Orchard v Medical Practitioners Board of Victoria

Orchard v Medical Practitioners Board of Victoria - [2010] VCAT 1135 - VCAT 2010 case summary — Zoe

[13]

Dr. William Orchard is a "health practitioner" for the purposes of the Health Professions Registration Act 2005, in that he practises in a profession regulated by the Medical Practitioners Board of Victoria: see Schedule 1 to the Act and the definition of "health practitioner" in s.3.
Ms P became a patient of Dr. Orchard when she consulted him on 29 August 2007. She subsequently notified the Board of matters relating to Dr. Orchard ("the notification"), as she was entitled to do by s.42(1).
The Board was obliged to investigate the notification: s.45(1). The Board appointed a person to conduct an investigation ("the investigator"), and delegated its power to conduct an investigation to the investigator. In taking those steps, the Board acted in accordance with s.45(3). The investigator gave notice of the investigation to Dr. Orchard, as required by s.48(1).
The investigator asked Dr. Orchard to undergo a performance assessment. The investigator was entitled to make that request: s.49(b). Dr. Orchard did not agree to undergo a performance assessment. As required by s.57(1), the investigator reported to the Board that Dr. Orchard did not agree to undergo a performance assessment.
The Board then referred the matter to a hearing by a Professional Standards Panel ("PSP"), a course open to the Board under s.57(2). The Board appointed members to the PSP, acting in accordance with s.61(1).
The PSP required Dr. Orchard to undergo a performance assessment by two health practitioners appointed by the panel. In making that requirement, the PSP acted in accordance with s.58(1). The health practitioners appointed to carry out the performance assessment were Professor Isaac Schweitzer and Dr. Peter McArdle.
Professor Schweitzer and Dr. McArdle carried out a performance assessment. They prepared a report of their assessment, and gave the report to the PSP, as required by s.58(3).
The PSP discussed the report with Dr. Orchard, a course open to the panel under s.58(4).
The PSP conducted a hearing on 22 January 2009 and 19 November 2009. The performance assessment took place between those dates. On 3 December 2009, the PSP made two findings of unprofessional conduct and one finding that Dr. Orchard's professional performance has been unsatisfactory. The power of the PSP to make such findings is set out in s.63(1).
Having made those findings, the PSP then made several of the determinations that it had power to make pursuant to s.63(2).
Dr. Orchard was dissatisfied with the findings and the determinations of the PSP. On 17 December 2009, he lodged an application to VCAT to have the findings and the determinations of the PSP reviewed. He was entitled to make the application pursuant to s.71.
Counsel for the Board submitted that the review should proceed as a re-hearing, a submission with which counsel for Dr. Orchard concurred. The Tribunal accepted the submission, and the review proceeded as a re-hearing.
The Tribunal is "obliged to conduct the review without any presumption as to the correctness of the decision under review": McDonald v Guardianship Board [1993] VicRp 36; [1993] 1 VR 521 @ 530. It is appropriate for the Tribunal to consider the evidence before the PSP and any fresh evidence relied upon by the parties: Storti v Medical Practitioners Board [2005] VCAT 873 @ [25].
The Tribunal may make one or more of the findings that were open to the PSP under s.63(1). Depending upon those findings, the Tribunal then may make one or more of the determinations that were open to the PSP under s.63(2). The power of the Tribunal to make such findings and determinations is granted by s.51(1) of the Victorian Civil & Administrative Tribunal Act 1998.
These reasons lead only to the findings of the Tribunal. The Tribunal will resume to hear submissions as to any determination to be made by the Tribunal.

[63]

The Tribunal is unable to accept the second finding of the PSP, namely that Dr. Orchard "refused to undergo a performance assessment at the request of the Board". The Tribunal will deal with that finding immediately.
The request was made by the investigator. On 4 September 2008, the investigator wrote a letter to Dr. Orchard, which stated that "pursuant to Section 49 of the Health Professions Registration Act 2005 I now request that you advise me within 28 days of the date of this letter whether you are prepared to undergo a performance assessment".
The relevant part of s.49 provides that "An investigator may ... ask the health practitioner ... to undergo a ... performance assessment within 28 days".
Dr. Orchard responded by letter dated 8 September 2008. His response, so far as is relevant, was that "After consulting with my Medical Insurer I will endeavour to get back to you within 28 days" and that "barring a remarkable event, I will not accept your request and rather put my trust in legal process".
Dr. Orchard provided an unequivocal response on 1 October 2008, when he replied that "I write to inform you that I decline to accept your request ... that I agree to a Performance Assessment".
The response of Dr. Orchard brought s.57(1) into operation. It provides that "If a registered health practitioner who is subject to an investigation ... does not agree to undergo a performance assessment ... the investigator must report on the matter to the responsible board together with any recommendations". This is followed by s.57(2), which provides that "After receiving a report from an investigator under subsection (1), the responsible board may refer the matter to a hearing by a professional standards panel or to VCAT for a Tribunal hearing".
The word 'ask' in s.49, and the words 'does not agree' in s.57(1) make it apparent that Dr. Orchard was not obliged to undergo a performance assessment at the request of the investigator.
Of course, Dr. Orchard did undergo a performance assessment when required to do so by the PSP pursuant to s.58(1). It is significant that the PSP was entitled to require Dr. Orchard to undergo a performance assessment, and that the investigator was entitled to ask Dr. Orchard to undergo an assessment: compare sections 49(b) and 58(1).

[71]

Professor Schweitzer is the Healthscope Professor of Psychiatry at the University of Melbourne, and the Medical Director of The Melbourne Clinic. He is a highly credentialed psychiatrist.
His witness statement adopted the performance assessment report prepared by himself and Dr. McArdle.
Professor Schweitzer said that he currently spends about 30% of his time performing clinical work, and that about 30% to 40% of that work relates to mood disorders. He encounters ADHD "occasionally". He said that he regularly provides second opinions for colleagues.
Professor Schweitzer also gave evidence that the Australian and New Zealand Journal of Psychiatry is a peer review journal, and is the pre-eminent journal relating to psychiatry in Australia. He said that he would expect Dr. Orchard to be familiar with a journal article on ADHD.
In cross-examination, Professor Schweitzer agreed that ADHD had been under-diagnosed in the past. He said that ADHD previously had been seen as a childhood condition, but was now seen as persisting in adulthood. Professor Schweitzer agreed that completion of the AMEN questionnaire by a patient was a "useful tool"; however, the AMEN classification was not referred to in any of Dr. Barclay's publications.
He said that Dr. Orchard has a broad view of mood swings which leads him to regularly make a diagnosis of bipolar spectrum disorder. Professor Schweitzer was asked whether he would inform a patient immediately of a diagnosis that was different to a diagnosis made in the past. He said that he might immediately raise the suggestion with the patient that some symptoms suggest another condition, start an explanation of the new diagnosis, ask the patient to keep a daily log book as to mood, provide literature, and ask to meet with a family member who might be able to provide corroborative evidence to support the additional diagnosis.
It was put to Professor Schweitzer that ADHD and bipolar spectrum disorder can be treated together. Professor Schweitzer said that he was not of that view. He said that a provisional diagnosis should be made, and that the main condition should be treated before the other. He said that ADHD would have been present since childhood, so treatment usually was not urgent. He said that bipolar spectrum disorder, or any mood disorder, if present, usually should be treated first. This would allow the doctor to better manage any side effects that arose from the medication being trialled and it would also reduce confusion around side effects and drug interactions if any occurred.
Professor Schweitzer said that it was now generally accepted that 8% of children in the population had a diagnosis of ADHD and data presently being submitted considers 4% of the adult population also had this diagnosis (Professor Barclay in the US acknowledges this to be so in his publications).
Professor Schweitzer was asked questions by Tribunal members. He said that not all patients with ADHD needed treatment with drugs; psychological strategies and cognitive behaviour therapy should also be considered. He said there ought to be concern when prescribing dexamphetamine as it was "potentially a drug of dependence". He said that Dr. Orchard did not appear to refer patients to psychologists or other therapists.
Professor Schweitzer acknowledged that many psychiatrists prescribe doses above recommended levels, as standard doses do not affect some patients. In that situation, he said that he raises the dose of medication slowly, incrementally, with supervision, and gives each dose for two or three weeks to observe the response before he considers raising the dose again. He also said that in these cases he probably would seek a second opinion to receive confirmation of his assessment and provisional diagnosis.
Professor Schweitzer was asked about the protocol surrounding communicating with peers when a new and unusual line of treatment was being trialled. He said that, if you thought you were the only specialist in the country treating patients in a particular way, the protocol would be to confer with your peers and colleagues, present the data at peer review meetings or at College meetings or publish the data in the College magazine. He said that he was surprised that Dr. Orchard had not presented his clinical findings, diagnosis and plan of management at any meetings or submitted any papers about his treatment of patients with a diagnosis of ADHD who were on increased dosages of dexamphetamine. He said that it would have been useful for Dr. Orchard to raise the matter for discussion at the College [The Royal Australian & New Zealand College of Psychiatrists]. He said that peer review groups are formed through the College, and meet frequently.

[109]

In that part of his evidence in chief given orally, Dr. Orchard said that his major interest is psychotherapy, and that he works five day a week and eleven hours a day.
He acknowledged that it is better to use one drug at a time, but said that he was satisfied by his experience that dexamphetamine could be used in conjunction with sodium valproate. He said that the combination did not produce adverse reactions.
In cross-examination, Dr. Orchard agreed that he often prescribes eight to ten dexamphetamine tablets per day. He said that he usually starts patients on four dexamphetamine tablets per day, and then increases the dosage to eight to ten tablets per day.
He said that he prescribes dexamphetamine and sodium valproate for about 80% of his patients. He said that the majority of his patients immediately are put on both drugs, because dexamphetamine alone causes insomnia.
In cross-examination, the attention of Dr. Orchard was drawn to the report of Professor Mitchell, and in particular to Professor Mitchell's reference to an article by Sachdev and Troller in the Australian and New Zealand Journal of Psychiatry in 2000. Professor Mitchell reported that the article, which is entitled How high a dose of stimulant medication in adult attention deficit hyperactivity disorder?, was to the effect that there was no evidence of any benefit in increasing the dose of dexamphetamine above 30mg for patients with adult ADHD. Dr. Orchard said that the report of Professor Mitchell had not caused him to read the article. Dr. Orchard said the article has no relevance in 2010, and that "I would have scant regard for it".
In response to questions asked by a member of the Tribunal, Dr. Orchard agreed that his treatment regime was to prescribe dexamphetamine and sodium valproate as a trial, and then to review treatment. He agreed that his treatment regime has not been reported anywhere. He said that his treatment regime was "unique to my practice". He agreed that he had not presented his treatment regime to the Journal as an extract, or to the College. However, Dr. Orchard said that his daughter, also a psychiatrist, comments upon his work. Dr. Orchard said that he speaks with another psychiatrist Dr. James Lees about twice a week, and that he goes to drug company seminars.
It was put to Dr. Orchard that in a letter to the Board dated 25 January 2008 he had stated "I am aware that patients with ADD regularly have a compulsion to go into a daydream when people talk to them and quite frequently have almost no recall of their medical interview after it is over". Dr. Orchard stated he had not recognised that Ms P was not attending to his verbal instructions and she could have misunderstood his instructions given that the written material and the prescription he had provided did not caution against raising the dose of dexamphetamine until after further consultation with him. He acknowledged it was mainly the clinician's responsibility to ensure that the patient has clearly understood how the medication was to be taken, problems regarding side effects and reviews, etc.
Dr. Orchard was then asked about procedures in his practice regarding follow up of patients who failed to make further appointments or failed to attend follow up appointments. Dr. Orchard said that he probably saw 11 new patients during the week that Ms P attended her first (and only) consultation with him. It was not his practice to follow up patients who failed to make or keep further appointments with him. He did not attempt to make any contact with them by telephone or letter, nor did he make any contact with the referring medical practitioner regarding their failure to attend or inform the referring doctor that he had provided the patient with a prescription for large doses of dexamphetamine.
Dr. Orchard addressed the concerns of Professor Schweitzer and Dr. McArdle about inadequate records and inadequate reporting. Dr. Orchard said "I fell down in reporting". Dr. Orchard said that he now allows one hour and a half for each initial consultation, thus allowing half an hour to prepare adequate records and a report to the referring doctor. He assured the Tribunal that he would write more extensive notes, and that his notes would allow another doctor to take over his practice.

[118]

Mr. D gave evidence on behalf of Dr. Orchard. Both Mr. D and his wife became patients of Dr. Orchard in 2009.
In his witness statement Mr. D said that, at least since 1987, his wife had suffered from "symptoms that she was not able to come to terms with which significantly impacted her quality of life and ability to function consistently and without anxiety". His wife had been treated with a variety of anti-depressants until 2009. Dr. Orchard then diagnosed Attention Deficit Disorder, and prescribed dexamphetamine and Epilim [sodium valproate]. Mr. D said that his wife "has for the first time in many years been independent of anti-depressant medications and is learning to live a full life". When he gave oral evidence, Mr. D said that his wife now is a patient of Dr. Lees, and is taking 10 dexamphetamine tablets and one Epilim tablet each day.
Mr. D spoke highly of Dr. Orchard's interviewing technique, attention to the compilation of a detailed history, and professionalism.
Dr. Orchard also relied upon a witness statement made by Mr. R, another of his patients. Mr. R stated that he was diagnosed by Dr. Orchard as suffering from ADHD and a bipolar condition. He said that Dr. Orchard prescribed dexamphetamine and Epilim. Mr. R said that "It is as if Dr. Orchard has helped me turn on the light at the end of the tunnel. He has got me out of the hole in which I was living".
In another witness statement, Mrs. B stated that she has been a patient of Dr. Orchard since 2002. She was diagnosed with post traumatic stress disorder, which brought on ADHD and a bipolar disorder. She stated that she attended group therapy sessions at the suggestion of Dr. Orchard. She said "My medication and treatment by Dr. Orchard help me to cope with my everyday life".
Another witness statement was made by a country medical practitioner. He stated "I have seen many seriously ill psychiatric patients who had been seen by a number of other psychiatrists who had not been helped. ... Then I referred these patients to Dr. Orchard who has given them both dexamphetamine and Epilim - they then improved and did very well".
A further witness statement was made by a suburban medical practitioner. He said that he had referred many patients to Dr. Orchard, who often diagnosed ADHD. The practitioner stated that feedback from Dr. Orchard allowed him to "have a much better idea of whether the person is likely to be diagnosed with ADHD".
Another witness statement was made by a medical practitioner who described himself as a Family Physician. He stated that he has been clinically interested in ADHD for twenty years and has diagnosed and treated adults with ADHD for over ten years. He opined that "If diagnosis is limited to strict conventional criteria, many patients with ADHD would not be diagnosed and would be denied the benefit of treatment"

[120]

Ms P was medically stable and satisfied with the medication prescribed by her previous psychiatrist Dr. Gojak, who had treated her albeit infrequently since April 2002.
In a letter dated 27 August 2007, Dr. Gojak informed Dr. Orchard that Ms P suffered from ADHD and depression and relationship problems, and that Ms P had derived significant benefit from two dexamphetamine tablets daily plus a low dose of Zoloft.
Ms P consulted Dr. Orchard on only one occasion, on 29 August 2007.
Dr. Orchard diagnosed Ms P as having ADHD and bipolar spectrum disorder. Dr. Orchard informed Ms P of those diagnoses without consulting Dr. Gojak as to the new diagnosis of bipolar spectrum disorder. Dr. Orchard did not give an adequate explanation to Ms P of the reasons for the new diagnosis.
Dr. Orchard prescribed up to ten dexamphetamine tablets per day, in four doses five hours apart, but starting on one tablet four times per day and slowly increasing. Dr. Orchard gave that prescription to Ms P without consulting Dr. Gojak as to the relatively large increase in the dosage of dexamphetamine. Dr. Orchard did not give an adequate explanation to Ms P of the reasons for the increased dosage, or inform Ms P of the possible effects of the increased dosage.
Dr. Orchard provided Ms P with 44 pages of written material, and asked her to take it away and read it. A large part of the material was directed at medical practitioners. The material was complex, excessive, and potentially confusing to a patient, but Ms P was "able to follow" the material.
Communication of the new diagnosis without an adequate explanation of the reasons for the new diagnosis, and the prescription of a relatively large increase in the dosage of dexamphetamine without an adequate explanation of the reasons for the increased dosage, caused distress to Ms P.
Ms P did not take the increased dosage prescribed by Dr. Orchard. Since her consultation with Dr. Orchard, Ms P has remained well on the lower doses of dexamphetamine prescribed before and after she consulted Dr. Orchard.
Dr. Orchard's communication with Ms P, involving inadequate explanation of the reasons for the new diagnosis, inadequate explanation of the reasons for the increased dosage of dexamphetamine, inadequate explanation of the instructions in the hand written prescription, and the provision of complex, excessive and potentially confusing written material amounted to unprofessional conduct on the part of Dr. Orchard.

[121]

Most of Dr. Orchard's patients are referred to him because they have, or may have, ADHD.
Dr. Orchard uses broad diagnostic criteria to diagnose ADHD. The criteria used by Dr. Orchard to make a diagnosis of ADHD do not concur with the conventional diagnostic systems DSM IVTR or ICD 10. Dr. Orchard regularly diagnoses ADHD.
Dr. Orchard uses broad diagnostic criteria to diagnose bipolar spectrum disorder. There are no major national clinical practice guidelines for the diagnosis of bipolar spectrum disorder, either in the narrow sense of subsyndromal presentations or in the broader sense of the criteria used by Dr. Orchard. Dr. Orchard believes that bipolar spectrum disorder is co-morbid with ADHD in about 50% of the cases where he diagnoses ADHD.
Dr. Orchard prescribes dexamphetamine for ADHD and sodium valproate for bipolar spectrum disorder for about 80% of his patients diagnosed with those conditions. The dosages of dexamphetamine prescribed for his patients often are higher than the dosages likely to be prescribed by other psychiatrists. Dr. Orchard generally directs patients to self select a dosage of dexamphetamine they are comfortable with after increasing the medication to these higher doses. He did not require the patients to seek further consultation with him or their referring doctors before adjusting the dose of medication.
Dr. Orchard's history taking sometimes is inadequate. He rarely seeks corroborative evidence. He is reluctant to use psychological strategies or cognitive behaviour therapy. He also is reluctant to seek a second opinion.
Dr. Orchard claims to be on the "cutting edge" of medical practice with respect to the diagnosis and treatment of ADHD, and maintains that he is in advance of academic psychiatry. He is convinced that there are advantages in patients taking up to eight or twelve dexamphetamine tablets per day.
Peer protocol for someone on the "cutting edge" of medical practice is to confer with peers and/or publish data. Dr. Orchard has not submitted an extract of his diagnostic and treatment regime to the Australian and New Zealand Journal of Psychiatry, or to the Royal Australian & New Zealand College of Psychiatrists. He has not submitted his diagnostic and treatment regime to any other peer groups.
Dr. Orchard does not follow up patients who fail to attend appointments, or notify referring doctors that their patients failed to attend appointments. His record keeping is deficient. He often does not provide a written report to referring doctors. It would be difficult in some cases for another psychiatrist to ascertain from Dr. Orchard's clinical notes how Dr. Orchard reached a particular diagnosis. It would be difficult for another psychiatrist to take over Dr. Orchard's practice or his patients.
Dr. Orchard's professional performance has been unsatisfactory, because:

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

Orchard v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2010] VCAT 1135 (30 June 2010)

Orchard v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2010] VCAT 1135 (30 June 2010)

Parties