently changed Patient A's diagnosis. Further, the Commission submitted that Dr Lucire's consistent contention appears to be that the only reason Patient A was treated for schizophrenia at St Vincent's Hospital, at Broadmeadows Hospital in Victoria and at Hornsby Hospital was because the clinicians involved accepted Person C's account of her mother's presentation and behaviour. In our view, the emails and records on the file of communications between Dr Lucire and Person C do not suggest that she did not have her mother's best interests in mind. Rather, they suggest to us that she was concerned for her mother's health and welfare and over many years.
When changing a person's diagnosis, especially where that diagnosis has been longstanding, it is good medical practice to obtain as much relevant information as practicable. That information includes the accounts of family members. Dr Lucire discounted and dismissed Person C's account. We acknowledge, however, that family members are not always reliable reporters and do not consider that discounting or disagreeing with the history as told by Person C is significantly below the relevant standard, nor is it improper or unethical conduct. Compliant 1.3(b) is not proven.
[8]
Complaint 1.3(c)
The factual elements of Complaint 1.3(c) are that Dr Lucire changed Patient A's diagnosis without conclusive clinical evidence and based on her own strongly held personal views about the side effects of anti-psychotic medications.
[9]
Background to Complaint 1.3(c)
Dr Jeyasingam, who had treated Patient A at Hornsby Hospital, was concerned when he received a copy of Dr Lucire's 23 August 2016 letter. In his view, her opinions appeared to be far outside the bounds of normal psychiatric approaches. He failed to see how prescribing a depot of Abilify to Patient A could be regarded as a "psychiatric emergency". Dr Jeyasingam summarised his concern in the following way:
My concern is that Dr Lucire's writing appears far out of the bounds of normal psychiatric approaches, and in seeing patients (particularly vulnerable patients like [Patient A] who has limited capacity to consent due to impaired insight into the nature of her condition and has had extremely lengthy hospital inpatient stays due to her difficult to treat illness), can adversely affect their engagement with treating teams and opportunities for sound psychiatric progress.
On the same day, Dr Jeyasingam complained about Dr Lucire to the Commission. In that letter, he listed the following concerns:
1. the issue that she is receiving community depot injections is a "psychiatric emergency";
2. Dr Lucire states "psychiatric diagnoses are simply descriptions of symptoms . . . they are not biologically determined";
3. she is against the use of atypical anti-psychotics in patients over the age of 65 for any reason;
4. there are endless rambling statements of an anti-pharmaceutical nature. "Not only has demand quadrupled, but there are huge numbers of people committing suicide while under health care . . . The pharmaceutical industry has taken over postgraduate medical education. . . these drug companies give huge sums of money to all the parties, except the Greens, for electoral funds";
5. she states that, in her 50 year career, she has only known three patients who required long term antipsychotic treatment;
6. she explicitly states the patient "did not need to stay on medication between episodes" without any justification;
7. she goes on to discuss antidepressant-induced akathisia for some reason, and ends with a 10 page extract from a paper she has written on "pharmacological iatrogenesis".
[10]
Dr Lucire's response to complaint 1.3(c)
Dr Lucire denies this particular. On 10 October 2016, she wrote to the Commission responding to the complaint initiated by Dr Jeyasingam. She characterised the complaint as a difference of medical opinion and accused Dr Jeyasingam of using "fraudulently promoted drugs" . . . "without knowing their side-effects".
Dr Lucire expressed concern that Dr Jeyasingam had prescribed 300mg of Abilify to be injected each month to a 45 kg woman with hypertension and a heart condition when that dose was appropriate for a young person weighing 100 kg. She admits that her views are strongly held and that she regards her peers as having little knowledge of the side effects of these drugs.
When questioned at the hearing about the nature of her concerns, Dr Lucire agreed that during the period of just over 12 months when she was seeing Patient A, she was concerned about other psychiatrists prescribing atypical anti-psychotic medication including aripiprazole (Abilify) and risperidone (Risperdal).
Dr Lucire supported her opinion that Patient A should not be taking anti-psychotic medication by referring to the manufacturer's warning in the USA product information for Abilify and her view that Patient A "has a long history of adverse drug reactions". The USA product information for Abilify is headed: "Warnings: Increased mortality in elderly patients with dementia-related psychosis and suicidality and antidepressant drugs". The warning included the following statement:
Elderly patients with dementia-related psychosis treated with antipsychotic drugs are at an increased risk of death.
Dr Lucire wrote in the 23 August 2016 letter to Dr Elliot that:
As a result of this warning, I have a strong and defensible position about enforcing atypical antipsychotic (or indeed antidepressants which have a similar mortality in people over 65), because atypical antipsychotics increase mortality by 70%. I think it is unethical.
Dr Lucire agreed that Patient A did not have dementia-related psychosis, but denied that it was misleading to suggest that Patient A had an increased risk of death. That denial is not credible. The warning in the product information is clear. Dr Lucire has deliberately misrepresented that warning. When it was put to Dr Lucire that she reached a provisional diagnosis without exploring other possibilities, Dr Lucire said she could only think of so many things at once. That response supports the allegation in Complaint 1.3(c) that Dr Lucire had strongly held personal views about the side effects of Abilify and that her mind was closed to other possibilities.
When questioned about the logic of attributing to Abilify various symptoms about which Patient A complained, Dr Lucire denied that any further investigation was necessary. However, she said that she did conduct some further investigations. Dr Lucire referred Patient A to an ophthalmologist for her eye symptoms many months after Patient A first saw her. In the letter to the ophthalmologist, Dr Lusthaus, dated 15 March 2017, Dr Lucire wrote that "she does not have a mental illness . . [she] was misdiagnosed on information from a third party and as a result, she had a five-month hospital admission . . . I am giving you a list of Aripiprazole side effects, and she has a lot of them. She has been having these side effects since it was first given to her".
Dr Lusthaus' view, expressed in a letter of 21 March 2017, was that:
[Patient A] has a history of Hashimoto's thyroiditis for which she is now taking Thyroxine treatment. I cannot see any evidence of thyroid eye disease on examination today. Her other past history includes psoriatic arthritis and some abdominal discomfort, which you suggest may be related to aripiprazole use in the past. [Patient A] believes that her eye condition is related to her abdominal condition but I have suggested that I do not see any link apart from the previous use of aripiprazole which may be causing both of her discomforts. (Emphasis added)
Dr Lusthaus diagnosed Patient A with "blepharitis" (inflammation of the eyelids) and dry eye. Dr Lusthaus did not express a definitive view that those conditions were caused by aripiprazole. The highest it can be put is that it may be a cause of Patient A's discomfort. That is not conclusive clinical evidence.
Dr Lusthaus' referral to Dr Wegman in respect of "gut issues and possible side effects of Movicol" is dated 4 April 2017, many months after Dr Lucire came to the opinion that first saw Patient A. Dr Wegman's opinion does not provide conclusive clinical evidence of any link between those issues and previous use of aripiprazole.
[11]
Dr Jeyasingam's evidence
Dr Jeyasingam wrote a report dated 30 July 2021 detailing his treatment of Patient A and the reasons for his diagnosis of schizo-affective disorder. In oral evidence, he said that his diagnosis was based on the fact that Patient A was responding to a mood stabiliser. However, he agreed that as Patient A did not seem to need a mood stabiliser, the diagnosis came back to Schizophrenia. Abilify, on its own, was sufficient to resolve her mental state. Her previous medication, risperidone, was not adequate. Dr Jeyasingam also stated that if she were not compliant with the medication, Patient A's mental health and social relationships would deteriorate significantly.
Dr Jeyasingam was required for cross-examination. These events occurred five years ago, so it is understandable that he had very little independent recollection of his interactions with Patient A or the precise circumstances in which he complained to the Commission. He readily agreed with factual propositions put to him that could be independently verified. He conceded that Patient A's records from Manly Hospital had not informed his decision to make a complaint or the content of that complaint, because Patient A was admitted to Manly Hospital after he made the complaint. Dr Jeyasingam's evidence was measured and credible. It does not reflect adversely on his motivation or credibility that he did not contact Dr Lucire before lodging the complaint.
Dr Jeyasingam was questioned about his statement that Dr Lucire's opinions appeared to be far outside the bounds of normal psychiatric approaches. He conceded that Dr Lucire's evaluation of the side effects of medication does not come within that description. However, in his view, the seven points he summarised in the complaint letter to the Commission demonstrate that this was the case. Dr Jeyasingam focused particularly on Dr Lucire's comment that in 50 years as a psychiatrist, she has only known of three patients who required long term antipsychotic treatment. That was not consistent with Dr Jeyasingam's experience.
Dr Jeyasingam agreed that, although he does not remember applying for Patient A to be admitted as an involuntary patient, he did so on 31 March 2016. He clarified that a Community Treatment Order was put in place for Patient A in August 2016. Dr Jeyasingam also clarified that Patient A's blood test for thyroid function was normal. Initially he continued Patient A on a dose of 4mg of Risperdal because her mental health team had told him that that was what she had been taking. Normally he would start a patient on 0.5 mg if it were their first presentation. He said, "The problem is there is no other appropriate class of drug treatment for this condition and he considered that it was ethically untenable to release her into the community without treatment for her mental health problems."
In relation to Dr Lucire's reference to genomic testing, Dr Jeyasingam considered it to be acceptable to recommend such testing as a first line approach to reduce side effects. However, Patient A had just completed a lengthy intervention. This was not the time for genomic testing to see whether she was metabolising agents quickly or slowly. In Dr Jeyasingam's view, Dr Lucire was not operating within normal clinical boundaries.
As to the side effects of anti-psychotic medication, Dr Jeyasingam is aware that all psychotropic medications have risks and that age is an important risk factor. He concluded that Patient A was at risk of exploitation from family members and at risk of self-neglect. (We emphasise that those matters are risk factors. Dr Jeyasingam is not suggesting that Patient A was exploited by family members.)
[12]
Dr Slaughter's evidence
Dr Slaughter's view about Dr Lucire's diagnosis of "hyperthymic personality style with anxiety and depression" was that it is not a psychiatric definition in the DSM5 or DSM4TR [sic] and as a consequence not generally accepted on psychiatric documents". While psychiatrists are entitled to formulate their own diagnosis, Dr Slaughter notes that this is nearly always done using the DSM description.
Dr Slaughter was asked to express a view about Dr Lusthaus' opinion that aripiprazole (Abilify) may be causing both the eye condition and the abdominal condition. Dr Slaughter said it was apparent that Dr Lusthaus had diagnosed "blepharitis and dry eye". Dr Slaughter did not say whether or not he agreed with Dr Lusthaus' observation that aripiprazole "may be causing" both the abdominal and eye problems.
Dr Slaughter's conclusion is that Dr Lucire was not in a position to make such a radical diagnosis just from the history given by the patient. There was no basis for dismissing the old history, other doctor's observations and those of a close family member. Dr Slaughter considered Dr Lucire's conduct in diagnosing Patient A based on her very strong personal views and using the patient's symptoms as justification, to be dangerous. That conduct falls significantly below the relevant standard and attracts his strong criticism.
[13]
Dr Ryan
Dr Ryan's view was that even though hyperthymic personality style does not appear in DSM-V or DSM-IV-TR, that list is not exhaustive. There are numerous references to hyperthermic personality style in the psychiatric literature.
All the clinicians who had seen Patient A had come to the view that she was suffering from one of three major psychiatric diagnoses: schizoaffective disorder; schizophrenia (sometimes with a differential diagnosis of schizoaffective disorder) or mania (or hypomania). No clinical record indicated that Patient A's mental state disturbances could have been best explained by a "hyperthymic personality disorder" or that mental state changes may have been related to her Hashimoto's thyroiditis.
Dr Ryan expressed the view that it was reasonable for Dr Lucire to have formed her opinion on past diagnoses and phenomenology, after reviewing the records. But Dr Lucire did not have all the records when she changed Patient A's diagnosis. All she had was the limited redacted bundle from Hornsby Hospital. She did not have the vast majority of the Hornsby Hospital records or any other hospital records.
In Dr Ryan's opinion, contrary to Dr Lucire's statement, there was evidence in Patient A's material that might have, at least, pointed to the possibility of hallucinations and delusions. However, that evidence was not strong and it was not unreasonable for Dr Lucire to reach the view that Patient A had never suffered delusions or hallucinations. The Commission seeks to qualify this evidence by pointing out that the nursing notes do record delusions, but not the content of the delusions. Dr Ryan's opinion is that the notes do not provide a good basis for believing that Patient A was in fact delusional. We agree with the Commission that that is a very different thing from concluding that the clinicians were mistaken as to the fact that Patient A was experiencing delusions.
Dr Ryan accepted that if the TV was telling Patient A that she had to make a phone call, that could be a delusion of reference; that the suggestion that she was having Spanish lessons didn't sound like a delusion but could be, and that if she thought her dog could punch the horn if she was taking too long and turn on the radio, he would be "reluctant" to say that was a delusion. On that basis, in his opinion, it was not unreasonable for Dr Lucire to come to the view that the prior diagnoses of schizophrenia, schizoaffective disorder or bipolar disorder may have been in error. However, as both Dr Slaughter and Dr Ryan point out, Dr Lucire's view was not tentative or preliminary. She confidently indicated to VCAT that Patient A did not "suffer from schizophrenia and schizoaffective disorder or anything like it" and had "never suffered" schizophrenia.
[14]
Unsatisfactory professional conduct?
Dr Lucire submits that the Commission has not proven that the side effects about which Patient A complained were not attributable to Abilify. There was no conclusive clinical evidence to that effect. We accept that Abilify may have side effects, and that some of the symptoms about which Patient A complained may have been caused by the medication (such as insomnia or restlessness). However, it is illogical to then conclude, as Dr Lucire did, that Patient A does not have the underlying condition for which the medication is being prescribed. That fundamental defect in Dr Lucire's reasoning arose because of her own strongly held personal views about anti-psychotic medications. This conduct is significantly below the relevant standard and improper.
While those conclusions alone support a finding of unsatisfactory professional conduct, we also find this conduct to be unethical. While not directly in breach of any code of conduct the conduct is nevertheless unethical.
[15]
Particulars
In and from September 2016 the practitioner diagnosed Patient A as having suffered thyrotoxicosis on admission to Hornsby Hospital without proper and sufficient clinical evidence, specifically, thyroid function blood test results.
[16]
Background to Complaint 1.5
Dr Lucire had all the redacted Hornsby Hospital records by 12 January 2017. Next to a community treatment note of 2 March 2016, saying "[Person C] maintains [Patient A] is still unwell and requires case management" Dr Lucire handwrote the following: "!thyrotoxic". The hospital progress notes from 24 June 2016 record "thyroxine level was normal as per monthly monitoring results". In her records of a consultation with Patient A on 7 September 2016, Dr Lucire wrote "? was she admitted due [to] thyrotoxicosis".
In a consultation on 7 September 2016, Dr Lucire records "?was she admitted due [to] thyrotoxicosis". In a letter to VCAT on 31 January 2017 where Dr Lucire purported to be giving an opinion as an expert witness, she wrote at p 3 under the heading "the admission to Hornsby Hospital 2016":
She was in any case found to be suffering from thyrotoxicosis, which presents in a myriad of ways including psychotic phenomena and confusion.
She went on:
When admitted she was thyrotoxic because her dose of thyroxine for her Hashimoto's disease was too high. Thyrotoxicosis possibly accounted for her symptoms, which were not very severe as this condition manifests as anxiety symptoms and occasionally psychotic phenomena."
On 1 February 2017 Dr Lucire wrote to VCAT expressing the view that:
At that time (when Patient A was admitted to Hornsby hospital) [Patient A] was suffering from thyrotoxicosis because she was being overmedicated accidentally for her Hashimoto's disease with thyroxin.
On 5 March 2017, Dr Lucire records in her notes, "I had thyrotoxicosis. The only thing that they did right was get me on the right dose". In a letter to the Office of Public Advocate on 6 July 2017, Dr Lucire wrote that, "I don't believe she ever had an episode of psychosis. I believe it was thyrotoxicosis."
On 26 April 2017, in a letter to the Office of the Public Advocate, Dr Lucire stated that Patient A was "suffering from thyrotoxicosis" which was noted at Broadmeadows and again, later, at Hornsby hospital".
[17]
Dr Lucire's response
Dr Lucire denies this particular. She says she did not diagnose Patient A as having suffered thyrotoxicosis either at Hornsby Hospital or while she was seeing her.
On 8 January 2018, Dr Lucire told the Medical Council delegates at the s 150 hearing that she took Patient A's word for it (that she had thyrotoxicosis). She conceded that she was not very familiar with thyrotoxicosis and she could not really understand the thyroid tests she saw in the Broadmeadows records. At the Tribunal hearing, Dr Lucire says there was some confusion at the s 150 hearing before the Medical Council about this. She was saying to the Medical Council that "thyrotoxicosis might have been a factor for her symptoms, for alleged weight loss in 2015, well before I met her, before her overly high prescribed dose of thyroxine prescribed at Broadmeadows Hospital was corrected in June 2016 during the Hornsby admission when her thyroxine was eventually reinstated."
In oral evidence, Dr Lucire said, "my retrospective diagnosis or agreeing with her that she thought she was thyrotoxic on 100mg was not based on test results. No, was based on the proposition that she was taking too much".
When she saw the hospital notes, Dr Lucire queried whether Patient A had been admitted because she was thyrotoxic. By 1 February 2017, the query had firmed to an opinion that when Patient A was admitted to Hornsby Hospital, she was suffering from thyrotoxicosis. She supported that opinion by referring to admissions to Broadmeadows and Hornsby hospital. This "retrospective diagnosis" was not based on any test results.
[18]
Not sufficiently particularised
In written submissions following the hearing, Dr Lucire's counsel submitted that the Commission has not sufficiently particularised this complaint because it is not apparent that the Commission intended to rely on representations Dr Lucire made to VCAT and the Office of the Public Advocate. We agree that, ideally, the Commission should have included that information in the Complaint. However, Dr Lucire was not disadvantaged by the omission of that information because she can be taken to have been aware of what she wrote in her own notes and in letters she wrote. Dr Lucire volunteered at the s 150 hearing that she wrote "several" reports for VCAT. The "written correspondence" referred to in this particular includes the 31 January 2017 report and a report dated 1 February 2017. Unlike the February report, the January report does not contain a declaration that Dr Lucire had read the relevant Expert Witness Code of Conduct and agreed to be bound by it.
[19]
Statutory protections
Dr Lucire's counsel raised another objection to this particular. To the extent that this particular relies on Dr Lucire's representations to VCAT, it was submitted that Dr Lucire is protected by the statutory protections in the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). We have addressed the applicability of the principles of witness immunity and abuse of process when communicating as an expert witness. We address the submission as to the statutory immunity in the VCAT Act below.
Dr Lucire's counsel also submits in relation to Complaint 1.5, that as a witness and an expert, Dr Lucire has immunities under s 143(4) and (7) of the VCAT Act. Those provisions give a person appearing as a witness before the Tribunal the same protection and immunity that a witness has in proceedings in the Supreme Court of Victoria. An "expert" has the same protections and immunities as a judge of the Supreme Court of Victoria. Section 24D of the Supreme Court Act 1986 (Vic) defines the scope of immunity for a judge of the Court. No action is maintainable against a judge for anything said or done when exercising his or her judicial powers: O'Shane v Harbour Radio Pty ltd [2013] NSWCA 315 at [72]-[73]. It follows, according to Dr Lucire, that no action, including disciplinary proceedings, are maintainable against her for anything she said or did when performing her role as an expert witness before VCAT.
We are not persuaded that these provisions protect Dr Lucire from being the subject of disciplinary proceedings. In Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] NSWCA 204, Tobias JA (Mason P and Beazley JA agreeing) held at [50] that judicial immunity, whether under common law or legislation such as the Judicial Officers Act 1986 (NSW), "does not and never has extended to the disciplining of judicial officers in accordance with the statutory regime prevailing from time to time." Adopting that approach, even though that decision does not consider the scope of judicial immunity in the VCAT Act, we are not persuaded that those provisions protect Dr Lucire. While no "action" is maintainable against a judge for anything said or done when exercising judicial power, judges are subject to a complaints process and to removal from office for misconduct. So too, medical practitioners may be subject to disciplinary proceedings despite enjoying the same immunity. It follows that, in general, the immunity conferred on an expert witness when exercising functions as an expert, does not extend to disciplinary processes.
Even if we are wrong, and Dr Lucire does enjoy immunity under s 143(7) of the VCAT Act, she expressed the same opinions in correspondence with other agencies including the Office of the Public Advocate which is a government agency, not a court or tribunal.
[20]
Expert evidence
Dr Slaughter noted that Dr Lucire concluded that Patient A suffered from thyrotoxicosis without any tests being carried out to substantiate the thyroid function. Dr Slaughter interpreted the Hornsby Hospital records as attributing Patient A's symptoms to a relapse of psychosis, not a thyroid issue.
Dr Ryan agrees with the thrust of Dr Slaughter's criticism. He cannot understand how Dr Lucire thought it possible that thyrotoxicosis was a likely diagnosis and that it was the cause of some of Patient A's psychiatric symptoms. However, Dr Ryan noted that it is possible that Patient A may have suffered mental state changes secondary to Hashimoto's thyroiditis. When Hashimoto's thyroiditis is associated with mental state changes the condition is known as Hashimoto's encephalopathy (HE). HE is a rare disorder that may present with mental state changes including psychosis. Although Dr Lucire's opinion regarding the possible contribution of thyrotoxicosis is ill-conceived, it seems the closest approximation to a differential diagnosis that must have been live during her periods of hospitalisation at least.
[21]
Findings
There is no evidence in any of the material that Patient A has thyrotoxicosis. Patient A's thyroid function tests were unremarkable. Apart from what Patient A told her, Dr Lucire did not have any basis for the opinions she expressed that, on admission to Hornsby Hospital, Patient A was suffering from thyrotoxicosis. Dr Ryan agrees with Dr Slaughter that Dr Lucire appears to have had no justification for suggesting that thyrotoxicosis could have been a cause of some of Patient A's symptoms. He also notes that Patient A could have suffered mental state changes secondary to Hashimoto's thyroiditis (known as Hashimoto's encephalopathy). This is a different, much rarer disorder, however, and its main characteristic feature (delirium or altered consciousness) was not present during the Hornsby hospital admission, which specifically excluded delirium.
To form an opinion, or a retrospective diagnosis, as to the reasons for a patient's symptoms, without sufficient clinical evidence, is not good medical practice. Contrary to the Good Medical Practice: A Code of conduct for Doctors in Australia, March 2014 code of practice, Dr Lucire has not provided treatment options based on the best available information. We agree with the opinions of Dr Slaughter and Dr Ryan that this conduct is significantly below the relevant standard. We find Complaint 1.5 to have been proven.
[22]
Complaint 1.6 - breaching boundaries of therapeutic relationship
[23]
Particulars of the complaint
The practitioner breached the professional boundaries of her therapeutic relationship with Patient A in that:
a. on 27 September 2016 and on other occasions the practitioner inappropriately requested Person C send Patient A's clothing and personal items directly to the practitioner's home address;
b. in a text message to Patient A wrote "Do you want to come over? Are you well enough? Give me time and I will make chicken soup";
c. after Patient A sent a text message to the practitioner stating "I would like to speak to you as you offered to help financially but it's a risk for you under the circumstances" the practitioner in a later text message told Patient A that she would pay for her hospital treatment if necessary.
[24]
Complaint 1.6 (a) - requests of Person C requests of Person C
On 27 September 2016 in a lengthy email to Person C, Dr Lucire wrote that:
Dr Noonan told me that she is very concerned about her clothes and I haven't talked about that but it is a good sign that she is worrying about what she is wearing. I was wondering if there are clothes you might send up. I would be happy to accept a suitcase on her behalf. She would have to pick it up from my office which is not difficult.
The complaint also refers to "other occasions" Dr Lucire made inappropriate requests of Person C. Those occasions are not specified but the Commission identified the following further example in a text sent to Person C on 31 December 2017:
She is managing on $400 a week but she has no clothes. She accepts that $400 a week is what you have to give her. She will have asked me (sic) to ask you again to send at least one suitcase full of clothes by courier or some other means. I would be prepared to accept it at my office address or at my home address which is [address deleted] and arrange for her to pick it up.
Dr Lucire acknowledges writing to Person C many times, asking her to send her mother's medicines, iPads, dog, car and clothes. She says giving her address as a delivery address was to assist Patient A in her difficult circumstances.
Dr Slaughter's view is that Dr Lucire made a decision to speak to Person C on behalf of Patient A, thus blocking their own communication, as if to protect the patient from her daughter. Dr Slaughter saw this as a significant boundary violation.
By repeatedly communicating Patient A's wants and desires with Person C, Dr Lucire has become personally involved in that relationship. When that happens, there is a risk that a practitioner will lose objectivity and begin to overly identify with the patient. This is an example of boundary crossing and is significantly below the relevant standard. It is also improper and unethical because it is inconsistent with the principles expressed in the Code of Conduct. Complaint 1.6(a) is proven.
[25]
Complaint 1.6 (b) - offer of chicken soup
Before Dr Lucire made the offer of chicken soup, Patient A texted the following:
Please, please, I beg of you, don't say I have to go to Melbourne though!
Please answer the last question
Can I speak to you?
[name deleted] has gone without his phone. I think I'm going to at least faint
Do they know where I am?
I feel so terrible I might have a heart attack. I'm serious
I'm so sorry, but I panicked. My fear is almost unbelievable even by me. you have no idea how my imagination ran on into total mortal panic. i am able to keep a real grip most of the time but not when it comes to that prospect ie Melbourne under them.
Dr Lucire then sends the following texts which are the subject of this part of the complaint:
Do you want to come over? Are you well enough? Give me time and I will make chicken soup.
Dr Lucire denies this particular. In oral evidence, Dr Lucire accepted that the text from Patient A sounded like she was having a panic attack. At the s 150 hearing before the Medical Council, the following exchange occurred:
DR LUCIRE: That's a Jewish joke. I never made her chicken soup. You know, I - that's a kind of relationship, isn't it. When you're being a parent or carer, you make chicken soup. It's a metaphor. I've never made her chicken soup.
MS .......... : Yes, when you're a parent or a carer it is, but not normally when you're the doctor.
DR LUCIRE: I don't know that I would necessarily agree with that. … If you're doing supported therapy, then you are a professional friend - professional friend. You are a friend who is a professional, and you deal with the situation to the best of your ability. There was no possibility of changing her. There was no possibility of changing her personality. So I just dealt with it as best I could for a long time.
Dr Lucire said she is unaware of any ethical prohibition against sharing a pot of tea or chicken soup with a patient. She says that, at the time, Patient A was wanting an appointment and she was not well. Dr Lucire texted her saying that if she gave her some time, she would make her chicken soup. We accept that chicken soup is a symbol of comfort in the Jewish community. Dr Lucire may have had no intention of actually making chicken soup, but she did ask her to come over if she was well enough and she did suggest she would make chicken soup if given the time. She saw no problem with sharing a cup of tea or chicken soup with a patient.
Dr Slaughter does not provide a specific opinion on this issue.
According to Dr Ryan, Dr Lucire's "chicken soup" text was not inappropriate. While he would not describe a therapist doing supportive therapy as a "professional friend", that is not "a wholly unreasonable characterisation". Dr Ryan's opinion is that it is reasonable for any doctor, involved in any sort of therapeutic relationship, to occasionally make a light-hearted remark, to express support. However, as we have said, the text is more than that. It is an explicit invitation to come over and an offer to make chicken soup for her, if given time.
Psychiatrists are not 'professional friends'. Kindness and empathy are appropriate but Dr Lucire risked losing objectivity. As outlined in the 2014 Code of Conduct at 8.2: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties." Dr Lucire crossed professional boundaries by inviting a patient to come to her home (even though we understand that her office was also at her home) in a time of distress. In isolation, this conduct does not justify a finding of unsatisfactory professional conduct. While this conduct is inconsistent with the principles expressed in the Code of Conduct, it is not significant enough, by itself, to justify a finding of unsatisfactory professional conduct. Complaint 1.6(b) is not proven.
[26]
Complaint 1.6(c) - offer of financial help
In the exchange, it is apparent that the discussion relates to Patient A being anxious about signing forms that may involve a considerable payout in hospital bills. Dr Lucire sends a text to Patient A saying, "Just do it" and then "Okay, I will pay if necessary". Dr Lucire was asked about this text exchange at the s 150 hearing. She said she is not aware of any ethical prohibition against providing financial help for anyone who is in need. According to Dr Lucire, the fact that the person is a patient should not prohibit a doctor from giving it, provided there is no ulterior motive.
Dr Slaughter considers it to be "significantly unethical" for a doctor to give a patient financial advice. He said Dr Lucire may have been able to give advice about her own billing but not that of others or a hospital.
In Dr Ryan's opinion, if this text exchange was the entirety of Dr Lucire's contact with Patient A on this subject, then an offer to pay her hospital expenses, even in an attempt to persuade her to attend a much-needed medical review, was not appropriate. However, Dr Lucire did not actually help Patient A with any financial problems other than waiving any fees for her medico-legal reports. Dr Ryan characterised this text as an "ill-thought-out therapeutic manoeuvre", but there were no adverse consequences and so it was not significantly below the relevant standard.
The 2014 Code of Conduct does not expressly address giving a patient money. However, at 8.12.3 practitioners are advised to avoid "financial involvement such as loans and investment schemes with patients". The fact that Dr Lucire did not actually pay for Patient A's hospital bills is relevant but the offer to do so is nevertheless a boundary violation. Rather than acting in a purely professional capacity, by listening and, where appropriate, being empathetic, Dr Lucire acted more as a friend than as a doctor. When that happens the practitioner risks losing their objectivity. The conduct is significantly below the relevant standard, inappropriate and unethical. Particular 1.6(c) is proven.
[27]
Particulars
1. During the period of Patient A's treatment in 2016 and 2017 the practitioner engaged in inappropriate email communication with Person C in that:
1. (Withdrawn)
2. on 27 September 2016 the practitioner advised Person C that "Psychiatry has become a public health problem with suicides and homicides in mental health care and a quadrupling of costs in the last 30 years and constant demands for more money", in a manner which was unnecessarily alarming;
3. on 12 September 2016 the practitioner stated: "However the new drugs are fraudulent and fraudulently promoted in Australia. Google Zyprexa fraud and RISPERDAL fraud and you will see that they are fraudulently promoted", in a manner which was unnecessarily alarming.
[28]
Dr Lucire's response
Dr Lucire denies this particular. She submits that Person C was never her patient and that in the emails she was merely expressing her medical and political opinions. To seek to discipline her under the National Law was said to be failing to exercise those statutory powers in good faith. Isles v Daily Mail Newspaper ltd (1912) 14 CLR 193 at 202-203, Isaacs J; Bropho v human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [85]-[87] French J.
Dr Lucire was not prepared to accept that her views were alarming or that Person C was alarmed.
[29]
Expert evidence
In his February 2019 report, Dr Slaughter referred to various email communications Dr Lucire had with Person C, but not expressly to the two communications the subject of these particulars. His general conclusion was that:
My view of the correspondence is that it is alarmist, at times inaccurate, does not address the daughter's fears or acknowledge the information about previous treatment and does not respond to the daughter's description of her mother's illness. I consider it is more Dr Lucire's own self-centred views being communicated to the daughter as the only correct views and that the previous treating doctors were all wrong.
When expressly addressing particular 1.7(b) and (c) in report 3.2, Dr Slaughter repeated his earlier opinion:
Dr Lucire's communication of her rigid views in regard to [Patient A] were inappropriate, incorrect and highly dogmatic being based on Dr Lucire's own rigid view of the dangers of antipsychotics especially the more recent ones and especially Abilify.
Dr Slaughter characterised another of Dr Lucire's emails to Person C as not standing up to scientific argument and as "alarming the daughter". Dr Slaughter regarded them as being significantly below the standard set out in s 139B(1)(a) and as therefore constituting unsatisfactory professional conduct.
Dr Ryan did not understand Dr Slaughter's opinion to be clearly referable to the communications with Person C. We agree that Dr Slaughter did not directly refer to the emails in 1.7(b) and (c). However, it is clear that Dr Slaughter's criticism was directed to those and other emails where Dr Lucire expressed strong views about the number of suicides and homicides in mental health care, the cost of providing mental health services and what she sees as the fraudulent promotion of new drugs.
[30]
Findings
Dr Lucire wrote these emails to Person C, the daughter of Patient A. The Commission alleges that they were inappropriate and unnecessarily alarming. For those reasons, sending the emails is said to constitute unsatisfactory professional conduct because it is either below the relevant standard or improper or unethical.
We do not accept Dr Lucire's submission that the Commission has not made these allegations in good faith. They are supported, in general terms, by Dr Slaughter's opinion. However, expressing a strong opinion about the dangers and costs of so-called new anti-psychotic drugs to the family member of a patient, is neither below the relevant standard nor unethical or improper. Dr Lucire's views are not mainstream, but they are not sufficiently inappropriate to constitute unsatisfactory professional conduct, especially when expressed to a family member.
Particulars 1.7 (b) and (c) are not proven.
[31]
Complaint 1.8 - told Patient A that Person C was not acting in her best interests
[32]
Particulars
During the period of Patient A's treatment in 2016 and 2017 the practitioner reinforced to Patient A by electronic communication and in consultation, without adequate review and investigation of Patient A's objective financial position and history, the view that Person C was:
a. not acting in Patient A's best interests; and
b. seeking unwarranted, unethical and/or illegal control over Patient A's finances and autonomy.
[33]
Issues
Dr Lucire denies this particular and maintains that it is inadequate because it does not identify the dates of any communications or the consultations during which Dr Lucire "reinforced" her view to Patient A. Dr Lucire says she always acted in Patient A's best interests. She was aware of Patient A's financial position and of her wishes as to where she wanted to live.
There are three components to this particular. First, that in 2016 and 2017, Dr Lucire communicated to Patient A by electronic communication and in consultation, reinforcing the view that Person C was not acting in Patient A's best interests and was seeking unwarranted, unethical and/illegal control over Patient A's finances and autonomy. The second element is that these communications were made without adequate review and investigation of Patient A's objective financial position and history. The third component is that this behaviour was "improper or unethical conduct in the practice or purported practice of medicine".
In cross-examination, Dr Lucire was asked whether she reinforced to Patient A via electronic communication and in consultations, her view that Person C was not acting in Patient A's best interests. Her response was that she agreed with Patient A that Person C was not acting in her best interests. Although this was not a direct answer to the question, we are satisfied that during the relevant period Dr Lucire reinforced that view to Patient A in consultations. That conclusion is supported by the content of Dr Lucire's correspondence including with VCAT outlined in the Commission's submissions. However, we are not satisfied that Dr Lucire did so by electronic communications. In written submissions, the Commission identifies communications where Dr Lucire was directly or indirectly critical of Person C. Only one of these communications is to Patient A and the criticism is indirect. On 30 December 2016, Dr Lucire messaged Patient A saying "Anne [Noonan] has a daughter who is a lawyer. She will not exploit you." (Dr Noonan is a psychiatrist who Dr Lucire was recommending to Patient A.)
The second element is that these communications were made without adequate review and investigation of Patient A's objective financial position and history. In oral evidence, Dr Lucire denied that that was the case because she says she assessed Patient A's capacity to manage her own affairs. However, assessing capacity is not the same as assessing Patient A's financial position and history. We find that Dr Lucire accepted the account of her history and financial affairs that Patient A gave to her. She made no other inquiries about those matters.
[34]
Expert evidence
We quote Dr Slaughter's opinions relevant to this particular below:
Dr Lucire seems to have accepted without any review or investigation that the daughter was motivated not to assist her mother but rather to take hold of her mother's finances for her own needs. (25 February 2019 report at p10)
Dr Lucire seems to have accepted the patient's thinking [that the daughter was wanting to take financial advantage of the situation] as founded on fact and logic and not symptoms of a mental condition despite the daughter's attempts to explain the financial problem and expressing fears her mother could face financial ruin without control being in place. (25 February 2019 report, p 10)
Dr Lucire made a decision to speak on behalf of [Patient A] with the daughter thus blocking their own communication as if to protect the patient from her daughter. I see this as a significant boundary violation. (25 February 2019 report, p 10)
Her involvement and advice on matters financial were not only unethical, outside her area of training but also dangerous. (Report 3.2, p 3)
We address Dr Slaughter's opinion as to Dr Lucire's involvement with Patient A's financial affairs separately.
[35]
Findings
The final question is whether that conduct, to the extent that it is proven, amounts to "improper or unethical conduct in the practice or purported practice of medicine". Dr Lucire submits that this particular is too general and therefore unanswerable. Her counsel asks rhetorically, by what measure or standard is the Tribunal supposed to reach a conclusion about this particular? Dr Lucire submits that the Tribunal is not in a position to assess Person C's motivations, her conduct, or whether that conduct was unlawful.
The Commission submits that there is some evidence in the emails that Person C had her mother's best interests at heart and was trying to help her. Dr Lucire's actions in reinforcing her views about Person C to Patient A were arguably detrimental to Patient A's health and wellbeing, divisive and professionally irresponsible.
Some factual elements of this complaint are proven. In consultations with Patient A, Dr Lucire did reinforce the view that Person C was not acting in Patient A's best interests. She did so without adequate review or investigation of Patient A's objective financial position and history. While there is some evidence that Person C had her mother's best interests at heart and was trying to help her, we are not in a position to make a finding about that matter. Without that finding, we are not satisfied that reinforcing certain views about a family member's assumed motivations is professionally irresponsible. Complaint 1.8 is not proven.
[36]
Complaint 1.9 - inappropriate involvement with financial and legal affairs
[37]
Particulars
In 2016 and 2017 the practitioner inappropriately involved herself with Patient A's financial and legal affairs and breached the professional boundaries of her therapeutic relationship with Patient A in that she:
a. assisted Patient A with revocation of a financial management order before the Victorian Civil and Administrative Tribunal ("VCAT") in early 2017 by her written correspondence, based primarily on Patient A's self-reporting to the practitioner and without adequate review and investigation into Patient A's financial history and circumstances;
b. in late 2016 or early 2017 wrote to the Office of the Public Advocate (Victoria) by facsimile and advised: "It is my opinion that [Person C] should give her mother money for having used her car and immediately pay for the service so that her mother can get to Mackerel Beach";
c. in late 2016 or early 2017 wrote to the Office of the Public Advocate (Victoria) by facsimile and requested: "Would you be able to persuade [Person C] to stop acting inappropriately with these assets and to return them to her mother, together with enough funds to restore her to the position she was in before she persuaded her mother to move out to Pymble in order that she could live in Sydney and work in Sydney";
d. on 26 April 2017 wrote a letter to the Office of the Public Advocate (Victoria) with her view that "[Person C]" is solely responsible for producing mistaken allegations against her mother, it seems logical that she should pay for the tests that will prove her wrong";
e. on 26 April 2017 wrote a letter to the Office of the Public Advocate (Victoria) to request that Person C "withdraw any allegations that her mother suffers from a severe mental illness called schizophrenia, and is thereby incompetent to manage her own affairs";
f. on 9 December 2016 emailed a solicitor with financial and other details to request the solicitor's legal advice for Patient A;
g. on 30 December 2016 the practitioner advised Patient A to "occupy" her house to prevent the property being sold, and not to sell her house;
h. in a text message to Patient A advised her: "Your house is an excellent investment" in the context of Patient A thinking about selling her house to afford medical care, amongst other things;
i. in a text message to Patient A stated "Just tell (Person C) to give it all back so you can drive/sell car and furnish and lease house for Easter. (The practitioner's secretary) will help you";
j. otherwise regularly advised or gave suggestions to Patient A during consultations, about her financial and legal affairs including purchasing and selling of property.
[38]
Assist with revocation of financial management order - Complaint 1.9(a)
[39]
Background to Complaint 1.9(a)
Patient A applied to VCAT to revoke the financial management order to which she was subject. Presumably at Patient A's request, Dr Lucire wrote several reports to VCAT as an expert witness. The first is dated 31 January 2017. As of that date, Dr Lucire had seen Patient A ten times, had communicated with Person C, and (as outlined above) had access to some of Patient A's medical information. She wrote in the 31 January 2017 report to VCAT, that:
[Patient A] has told me that before she bought the house, she (sic) after spending two years travelling around New South Wales and the coast, she selected this house on Mackerel Beach and she loves it.
She only stopped living in that house f (sic) because her daughter wanted her to rent a flat in Pymble that she could share it with her and work in Sydney.
The opinions Dr Lucire expressed in the 31 January 2017 report include that she "found no evidence of overspending in any period of her life" and that Patient A "is adamant that they (her son and daughter) had told lies about her, and her inability to manage money". Dr Lucire expressed the ultimate conclusion that Patient A is capable of managing her own affairs. In further correspondence with VCAT dated 1 February 2017 and 26 April 2017, Dr Lucire expressed the similar views as to the motives of Person C, Patient A's financial circumstances and her capacity to manage her affairs.
The VCAT hearing was scheduled for 21 March 2017. On that date, Dr Lucire filled out a pro-forma medical report. In answer to the question about whether or not Patient A has a disability, Dr Lucire wrote that she "shows no sign of depression, schizophrenia, schizoaffective disorder or anything else and is on no medication". The only disability Dr Lucire identified was "extreme situational anxiety". Dr Lucire expressed the view that Patient A "has, and has always had full capacity". She went on to volunteer that "her daughter did not approve of her purchase of a (beach) house . . ." and that she "has been under a great deal of stress from this theft of property".
In a letter to the Commission dated 5 January 2018, Dr Lucire wrote that:
From early 2017 I provided reports to the Victorian Civil and Administrative Tribunal in support of an application made by [Patient A] to have the financial management order removed.
She went on to say that her motivation for assisting Patient A with the revocation application was that she did not think Patient A should be subject to such an order. In her opinion, Patient A was not suffering from schizophrenia or schizoaffective disorder or any mood disorder at the time Dr Lucire wrote the reports. In Dr Lucire's view, Patient A met the criteria in the New South Wales Government 'Capacity Toolkit' and was capable of managing her own financial affairs. She thought her plans were rational and reasonable.
In her outline of evidence Dr Lucire said:
Because I was going to Melbourne, I made an appointment to see Mr Ben Mason the investigator for VCAT. I expressed my concerns. Mr Mason commissioned an independent expert, forensic psychologist, Dr. Ilana Heppner, Clinical Neuropsychologist, to assess her capacity to manage their (sic) own affairs. A hearing was held at VCAT, mid-year, and Patient A's right to manage her own affairs was restored to her. Her daughter appealed unsuccessfully and refused to pay Dr Hepner's bill.
Complaint 1.9(a) asserts that Dr Lucire inappropriately involved herself in Patient A's financial affairs "without adequate review and investigation into her financial history and circumstances". When questioned as to the steps she took to ascertain the circumstances under which the financial management order was initially made, Dr Lucire could not identify any steps other than believing what Patient A had told her.
[40]
Expert evidence about Complaint 1.9(a)
Dr Slaughter was asked to "comment on the appropriateness of Dr Lucire's decision to assist Patient A with revocation of her financial management order. His view was that this decision seemed to be based on Dr Lucire accepting Patient A's account that her daughter was seeking some financial advantage. She did not consider the possibility that Patient A's thinking was symptomatic of her mental state or that a revocation of the order was not in Patient A's interests. Dr Slaughter's opinion was that Dr Lucire held rigid and inflexible views about Person C's motivation. She did not reflect on the reasons the financial management order was in place.
Dr Ryan disagrees with both of these opinions. In his view Dr Lucire was primarily motivated by a belief that assisting Patient A was in her best interests because she did not lack financial capacity. Similarly, in Dr Ryan's view, there is no evidence in the materials that Dr Lucire "did not reflect on the reasons these controls were placed there in the first instance". He thought Dr Lucire went to considerable efforts to obtain information from other treatment providers and from past records.
However, in Dr Ryan's opinion, Dr Lucire's overstatements to VCAT are open to criticism. He was "left uncertain as to exactly in what way Dr Lucire had attempted to get [Person C's] account of events" but considered that it was more likely than not that Dr Lucire did make a reasonable effort to try to obtain that information. He went on to conclude that Dr Lucire "went to considerable effort to gain other corroborative data on this matter." When questioned about that statement, Dr Ryan explained that because he felt that Dr Lucire went to considerable efforts to get medical records, he assumed that she must have engaged in the same process for financial records. He agreed that simply relying on Patient A's account was dangerous and if it had been him, he would not have pursued it so vigorously.
Despite that opinion, Dr Ryan does not think that this conduct breaches professional boundaries or falls significantly below the relevant standard. A treating psychiatrist's role in supporting applications such as the application made by Patient A to VCAT should have two purposes that might conflict with one another to a degree. On the one hand, treating psychiatrists should act as advocates for their patients and should present decision makers with their knowledge of the patient's circumstances and their genuinely held opinions. On the other hand, treating psychiatrists must have in mind the importance of protecting a possibly incompetent patient from ill-judged actions. At the time, Dr Lucire apparently believed on reasonable grounds, that Patient A was capable of managing her financial affairs and that prior diagnoses of serious psychiatric illness may have been made in error.
In Dr Ryan's opinion, Dr Lucire's decision to assist Patient A with the revocation of her financial management order was appropriate. After reading the materials, he was left uncertain as to exactly how Dr Lucire had attempted to get Person C's account of events. However, in his opinion, it is more likely than not that Dr Lucire did make reasonable efforts to try to establish this. Certainly, Dr Lucire went to considerable effort to gain other corroborative data on this matter. We note that this is a factual question. It is not the role of an expert to give evidence as to the facts. Rather, the expert must clearly identify the facts and/or assumptions on which their opinion is based.
We do not agree with Dr Ryan that it is the role of a treating psychiatrist to support an application for revocation of a financial management order relating to a patient. Nor is it the case that there are two potentially conflicting purposes when doing so. A medical practitioner providing an expert report has an overriding duty to assist the court or tribunal. He or she is an independent witness, not an advocate for one party.
One difference between the opinions of Dr Slaughter and Dr Ryan is whether it was reasonable to conclude that Patient A did not suffer from a chronic psychotic condition or schizoaffective disorder. We do not need to determine whether it was reasonable for Dr Lucire to hold the view that Patient A did not have a disability and was capable of managing her own affairs. That is not the focus of this part of the complaint. Rather, it is asserted that Dr Lucire assisted with the revocation without adequate review and investigation of her financial history and circumstances. Instead, she relied largely on Patient A's self-reporting and she discounted Person C's version of events.
[41]
Finding
Dr Lucire characterised the reports she provided to VCAT from early 2017 as being "in support of an application made by [Patient A] to have the financial management order removed." Despite expressing that partisan view, we assume that Dr Lucire understood her correspondence with VCAT to be in the nature of medico-legal reports. We will assess the alleged conduct on the assumption that it relates to the content of an expert opinion given in a medico-legal report.
The factual basis of this particular is proven. Dr Lucire did assist Patient A with the revocation of a financial management order before VCAT. Those reports were based primarily on Patient A's self-reporting. Dr Lucire's opinion that Patient A was capable of managing her own financial affairs was based on Patient A's account. Dr Lucire also had the notes from Hornsby Hospital and Person C's version of Patient A's financial history and circumstances but she did not accept those versions.
To the extent the alleged conduct is improper or unethical, as distinct from inadmissible in evidence, it may amount to unsatisfactory professional conduct. Section 8.8 of the Code of Conduct states that, when preparing medical certificates or reports, good medical practice involves "taking reasonable steps to verify the content before you sign a report or certificate, and not omitting relevant information deliberately". When preparing medico-legal reports, it is not the role of an expert witness to give evidence as to the facts. Rather, the expert must clearly identify the facts and/or assumptions on which their opinion is based.
Contrary to her obligations as an expert witness, Dr Lucire has expressed her own view about the facts rather than taking reasonable steps to verify those facts or clearly stating that she has assumed certain facts.
We have found in relation to Complaint 1.3 that an opinion expressed in a medico-legal report can be the subject of professional disciplinary proceedings. One qualification to that general statement is where the allegation is that the report is not admissible in evidence because the expert has not complied with their obligations as an expert witness. Here the allegation, in a general sense, is that Dr Lucire did not take reasonable steps to verify Patient A's financial history and circumstances when providing a medico-legal report and when communicating with a government agency, the Office of the Public Advocate.
While she overstepped her role as an expert witness in that respect, we are not satisfied that that conduct was improper or unethical. Complaint 1.9(a) is not proven.
[42]
Background
Complaint 1.9(b) to (e) relate to correspondence Dr Lucire sent to the Office of the Public Advocate. That office is a public sector agency, not a court or tribunal. Dr Lucire was not corresponding with that agency in her capacity as an expert witness. The issue is whether, in her correspondence with that office, Dr Lucire was inappropriately involving herself with Patient A's financial and legal affairs and whether that involvement breached professional boundaries.
Complaint 1.9(b) is that in late 2016 or early 2017 Dr Lucire wrote to the Office of the Public Advocate (Victoria) by facsimile and stated that: "It is my opinion that [Person C] should give her mother money for having used her car and immediately pay for the service so that her mother can get to Mackerel Beach".
The reference to the return of Patient A's property in 1.9(c) relates to the fact that Patient A initially agreed to move back to Melbourne after being discharged from Hornsby Hospital, but then changed her mind. That version of events is apparent from the hospital progress notes. A note dated 14 July 2016 records a phone conversation to the Melbourne Aged Psychiatric Assessment Treatment Team. The purpose of the call was to facilitate Patient A's transfer to Melbourne. The note records that Patient A had moved all her moveable property and was in the process of selling her Sydney home. In another progress note from 14 July 2016, the following information is recorded:
[Person C] has rented a unit in Melbourne for [Person C] and [Patient A] to live together when [Patient A] is discharged.
Both [Person C] and [Patient A] are very keen for [Patient A] to move back to Melbourne ASAP. All [Patient A's] belongings have been moved to Melbourne.
Five days later, on 19 July 2016, a social worker from Hornsby Hospital spoke to Patient A. At that time, Patient A said that she could not possibly live with her daughter in Melbourne and would prefer to stay in Sydney. She reiterated that view to a clinical psychologist and expressed her intention to sell her property north of Sydney and purchase another property in Sydney.
On 4 October 2016, Person C wrote to Dr Lucire and her other treating health practitioners saying that Patient A was welcome to come to Melbourne to collect her belongings. She explained that the only reason she has her mother's belongings in Melbourne is that her mother agreed to live with her in Melbourne short term after coming out of hospital, but changed her mind. In the same email, Person C thanks Patient A's treating practitioners, including Dr Lucire, for charging Medicare only. She writes that she is not exaggerating when she says that there really is no money and that she is in debt because of Patient A.
Dr Lucire has a different view of events as is apparent from her email to a lawyer dated 9 December 2016 (See Complaint 1.9(f)). In that email Dr Lucire wrote that:
During her time at Hornsby, her daughter took over guardianship. She shipped out her mother's furniture, her clothes, ipad, her dog and her car and has refused to return them.
On 16 January 2017, Person C wrote to her mother noting that her income equalled her expenditure and there were no savings. She suggested that the only way to move her belongings back to Sydney would be to sell the car and use the balance to pay off debts. Person C corresponded further with her mother during the period from January to March 2017. Those emails suggest that Person C was trying to find an acceptable and affordable way of returning her mother's property. Dr Lucire agreed that that was the case 'up to a point'.
In a letter dated 26 April 2017, Dr Lucire wrote to the office of the Public Advocate (Victoria) blaming Person C for making mistaken allegations against her mother and requesting that Person C withdraw any allegations that her mother has schizophrenia and is thereby incompetent to manage her affairs. (Complaint 1.9(d) and (e)).
Dr Lucire wrote to a lawyer on 9 December 2016 requesting the solicitor's legal advice for Patient A. In that letter she gives a brief summary of her view that Patient A is capable of managing her affairs and that Person C is not supporting her mother. The VCAT hearing was scheduled for 21 March 2017.
[43]
Dr Lucire's response to complaints 1.9(b)-(f)
Dr Lucire denies these particulars but agrees that she initially formed an adverse view of Person C's intentions and behaviours towards her mother and that her view has not changed.
[44]
Findings on Complaint 1.9(b)-(f)
The correspondence with the office of the Public Advocate referred to in Complaint 1.9(b)-(e) is not in the nature of a medico-legal report. Dr Lucire was not expressing an expert opinion about Patient A for the purpose of legal proceedings. The representations were not made in an expert report or in the course of giving evidence in proceedings. Rather, Dr Lucire was offering her personal opinion about Person C's motives and integrity. Similarly, for Complaint 1.9(f), the lawyer had not requested Dr Lucire to provide a report. Dr Lucire had initiated contact with the lawyer.
In our view, writing to the Office of the Public Advocate criticising Person C's conduct and views involving Patient A's financial and legal affairs, crosses professional boundaries. It is not appropriate for a treating psychiatrist to communicate personal opinions of that kind to a government agency or to seek to obtain legal representation for the patient. The Code of Conduct contains the general statement that doctors should maintain professional boundaries. Dr Lucire has overstepped those boundaries. When communicating with government agencies, she has not confined herself to expressing medical opinions based on her experience and expertise as a psychiatrist. Rather, she has uncritically accepted her patient's point of view on financial and legal issues. That conduct is inappropriate and unethical.
We find Particulars 1.9(b) to (f) to have been proven.
[45]
Complaint 1.9(g) - (i)- advice to Patient A about financial and legal matters
[46]
Background
On 30 December 2016 Dr Lucire advised Patient A to "occupy" her house to prevent it from being sold. In a text message to Patient A when she was thinking about selling her house, Dr Lucire told her, "your house is an excellent investment". In a text message to Patient A, Dr Lucire stated:
Just tell (Person C) to give it all back so you can drive/sell car and furnish and lease house for Easter. [Dr Lucire's secretary] will help you.
Dr Ryan's response to Complaint 1.9(i) was that without more context, it is impossible to comment on the appropriateness of this text exchange.
At the s 150 hearing before the Medical Council, the following exchange occurred:
MS .......... : "Just tell her to give it all back so you can drive/sell car and furnish and lease house for Easter. [Person D] will help you." Who's [Person D]?
DR LUCIRE:[Person D] is my secretary.
MS .......... : Okay. So is that not crossing a normal doctor-patient boundary by giving her that advice?
Dr Lucire went on to explain that Patient A and her secretary had spoken a great deal about the property at Mackerel Beach and the possibility of short term rental, though Dr Lucire said she had not involved herself in these exchanges. Dr Lucire could not explain to the Medical Council why she told Patient A to speak to her secretary about helping Patient A with her financial matters.
[47]
Expert evidence
As to the first text message set out in Complaint 1.9(h) (Your house is an excellent investment), Dr Slaughter's view in report 3.1 at p 3 was that giving advice about selling her property was "outside Dr Lucire's training, qualification and professional training". While Dr Lucire is qualified to give an opinion about Patient A's capacity to manage her financial affairs, as far as he knows she is not qualified to provide financial advice. Dr Slaughter saw this as being a serious breach of professional boundaries.
Dr Slaughter viewed these messages as "very inappropriate and dangerous". They demonstrate that Dr Lucire supports Patient A resuming control of her own finances even though Dr Slaughter's understanding is that she is often hypomanic, spends to excess and has used up nearly all her inheritance and savings. Dr Slaughter regards that behaviour as "very dangerous" and "unethical" in circumstances where Patient A "clearly has a serious psychotic condition that Dr Lucire discounts."
In Dr Ryan's view, the lack of context makes it very difficult to assess the appropriateness of the text. It appears that after sending this text, Dr Lucire wrote, "You are in no state to be making decisions now . . . find out about the enduring power of attorney". In Dr Ryan's opinion, this text was not inappropriate because it is merely advising Patient A not to make a major decision when she is upset. There was no breach of professional boundaries and the conduct did not fall below the expected standard.
[48]
Findings on complaint 1.9(b) - (f)
The Commission notes that the Tribunal can attach to the various particulars the weight we consider appropriate. It is submitted that if we consider that these particulars may conceivably be capable of collectively constituting unsatisfactory professional conduct, it would be necessary in the interests of procedural fairness to require Dr Lucire to address that possibility.
Dr Lucire denies that it was inappropriate to assist Patient A. In our view, advising Patient A not to sell her house and what to say to Person C about her financial situation does cross professional boundaries. It is not the role of a treating doctor to communicate personal opinions as to how a patient should organise their financial affairs. The Code of Conduct contains the general statement that doctors should maintain professional boundaries. Dr Lucire has overstepped those boundaries by acting as her personal advocate rather than confining her involvement to matters relevant to a doctor-patient relationship. That conduct is inappropriate and unethical.
We find Particulars 1.9(b) to (f) to have been proven.
[49]
Complaint 1.9(j) other advice and suggestions about financial and legal affairs
Complaint 1.9(j) is a catch-all particular alleging that Dr Lucire has "otherwise regularly advised or gave suggestions to Patient A about her financial and legal affairs including purchasing and selling of property." Dr Lucire says that she has no idea what particular (j) implies, but like any psychiatrist, if a patient wants to talk about a major life decision, she will discuss it with her. In their reply submissions the Commission included references to what was intended to be behind Complaint 1.9(j). However, the complaint as drafted is too vague and the Commission cannot attempt to remedy that defect after the hearing.
Complaint 1.9(j) is not proven.
[50]
Complaint 1.11 - allowing Patient A to stay at her home overnight
[51]
Particulars of the complaint
On 5 November 2017 for a period of approximately 10 hours the practitioner inappropriately breached the professional boundaries of her therapeutic relationship with Patient A by allowing Patient A to stay at her home in circumstances where:
a. the practitioner was aware that Patient A was absconding from a hospital and was aware of Patient A's history of absconding from hospitals;
b. the practitioner was unaware of Patient A's current mental health status;
c. the practitioner did not appropriately assess Patient A's risk of further absconding and risk further harm;
d. the practitioner's state of tiredness prevented her from effectively monitoring or caring for Patient A in her home overnight;
e. after Patient A arrived at her home the practitioner failed to seek clinical information from Person C on 4 November 2017 during a text message exchange, relevant to Patient A's safety.
[52]
Background to Complaint 1.11
On 29 September 2017 Patient A was admitted to Manly Hospital under an involuntary treatment order. On 4 November 2017, while on day leave with Person C, Patient A absconded. Person C advised the police. At about 9 pm that evening Manly Police were informed that Patient A had been located. Patient A had made her way to her cousin's house in the eastern suburbs of Sydney. Her cousin's wife is a doctor, Dr Free. She left her cousin's house and apparently walked in the rain to Dr Lucire's house, arriving after midnight.
Below is an exchange of text messages between Dr Free and Dr Lucire in the early hours of 5 November 2017:
Dr Free 12.19 We are desperate to find (Patient A). Has she contacted you at all? Regards
Dr Lucire 12.38 am Confidential. She is safe. She is exactly as she has been on medication and off medication. Will talk tomorrow. I will get my friend to tell police. Will deal with it in the morning. Yola
Dr Lucire 12.40 am Can you make contact with manly police and say she's safe but not where she is. I will deal with it in the morning.
Dr Lucire 12.43 am Apparently (Person C) has arranged a purchase of something that should be a supported accommodation that (Patient A) accepts. Will need time and respite. She is no different from her normal self. They did not recognise the steroid psychosis. Talk in the morning.
Dr Lucire 1.01 am I had told police I would tell them if she contacted me. I do not want my phone traced so you might do it when you get this. She needs respite and a change of residence. She is not schedulable. Needs support not pills.
Dr Lucire 7.35 am I notified police she is safe. Talk later.
Dr Free 9.30 am Thanks.
Dr Lucire Talk later. She is sleeping.
Dr Lucire 5.48 pm She was sent back to hospital. Picked up. Provided documentation they never take a medication history. And repeat previous mistakes. I sent in a good deal of information.
Dr Free thank you.
Dr Lucire says she also sent text messages to Person C, "but they must have been obliterated".
[53]
Dr Lucire's response
Dr Lucire admits that she allowed Patient A to stay at her home on the night of 4 November 2017 but denies the balance of this particular. Dr Lucire gave the following response in a letter to the Commission dated 5 January 2018:
On the Saturday night of 4th to 5th November 2017 I was woken in the middle of the night by a house guest who had himself been woken up by [Patient A] knocking on the front door. I was asleep and I came downstairs to find that she was distressed, exhausted, and wet and that she had absconded from her daughter's care. It was around 1 o'clock in the morning and I was too tired to interview her and she was too exhausted to be interviewed. I found a text message on my phone from her cousin's wife at Five Dock so I had some idea about how far she had walked to arrive at my residence. [Patient A] is 73 years old with a heart condition, hypertension and other health problems. I thought it was best and safest to allow her to sleep and to avoid putting her through additional unnecessary stress, and to manage the situation in the morning. I answered the text to her cousin at some time to assure the family that she was safe and I also sent a text message to her daughter to say that her mother was with me and safe and I had put her to bed. The Complainant places my text message to her daughter [Person C] at 1 AM. When I awoke the next day I spoke with Patient A. At approximately 10 AM I was in the process of speaking with her when I received a phone call from the police from Manly requesting my address, having been given my telephone number by her daughter. During the first phone call from the police [Patient A] was within earshot, and I asked for time saying that I did not yet have her permission to give out my address, and that I would call them back in an hour or as soon as I could. I did not want her to know yet that the police would have to take her back to hospital nor to alert [Patient A] to the police coming, which I would have done if I had at the time of that first phone conversation provided my address. I was concerned she might again abscond if she knew. She had already absconded twice the previous evening, from her daughter and from her cousin's house.
After speaking with the police, I prepared a long letter to Manly Hospital setting out [Patient A's] history and attaching relevant documentation for [Patient A] to take with her. I then called the police back to say that they could now send the ambulance and provided them with my address. I estimate that this was approximately one hour after I originally spoke with police. I then explained to [Patient A] that she had to be transferred back to hospital but I did not actually tell her that the ambulance was about to arrive. I then sat with [Patient A] until the Ambulance arrived around or soon after midday. [Patient A] entered the Ambulance quietly as I had assured her that I was providing information that would be useful to her doctors. At all times, I acted to serve the best interests of my patient who was frail, exhausted and known to me as having a heart problem and other conditions and to preserve.
Dr Lucire provided the following reasons for allowing Patient A to stay at her home overnight. First, she says her primary concern was the welfare of Patient A and, in her view, Patient A needed to rest. She had walked a great distance and she was soaking wet. Dr Lucire says she talked to her for a few minutes and offered her a glass of milk, which she refused. Her view was that Patient A did not meet the criteria for involuntary detention as a mentally ill person. To "avoid putting her through additional unnecessary stress and drama of an unnecessary pick up in the middle of the night . . ." she thought it "best and safest to allow [Patient A] to sleep in a spare room". Dr Lucire admits that she had decided that she did not want the police or an ambulance to attend either during the night or in the morning until she had completed a 'report' for Patient A to take with her in the ambulance to Manly Hospital. She disagreed with the way Patient A had been diagnosed and medicated and did not want her to return to a place where that line of treatment would continue.
Secondly, Dr Lucire says that she had taken Normison (temazepam, a benzodiazepine sedative hypnotic) and Endone (oxycodone, an opiate analgesic) before she went to bed. She has little independent memory of the visit but has attempted to reconstruct the events from text messages. She says she must have sent the texts in her sleep. She added that there was no way she was going to contact the hospital because she was 'borderline delirious" from the medications and her speech would have been slurred. Thirdly, Dr Lucire says she was concerned about the welfare of her husband who is blind and affected by a stroke. According to Dr Lucire, he could not be left alone. We address these matters in detail when considering Complaint 1.14.
The Commission submits that this Particular should be considered in the light of Dr Lucire's knowledge of Patient A's behaviour in the previous few months. It is apparent from correspondence that her view was that in early to mid-September 2017, Patient A was "very disturbed and paranoid', "unable to look after herself", "had been staying in police stations overnight" and "behaving wilfully and not coping." Dr Lucire considered that this confused and paranoid behaviour was caused by steroid induced psychosis. Dr Lucire knew that when Patient A was admitted to Manly Hospital she was receiving olanzapine, an atypical anti-psychotic drug used to treat schizophrenia. Patient A had told Dr Lucire that she would commit suicide if she had to stay on that medication. Dr Lucire considered that threat to be a very real one.
[54]
Expert opinion
Dr Slaughter expressed the view that "it is very inappropriate and a boundary break to allow a patient to stay at the doctor's own home." In the 25 February 2019 report, he described that behaviour as a "dangerous boundary violation". Dr Lucire may have believed that she was acting in the patient's best interests but that was not the case.
In Dr Ryan's opinion, the act of taking a patient into one's home overnight is not, by itself, unethical conduct. The appropriateness of such conduct must be assessed in the light of the risks involved. In Dr Ryan's view there was a risk that Patient A would abscond, but that risk was arguably greater if Dr Lucire had telephoned the police and Patient A had realised they were coming. Dr Ryan also identified the risk that Patient A's physical health was at risk if she stayed. However, in his assessment, Dr Lucire had formed the view that while she was "chronically physically unwell", she was not acutely unwell, and it was unlikely that physical unwellness would present a barrier. Dr Ryan concluded that it was reasonable for Dr Lucire to think that the risks of Patient A staying the night were not as great as the risks of her returning to hospital at that hour. For those reasons, Dr Ryan did not regard Dr Lucire's conduct in allowing Patient A to stay the night as unethical or below the relevant standard.
[55]
Findings and conclusion
Dr Lucire allowed Patient A to stay at her home in the circumstances listed at Complaint 1.11(a) - (e). She was aware that Patient A was absconding from hospital and knew that she had also absconded from Broadmeadows hospital previously. Dr Lucire's opinion was that Patient A had been misdiagnosed and there "was a risk of staying misdiagnosed and again getting medication . . ." She told the s 150 delegates on 8 January 2018 that before Patient A arrived, she did not know she had been in hospital but after her arrival she knew she was an inpatient "somewhere". Dr Lucire had not seen Patient A since before her admission to Manly Hospital. On 5 November 2017 she was not aware of her current health status.
As we find in relation to Complaint 1.14, none of the reasons Dr Lucire gave for allowing Patient A to stay overnight is compelling. Allowing a patient to stay overnight at a practitioner's home may or may not be a breach of professional boundaries depending on the context. Here the context is critical. Dr Lucire knew that Patient A was absconding from hospital. It is not Dr Lucire's role to make her own assessment of the need for Patient A to be involuntarily detained. As we discuss when considering Complaint 1.12, that decision had been made by others in accordance with strict regulatory guidelines. Unless there was some imminent danger to Patient A's health or safety which precluded Dr Lucire from contacting police or the hospital straight away, that is what she should have done.
Dr Lucire's knowledge of Patient A's behaviour in the previous months does not change her professional obligation to abide by the terms of the involuntary detention order, as long as that does not result in any imminent threat to a person's health or safety. Dr Lucire's decision to harbour Patient A in her home overnight is a breach of professional boundaries and amounts to unsatisfactory professional conduct. Complaint 1.11 is proven.
[56]
Complaint 1.12 - failing to conduct any physical or mental health assessment
[57]
Particulars of the complaint
On 5 November 2017 after Patient A arrived at the practitioner's home, the practitioner failed to conduct any physical or mental health assessment of Patient A before permitting Patient A to stay overnight in her home in circumstances where;
a. the practitioner was unaware of Patient A's current mental health status;
b. the practitioner was of the opinion that Patient A may have been physically unwell.
[58]
Dr Lucire's response
Dr Lucire denies this particular but admitted to the s 150 delegates that she made no assessment of Patient A. She said:
I couldn't keep [Patient A] up, I couldn't interview her. I wouldn't trust myself to make phone calls."
Dr Lucire submits that considering her situation at that time, she was not capable of conducting such an assessment. In oral evidence, when asked whether she conducted a mental state examination, Dr Lucire responded by saying:
Why would I? I talked to her for a couple of minutes. She was the way she usually is.
Dr Lucire also said in a text message to Dr Free that Patient A "is exactly as she has been on medication and off medication" and was her "normal self". She admitted that she knew Patient A was "physically unwell" but already knew that she "had been on the run for some time". While she did not undertake a formal assessment, Dr Lucire says she took note of her appearance, energy levels and state of distress.
[59]
Factual findings
Dr Lucire was not aware of Patient A's current mental health status and was of the opinion that Patient A may have been physically unwell. She admits that she did not carry out a physical or mental assessment, although she did talk to her and took note of her appearance, energy levels and state of distress. She says she was not capable of interviewing Patient A. We do not accept that Dr Lucire was incapable of conducting a proper assessment or that Patient A was too exhausted to be assessed. She spoke to Patient A for a couple of minutes and sent coherent text messages to Dr Free.
[60]
Expert evidence
Dr Slaughter's opinion was that "[t]here seems no evidence to the nature of any appropriate assessment of [Patient A's] mental state in the early hours of 5 November, 2017". Dr Slaughter believes that such an assessment would include "whether there was a further risk of [Patient A] absconding yet again".
Dr Ryan's response to that view is that Dr Lucire must have made at least a cursory assessment of Patient A's mental state in order to guide her decision. It is likely that Dr Lucire did make some rough estimate of Patient A's absconding again and that she attempted to compare that with the risk of her absconding if she called the police. In Dr Ryan's opinion, there is no reason to think a detailed assessment of Patient A in the middle of the night, would have led to a significantly more valid assessment than the assessment Dr Lucire "probably undertook".
[61]
Conclusion
In accordance with our findings for Complaint 1.11, unless there was some imminent danger to Patient A's health or safety which precluded Dr Lucire from contacting police or the hospital straight away, that is what she should have done. It was not necessary for Dr Lucire to conduct a detailed physical or mental assessment of Patient A. All that was required was that she satisfy herself that there was no imminent risk to Patient A's health or safety. Dr Lucire did satisfy herself of that matter, but nevertheless failed to contact the authorities.
Complaint 1.12 is not proven.
[62]
Particulars of the Complaint
From the time Patient A arrived to the practitioner's home on 5 November 2017 until approximately 10am on 5 November 2017, the practitioner failed to contact NSW Police or NSW Health (including Manly Hospital) to disclose to them Patient A's location.
This particular is connected with Complaint 1.11. Dr Lucire allowed Patient A to stay in her home overnight rather than contacting police or hospital.
Manly Police telephoned Dr Lucire at approximately 1 am but Dr Lucire refused to provide them with her home address. It was not until 10 am on 5 November 2017 that Dr Lucire contacted NSW Police to disclose Patient A's location.
[63]
Dr Lucire's response
When police contacted Dr Lucire on the morning of 5 November 2017, she says she asked the Manly Police for time, saying that she did not yet have Patient A's permission to provide her address, and that she would call them back as soon as she could. Dr Lucire then prepared a letter and reports to send back with Patient A. She states that she "phoned the Manly Police at approximately 11 am (on 5 November 2017) to say they could now send an ambulance and provided them with her address".
Dr Lucire agreed that she did not want police to know where Patient A was until she had had a chance to build an argument to send to the hospital as to why Patient A's diagnosis was incorrect. She claimed that by 10am on 5 November 2017 she had assessed Patient A and she did not fit the criteria for being detained under the Mental Health Act, so she was under no obligation to notify the hospital.
In her defence, she says that she texted Dr Free and asked her to contact Manly Police to say that Patient A was safe, but not to disclose her location. Dr Lucire also said in cross-examination that she had thought about telephoning police using a mobile phone belonging to her husband's live-in carer, but the carer had gone to bed. Dr Lucire denies this particular insofar as it alleges that she failed to do something she was not obliged to do.
[64]
Expert evidence
Dr Slaughter's view is that Dr Lucire's failure to contact the police and Manly Hospital "was most inappropriate", "dangerous" and "would be hiding the patient from Police and Hospital". He regarded those actions as "unethical at the least and probably unlawful". Dr Slaughter goes on to say that he believes that not providing the police with her home address was "unacceptable professionally, potentially dangerous and showed no respect for the police force or its civic responsibility".
Dr Ryan assumed that Dr Lucire did not contact Manly Police in the early morning of 5 November 2017 and said that it would have been preferable if she had done so. In Dr Ryan's view, Dr Lucire's failure to contact Manly Hospital that evening is conduct which falls below the relevant standard. He acknowledged that she was under a professional obligation to notify the hospital. It was not sufficient for Dr Lucire to notify Person C and Dr Free of Patient A's whereabouts. She knew or ought to have known that, unless either of them had then contacted Manly Hospital, staff there would have been understandably concerned that Patient A was still at large.
However, Dr Ryan does not consider that the conduct falls significantly below the relevant standard because of the "extraordinary circumstances". Dr Lucire said she was exhausted and had taken sleeping tablets and pain-relievers at the time. Dr Ryan did not resile from this view in oral evidence and added that Dr Lucire may not have called the hospital because her speech may have been slurred.
[65]
Conclusion
We find that from the time Patient A arrived at Dr Lucire's house in the early hours of 5 November 2017 until approximately 10 am that day, Dr Lucire failed to contact NSW Police or Manly Hospital to disclose Patient A's whereabouts. She did not do so in the early hours of the morning even though she told Dr Free in a text message that she would get her friend to tell police. A few minutes later she asked Dr Free to contact police, but not to disclose her location.
In relation to Dr Ryan's opinion that Dr Lucire's failure to notify police does not amount to unsatisfactory professional conduct, we had the benefit of hearing Dr Lucire's evidence on that issue, while Dr Ryan did not. When giving that evidence Dr Lucire repeatedly gave several implausible excuses in an attempt to justify why she had allowed Patient A to stay the night without contacting police, including that her speech would have been slurred.
Dr Lucire eventually stopped offering excuses in her oral evidence and admitted that she chose not to telephone the hospital or police. She admitted that that would have been the "correct thing to do", but added that she did it "to the best of my ability". The evidence does not support that contention. For the following reasons, none of the excuses Dr Lucire offered for failing to contact police are justifiable and/or credible.
Dr Lucire said she was affected by medication and her speech would sound slurred if she rang the police. She was awake and aware enough to send coherent text messages. We do not accept that she would not have been able to speak clearly to police because of the effects of a sleeping tablet or pain medication.
Secondly, she said her husband could not be left alone upstairs because he had had a stroke and had very little sight in one eye. For that reason she could not sit downstairs with Patient A to wait for the police or ambulance to arrive. Dr Lucire's husband was no more at risk if Dr Lucire was waiting downstairs or asleep in bed. Thirdly, when questioned further about this, Dr Lucire said that she herself was not fit to talk to anyone at the time. She then suggested that she was sleep walking or sleep texting when she sent the messages and had a period of amnesia. These are fanciful excuses and we do not accept them.
The reason Dr Lucire did not contact police that night was because she did not believe that Patient A had a psychotic illness or that she needed to be taking anti-psychotic medication. In her mind, Patient A was safe if she stayed at her house and it would have been dangerous for her to return to Manly Hospital because they would have continued with antipsychotic medication. She wanted to wait until the morning so that she could prepare materials for Patient A to take with her to the hospital.
Dr Lucire said she was not aware of any obligation under the Mental Health Act 2007 (NSW) or otherwise for a psychiatrist to notify the hospital if a patient who has been involuntarily detained absconds from the hospital. She said she felt that she had fulfilled her obligations "given my condition". The complaint does not allege a breach of any obligation under the Mental Health Act, but we agree with Dr Ryan's opinion that Dr Lucire was under a professional obligation to notify the police or the hospital herself. Dr Lucire knew Patient A was subject to an involuntary detention order and that she had absconded. Dr Lucire is not authorised to override the opinions of other medical practitioners about the need for an order.
There may be circumstances where it is not below the relevant standard for a medical practitioner to fail to contact the relevant authorities. But we do not regard the circumstances of this case as justifying a departure from that professional obligation. Dr Lucire was capable of contacting NSW Police and Manly Hospital. Nothing in her personal situation prevented her from doing so. Although Dr Lucire did not carry out a physical or mental assessment, there was no apparent reason for harbouring Patient A. In all the circumstances, failing to contact police for many hours is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Complaint 1.13 is proven.
[66]
Complaint 1.14 - refusal to provide Police with location
[67]
Particulars of the complaint
The practitioner inappropriately refused to provide NSW Police with Patient A's location (the practitioner's home address) when they called the practitioner at her home at about 10am on 5 November 2017 concerning Patient A's whereabouts.
In a letter dated 5 November 2017, Dr Lucire wrote that:
I asked the police to wait for an hour before picking her up so I could get this documentation in order and stop her getting more of the drugs that are making her want to kill herself.
[68]
Dr Lucire's response
Dr Lucire admitted that when the police telephoned in the morning at about 10 am, she refused to give them her address and told them she would ring back later. She said she did so because Patient A could overhear the phone call and may abscond if she thought the police were about to arrive. Dr Lucire also said that she needed time to draft a summary of Patient A's medical needs to take back to Manly Hospital. When that was done, Dr Lucire says she rang NSW Police and told them her address.
[69]
Expert evidence
Dr Slaughter considered that the conduct was unacceptable and fell significantly below the relevant standard.
In Dr Ryan's opinion, the minor delay involved in Dr Lucire not providing Manly Police with her address between the hours of 10 am and 11 am, was justified. The reason for that view was that Dr Lucire was attempting to minimise the risk of Patient A absconding again and avoid further trauma. He is not of the opinion that Dr Lucire's decision to briefly withhold her address from police constituted conduct that fell below the relevant standard, nor was it unlawful.
[70]
Conclusion
We do not accept Dr Lucire's excuse that she did not want to give out her address because Patient A may have overheard her or absconded. Dr Lucire could have gone into another room or called the police back a few minutes later if she was concerned about that. The reason she did not disclose her address to police was to give her more time to write a letter setting out her opinion about Patient A's diagnosis and treatment. Dr Lucire was under a professional obligation to notify the police or the hospital of Patient A's location as soon as possible, not when she decides is the most appropriate time. While the delay of one hour in advising police of Patient A's location is not as serious as harbouring Patient A in her home overnight, this conduct is below the relevant standard. In our view it is significantly below the standard because Dr Lucire was not authorised to override the opinions of other medical practitioners about the need for an involuntary detention order.
We find complaint 1.14 to have been proven.
[71]
Overview
Complaint 2, relating to Patient A, and Complaint 4 relating to Patient B, concern record keeping. Complaint Two is that Dr Lucire is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that she has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (the 2016 Regulation). Any contravention of the 2016 Regulation constitutes unsatisfactory professional conduct.
[72]
Complaint 2.1 Failure to maintain contemporaneous clinical records
The particulars of this complaint are that:
The practitioner failed to maintain contemporaneous clinical records for her care of Patient A in that the practitioner did not record the date of all of her consultations with Patient A at or soon after the time of the consultations, contrary to clause 8 of the 2016 regulation.
Under cl 8 of the 2016 Regulation:
(1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards.
(2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned.
[73]
Background
Dr Lucire's handwritten clinical records for Patient A are contained in A4 exercise books. The first entry in book 1 has an indecipherable date "?? August 2017". The figures "??" are crossed out and "23" is written instead. Dr Lucire first saw Patient A in 2016, so the year is obviously incorrect. A clue to the correct date is that Dr Lucire wrote in these notes, "On CTO, and another due today". The second injection of Ability was due on 22 August 2016. Dr Lucire said that it was 'possible' that she made this record on 21 or 22 August 2016. In a letter to the Commission dated 21 May 2018, Dr Lucire said that she first consulted Patient A on 22 August 2016.
Another entry commences with the date "22-8-96". The "96" should have been "2016". Dr Lucire was asked whether she entered that date retrospectively. She said she did not know, but that it was her handwriting.
[74]
Dr Lucire's response
Dr Lucire denies this particular. She says that Complaint 2, which concerns the keeping of records, is more in the nature of a performance issue than a disciplinary issue. However she acknowledged not knowing and/or not correctly documenting the dates for some of her consultations with Patient A during 2016 and 2017. In evidence to the s 150 delegates, Dr Lucire also acknowledged that she "frequently" forgot to put dates on her records for Patient A. She said that she went back and put the dates on some of the records from her computer but even then, her records were not complete or accurate with respect to dates. In oral evidence she suggested that her secretary sometimes wrote notes on her records and may have changed a date.
[75]
Expert evidence
Dr Slaughter is critical of Dr Lucire's medical records and is particularly critical of her failure to contemporaneously date her entries. His opinion is that Dr Lucire failed to maintain contemporaneous clinical records, failed to accurately record dates of her consultations and all text messages relating to patient care.
Dr Ryan agrees with Dr Slaughter's opinion, but does not necessarily agree that by doing so Dr Lucire was breaking the law. Dr Ryan's view was that the contents of Dr Lucire's records were poorly organised. That conduct fell below the relevant standard, but not significantly below.
[76]
Findings
Dr Ryan's view that this conduct is not significantly below the relevant standard is not relevant because that is not the test for record keeping. In breach of clause 8 of the 2016 Regulation, Dr Lucire did not always make a record contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable after that treatment or service. In that respect she has contravened a provision of the 2016 Regulation. By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint 2.1 is proven.
[77]
Complaint 2.2 failure to record date of all consultations
The particulars of this complaint are that:
The practitioner did not record the date of all of her consultations with Patient A, contrary to Sch 4, clause 1(4)(a) of the 2016 regulation.
Clause 1(4)(a) of the 2016 Regulation provides that:
A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient -
(a) the date of the treatment . . .
Under Sch 4, cl 1(2)(a) of 2016 Regulation:
1 Information to be included in record
…
(2) A record must include the following -
(a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),
[78]
Dr Lucire's response
Dr Lucire denies this particular. As set out above, she has acknowledged not knowing and/or not documenting the dates for some of her consultations for Patient A from 2016 and 2017. At the s 150 hearing before the Medical Council, Dr Lucire was told that of the "40 or so consultations" only about "10 or so" had dates on them and that from the Medicare records "on the consultations that [the s 150 delegates knew about] you had, only two of those have medical record entries that are dated and five that do not". Dr Lucire's counsel at the s 150 hearing submitted that:
Dr Lucire accepted in her evidence that there were dates left off of the records on some of the consultations-based, assuming that the Medicare history is correct, and that on some occasions her records weren't complete in terms of the consultation records, but overall may be seen in the context of the medical reports.
[79]
Findings
In breach of clause 1(4)(a) of the 2016 Regulation, some of Dr Lucire's records do not include the date of the treatment. By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. We find this particular to have been proven.
[80]
Particulars of the complaint
The practitioner inaccurately recorded the dates of her consultations with Patient A in 2016 and 2017, contrary to Sch 4, clause 3(3) and/or clause 1(4)(a) of the 2016 Regulation.
The provisions of clause 1(4)(a) of the 2016 Regulation are set out above. Clause 3(3) of Schedule 4 provides that:
General requirements as to content
(1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned.
(2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case.
(3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
[81]
Dr Lucire's response
At the hearing Dr Lucire acknowledged that the date recorded for some of her consultations may be recorded - perhaps by her secretary - in error. Dr Lucire also said that she sometimes didn't know the date unless she had a calendar.
[82]
Findings
In breach of clause 3(3) to Schedule 4 of the 2016 Regulation, some of Dr Lucire's records do not include an accurate record of the date. By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. We find Complaint 2.3 is proven.
[83]
Complaint 2.4 - failure to keep all text messages
The particulars of this complaint are that:
The practitioner failed to keep all text message exchanges with Patient A in which she provided and received information relevant to Patient A's treatment and care, contrary to Sch 4, clause 1(2) of the 2016 regulation.
Clause 1(2) of Schedule 4 to the 2016 Regulation provides that:
(2) A record must include the following -
(a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),
[84]
Dr Lucire's response
Dr Lucire denies this particular. Although requested by the Commission to do so, she did not produce all her text communications with Patient A. In evidence before the s 150 delegates she said that: "I kept these texts, except the last lot. The very last lot I haven't got. I haven't got the skills to get them off my computer. They're no longer on my phone." In oral evidence before the Tribunal Dr Lucire accepted that she needed to keep text messages as part of the record and that she had not produced all of the text messages with Patient A.
[85]
Findings
Dr Lucire has not kept all text message exchanges with Patient A in which she provided and received information relevant to Patient A's treatment and care. She is in breach of Clause 1(2) of Schedule 4 to the 2016 Regulation. By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. We find Complaint 2.4 is proven.
[86]
Complaint 2.5 - failure to record all dates of text messages
[87]
Particulars
The practitioner did not record all the dates of her text message communications with Patient A in which she provided and received information relevant to Patient A's treatment and care, contrary to Sch 4, clause 3(1) of the 2016 regulation.
Clause 3(1) of Schedule 4 sets out the general requirements as to the content of a record:
General requirements as to content
(1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned.
Dr Lucire denies this particular.
The records of text message exchanges with Patient A do not have dates, nor has Dr Lucire kept all the text messages. The Commission submits that without that information it is unclear to anyone reviewing her exchanges with Patient A, the date or time that such information was exchanged.
[88]
Findings
In breach of clause 3(1) to Schedule 4 of the 2016 Regulation, Dr Lucire did not record all the dates of her text message communications with Patient A in which she provided and received information relevant to Patient A's treatment and care. By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. We find Complaint 2.5 proven.
[89]
Complaint Three - inappropriately prescribing ketamine to Patient B and writing a deficient script
[90]
Complaint 3.1 - particulars
Complaint Three, Particular 1, is that Dr Lucire is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (1)(l) of the National Law.
The practitioner inappropriately prescribed Ketamine to Patient B on 13 October 2017 in circumstances where:
a. the practitioner relied in part on Patient B's personal background research into the use of Ketamine for depression and his self-reported professional use of Ketamine in a different clinical setting;
b. the practitioner was prescribing Ketamine to Patient B "off-label" for the purposes of the Therapeutic Goods Administration's regulation of medication;
c. the College clinical memorandum on "Use of ketamine for treating depression" (November 2015) recommended against the use of off-label Ketamine for depression in the absence of discussion with peers (preferably including a second opinion), institutional review by a medicines advisory committee or its equivalent and institutional research or clinical ethics committee consideration, none of which the practitioner initiated before prescribing Ketamine;
d. the practitioner was not aware and did not take steps to educate herself that Ketamine was a schedule 8 drug of addiction under the PTG Act;
e. the practitioner had no prior clinical experience prescribing Ketamine;
f. the practitioner was aware that Patient B had previously experienced an adverse reaction following the use of general anaesthesia for surgeries, but did not ascertain whether Ketamine was the cause of the reaction (other than for emergence delirium after surgery on 14 February 2017);
g. the practitioner did not contact Patient B's previous psychiatrist to find out why previous medications for depression were not tolerated;
h. the practitioner at the time she wrote the prescription had not completed her research into the efficacy of Ketamine and was not sure whether the treatment was appropriate and safe for Patient B;
i. at the time of writing the prescription the practitioner had not made appropriate arrangements for Ketamine to be safely administered to Patient B;
j. the practitioner did not have sufficient understanding of the dose of Ketamine Patient B required or would require;
k. the practitioner was unsure about the appropriate mode of administration of Ketamine for Patient B.
[91]
Background to Complaint Three
Dr Lucire says she met Patient B in about 2010 or 2011 in a social setting and described their relationship at the time as "a friendly teacher-pupil relationship". Patient B was a mental health nurse and Dr Lucire first saw him as a patient on 28 September 2016. He was referred by his general practitioner, Professor Sturmberg, for "an assessment and management of his increasing anxiety and depression triggered by work-related harassment". From 28 September 2016 to 22 November 2017, Patient B saw Dr Lucire about 30 times.
In a report dated 8 February 2017, Dr Lucire diagnosed Patient B with a "very severe anxiety disorder" and post-traumatic stress disorder (PTSD). In another report to an insurer nine days later, Dr Lucire stated that, "[Patient B] was never treated for depression but for situational distress and he developed symptoms consistent with an adverse drug reaction just as documented on each drug's prescribing information." In a report of 6 March 2017, Dr Lucire states that, "[Patient B] is suffering from severe post-traumatic stress disorder, which has been developing for five years. . . . His genotype shows that he has diminished metabolism for these drugs and he should not be treated with medication except under strict conditions."
At a consultation on 13 October 2017 Patient B suggested to Dr Lucire that she write him a script for ketamine. Ketamine is an anaesthetic drug listed as a drug of addiction in Schedule 8 to the Poisons and Therapeutic Goods Act 1966 (PTG Act). On the same date, Dr Lucire wrote a prescription for Patient B requesting the dispensing of "200mg x Max vials" and listed a dosage of "10mg subcut Prn".
Patient B presented the script to a pharmacist, Mr Biddle, and told him he had PTSD. Mr Biddle does not recall whether Patient B said he had depression as well. Mr Biddle said he understood that Patient B was to self-inject ketamine by subcutaneous injection (under the skin). He recalls Patient B saying that he would administer the dose himself. When Mr Biddle asked him how he would administer it, Patient B said he would put in the needle and draw out the right dose. Mr Biddle says Patient B told him he was a nurse and that he had administered ketamine to patients in a clinical setting. Mr Biddle understands that there is no requirement for the script to indicate whether the doctor or the patient will administer the medication. He says he made it clear to Patient B that he would have to check whether he could legally dispense ketamine and that he should come back. Patient B did not come back.
After Patient B left, Mr Biddle phoned Mr Paul Smith at the Ministry of Health for advice. Mr Biddle gave evidence that he had never seen a script for ketamine injectable ampules before. He was concerned about what might happen to Patient B if he injected that medication. He faxed the script to Mr Smith. Mr Biddle did not recall Patient B suggesting that he contact Dr Lucire. Whether or not Patient B made that suggestion, it does not reflect adversely on Mr Biddle's motivation or credibility that he did not communicate with Dr Lucire before contacting the Ministry of Health. He said he knew the script was not forged because he recognised Dr Lucire's handwriting. This was not a case of some misunderstanding or error that could be clarified by a discussion.
On 16 October 2017, the Medical Council of NSW received a notification from Bruce Battye, the Director of the Pharmaceutical Regulatory Unit (PRU) of NSW Health. The letter raised several concerns about the prescription for ketamine injections Dr Lucire had written. The letter noted that the PRU had been contacted by a concerned community pharmacist who reported that the patient who presented with the prescription had explained he was suffering from PTSD, an off-label indication for ketamine. Dr Battye also noted that ketamine is a Schedule 8 "drug of addiction" and that it is required to be dispensed as 200mg/2ml ampoules x 5. However, the script requested dispensing "200mg x Max vials" and listed a dosage of 10mg. Because ketamine is a Schedule 8 drug, and a pharmacist dispenses it in 200mg/2mls ampoules, this raised concerns regarding both the patient's ability to measure the dosage (10mg would be 0.1ml) and the patient's responsibility for disposing of the balance of the ampoule. It was also noted that the script indicated a dosage regime of "when necessary" ("PRN"). That was said to be an unorthodox approach when prescribing a Schedule 8 drug of addiction. Delivery of the dose was to be by subcutaneous injection (under the skin) rather than intramuscularly (in the muscle) or intravenously (in the vein) as is the usual method.
[92]
Recommendations for prescribing Ketamine
A Clinical Memorandum with the title "Use of Ketamine for treating depression" and produced by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) in November 2015 contained the following recommendation:
The use of ketamine for treatment of depression is considered a novel treatment. For more information please refer to the RANZCP practice guideline 'The use of medication in dosages and indications outside normal clinical practice'.
Ketamine should be used under research trial conditions that includes oversight by and institutional research or clinical ethics committee and careful monitoring and reporting of outcomes.
For persons with treatment resistant depression who are not participating in a research trial but are able and willing to consent to treatment with ketamine, the treating psychiatrist should consider such treatment as a novel or innovative treatment, which should include discussion with peers (preferably including a second opinion); institutional review by the medicines advisory committee or its equivalent; and, institutional research or clinical ethics committee consideration.
People considering ketamine as a treatment and their carers should be provided with clear information and an explanation that this is a novel treatment. This should include a detailed explanation of the current evidence and potential risks, and be documented in the clinical notes.
Practice outside of these recommendations should not occur. (Emphasis added.)
As to the optimal dose, mode of administration and adverse effects of ketamine, the Clinical Memorandum states that (citations deleted):
There is limited information on the ketamine dose-response relationship and the optimal mode of administration. Most studies have tested ketamine's antidepressant effects using 0.5 mg/kg infused intravenously over 40-60 minutes and reported high response and remission rates though for most participants the improvement only lasted a few days. There is no clarity on optimal mode of drug administration, including the dose required for antidepressant effects. In the absence of a strong evidence base, there are risks associated with treating depression with ketamine at this stage.
Use of low dose ketamine (up to 0.5) mg/kg can produce a variety of psychotomimetic, cognitive, or physical adverse effects.
[93]
Dr Lucire's response
Dr Lucire denies this complaint but admits that she prescribed ketamine off-label, had not previously prescribed it, did not regard Patient B as a drug dependent person, did not contact his previous psychiatrist, was not aware of the appropriate administration of ketamine, and informed Patient B that she would be administering it.
By letter dated 5 November 2017, Dr Lucire responded to the concerns expressed in Dr Battye's 16 October 2017 letter. She noted that, "the script did not refer to PTSD" and in fact she was prescribing "the drug off label for depression to a patient who was not a drug user or abuser". She also indicated that she would be seeing the patient every 3-4 weeks and depending on whether the drug was proving effective would likely have administered it "as required (PRN) every week or fortnight, or more frequently if necessary, depending on response." She notes that she has never prescribed ketamine before but adds, "it is my practice to find out as much as I can about the drugs I prescribe before I give them to patients." In her evidence to the Medical Council, Dr Lucire confirmed that this was the first time she had ever prescribed ketamine.
When she was due to be interviewed by the Medical Council, Dr Lucire contacted Patient B and asked him to provide information about his interaction with the pharmacist. The letter from Patient B, dated 6 November 2017, states in part:
I have been told that there has been some kind of miscommunication about a prescription.
Dr Lucire wrote me a prescription. At the time, she asked me to have the pharmacist ring her should there be any issue.
I tried to get a prescription for ketamine filled at my local chemist.
. . . I told him that I was desperate for some sort of treatment and was hopeful that this would help me.
The letter also noted that the pharmacist indicated he could not fill the script as it was written incorrectly. Patient B then states he advised the pharmacist to call Dr Lucire. Patient B also states that, although the pharmacist asked him directly whether he would be giving the medication to himself he:
. . . never specifically answered this as I thought it was clear that my doctor would be giving it. I did say to him that I was confident that I could, as in my long career as a Registered Nurse, I have given this medication countless times to patients in my care. I was under the impression that his concerns were regarding dosage, not administration. I told him that the usual dose given was 10mg and that based on what I'd seen in clinical practice, I could easily tolerate this. I never told the pharmacist that I would be self- administering this medication. Perhaps this was where some miscommunication occurred.
Patient B's evidence that he did not specifically answer Mr Biddle's question about self-administration, is inconsistent with Mr Biddle's recollection. He said that he recalls Patient B saying that he would administer the dose himself. He also remembers Patient B telling him that he would put in the needle and draw out the right dose. Mr Biddle also remembers Patient B telling that he was a nurse and that he had administered ketamine to patients in a clinical setting. These are specific details that Mr Biddle would not have known unless Patient B told him.
Because Patient B did not give evidence, his written assertions about his interactions with both Dr Lucire and Mr Biddle cannot be tested. The Commission submits that the Tribunal should accept Mr Biddle's evidence that Patient B said he would administer the dose himself. He has no interest in the matter except as a concerned professional. We agree. Mr Biddle gave a consistent and detailed version of events and some matters were recorded contemporaneously. We are satisfied that, whether or not Patient B expressly told Mr Biddle that he would be administering the dose to himself, he said he was confident that he could do so. Based on those responses, Mr Biddle was understandably concerned that Patient B would or might administer ketamine to himself.
On 7 November 2017, Dr Lucire responded to questions from the Medical Council at a s 150 hearing. This was less than six weeks after Dr Lucire wrote the prescription. She would have had a much better recollection of events at that time than she did at the hearing in 2021. However, she maintains that she was "very ill" at the time of the s 150 hearing. It was a couple of days after Patient A had come to her house having absconded from Manly Hospital. She agreed that her memory was not affected by sciatica. Illness may affect a person's recollection, but it is unlikely to affect the accuracy of their account.
Below we make findings as to the factual assertions in Complaint 3 and whether the complaint overall meets the definition of unsatisfactory professional conduct.
[94]
Complaint 3.1(a) relying on information provided by Patient B
Dr Lucire admits that she relied, in part, on Patient B's personal background research into the use of ketamine for depression and his self-reported professional use of ketamine in a different clinical setting. When asked why she wrote the script if she was not sure Patient B was going to use it, Dr Lucire said that Patient B wanted it and he had done the research. She added that Patient B was an "expert patient" and that "he knew about ketamine, he did all the research, he rang the ketamine clinics, he found out whether it could be prescribed, he read literature . . ."
The factual basis of Complaint 3.1(a) is proven.
[95]
Complaint 3.1(b) prescribing off-label
"Off-label' prescribing occurs when a drug is prescribed for an indication, a route of administration, or a patient group that is not included in the approved product information document for that drug. Dr Lucire admits that she prescribed ketamine "off-label" and that she had never prescribed that medication before. However, she said that she had been following ketamine for a long time. Dr Lucire says she was aware that ketamine could be prescribed in the community, legally, off label. She was aware of the criteria for off label use and the literature which supported that use. Dr Lucire also knew that there was a policy at NSW Health discouraging the use of ketamine by private practitioners. The factual basis of Complaint 3.1(b) is proven.
[96]
Complaint 3.1(c) recommendation against use of off-label Ketamine for depression
This particular refers to the College's clinical memorandum, which recommends against the use of off-label ketamine for depression in the absence of discussion with peers (preferably including a second opinion), institutional review by a medicines advisory committee or its equivalent, and institutional research or clinical ethics committee consideration. Dr Lucire did not do any of these things.
At a s 150 hearing before the Medical Council on 7 November 2017, Dr Lucire expressed her criticism of regulatory authorities. She insisted that she was not being irresponsible in prescribing ketamine and said that she wanted to be judged "by the law as it is and not on the standards of the College or how the College wants the law to be". She went on:
I believe I'm not dangerous, I am a very activist sort of person. I'm very angry about what's going on in psychiatry at the moment. I'm very angry about the role that the Medical Board and what's going on in psychiatry . . .
Dr Lucire was not prepared to abide by the College's clinical memorandum on the use of ketamine. She insisted that because she was treating Patient B as a workers compensation case, there were no resources available to obtain a second opinion. Dr Lucire did not agree with the proposition that if she were unable to obtain a second opinion, she should not have written the prescription. It was at that point in the evidence that Dr Lucire described the prescription as a "dummy prescription". Later in her evidence, Dr Lucire said that the purpose of the script was to ask the pharmacist how much it would cost. Dr Lucire vehemently denied that it was a script. Finally, Dr Lucire said, "Of course I wish I'd done something else. The patient had no money and wanted to know how much it would cost."
In our view the script was not a "dummy prescription", whatever that term is intended to convey. It was intended to be filled. It was written on Dr Lucire's script pad, which had her name on it. The factual basis of Complaint 3.1(c) is proven.
[97]
Complaint 3.1(d) not aware that Ketamine is a Schedule 8 drug
This particular asserts that Dr Lucire was not aware and did not take steps to educate herself that ketamine was a schedule 8 drug of addiction under the PTG Act. When questioned about this issue at the s 150 hearing in November 2017, the following exchange occurred with reference to the MIMS description of ketamine:
Dr Lucire: I know it's a drug of addiction and I'm concerned about it.
Delegate: but you didn't know it was an S8.
L: I knew it was a poison. I knew it was a drug of addiction. I knew it was a poison. I haven't registered S8 and if you look at the font you'll see why, its half-light font. I registered that it was a scheduled drug, but I didn't register - my eyes did not register the "8" but I knew it was a scheduled drug and I knew that there would be conditions and I didn't know what the conditions were whether I would have to get a second opinion or go through the PGA which is why I asked the - had the pharmacist.
Dr Lucire told the s 150 delegates that she was not aware ketamine was an S8 drug. She said she knew it was a poison, "but I didn't know exactly what schedule it was which is another reason I asked the pharmacist to give advice". In evidence before the Tribunal, Dr Lucire says she was aware that ketamine was an S8 drug and that she may need special permission to prescribe it. She looked it up in MIMS and the website of the TGA. There were no special conditions.
Dr Lucire's evidence on this issue was inconsistent and not believable. Despite saying at one point in her oral evidence that that she knew ketamine was an S8 drug, she did not say that to the Medical Council. Her explanations including that the font was small are unconvincing. By writing the prescription Dr Lucire was not asking the pharmacist for advice, she was directing the pharmacist to fill the prescription. We find the factual basis of Complaint 1.3(d) is proven.
[98]
Complaint 3.1(e) no clinical experience prescribing ketamine
Dr Lucire admits that she had no clinical experience prescribing ketamine. The factual basis of Complaint 3.1(e) is proven.
[99]
Complaint 3.1(f) previous adverse reactions
This particular asserts that Dr Lucire was aware that Patient B had previously experienced an adverse reaction following the use of general anaesthesia for surgeries. Despite that knowledge, she did not ascertain whether ketamine was the cause of the reaction (other than for emergence delirium after surgery on 14 February 2017).
Patient B had a history of serious adverse drug reactions to citalopram, a single tablet of olanzapine and venlafaxine. Dr Lucire had tested Patient B's genotype CYP 450 2D624, 2C9 11, C19117, and concluded that it was unlikely to be compatible with other antidepressants but likely to be compatible with ketamine which is metabolized by CYP 3A4 and CYP 2B6. 136. Dr Lucire describes the effects of these drugs on Patient B in the reports.
In Dr Lucire's file is a letter from anaesthetist Dr Catherine Bernard dated 5 March 2017. In that letter she notes that Patient B had experienced emergence delirium with past anaesthetics and did so again following surgery on 14 February 2017. Ketamine was not one of the anaesthetics administered on that occasion. There is no other record in her file in regard to Patient B's other adverse reactions following the use of general anaesthesia, specifically to exclude the possibility that ketamine had been involved.
Dr Lucire instructed her lawyers to state in a letter of 17 April 2019, that:
Of greatest concern in relation to Ketamine use were his two episodes of Emergence Delirium with violence following the use of multiple drugs for general anaesthesia.
Dr Lucire was aware that it precluded the initial administration of Ketamine anywhere other than in a highly supported situation. Further, it precluded the self-administration of Ketamine.
. . .
At the time, foremost in Dr Lucire's mind was that she would not be administering initial doses of Ketamine to [Patient B] in her office due to his history of Emergence Delirium. As well as being aware of the risk of emergence delirium, Dr Lucire also knew of occasional reports of respiratory adverse drug reactions (laryngeal stridor) which required the availability of a second medical practitioner with the appropriate equipment. That is, Dr Lucire was aware that the first, and maybe some early, administration of ketamine would require both the equipment and the second medical practitioner to be available.
Dr Lucire did not record any of this thinking in her notes nor was it apparent from the script. In an attempt to minimise the seriousness of her behaviour Dr Lucire has attributed intentions and motivations to herself which she did not have at the time. Dr Lucire did not record that she had explained any possible side effects of ketamine to Patient B. She was confident that because there was a strong understanding between them, he would not complain that she had not warned him about those matters.
We find the factual basis of this assertion is proven. Dr Lucire did not ascertain whether ketamine was the cause of the reaction (other than for emergence delirium after surgery on 14 February 2017).
[100]
Complaint 3.1(g) failure to consult with previous psychiatrist
Dr Lucire admits that she did not consult with previous psychiatrists to find out why Patient B had not tolerated previous medications for depression. Dr Lucire said she did not need to do so. She had several publications in this discipline in peer reviewed journals and was familiar with the literature on the relationship of metabolizing genes and side effects. Indeed, she said that she had made a substantial contribution to that literature.
We find the factual basis of Complaint 3.1(g) is proven.
[101]
Complaint 3.1(h), (i), (j) and (k) understanding of efficacy, safety, the dose and mode of administration
These particulars assert that Dr Lucire had not completed her research into the efficacy of ketamine, had not made arrangements for ketamine to be safely administered, had insufficient understanding of the appropriate dose of ketamine and was unsure as to the appropriate mode of administration.
Dr Lucire's written response to the Medical Council dealt with the question of the appropriateness of ketamine for treating depression and the manner in which she planned to dose the patient. She referred to "the literature on ketamine for depression" which she said, "suggests that ketamine is effective for short periods in certain people and longer periods in others." Dr Lucire included various articles about ketamine in the material provided to the Tribunal. She noted that the patient himself was familiar with ketamine, having administered it to patients when he was a cancer nurse. Dr Lucire told the Medical Council at the s 150 hearing in November 2017 that she had read the literature about ketamine. In other evidence, Dr Lucire says that Patient B "did all the research . . . he read literature".
Despite the inclusion of that literature, based on her evidence we are not persuaded that Dr Lucire had read and fully understood this material before prescribing ketamine. Even if Dr Lucire did do some of her own research, it is apparent that she had not completed her research into the efficacy of ketamine at that stage.
Dr Lucire asserted in the 5 November 2017 letter that, "The patient was not going to inject the drug into himself." She added that the patient was aware that he was required to bring the drug back to her rooms and that she was going to administer it either subcutaneously or sublingually (under the tongue). It was put to Dr Lucire by a delegate of the Medical Council that there would be a need to monitor the patient physiologically during the administration. This was her reply:
I certainly would do that. I would actually have him in my home office sitting in a chair. I'd give it sublingually (under the tongue) if I were to do it. (Words in brackets added.)
However, in oral evidence Dr Lucire denied that she planned to administer in her rooms. Rather, the plan was to use a clinic where respiratory equipment and a second practitioner would be available. We agree with the Commission's submission that this evidence is contradictory and unreliable. Dr Lucire had not thought through exactly how the ketamine would be administered. She had not made a firm decision that Patient B would administer it to himself, although Patient B did tell the pharmacist that he was confident he could do so. At the time of writing the prescription Dr Lucire had not made appropriate arrangements for ketamine to be safely administered to Patient B.
As to the dosage and mode of administration of ketamine, Dr Lucire told the Medical Council that:
The pharmacist does not know the patient's size or genotype, has no idea. It's - I would have definitely started with a very tiny dose, like, 10. At that stage I hadn't read all the (indistinct) range of doses. I disagree that it can't be given subcutaneously because it's given subcutaneously all the time in hospital for pain.
Dr Lucire was also aware that the ampoules were single use and "the residuum would need to be discarded".
According to Dr Lucire, it is not right to say that she did not know the appropriate dose. The PRU noted that ketamine is required to be dispensed as 200mg/2ml ampoules x 5. In this case the script requested dispensing 200mg x Max vials. Furthermore, the prescription listed a dosage of 10 mg. Because ketamine is a Schedule 8 drug and a pharmacist dispenses it in 200mg/2mls ampoules, this raised concerns regarding both the patient's ability to measure the dosage and the patient's responsibility for disposing of the balance of the ampoule.
Dr Lucire said in evidence that she knew that ketamine could be delivered into a patient including intravenous, subcutaneous, sublingual and with permission it could be compounded into tablets. In fact, the usual method for injecting ketamine is intramuscularly or intravenously. When it was pointed out that Dr Lucire wrote 'subcutaneously" (under the skin) on the script, she said she wrote that because "that's what the book said". She added, "I'm giving instructions to myself so it doesn't really matter all that much does it? . . . I'm entitled to change my mind about something."
We find the factual basis of Complaint 3.1.1(h), (i), (j) and (k) is proven.
[102]
Unsatisfactory professional conduct?
Each of the factual matters listed under Complaint 3.1 has been proven.
Dr Lucire was not prepared to abide by the RANZCP's clinical memorandum on the use of ketamine. The guideline is clear: "Practice outside of these recommendations should not occur". The Tribunal drew Dr Slaughter's attention to the clinical memorandum but he could not locate those guidelines in his material. It may be that the Commission had not provided them to him. In any case, he read the summary of the recommendations and agreed with the views expressed by the College. In accordance with those recommendations, Dr Slaughter was not critical of Dr Lucire attempting to use ketamine "off label" but he was critical of how she went about doing so. The use of ketamine off label for depression is acceptable, but Dr Lucire did not follow the RANZCP's guidelines.
When Dr Slaughter was questioned about "off label" use, it was clear that he had very little experience in prescribing off label and very little awareness of current or former practices with off label prescribing. He said there were risks associated with off-label. Ketamine is highly addictive. Personally, he would prefer to exhaust all other options before prescribing off label.
Even if Patient B had depression (and not just PTSD), Dr Slaughter did not agree that ketamine could potentially have any therapeutic benefit. It was put to Dr Slaughter that Patient B had tried SSRIs, SSNIs and trialled amphetamines. Regardless, Dr Slaughter would not have prescribed ketamine. The patient's wishes should be considered but Dr Slaughter would not prescribe ketamine unless all other conventional treatments had been unsuccessful. The fact that Patient B was a trained nurse did not affect Dr Slaughter's opinion. He would leave it to the research organisations to assess the risks and benefits of medications such as ketamine.
Dr Slaughter can see no evidence that Dr Lucire was aware of the side effects and dangers of ketamine. She planned to review Patient B in 3-4 weeks, which Dr Slaughter finds alarming. Before prescribing, Dr Slaughter would have expected her to read the literature, discuss with colleagues and perhaps attend a seminar on the subject.
Dr Ryan was not asked to comment on Patient B.
Among the most egregious matters are Dr Lucire's failure, when prescribing ketamine off-label, to abide by the College's clinical memorandum. Indeed she was dismissive of the memorandum, suggesting that she wants to be judged by the law, and not the standards of the College. Surprisingly for a psychiatrist with as much experience as Dr Lucire, she does not appreciate that one of the roles of the College is to set the standard. As a registered psychiatrist, she is obliged to comply. When her non-compliance became obvious, Dr Lucire attempted to deflect any blame by asserting that the script was not a script at all and that one reason she wrote it was so that Patient B would know how much it would cost. That suggestion is simply not credible. Dr Lucire intended for the script to be filled. While she wishes she had done something else, that is only because a complaint was made, not because Dr Lucire acknowledges that she has done the wrong thing.
We find that Dr Lucire had insufficient understanding of the appropriate dose of ketamine. She intended to prescribe Patient B with a trial dose of 10mg of ketamine, which represented 1/20th of a single 200mg/2ml ampule, but wrote a prescription requesting multiple ('maximum') ampules of ketamine in her prescription. As to the dose of ketamine Dr Lucire prescribed, Dr Slaughter agreed that 10mg was a low dose but did not agree that it would be unlikely to have adverse side effects.
We find that Dr Lucire was unsure about the appropriate mode of administration. We agree with Dr Slaughter that recommending administration subcutaneously or sublingually departs from recognised and approved methods of administration.
Not only is the conduct outlined in this complaint significantly below the relevant standard, but it is also unethical. Complaint 3.1 is proven.
[103]
Particulars of complaint
The practitioner wrote a prescription for Ketamine for Patient B dated 13 October 2017 which was deficient and failed to comply with accepted clinical standards and the legal requirement for prescribing in that:
a. the practitioner intended to prescribe Patient B with a trial dose of 10mg of Ketamine, which represented 1/20th of a single 200mg/2ml ampule, but wrote a prescription requesting multiple ('maximum') ampules of Ketamine in her prescription, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ("PTG Regulation");
b. the practitioner recorded that the 'maximum' number of ampules was to be supplied to Patient B, contrary to clauses 79, 80(1)(c) and/or 80(3) of the PTG Regulation;
c. at the time of writing the prescription the practitioner was unsure about the method of administrating Ketamine, contrary to clause 80(1)(d) of the PTG Regulation;
d. the practitioner had not provided Patient B or the dispensing pharmacist with clear instructions that the drug was not to be self-administered by Patient B or that the supplied medication was to be returned to the practitioner.
[104]
Regulations
Below we highlight clauses 79, 80(1)(c) and (d) and s 80(3) of the Poisons and Therapeutic Goods Regulation 2008:
79 Quantity and purpose of prescriptions to be appropriate
An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
80 Form of prescription
(1) A person who issues a prescription for a drug of addiction must ensure that the prescription includes the following details -
(a) the date on which it is issued,
(b) the name and address of the patient or (if the treatment is for an animal) the species of animal and the name and address of the animal's owner,
(c) the name, strength and quantity (expressed in both words and figures) of the drug to be supplied,
(d) adequate directions for use,
(e) the maximum number of times the drug may be supplied on the prescription,
(f) the intervals at which the drug may be supplied on the prescription,
(g) if the prescription is issued at a hospital, the name and designation of the person by whom it is issued and the name, address and telephone number of the hospital,
(h) if the prescription is issued elsewhere than at a hospital, the name and designation of the person by whom it is issued and the address and telephone number of the premises at which it is issued,
(i) if the drug of addiction is a type A drug of addiction and the person holds an authority to issue the prescription under section 29 of the Act or Part 8 of this Regulation, the reference number of the authority.
(2) The details referred to in subclause (1)(a)-(f) must be made out -
(a) in the handwriting of the person by whom the prescription is issued, or
(b) in such other manner as may be approved for the time being by the Director-General, and the prescription must be signed by the person by whom it is issued.
(3) The person by whom the prescription is issued must confirm any dose that could be regarded as being dangerous or unusual by underlining the part of the prescription that specifies the intended dose and by initialling the prescription in the margin.
(4) A person must not issue a prescription that includes -
(a) more than one preparation containing a drug of addiction, or
(b) both a preparation containing a drug of addiction and another preparation.
(5) The Director-General may, by order in writing, exempt any person or drug of addiction, or any class of persons or drugs of addiction, from any or all of the requirements of this clause.
(6) Such an exemption may be given unconditionally or subject to conditions.
Maximum penalty - 20 penalty units.
[105]
Dr Lucire's response
Dr Lucire accepts that the script did not contain the required information specified in the regulation. She also accepted that the use of a so-called 'dummy script' is unorthodox. She vehemently denied that by writing the script she intended to obtain ketamine for use by Patient B. In our view, Dr Lucire knew that she was writing a script for ketamine. We have rejected Dr Lucire's assertion that she did not intend the script to be filled. While she was not sure that the script would be dispensed, that was her intention. None of her alternative explanations is credible.
Dr Lucire intended to prescribe Patient B with a trial dose of 10mg of ketamine, which represented 1/20th of a single 200mg/2ml ampule, but wrote a prescription requesting multiple ('maximum') ampules of ketamine in her prescription. That was contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008. We find Complaint 3.2(a) to have been proven.
Dr Lucire regrets that she wrote "max" on the script. She told the Medical Council at the s 150 hearing that she should have written '5' instead of 'max'. She said she had to "indicate on the script the approximate dose I would be giving and the vials are 200mg so you have to dilute it to 10 and I had to write something and so I wrote 10mg which is within the range that people use". (Emphasis added.) This response is an admission by Dr Lucire, two months after she wrote the script, that she was unsure about the dose that she would ultimately administer. All she could suggest was that she would titrate the dose.
Dr Lucire instructed her lawyers to say the following:
The dosage written on the prescription was '10mg subcutaneously PRN" which is a conservative dose delivered in a manner supported by the literature. A 10mg does represents 0.1ml of the Ketamine 200mg/2mls ampoule. Dr Lucire says that this miniature quantity is accessed by use of an insulin syringe.
Dr Lucire did not accept that she was unfamiliar with the literature at the time and therefore unable to determine the appropriate dose. We do not accept that denial.
Dr Lucire wrote 'max' on the prescription, as she did not know how much would be needed. Dr Lucire expected the reference to 'max' to have been corrected when she was made aware of the appropriate amount for the prescription to be dispensed. By writing the word "max", Dr Lucire was in breach of cl 79 and cl 80(1)(c) of the Regulation. This is a serious failing because of the potential risks of ketamine being misused, either by being used incorrectly or in excess by the person for whom it was prescribed, or by being diverted illegally and becoming a street drug.
Dr Lucire denies that she was unsure about the method of administration. She instructed her lawyers to write that:
Dr Lucire needed further information about how Ketamine might best be dispensed for use in recurrent small doses as, at the time, she was not aware in what form (snap top off glass vials or vials with a rubber stopper), as it was to be dispensed for multiple injections. Dr Lucire expected the pharmacist - who was asked by Patient B to do so - to discuss quantities with her directly and she was advised that the Pharmacist has agreed to do so.
Dr Lucire said she knew how to administer ketamine and had told Patient B that she would be administering it. The evidence does not support that assertion.
The PRU wrote to Dr Lucire on 16 October 2017 stating that:
Please note that in the circumstances where an authority is issued for injectable Schedule 8 medications it is a condition of the authority that administration is only by a medical practitioner or other suitably qualified health professional (e.g. a registered nurse). The Ministry and the Medical Committee does not support self-administration by injection of drugs of addiction or administration by a relative.
[106]
Unsatisfactory professional conduct?
Dr Slaughter noted that ketamine is a "fairly serious" drug to prescribe and can be used in cases of addiction and as a street drug. Consequently, everything on the prescription should be "absolutely correct". Dr Slaughter's view is that the form of the script does not comply with the Regulation and that failure attracts his strong criticism. He agreed that not all doctors comply with each of the requirements in Cl 80 of the Regulation and that ignorance of the relevant requirements or error does not amount to unsatisfactory professional conduct. However, in this case, the script could not be filled. Dr Slaughter was more critical of Dr Lucire's non-compliance with the requirements because of the fact that she prescribed ketamine off-label and it is abused as a street drug. In those circumstances, he was strongly critical of Dr Lucire's ignorance and errors.
We are satisfied that at the time of writing the prescription Dr Lucire was unsure about the method of administrating ketamine, contrary to clause 80(1)(d) of the PTG Regulation.
Dr Lucire says that she had instructed Patient B to tell the pharmacist that the drug was not to be self-administered but returned to her. She agrees that Patient B did not convey those instructions to the pharmacist. We have found that, in the light of Patient B's evidence that he told the pharmacist he was confident he could self-administer the drug, Dr Lucire did not give clear instructions to Patient B about who was to administer the ketamine. Consequently we find that Dr Lucire did not provide Patient B or the dispensing pharmacist with clear instructions that ketamine was not to be self-administered by Patient B or that the supplied medication was to be returned to her.
Mr Biddle's evidence was that there is no requirement for the script to indicate whether the doctor or the patient will administer the medication.
Ketamine is a Schedule 8 drug with significant risks associated with it. To protect the health and safety of patients, any script for this medication needs to be accurate. Dr L's script was deficient in the ways identified in the particulars. Her evidence reveals that she had very little knowledge of this medication and how it should be prescribed. Those deficiencies are not trivial. They are significant because of the risks of harm involved. This particular is proven.
[107]
Complaint Four - deficient record keeping for Patient B
This complaint is that Dr Lucire is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that she has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (the 2016 regulation).
[108]
Particulars of the complaint
For some of the practitioner's consultations with Patient B in the period May - July 2017, the practitioner created part of her clinical record shortly prior to 5 November 2017 and after this date, and in doing so:
a. failed to maintain a contemporaneous record of her consultations with Patient B contrary to clause 8 of the 2016 regulation;
b. failed to indicate on her clinical record that the entries created for the period May - July 2017 were created retrospectively and when they were authored, contrary to Sch 4, clause 3(3) and/or clause 4(2) of the 2016 regulation.
The Commission describes the allegation, overall, as that Dr Lucire created part of her clinical record for Patient B for the period May-July 2017 shortly prior to the s 150 proceedings on 7 November 2017, and after those proceedings.
Under cl 8 of the 2016 Regulation:
(1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards.
(2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned.
Clause 3(3) of Schedule 4 provides that:
General requirements as to content
(1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned.
(2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case.
(3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
Clause 4(2) of Schedule 4 provides that:
(2) Each entry in a record must be dated and must identify clearly the person who made the entry.
Any contravention of the 2016 Regulation constitutes unsatisfactory professional conduct. Dr Lucire denies this particular.
[109]
Evidence
On 20 February 2018, Dr Lucire received a "Notice to Produce" Patient B's medical records from the Commission. She produced those records and wrote in a signed statement dated 27 February 2018, that:
. . .
5. The handwritten consultation records contained in "Annexure 1" are not contemporaneous in that the records were not created on the dates recorded. The consultation records were created within a few days of the section 150 proceedings relating to [Patient B] on 5 November 2017.
6. Following the section 150 proceedings, I reviewed my consultation records for [Patient B] and realised I had not created consultation records for some consultations I had with [Patient B] in mid-2017. I created the consultation records in 'Annexure 1' based on other consultation records I had made around the time of the consultations, any correspondence exchanged with [Patient B] around that time and my recollection of the consultations.
7. The other medical records produced to my solicitors are contemporaneous records. During my review of my records I added some missing dates to the handwritten consultation records.
In paragraph 5, the word "days" was written by hand underneath the typed word "weeks" which was crossed out. Dr Lucire initialled the change. At the Tribunal hearing, Dr Lucire said that she signed the statement, but it is not right. She said the words 'within a few days" in paragraph 5 is "nonsense". She said that she did not understand why she would have said that. Her explanation was that she had signed something her lawyers gave her without reading it properly. She also says that paragraph 6 is not correct. Dr Lucire maintains that her records for Patient B were made contemporaneously. After answering a few more questions, Dr Lucire said she now understands why she signed the statement dated 27 February 2018. Her explanation was that some consultations were spent going over reports that Dr Lucire had drafted. When she looked at the reports, Dr Lucire says she knew that there must have been a consultation to discuss the report. She documented the consultation after the report had been written.
Dr Lucire maintained that a three page handwritten record of a consultation with Patient B dated Friday 13 September 2017 fell into this category. Friday 13 September 2017 was the date of the script for ketamine. Dr Lucire agrees that she had a consultation with Patient B and wrote the script on the same day. There were no earlier discussions about prescribing ketamine. She could not explain why she crossed out the word "September" and wrote the word "October". Dr Lucire denies that she created this record after the event. The first two pages of this record do not mention the possibility of ketamine being prescribed.
The evidence suggests that if Dr Lucire wrote the script on 13 September 2017, Patient B did not present it to the pharmacy until about a month later.
When it was pointed out that the first two pages of the three page record were widely spaced whereas the third page was written more compactly, Dr Lucire denied that they were written on different occasions. She was adamant that all three pages were written during the same consultation. The third page reads:
Morose - "Flattest" (??) says [Patient B's buddy]
Under the first line beginning with the word "morose' is a doodle about 1 cm high and 5 cm long separating the rest of the text.
Discussion of Ketamine treatment
[Patient B] wants me to administer - options discussed - private clinic
Checked MIMS, TGA
wrote script
10mg dose sub cutaneously ?
Asked [Patient B] to ask the pharmacist to call me if there were more conditions.
In our view, Dr Lucire's assertion that she did not make any notes retrospectively, apart from those discussing draft reports, is not credible. The clinical records we have discussed are not about draft reports. Dr Lucire could not provide a credible explanation for signing a statement when the statement was not true. She is the only person who could have instructed her solicitors to prepare a statement containing that information. In addition, there was no record of any discussion about ketamine in the first two pages of the notes. Recording that she had had a discussion with Patient B about ketamine treatment on the third page is self-serving. There was no reason to write that she had told Patient B to ask the pharmacist to contact her, except that this was the impression she wanted to convey to the Medical Council at the s 150 hearing.
We are satisfied that Dr Lucire did prepare at least the third page of these notes beginning "Discussion of ketamine" within a few days of the section 150 proceedings relating to [Patient B] on 5 November 2017. Dr Slaughter notes that Dr Lucire admits that she created some of the records just prior to her statement to the Commission. In his view, that throws doubt on everything in her file.
Behind the cover of an exercise book with the title "Late 2017" there are various hand written records for Patient B. The date on one entry (p 247) has been changed from "13 Friday January 2017" to "16 Friday January 2017". 13 January 2017 was a Friday. Dr Lucire could not explain this change or why the entry was in a notebook with the title "Late 2017". Her response was, "Sometimes they go out of order".
On the occasion of a consultation, she says she sometimes does not know exactly what day it is. She denies that her clinical records were created retrospectively. She said there was no need for her to do that. She says she has thought about the ways that the date confusion may have happened and speculated that it may have been that she did not know the correct date. Her secretary would have known when Dr Lucire had seen a patient and inserted the correct date on the Medicare chit. Alternatively, Dr Lucire said the original date she wrote may have been correct, and her secretary might have made a mistake when she filled in the Medicare chit. A third possibility is that the date she wrote was correct, but she had to change an appointment by phone if her husband needed medical attention or the patient had called to change the appointment while she was in a supermarket queue.
Ultimately, Dr Lucire accepted that she, or her secretary, may have made errors in recording dates. First, if she did not know the date, she may have written a date that was "out by a day or so". Secondly, she failed to check invoices to ensure that the date on the invoice was the same as the date she had put in the exercise books. Thirdly, she failed to record in the exercise books the dozen or more times when the entire consultation was spent on correcting dictated drafts and discussing the issues. According to Dr Lucire, none of those circumstances mean that the notes were not contemporaneous.
Despite Dr Lucire's denials, the examples we have discussed satisfy us that Dr Lucire failed to maintain a contemporaneous record of her consultations with Patient B contrary to clause 8 of the 2016 regulation. She also failed to indicate on her clinical record that the entries created for the period May - July 2017 were created retrospectively and when they were authored. That conduct is contrary to Sch 4, clause 3(3) and/or clause 4(2) of the 2016 regulation.
In Dr Ryan's opinion, changing the dates of notes retrospectively is dishonest. What Dr Lucire should have done is attach a note with the current date explaining that the recorded date is incorrect and explaining the circumstances.
By definition, those failures amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law. We accept the Commission's submission that there was no reason why Dr Lucire could not have indicated in the entries themselves that particular notes were made many months after the consultation. We find Complaint 4 is proven.
[110]
Complaint Five - professional misconduct
Complaint Five is that Dr Lucire is guilty of professional misconduct under section 139E of the National Law in that she has engaged in conduct of a sufficiently serious nature to constitute professional misconduct or that when the particulars which the Tribunal finds constitute unsatisfactory professional conduct are accumulated, they are capable of establishing professional misconduct.
[111]
Particulars of complaint
Complaint One particulars 6, 7, 8, 9, 11, and 14 are repeated and relied upon individually.
Complaint One and the particulars thereof are repeated and relied upon cumulatively.
Complaints One to Four and the particulars thereof are repeated and relied upon cumulatively.
Dr Lucire denies this particular.
The Commission submits that Complaints One and Three, in particular, when considered collectively are more than capable of supporting a finding of professional misconduct. The treatment and care of Patient A, by effectively ceasing her medication without adequate collaboration and consultation with previous psychiatrists or reference to clinical records is said to be serious. Dr Lucire attributed Patient A's symptoms to side effects of Abilify based on her own view without any concurrent investigation of alternative explanations. She did not alert authorities to Patient A's whereabouts when she knew that she was subject to an order that she be involuntarily detained in hospital. The Commission adds that Dr Lucire's "failures with respect to the rushed and ill-considered prescribing of Ketamine to Patient B" is also very serious. The record keeping failures in Complaints Two and Four are relied on as contributing to an overall finding of professional misconduct.
[112]
Legal principles
Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen [2017] NSWCA 186 at [20]:
There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome.
The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3:
1. the essential task in determining whether relevant conduct is professional misconduct is the characterisation of it;
2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences;
3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public;
4. the characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a respondent's registration. Rather, the characterisation of the conduct must come first;
5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration, though that does not necessarily mean that such an order should be made in a particular case; and
6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
[113]
Finding
For the purpose of explaining our reasoning, we have attempted to provide a brief summary of some of our findings below. These summaries are not to be read in substitution for the detailed findings in the text of the decision.
Dr Lucire submits that it is difficult to address Complaint 5 alleging professional misconduct, without knowing what factual findings the Tribunal will make. In particular, Dr Lucire submits that some of her conduct is protected by principles including witness immunity. Dr Lucire sought a further opportunity to address Complaint 5 after the Tribunal has made findings on that question, because the issue of witness immunity was not raised during the hearing. The Commission says that while it is not the normal practice to request further submissions as to whether conduct amounts to professional misconduct, they will provide them if required.
We have decided not to give Dr Lucire a further opportunity to make submissions as to whether the conduct, as found, amounts to professional misconduct. There can be no procedural unfairness in that course because Dr Lucire is not aware of the findings the Tribunal will make on any of the issues, whether raised before or after the hearing. Submissions as to professional misconduct could have been put on the basis that the Tribunal will find Complaints One to Four to have been proven. If the Tribunal does not find a complaint, or part of a complaint, to have been proven, then those submissions would not be taken into account. There is no justification for splitting Stage 1 in the circumstances of this case.
As to the issue of witness immunity, we have found that the preponderance of authorities is that, subject to some exceptions including actions for contempt and perjury, the principle of witness immunity does not preclude disciplinary proceedings in professional tribunals in respect of evidence given by that person. The mere fact that Dr Lucire expressed certain opinions in medico-legal reports does not mean that she is immune from disciplinary proceedings that relate to those opinions. Even if we are wrong, and Dr Lucire does enjoy immunity under s 143(7) of the VCAT Act, she expressed some of the same opinions in correspondence with the Office of the Public Advocate which is a government agency, not a court or tribunal.
We agree with the Commission that Complaint 1.1, 1.2, 1.3, 1.4 and 1.5 individually, do not amount to professional misconduct.
Complaint 1.6, 1.7, 1.8, 1.9, 1.11 and 1.14 are relied upon individually.
Complaint 1.6 relates to examples of boundary crossing in the doctor-patient relationship. Dr Lucire considered herself to be a "professional friend" of Patient A, but that is not an accurate description. Kindness and empathy are appropriate but Dr Lucire crossed the boundary and risked losing objectivity. This conduct is significantly below the relevant standard. It is also improper and unethical, because it is inconsistent with the principles expressed in the Code of Conduct. However, we do not consider that, by itself, this conduct is serious enough to justify suspension or cancellation.
We found Complaint 1.7 and 1.8 not to have been proven.
For Complaint 1.9, we have found some examples of Dr Lucire inappropriately involving herself with Patient A's financial and legal affairs. Writing to the Office of the Public Advocate criticising Person C's conduct and views involving Patient A's financial and legal affairs, crosses professional boundaries. It is not appropriate for a treating psychiatrist to communicate personal opinions of that kind to a government agency. The Code of Conduct contains the general statement that doctors should maintain professional boundaries. Dr Lucire has overstepped those boundaries. When communicating with government agencies, she has not confined herself to expressing medical opinions based on her experience and expertise as a psychiatrist. Rather, she has uncritically accepted her patient's point of view on financial and legal issues. That conduct is inappropriate and unethical, but is not serious enough, by itself, to justify suspension or cancellation.
For Complaint 1.11, we have found that allowing a patient to stay overnight at a practitioner's home may or may not be a breach of professional boundaries depending on the context. Here the context is critical. Dr Lucire knew that Patient A was absconding from hospital. Even as Patient A's treating doctor, it is not Dr Lucire's role to make her own assessment of the need for Patient A to be involuntarily detained. That decision had been made by others in accordance with strict regulatory guidelines. Dr Lucire's decision to harbour Patient A in her home overnight is a breach of professional boundaries and amounts to unsatisfactory professional conduct. It is unethical.
We consider this breach, as well as Dr Lucire's failure to provide NSW Police with her location, to be very serious indeed. We do not accept Dr Lucire's excuse that she did not want to give out her address because Patient A may have overheard her or absconded. Dr Lucire could have gone into another room or called the police back a few minutes later if she was concerned about that. The reason she did not disclose her address to police was to give her more time to write a letter setting out her opinion about Patient A's diagnosis and treatment. Dr Lucire was under a professional obligation to notify the police or the hospital of Patient A's location as soon as possible, not when she decides is the most appropriate time. While the delay of one hour in advising police of Patient A's location is not as serious as harbouring Patient A in her home overnight, Dr Lucire knew Patient A had absconded. She was not authorised to override the opinions of other medical practitioners about whether Patient A should be detained in hospital. In combination, 1.11 and 1.14 are serious enough to justify Dr Lucire's registration being suspended or cancelled.
Complaint Two and Complaint Four are about Dr Lucire's record keeping for Patient A and Patient B. The Commission submits that those complaints, cumulatively with the other complaints, justify a finding of professional misconduct. We agree. In particular, making notes and dating entries retrospectively is dishonest and compromises the accuracy of the clinical record. When a practitioner does this, it makes it extremely difficult for another clinician to take over that care, if required. Even when kept by a sole practitioner, clinical records are expected to be a potential means of accurate communication with another practitioner.
Complaint Three relates to Patient B. Among the most egregious matters in Complaint 3 is Dr Lucire's failure, when prescribing ketamine off-label, to abide by the College's clinical memorandum. Indeed, she was dismissive of the memorandum suggesting that she wants to be judged by the law, and not the standards of the College. Surprisingly for a psychiatrist with as much experience as Dr Lucire, she does not appreciate that one of the roles of the College is to set the standard. She is obliged to comply. When her non-compliance became obvious, Dr Lucire attempted to deflect any blame by asserting that the script was not a script at all and that one reason she wrote it was so that Patient B would know how much it would cost. That suggestion is simply not credible. Dr Lucire intended for the script to be filled. While she wishes she had done something else, that is only because a complaint was made, not because Dr Lucire acknowledges that she has done the wrong thing.
We find that Dr Lucire had insufficient understanding of the appropriate dose of ketamine. She intended to prescribe Patient B with a trial dose of 10mg of ketamine, which represented 1/20th of a single 200mg/2ml ampule, but wrote a prescription requesting multiple ('maximum') ampules of ketamine in her prescription. We find that Dr Lucire was unsure about the appropriate mode of administration. Not only is the conduct outlined in this complaint significantly below the relevant standard, but it is also unethical. In addition, the prescription for ketamine was grossly deficient in the respects we have found.
In combination, Complaints 1.11 and 1.14 amount to professional misconduct. Cumulatively, Complaints 1.11, 1.14, Complaint 2, Complaint 3 and Complaint 4 amount to professional misconduct.
[114]
orders
Complaint 1, Particular 1(a) is proven except to the extent that it alleges that there was inadequate consultation with Patient A's family.
Compliant 1, Particular 1(b) is proven.
Complaint 1, Particular 2(a) is proven except to the extent that it alleges that there was inadequate consultation with Patient A's family.
Complaint 1, Particular 2(b) is proven.
Complaint 1, Particular 3(a) is proven.
Complaint 1, Particular 3(b) is not proven.
Complaint 1, Particular 3(c) is proven.
Complaint 1, Particular 4 is proven.
Complaint 1, Particular 5 is proven.
Complaint 1, Particular 1.6(a) and (c) are proven.
Complaint 1, Particular 6(b) is not proven.
Complaint 1, Particulars 1.7(b) and (c) are not proven.
Complaint 1, Particular 1.8 is not proven.
Complaint 1, Particular 1.9(a) is not proven.
Complaint 1, Particulars 1.9(b) to (f) are proven.
Complaint 1, Particulars 1.9(g) to (i) are proven.
Complaint 1, Particular 1.9(j) is not proven.
Complaint 1.11 is proven.
Complaint 1.12 is not proven.
Complaint 1.13 is proven.
Complaint 1.14 is proven.
Complaint 2.1 is proven.
Complaint 2.2 is proven.
Complaint 2.3 is proven.
Complaint 2.4 is proven.
Complaint 2.5 is proven.
Complaint 3 is proven.
Complaint 4 is proven.
Complaint 5 is proven.
[115]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 July 2022
James v Medical Board of South Australia and Keogh [2006] SASC 267,
James v Medical Board of South Australia v Keogh [2006] SASC 267; 95 SASR 445
King v Health Care Complaints Commission [2011] NSWCA 353
Lucire v Health Care Complaints Commission [2011] NSWCA 99
Meadow v General Medical Council [2006] EWHC 146
O'Shane v Harbour Radio Pty ltd [2013] NSWCA 315
O'Reilly v Law Society of NSW (1988) 24 NSWLR 204
Wilson v Nilepac Pty ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63
Texts Cited: "Use of Ketamine for treating depression", Clinical Memorandum, Royal Australian and New Zealand College of Psychiatrists (RANZCP), November 2015
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Yolande Lucire (Respondent)
Representation: Counsel:
P Aitken (Applicant)
M Hutchings (Respondent)
Are the complaints sufficiently particularised?
Dr Lucire says that some of the particulars in the complaints contain too many words, are repetitive or do not contain enough detail. She submits that the repetitive nature of the particulars suggests that her conduct is more serious than it actually is. The Commission notes that despite being represented by experienced solicitors and counsel, that issue was not raised during the hearing. In any case, the Commission does not accept Dr Lucire's criticism of the way the complaints are drafted.
Proceedings must be procedurally fair. Procedural fairness includes giving Dr Lucire the opportunity to "ascertain the relevant issues": Commissioner for Australian Capital Territory Revenue v Alphaone Pty ltd (1994) 49 FCR 576 at 590-591. Put another way, Dr Lucire must be informed of the case against her with sufficient clarity to allow her a fair opportunity to meet the case: Dare v Pulham (1982) 148 CLR 658 at 664. The following comment made in O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 was cited with approval in King v Health Care Complaints Commission [2011] NSWCA 353 at [53]:
It is essential, both for the due protection of the interests of the solicitor and for the proper approach by the decision-making tribunal to its task, that charges of professional misconduct should be specified with particularity. Only then will the findings made give rise to decisions of appropriate certainty and particularity ... The appellant was entitled to have clear notice at the hearing before the Statutory Committee of the precise ways in which the Society alleged he had been guilty of professional misconduct" (at 210 - 1 per Kirby P).
As Basten JA noted in Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [45] (McColl JA and Sackville AJA agreeing):
Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders.
Unlike civil proceedings in courts, there is no requirement in these kinds of disciplinary proceedings to formulate complaints as a pleading: King v Health Care Complaints Commission [2011] NSWCA 353 at [4], [8], [15] (per McColl JA), [168] and [170] (per Handley AJA). The practitioner does not need to file a defence or reply, but he or she is expected to provide an explanation for the conduct: Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42]-[49]. For the reasons we give when addressing each of the challenged particulars, Dr Lucire has been afforded procedural fairness.
Has the Commission proved the factual basis for each allegation?
Although Dr Lucire submits that all the substantive factual issues are in issue, on our reading of the material, few purely factual issues are in dispute. Dr Lucire denies that any of her conduct amounts to unsatisfactory professional conduct. The Commission has the burden of proving the underlying facts and unsatisfactory professional conduct to the civil standard of proof, which is on "the balance of probabilities". We must assess the relevance, weight and sufficiency of the evidence including the expert evidence: Hamod v State of New South Wales [2011] NSWCA 375, per Beazley JA (with whom Giles JA and Whealy JA agreed) at 756.
When making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a).
We should not be reasonably satisfied that something has happened or that Dr Lucire had a particular motivation if the complaint is only supported by "inexact proof, indefinite testimony or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
Should Dr Slaughter's evidence be discounted?
The Commission tendered expert evidence from a psychiatrist, Dr Slaughter. Dr Slaughter is a Member of the Royal Australian and New Zealand College of Psychiatrists and has been in private practice in Queensland since 1971. He prepared three expert reports dated 25 February 2019, 22 May 2019 and 6 August 2021. We will refer to those three reports as Reports 3.1, 3.2 and 3.3 respectively.
When asked what he knew about Dr Lucire when the Commission approached him to provide a report, Dr Slaughter said that he had had one previous dealing with her in 2015. In fact, in disciplinary proceedings involving Dr Lucire in 2005 and 2006, Dr Slaughter gave evidence which he agreed was strongly critical of Dr Lucire's judgment. He expressed negative views about her conduct. Dr Slaughter said he had some memories of writing the previous report but did not look at it when preparing the current reports.
Dr Slaughter is aware that he should not write a report if he does not feel he can be objective or if he believes that a reasonable person would consider that there is a conflict of interest. That principle is embodied in the Commission's November 2019 publication, "Expert Guidelines" at [33]- [35]:
What if I have a conflict of interest?
33. If you are providing a written report, the Health Care Complaints Act 1993 requires you to complete a statement concerning your personal, financial or professional connection with the health practitioner under investigation. The Commission cannot obtain a report from a person with a conflict of interest.
34. If you believe that there is or might be a conflict of interest, let the Commission know immediately. Meeting the person in a professional setting, eg at a conference does not necessarily preclude you from providing an objective report.
35. If you feel you cannot provide an objective report, or believe that a reasonable person would consider that there is a conflict of interest, do not proceed to provide a report.
When asked about the potential for a conflict of interest, Dr Slaughter said he considered the possibility but decided that, at that stage, he did not have a conflict. He said he did not re-read his previous reports and had little memory of what he had written. He said he had tried to put the other matter out of his mind.
Dr Slaughter said that he believed he told an employee of the Commission that he had provided a report relating to Dr Lucire in the early 2000s and had sought that person's opinion on that matter. A call for production of Dr Slaughter's communications with the Commission concerning a potential conflict of interest did not result in the production of any letter from Dr Slaughter. However, the Commission did produce a file note of a discussion with Dr Slaughter at the time that he was retained. That file note did not contain any record of a disclosure by Dr Slaughter that he had previously been critical of Dr Lucire.
Unsatisfactory professional conduct and professional misconduct
After making purely factual findings, we must decide if the allegations in the particulars amount to "unsatisfactory professional conduct" as defined in the National Law. For Complaint 1 relating to Patient A, and Complaint 3 relating to Patient B, the Commission alleges that Dr Lucire is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include:
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
When deciding whether Dr Lucire is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we refer to that standard as the "relevant" standard.
Dr Lucire has been practising as a psychiatrist for over 50 years. In 1964 she obtained her M.B.B.S and was registered to practise medicine in New South Wales. From 1970 to 2011 she was a Fellow of the Royal Australia and New Zealand College of Psychiatrists (the College). From approximately 1972 until her registration was suspended on 8 January 2018, Dr Lucire worked as a psychiatrist in Sydney. She has a PhD from the University of New South Wales.
As well, or alternatively, the Commission alleges that Dr Lucire is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that she has engaged in "improper or unethical conduct". The kind of conduct described in s 139B(1)(a) relates to Dr Lucire's "knowledge, skill or judgement" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". The same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]. As well, an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].
The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]:
The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
Findings as to unsatisfactory professional conduct
Apart from assessments by the panel and expert witnesses as to the appropriate standard of conduct, codes of conduct provide a guide. Good Medical Practice: A Code of conduct for Doctors in Australia, March 2014 states at 2.2.6 that:
Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:
Providing treatment options based on the best available information.
After a single consultation, Dr Lucire expressed an opinion to a new patient with a long history of mental illness, that antipsychotic medication was not appropriate. She also advised her to cease taking antipsychotic medication. Before taking these steps, it is good medical practice to give due consideration to the risk of relapse and to obtain as much relevant information as practicable. Dr Lucire says she gave due consideration to the risk that Patient A would suffer a relapse by prescribing chlorpromazine. However, that did not occur until three months later.
Information from previous treating psychiatrists, including Dr Adey, is particularly relevant because he had the advantage of observing and monitoring Patient A over a lengthy period. Patient A had a prior history of a relapsing psychotic illness against the background of noncompliance with medications. This would predict future relapses if medication were discontinued, as would the length of her admission to Hornsby hospital. A psychiatrist would be expected to know that multiple relapses contribute to further impairments. We consider Dr Lucire's failures to adequately collaborate and consult with previous psychiatrists or to give due consideration to the risk of relapse, to be significantly below the relevant standard.
Information from family members such as Person C, although relevant, is less reliable. We do not consider Dr Lucire's inadequate consultation with Patient A's family as being below the relevant standard, improper or unethical. However, the failure to consult and collaborate with Patient A's previous psychiatrists is significantly below the relevant standard. It is also improper in the sense that it is abnormal and irregular.
While those conclusions alone support a finding of unsatisfactory professional conduct, we also find this conduct to be unethical. As the Tribunal noted in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31], the Macquarie Dictionary defines "unethical" as "contrary to moral precept; immoral; in contravention of some code of conduct". The offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession". Forming an opinion that medications recently prescribed to a patient on discharge from a mental health facility were inappropriate without adequate collaboration and consultation with the patient's previous treating psychiatrists, does not directly breach any code of conduct but, in our view, it is nevertheless unethical.
Witness immunity and abuse of process
On 14 December 2016, Dr Lucire wrote to the Mental Health Review Tribunal. The purpose of the letter was to ask the MHRT to suspend Patient A's community treatment order. Dr Lucire was uncertain whether the MHRT could make such an order without a further hearing, but expressed her opinion that Patient A's symptoms were merely the result of an adverse reaction to Abilify.
Before considering the substance of this particular, we will address the question of whether Dr Lucire's culpability is affected by the capacity in which she wrote to the MHRT. She purported to do so as an expert witness, rather than as an advocate for Patient A. Dr Lucire wrote in the 14 December 2016 letter that she had read the Expert Witness Code of Conduct and agreed to be bound by it. She enclosed her curriculum vitae. In those circumstances it is apparent that Dr Lucire's communications to the MHRT were as an expert witness. Similarly, when communicating with the Victorian Civil and Administrative Tribunal and in signing the Expert Witness Code of Conduct, she was doing so as an expert.
As we understand it, Dr Lucire made two submissions. The first was that a complaint could only be made about the provision of a "health service" and giving an opinion as an expert witness is not the provision of such a service. The second was that Compliant 1.3 and 1.5 (and any complaint which relies on the content of an expert report) should be dismissed because of the doctrine of witness immunity or as an abuse of process.
Complaints about the professional conduct of a health practitioner are not limited to complaints concerning the provision of a "health service" as defined in s 4 of the Health Care Complaints Act 1993 (NSW). Section 7(a) states that:
A complaint may be made under this Act concerning -
(a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100(1)(a) or (b) of that Act), or
(a1) an alleged breach by a relevant health organisation of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100(1)(c) of that Act, or
(b) a health service which affects, or is likely to affect, the clinical management or care of an individual client.
In Hastwell v Health Care Complaints Commission [2021] NSWCA 22, Mr Hastwell sought judicial review of a decision by the Health Care Complaints Commission to cease dealing with his complaint. The complaint was against a psychiatrist who had prepared an unfavourable medico-legal report. Leeming JA held at [48] that Mr Hastwell's complaint to the Commission was made in accordance with s 7 (and ss 8 and 9) of the Health Care Complaints Act. It was not suggested by either party to those proceedings that because the complaint was about the content of an expert's report, it did not meet the definition of "professional conduct of a health practitioner" in s 7(a) of that Act. The same reasoning applies to Dr Lucire's communication to the MHRT on 14 December 2016 and to communications as an expert witness to other courts or tribunals such as VCAT.
Given the haziness of his recollection and the lack of any corroboration, we are not persuaded that Dr Slaughter did raise the issue of a conflict of interest with the Commission. We find that having written critical reports in 2005 and 2006, a reasonable person would consider that Dr Slaughter's evidence may have been coloured by his previous negative view of Dr Lucire's conduct as a psychiatrist. We have the advantage of being a specialist tribunal with two psychiatrists on the panel. We can bring our own specialist expertise to bear when assessing whether Dr Lucire's proven conduct constitutes unsatisfactory professional conduct and professional misconduct. We have assessed his evidence carefully with that potential conflict in mind. Some opinions Dr Slaughter gave were not justified, but for the reasons we give, we agree with many of his opinions.
Dr Lucire also submitted that Dr Slaughter exhibited some intransigence when confronted with difficulties in his evidence. That was said to be a significant failure on the part of an expert who is "required to show independent detachment and to make concessions when appropriate": Wilson v Nilepac Pty ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 at [153]-[154]. However, the passages of evidence quoted in support of that submission do not support it. Just because he did not agree with, or sought to qualify, certain propositions put by Dr Lucire's lawyers, does not indicate that Dr Slaughter was intransigent.
The test for professional misconduct is whether any of Dr Lucire's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation" of her registration. Professional misconduct is defined in s 139E of the National Law:
For the purposes of this Law, professional misconduct of a registered health practitioner means -
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) 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.
If we find Dr Lucire guilty of professional misconduct, we have power to suspend or cancel her registration although we are not obliged to do so: National Law, s 149C(1)(b). That decision will be made during Stage 2 proceedings.
Complaint 1.1 is proven except to the extent that it alleges that there was inadequate consultation with Patient A's family.
Complaint 1.2 is proven.
However, Leeming JA rejected Mr Hastwell's submission that the medico-legal report was not of an acceptable standard because it would not have been admitted into evidence. In doing so, his Honour held that:
. . . the legal requirements of expert opinion evidence applicable to proceedings in a court do not fall within the complaints handling regime established by the Act. Medico-legal reports which do not, in some or indeed all respects, comply with the obligations of expert evidence, are produced every day, and are commonly the subject of objection and rejection by courts when sought to be tendered. There is nothing in the scheme of the Act to suggest that the legal questions of admissibility have any bearing upon the processes, which are to be exercised with the protection of the health and safety of the public as the paramount consideration.
Dr Lucire's counsel submits that the correspondence to the Office of Public Advocate and VCAT was prepared by Dr Lucire in her capacity as an expert witness. As such, she is subject to the Expert Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 20015 (NSW) or the Victorian equivalent. In James v Keogh [2008] SASC 156 at [73], Debelle J highlighted the following duty of an expert witness:
An expert giving evidence to the court has an obligation to the court to assist it by giving evidence objectively. That obligation includes making full disclosure of all relevant material no matter whether it assists or is detrimental to the cause of the client of the expert. That is because the obligation of the expert to the court overrides the obligation of the expert to the client.
Debelle J went on to hold that:
When a professional disciplinary body is considering whether the expert has properly discharged his duties as an expert, regard must be had to the forensic context in which the expert provided his report or gave his evidence. (Citations deleted)
Dr Lucire's counsel submits that in these proceedings the Commission seeks to establish that the evidence given by Dr Lucire in her report to the MHRT (and presumably for correspondence with VCAT) was infected by error of approach and was not properly grounded. While that may be a general description of the conduct, in this case the Tribunal has not been asked to consider whether Dr Lucire has properly discharged her duties as an expert. For example, Complaint 1.5 alleges that Dr Lucire diagnosed Patient A as having suffered thyrotoxicosis on admission to Hornsby Hospital without proper and sufficient clinical evidence, specifically, thyroid function blood test results. Even assuming that the retrospective diagnosis was given in an expert report, the particular does not assert that she has failed to give evidence objectively or has failed in some other duty to the court.
The principle of witness immunity was stated by Starke J in Cabassi v Villa (1940) 64 CLR 130 at 141:
. . . the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.
In Commonwealth of Australia v Griffiths [2007] NSWCA 370 at [43], Beazley JA set out the two objectives of witness immunity (citations deleted):
The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere avoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again.
The most relevant decision from the United Kingdom is General Medical Council v Meadow [2007] 1 All ER 1; [2007] 1 QB 462. Sir Anthony Clarke MR (Auld and Thorpe LLJ agreeing) held that the immunity in relation to statements made for the purpose of legal proceedings, did not extend to the disciplinary proceedings against Professor Meadows. This judgment had not been handed down when the Full Court of the South Australian Supreme Court published its reasons in James v Medical Board of South Australia v Keogh [2006] SASC 267; 95 SASR 445. Nevertheless, that Court came to the same conclusion. Referring to the decision of Collins J at first instance in Meadow v General Medical Council (which was overturned on appeal) Anderson J, (Beilby J and Gray J agreeing) came to the following conclusion at [82]-[84]:
In Meadow, Collins J reasoned that the rationale behind the witness immunity rule should also apply to disciplinary proceedings. With respect, I cannot see why that should be the case. In most, if not all disciplinary proceedings, it is likely that there is no challenge to what was said elsewhere by the person under review but merely that what was said was unprofessional. In addition there is no litigation as such and so the rationale relating to a challenge of evidence by another process is not applicable.
The very purpose of the Act is to provide for, and to facilitate the regulation of, the practice of medicine. Mr Keogh, as a "person aggrieved" pursuant to s 54(1)(d), has laid a complaint because he asserts that Dr James has acted unprofessionally. He is not seeking by a new process to challenge evidence, but relying on that evidence as amounting to unprofessional conduct.
In my view, public interest requires that someone who has given evidence, albeit that they are immune from suit insofar as the evidence given cannot be challenged in another process, should nevertheless be accountable to his or her professional peers when a member of the public makes a complaint of unprofessional conduct.
In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Beazley JA referred to the UK appellate decision of General Medical Council v Meadow and accepted at [97] that "the courts have been keen to ensure that the immunity is not unnecessarily or inappropriately extended . . ." However, in that case, it was conceded at [69], that the expert witness was immune from suit in respect of the evidence he gave in criminal proceedings.
In Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim 306, the appellant claimed witness immunity in respect of affidavit evidence he had given in other proceedings. Beazley JA noted that in the appellate decision of Meadow, the UK Court of Appeal had held that the immunity did not extend to the disciplinary proceedings that had been instituted against Professor Meadow. Beazley J did not disagree with that general proposition, saying only (at [55]) that "the immunity precludes the bringing of criminal or civil actions other than to the extent of the recognised exceptions." At [46] and [47] Beazley J identified the exceptions as including perjury and contempt of court and any other clear statutory provision to the contrary.
In Hudspeth Scholastic Cleaning and Consultancy Services Pty ltd & Ors [2014] VSC 567, citing James v Medical Board of South Australia and Keogh [2006] SASC 267, Dixon J held at [158], that "An expert witness is not immune from disciplinary proceedings." More recently in a Federal Court decision of Borody v Vickers [2021] FCA 618 at [50] Thawley J observed that:
It may be accepted that the immunity may not apply so as to preclude disciplinary proceedings in professional tribunals in respect of evidence given by the professional.
The preponderance of authorities is that, subject to some exceptions including actions for contempt and perjury, the principle of witness immunity does not preclude disciplinary proceedings in professional tribunals in respect of evidence given by that person. The particulars in Complaint 1 do not contain any criticism of Dr Lucire's conduct as an expert witness. The mere fact that Dr Lucire expressed certain opinions in medico-legal reports does not mean that she is immune from disciplinary proceedings that relate to those opinions.
For Complaint 1.3, for example, the focus is on the protection of the health and safety of the public, not on the legal admissibility of the content of the report. The complaint is that Dr Lucire's conduct is significantly below the relevant standard or that she has behaved improperly or unethically. That behaviour may be regarded as unethical if, for example, it breaches the provision of a relevant Code of Conduct. Section 8.8 of the Code of Conduct for Doctors in Australia states that, when preparing medical certificates or reports, good medical practice involves "taking reasonable steps to verify the content before you sign a report or certificate, and not omitting relevant information deliberately".
Secondly, relying on Liao v State of New South Wales [2014] NSWCA 71 at [169]-[172], Dr Lucire's counsel submitted that Complaint 1.3 should be dismissed as an abuse of process. In that case it was held that a person's unwillingness to accept a finding in earlier litigation is indicative of abuse of process: at [169] per Barrett JA, with whom Beazley P agreed (Basten JA in dissent but not on this issue). Applying that principle to the present case, it was put that by making Complaint 1.3, the Commission was attempting to re-litigate a finding of fact made by the Mental Health Review Tribunal about Patient A's diagnosis. The re-litigation was said to be either direct or as an indirect effect of the exploration of this allegation.
As the Commission submits, none of the particulars in Complaint 1.3, 1.4 or 1.5 challenges a finding of the Mental Health Review Tribunal or VCAT. Furthermore, Dr Lucire did not identify any finding of fact that the Mental Health Review Tribunal or VCAT had made which the Commission was attempting to re-litigate. There is no basis for dismissing Complaint 1.3, 1.4 or 1.5 as an abuse of process.