KANGAROO COURT

FINDING & DETERMINATION

 

"REASONS"

 

Colours: Quotations from the Medical Practice Act 1994. From Dictionary/hypothetical. Editorial comment. My comments/emphasis. The full “Reasons” may be examined on the Medical Practitioners Board of Victoria website: numbering is as in the original. There was a report of the matter in “The Australian Doctor” 16th March 2007, presumably drawn from the Reasons (below) – I gave no interview.

 

[1]       The Reasons commences with a recital of the Offences and Charges brought to the Magistrates’ Court on 18/3/2004. (Just over 3 years since the cohort of “alert” letters were issued (21/3/2001).

[2]       There is a summary of the allegations – prescribing of S8 drugs in quantities exceeding the relevant Permit, or no Permit in place.

[3]       I pleaded guilty to all Charges in the Magistrates’ Court of Victoria. This was a pragmatic decision, based upon the evidence at the time (see later).

[4]       The finding of guilt of an offence as a medical practitioner against any other Act (other than the Medical Practice Act 1994) is defined as unprofessional conduct in paragraph (h)(iv) of the definition in section 3(1) of the Act.” This definition is essentially as stated in the Act.       

[5]       The Notice goes further, however, and alleges unprofessional conduct defined in 3(1)(a) and 3(1)(b). These Sections are not quoted, and read “-  - - (a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or (b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by his or her peers; or - - - .”

[6]       By virtue of the convictions recorded in the Magistrates’ Court of Victoria there is an automatic finding made of unprofessional conduct.” This ignores the claim before the Board’s Panel that the outcome of the Magistrates’ Court was by means of entrapment which, at the time, could not be assessed, but subsequently, could be assessed.

[7]       The Panel was presented with evidence that established clearly that Dr Traill had little regard for the requirements of the Drugs and Poisons Act and the regulations made there-under.” The evidence established clearly that there were breaches of the Act. That I had “little regard for the requirements” is an opinion or judgment, that should be expanded in the Reasons (but was not), and which ignores the issue of entrapment, being the difficulties created by the actions or inactions of the Drugs & Poisons Unit, in order to comply with the Act.

[8]       This attitude became clear to the Panel during Dr Traill’s addresses and submissions to the Panel.How did it become clear ? No example or reason is given.

[9]       It would not serve any useful purpose to examine in detail each of the alleged breaches of the Drugs & Poisons Act.” No example is provided. Examples created whilst subject to the harassment and entrapment would have been enlightening.

[10]   In his submissions to the Panel, Dr Traill variously sought to explain or justify his actions

(a)    As necessary for the welfare of patients when a permit was not granted, denied delayed or insufficient;

(b)   By asserting he had a busy practice and the requirements were overlooked;

(c)    The charges brought against him in the Magistrates’ Court of Victoria resulted from a conspiracy between the Board and Mr Falcke of the Drugs & Poisons Unit of the Department of Human Services (“Drugs and Poisons Unit”);

(d)   That the actions of the Drugs & Poisons Unit amounted to entrapment.”

The types of submission being considered, whether oral and/or written are not specified. The above are presented without comment from the Panel. The Reasons has changed the claimed omissions resulting from oversights to actions (active) without a reason – and presumably intentional (see later). The Panel, in its Reasons, has introduced the legal term “conspiracy.” The Macquarie Dictionary[1] gives meanings as “1. the act of conspiring. 2. a combination of persons for an evil or unlawful purpose; a plot. 3. Law. an agreement by two or more persons to commit a crime, fraud or other wrongful act. 4. any concurrence in action; combination in bringing about a given result.I comment :

·        Readers may note that nowhere have I claimed “conspiracy.” That is because it is an emotive word, often used by those postulating improbable explanations that have little plausibility and also perceived by the observer as signs of paranoia. There are other reasons: in order to claim “conspiracy” there would need to be a planned “crime, fraud or other wrongful act.” There is little or no evidence that such was envisaged or carried out. Individually, “benign” implications can be attributed to every action or inaction by the Drugs & Poisons Unit’s Officers: proving that they “lost” applications intentionally would be next to impossible, and all the other features of harassment could be justified individually by claims of caution, prudence and care (providing directives on drug dosages would seem excessive). Only when the total pattern is assessed and compared with the “normal” state, well after the Court Hearing, can the pattern consistent with an entrapment campaign be deduced.

·        The full extent of the entrapment campaign was not really apparent until the statistics before and after the Court Hearing were analysed prior to the Board’s Hearing: an appeal to an higher Court was hardly practical or feasible at that stage; I was stuck with the Court outcome.

·        In Australia, “entrapment” is not considered illegal, as was presented in my oral submission.

·        By definition, “Conspiracy” seems to involve planning, plotting and scheming. There was no suggestion that anyone in the Drug & Poisons Unit engaged in planning, plotting and scheming. However, the pattern is consistent with the Unit applying individually justifiable constraints in an overall pattern of harassment, probably in response to a request.

·        At no stage have I stated, or implied that the Board was involved. I claimed that the pattern all pointed to Mr Smith, the Deputy Chief Executive Officer as being the likely person initiating interdepartmental contact and request (see Paragraph 11).

·        I did not suggest the name of Mr Falcke. The most likely person to be contacted would be Mr Keith Moyle, the manager of the Drugs & Poisons Unit, a Public Servant, who would have been expected to have worked closely with Mr Smith when he was a Public Servant up until 1994.

·        Not only is the introduction of the legal term “conspiracy” in this way not justifiable (see above), but is consistent with an attempt to impute to me the more negative characteristics associated with the use of the word.

·        The introduction and use of the word “conspiracy” brings false and misleading implications, created by the Panel.

[11]     Dr Traill said to the Panel:

I have no difficulty picturing John H Smith, the Deputy CEO, acting for outside interests, picking up his telephone and talking to a senior officer of the Drugs & Poisons Unit saying to the effectWe have a doctor we would like you to have come to our area. I’m sure you can assist with this special favour for us.’ To return the favour the Drugs & Poisons officers would be able to (1) generally harass me; (2) shorten significantly the permit durations; (3) demand consultant opinion; (4) hold up permits pending consultant opinions; (5) lose permit applications; (6) pursue me regarding a patient who I ceased seeing about two weeks after receiving an alert letter and (7) demand dose reductions without consultation et cetera.” (See comments attached to Paragraph 10.) This was guided speculation.

[12]     Dr Traill continued in this vein for a considerable time.” That is because there was a lot of documentation to support the claims, and it needed to be presented in reasonable detail to be plausible and, because such Panels have a habit of not listening, to repeat details..

[13]     Dr Traill also alleged that the panel may be biased against him, again making comment about Mr Smith:

Mr John Smith has over the last 16 years held a trusted, powerful and influential position . . . as such he has been in a position to influence in many ways the recruitment, selection and appointment of Board Members. Suggestions of candidates for the Panel, lists submitted to the Governor-in-Council, selection of Panel members . . . (and so on)’ The above quotation would seem a statement of facts and opportunity. By itself, this quotation does not indicate that the Panel was biased against me and does not seem to connote any pejorative implication. The Panel’s claim of bias, on this evidence, would seem fantasy. Any claim of bias would need support from the performance of Panel members and their ability to apply reason and impartiality to their assessments.

Having said this I note, one, the extreme difficulty one can have remembering to renew a permit or licence et cetera, when there is no reminder notice issued. How do you fare with bills without reminder notices ? There remains uncertainty as to what to do when a patient with a relapsing remitted (sic) condition suddenly deteriorates. The increased level of narcotic required is unknown. You don’t want to apply for a permit once by guessing over the limit. Does one supply increased amounts on a wait and ascertain basis before applying ? How long does one wait in a relapse before accepting that there is not going to be a remission soon as (sic) the condition reached a plateau ?There are listed medical dilemmas created when the Drugs & Poisons Unit harassed me. This quotation does not indicate Panel bias or give any suggestion of bias.

What is one to do with a chronic drug dependent patient – and here the definitions are important I believe in the context, and so they are going to be in my submission, and so you’ll be able to see what I meant by a drug dependent person. What is one to do with a chronic drug dependent patient with severe pain with (sic) the Drugs & Poisons Unit declines a permit application pending a consultant’s report that is demanded by the unit without consultation ? Does one obey the law and cut the medication cold turkey to inflict pain or withdrawal symptoms on the patient at the department’s pleasure, or does one continue with the medication until the consultant’s report can be provided, which can take months in the public holiday (sic; try “hospital”) system.’ Again, there are listed medical dilemmas created when the Drugs & Poisons Unit harassed me, and the Submission was not received by the Panel until after the Finding. This quotation does not indicate Panel bias or give any suggestion of bias. (One would have thought that the Panel could have corrected the obvious transcription errors.)

So, where is my suggestion of bias as is claimed by the Panel ?

[14]     Despite the inflammatory and offensive nature of these and similar remarks the Panel has not been influenced by them to impose any hasher determination that it would otherwise consider proper.” The comments presented above would hardly seem “inflammatory and offensive.” To consider them so, seems to display an unusual sensitivity and inventiveness, consistent with bias. The Panel, supposedly examining the issues as a Panel with medical expertise, has made no comment and no recommendation as to how a medical practitioner, in real medical practice, is to handle the level of harassment that was dealt out by the Drugs and Poisons Unit to me. The Panel is remote from practical medical reality.

[15]     When addressing the question of whether there should be a finding that the professional misconduct was serious Dr Traill submitted as follows:

‘At all times I have been aware of the importance of the need to regulate the delivery of section* [sic] 8 poisons to the public, of a need to prevent doctor shopping and to control the escalating demand for an increased consumption of a section [sic] 8 poison by those with an addiction problem. Over the relevant time I did endeavour to observe the spirit of the legislation but with imperfections.” * “Schedule” intended

               The Panel failed to include a reference to the harassment campaign, and how it made the strict observance of the laws very difficult, let alone the medical dilemmas.

[16]     The Drugs and Poisons Act prohibits a registered medical practitioner from –

(a)   Prescribing any Schedule 8 poison to a patient for a continuous period other than that specified in a permit issued by the secretary of the Department of Human Services – Section 35(3)(a);

(b)   Prescribing any Schedule 8 poison to a patient for a continuous period in excess of the quantity specified in a permit issued by the Secretary of the Department of Human Services – Section 35(3)(b).”

[17]     Oxycodone and Morphine are Schedule 8 poisons and are drugs of dependency.”

[18]     The permit system enables co-ordination of treatment by one medical practitioner. Failure to comply with the system means that there is no way of knowing whether the patient is receiving the drug elsewhere. Breach of the permit system has serious implications for the community because it could lead to drug of dependency becoming available without proper control and precautions.”

[19]     The Drugs and Poisons Act does not contain any provision that allows a medical practitioner to disregard its provisions if the practitioner thinks it is in the interests of his or her patients to do so. The law is clear; its purpose is clear and there cannot in reality be any excuse for its breach.” The Act does not contain any provision allowing the officers of the Unit to harass a practitioner in various ways, in order to engineer an entrapment against the practitioner. “Disregard” implies the intent to ignore. That was denied, but comes as a judgement by the Panel, without specific evidence or Reason. The interpretation is legal (black and white), and has not been assessed by a medically-advised Panel: it is isolated from the issues encountered in a busy medical practice. As a legal issue alone, it represents a double jeopardy, merely doubling the Magistrate’s Court Hearing, but with different penalties.

[20]     In the case of Dr Traill the Panel considers that he flouted the provisions and when called to account sought to excuse his behaviour with fanciful and offensive theories about conspiracy and entrapment, and also asserting that the offences were trivial.’

‘The offences were not trivial.

The Panel has not dealt specifically with the claims of deliberate entrapment, other than to dismiss them as “fanciful and offensive theories about conspiracy.” The documentation was presented in both the oral submission and in the written submission (which has not been mentioned, but may be read elsewhere on the website). In what way was that documentation fanciful ? – with the Tables and Charts, the Affidavit from DF and the associated correspondence from the Board’s Officers, plotting another set-up ? With evidence presented to support the theory of entrapment, why should the theory be offensive - unless the objectors felt threatened ? “Flouted,” like “disregard” implies a deliberate intent to ignore. This was denied. What were the specific reasons to reach the conclusion that the lapses were intentional ? What would be the point of intentionally flouting the laws ? If the lapses were intentional, was the point for creating them achieved ? In the context of deliberate entrapment, why should such breaches as occurred, not be trivial ? Where are the reasons ?

[21]     The evidence before the Panel demonstrated that very large quantities of Oxycodone (brand name Proladone) were prescribed beyond expiry dates of permits, and very large quantities of Morphine, Oxycodone and MS Contin were prescribed over and above the quantities allowed by permits held.” The Panel probably uses the quantities of items which, for some patients were high anyway (cf “prescriptions”). What would have been more relevant would have been the actual lapse durations – but there was no reference to this parameter, which would have been more objective and easily assessed by the observer.

[22]     “Dr Traill submitted that none of his patients ever suffered or came to harm. All the patients relevant to the breaches were long-term patients whose backgrounds were known. He submitted he put the interests of his patients first.” This was in the face of multiple dilemmas presented by the harassment campaign waged by the Drugs & Poisons Unit’s Officers in order to secure the entrapment. Without guidelines from the Panel as to what to do in such circumstances, what else could one do, as a professional practitioner ? The Panel has provided no guidance for those caught-up in future dilemmas created by the Drugs & Poisons Officers when they :

(1) generally harass;

(2) shorten significantly the permit durations;

(3) demand consultant opinion;

(4) hold up permits pending consultant opinions;

(5) lose permit applications;

(6) pursue doctors regarding patients who were last seen about two weeks after receiving an alert letter and

(7) demand dose reductions without consultation.

(8) Also, what is a medical practitioner to do when a patient with a relapsing/remitting condition suddenly deteriorates; the increased level of narcotic required being unknown. Does one apply for a permit at once by guessing over the limit. Does one supply increased amounts on a ‘wait and ascertain’ basis before applying ?

        (9) How long does one wait in a relapse before accepting that there is not going to be a remission soon – when has the condition reached its plateau ?

The Medical Profession of Victoria has received no guidelines or practical advice form the Panel on how these situations could or should be handled. The Panel’s views are moulded by those of a legal practitioner and the outcome of the Magistrate’s Court.

[23]     Dr Traill informed the Panel that he was no longer practising. The Panel is aware that Dr Traill’s registration was cancelled by a Panel appointed by the Board and he was disqualified from applying for registration for 3 years and the decision was affirmed by the VCAT on 25 August 2006 for unprofessional conduct in respect of totally different allegations against him.” There are grounds for suspecting that the common denominator, Mr John Smith, played a significant part in both Board Hearings and the VCAT appeal outcome (see elsewhere on the website).

[24]     The Panel finds that Dr Traill’s conduct as alleged constituted unprofessional conduct of a serious nature. The Panel finds that Dr Traill’s conduct was also unprofessional conduct within the meaning of paragraphs 1(a) and 1(b) of the definition of ‘unprofessional conduct’ in the Act and that such conduct was of a serious nature.” (See discussions elsewhere)

[25]     The formal determinations are set out at the front of this document. The Panel would like it understood that if Dr Traill’s registration had not already been cancelled the Panel would have suspended his registration for 12 months in respect of the allegations before this Panel.(Parity ?)

[26]     It is just not open to registered medical practitioners to decide if and when they will comply with the permit system established by section 35 of the Drugs, Poisons and Controlled Substances Act 1981. It is essential that the regime be followed to protect the public and maintain the reputation of the medical profession.” Then, is it open to the Officers of the Drugs & Poisons Unit to embark upon other harassment campaigns, with the aim of entrapment, in order to bring Charges before a Court and the subsequent Board’s Hearing ? Perhaps the Officers of the Unit are the ones who need to follow a medical-based regime, rather than having the medical practitioners driven by non-medical bureaucrats.

 

Determination

(1)   Reprimand

(2)   When/if registration is restored, not to possess, prescribe or administer Schedule 8 Poisons. This implies that the patients were drug addicts, for which there was no evidence or claim. The real reason for this fiat is most likely to prevent me reclaiming my patient base back later – to restrict earning capacity.

 

Signed by Dr ST Horne 8 February 2007. Section 56 (1) of the Medical Practice Act 1994 states A panel must give reasons* for determination made under this part, to the medical practitioner or medical student who was the subject of the determination within 28 days of the making of the determination.  *As presented here, the Act seems to be referring to logical explanations, not merely a document headed “Reasons,” and filled with assumptions and padding.

The Reasons were supposed to be delivered to the Defendant within 28 days of the Hearing held on 12 October 2006 – perhaps Mr Smith was on holidays ! You, dear reader, may wonder what the legal standing of this document is, then.  

 

              

 


 

[1] Macquarie Dictionary; Macquarie Library Pty Ltd, Macquarie University, NSW.  1982