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MEDICAL PRACTITIONERS BOARD OF VICTORIA Re: Dr Kenneth Cyril Bowes [2006] MPBV 8 Reasons for Decision Before: Mr W F Johnson (Chair) Dr L S Warfe Ms A Dea Appearances: Assisting the Panel: Mr A Clements of Counsel instructed by Minter Ellison, Lawyers For the Practitioner: Mr M Wilson of Counsel instructed by John W Ball & Sons, Solicitors Date of Hearing: 5 April 2006 Date of Decision: 5 April 2006 Finding: In relation to his failure to record any notes for 194 home consultations to Mrs TR undertaken over a 10 year period, Dr Bowes has engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of “unprofessional conduct” in section 3(1) of the Medical Practice Act 1994 (“the Act”) and that conduct is of a serious nature pursuant to section 45A(1)(a) of that Act. Pursuant to section 45A(1)(c), Dr Bowes’ failure to attend a home consultation on 20 January 2004 and his failure to contact his patient to advise he would be unable to attend did not, in the circumstances, amount to unprofessional conduct. Determination: Pursuant to section 45A(2)(a) of the Act, Dr Bowes is to undergo counselling, to be provided by a suitably qualified medical practitioner approved by the Deputy CEO of the Board, who can advise Dr Bowes on best practice standards and practical techniques for recording in medical records and particularly those relating to home consultations. There are to be two counselling sessions, which are to include an audit of a sample of records from Dr Bowes’ practice, with appropriate consent to first be obtained from the patients. Reports to the Medical Practitioners Board will be required to be provided by the counsellor and Dr Bowes. The counselling sessions are to be completed within a period of three months from the date of this document and the costs of the sessions and the reports are to be met by Dr Bowes. Pursuant to section 45A(2)(c) of the Act, Dr Bowes is reprimanded for his failure to make notes of his home consultations with Mrs TR. [1] The Medical Practitioners Board of Victoria (“Board”) determined under the Medical Practice Act 1994 (Vic) (“the Act”) that a Formal Hearing was to be held into the professional conduct of Dr Bowes. A Panel was appointed pursuant to section 46 of the Act and the hearing was held on 5 April 2006. [2] The Panel was informed that the original Notice served on Dr Bowes contained 5 allegations and that it was amended to contain 4 allegations. After discussions between the representatives of the Board and Dr Bowes, on the day of the hearing a further Notice was served which contained 2 allegations which were to be the subject of the hearing (“Notice”). The Panel was required to determine whether Dr Bowes engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or (b) of the definition of "unprofessional conduct" in the Act in that it was alleged that: “(a) [He] did not exercise the care and skill of a competent general practitioner in attending to [his] patient, [Mrs TR] in that: (i) [he] failed to record and/or maintain any clinical notes in relation to home consultations that [he] attended upon [Mrs TR]; PARTICULARS Between 6 January 1994 and 22 January 2004, [he] attended 194 home consultations upon [Mrs TR], in relation to which [he] recorded and/or maintained no clinical notes. (ii) [he] failed to attend for a home consultation upon [Mrs TR] on 20 January 2004 although [he] agreed to do so. PARTICULARS On 19 January 2004, in a telephone conversation with [Mrs TR], [he] agreed to make a home visit to attend on her on 20 January 2004. [He] failed to attend on [Mrs TR] on 20 January 2004 and [he] did not telephone or otherwise attempt to inform [Mrs TR] that you would not be attending on 20 January 2004.” The definitions of “unprofessional conduct” contained in section 3 of the Act relevant to the Notice are as follows; “(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 her or his peers;” 2 Admissions [3] In his opening address Counsel Assisting, Mr Clements, told the Panel that Dr Bowes admitted the factual matters contained in the 2 allegations. It was also said that Dr Bowes did not dispute that the conduct in relation to both amounted to unprofessional conduct within the paragraphs of the definition referred to in the Notice and that it was not disputed that the first amounted to unprofessional conduct of a serious nature while the second was unprofessional conduct not of a serious nature.1 [4] This position was confirmed by Mr Wilson, Counsel appearing for the practitioner, who said that Dr Bowes conceded the first allegation amounted to unprofessional conduct of a serious nature. He said that Dr Bowes also conceded that the events of 20 January 2004 “would probably” satisfy the relevant definitions of unprofessional conduct but that Dr Bowes did not concede that would satisfy the Panel that the conduct was of a serious nature.2 [5] There are two further matters relevant to the hearing which arose from the opening statements of counsel. Firstly Mr Wilson quite correctly reminded the Panel that the Book of Evidence3 contained material which had been relevant to allegations which had been contained in the earlier forms of the Notice but which had been withdrawn by the Board and so the Panel ought not to have regard to that material, particularly, when it came to the question of the Panel’s Determination.4 [6] Secondly Mr Clements, after referring to the admissions made by Dr Bowes, said that despite those admissions the Panel should still make its own findings in relation to the allegations and that it was not a matter for he and Mr Wilson or their instructors to “usurp the Panel’s function” by simply stating that the conduct was unprofessional and that it is of a serious or not serious nature.5 The Panel took the same view of its responsibilities as expressed by Mr Clements. Background [7] These allegations arose from the treatment by Dr Bowes of Mrs TR over a period of some 10 years. In fact the clinical notes held by Dr Bowes indicate that he commenced treating Mrs TR in approximately March 1982.6 In a letter to the Board in response to the Notification and before the Panel Dr Bowes listed the conditions from which Mrs TR suffered. They included obesity, schizophrenia, hypothyroidism, gastro-oesophageal reflux, obstructive airways disease, cataracts and recurring chest infections. In addition, Mrs TR had suffered from deep vein thrombosis and pulmonary embolism.7 Mrs TR died on 24 January 1 Transcript p. 1-3 2 Transcript p. 4-5 3 Exhibit A 4 Transcript p. 5-6 5 Transcript p. 3 6 Book of Evidence, Tab 5 7 Book of Evidence, Tab 24, Transcript p. 13, 21 3 2004 and the death certificate states that the cause of death was “Intracranial haemorrhage – 16 hours; Atypical pneumonia, Sepsis, Acute renal failure”.8 [8] In addition to being treated by Dr Bowes over the 22 year period, Mrs TR had been admitted to The Royal Victorian Eye & Ear Hospital and the Austin & Repatriation Medical Centre for treatment. At the time of the events with which the hearing was concerned Mrs TR was an outpatient at the Austin Hospital medical outpatients’ clinic. The Book of Evidence showed that a number of her medications and treatments had been prescribed by doctors at the Austin Hospital.9 One of those medications was Warfarin and the dose was managed by Melbourne Pathology.10 [9] A Notification was made to the Board by Mrs TR’s husband on 11 February 2004 and he also swore an affidavit on 20 July 2005 about relevant matters.11 Mr SR was not called to give evidence before the Panel. Dr Bowes [10] Dr Bowes provided to the Board a written response to the matters contained in the Notification and also gave evidence before the Panel. [11] By way of background Dr Bowes told the Panel that he had graduated from Melbourne University in 1956. His other qualifications included a Master of Medicine, a Diploma of Tropical Medicine and Hygiene, and a Bachelor of Arts. He is a Fellow of the Royal Australian College of General Practitioners and a Fellow of the Australasian College of Tropical Medicine. Dr Bowes said that he practises at 4 Dundas Street, Thornbury and had done so for 45 years. The practice comprises an associateship of 4 doctors and one part time practitioner.12 [12] In both evidence in chief and cross examination, Dr Bowes described the hours he worked and his medical practice. That evidence indicates that Dr Bowes works 4 and a half days per week with his hours apparently exceeding 55. Dr Bowes said he took 10 weeks leave over the course of each year. In addition to consultations in his rooms, on a daily basis Dr Bowes attends other facilities such as Ivanhoe Manor Private Rehabilitation Hospital, Olympia Private Rehabilitation Hospital, the Merv Irvine Nursing Home’s Residential Facility’s psycho-geriatric unit in Bundoora and aged care facilities such as Twin Parks Private Hostel in Reservoir Dr Bowes’ evidence was that home visits, as distinct from attendances at these facilities, represent approximately 1 percent of his practice. Mrs TR was one of the 10 or 12 patients he regularly visited at home.13 Dr Bowes resisted any suggestion that he was overworked or too busy and said he enjoyed medicine.14 Detailed evidence was given about the system Dr Bowes had introduced since the Notification to ensure that appropriate notes are now 8 Book of Evidence, Tab 18 9 Book of Evidence, Tabs 6, 8, 11, 13, 14, 15 and Exhibit MA-1 to the affidavit sworn by Mr SR 10 Book of Evidence, Tab 27 and Transcript p. 30 11 Book of Evidence, Tab 2 12 Transcript p. 8-10 13 Transcript p. 10-13, 20 14 Transcript p. 19 4 made when he undertakes a home consultation. That system will be referred to later in these reasons. [13] The Panel regarded the evidence given by Dr Bowes to be honest and open. He readily conceded errors and willingly stated he would change his practices further if the Panel thought that appropriate, even where he had concerns about the practicalities of some of the changes suggested.15 The Panel considered that Dr Bowes would have readily admitted any shortcoming in his conduct and so gave weight to his evidence about his dealings with Mrs TR and her husband regarding the intended visit on 20 January 2004. The Panel was impressed with his candour and his evident desire to make improvements in his practice. The notes [14] Dr Bowes conceded no notes were made of the 194 home consultations referred to in allegation (a)(i). When asked why there was no system in place for recording these consultations before the Notification, Dr Bowes said: “I haven’t got any excuse. I was at fault. I – look I don’t want – a lot of people did it. A lot of GPs did it. It was accreditation that woke me up to the fact that for that particular sort of patient you have to keep good notes, and – and also, you know, because of the problems I’ve got at the moment. And since then I – I keep very good notes.”16 [15] While not certain about the dates, Dr Bowes said that he believed that the Dundas Street practice had been accredited in or around January 2001 and again in or around January 2004.17 Given that the allegation relates to the period 1994 to 2004, it would appear that the necessary changes to Dr Bowes’ note taking practice did not take effect in 2001 and were a reaction to this impending Hearing, rather than the accreditation process undertaken in 2001. [16] The significance of the lack of notes became very clear when Mr Clements said that his rough count indicated that over the 10 year period Mrs TR had been seen at the clinic only 43 times as compared with the 194 home consultations.18 [17] Dr Bowes conceded that the lack of notes may have impeded his or one of his colleague’s capacity to treat Mrs TR appropriately and that the absence of notes had the potential to put his patient at risk. When the Panel drew to Dr Bowes’ attention the fact that none of his notes recorded the fact that Mrs TR had a deep vein thrombosis, he accepted that as correct and agreed it was a shortcoming. Dr Bowes agreed that the making of appropriate notes about such a condition was essential and that contemporaneous notes were extremely important.19 [18] The Panel is satisfied the Particulars of allegation (a)(i) are made out. 15 Transcript p. 27-28 16 Transcript p. 17 17 Transcript p. 17 18 Transcript p. 22 19 Transcript p. 23, 35-36 5 The intended visit on Tuesday, 20 January 2004 [19] The Panel accepts Dr Bowes’ concession that he had arranged to see Mrs TR at home and did not do so. It also accepts that Dr Bowes conceded that he did not initiate contact with Mrs TR. The consequence is that, as a question of fact, the particulars are made out. [20] There is no dispute that Mr SR telephoned either the clinic or Dr Bowes on that day and so Mrs TR and he were aware that Dr Bowes was not going to attend. It also appears to be undisputed that Mr SR and Mrs TR knew on that day that Dr Bowes would instead visit in 2 days time. [21] In order to be able to assess whether the conduct was unprofessional, the Panel considers it relevant to understand what Dr Bowes knew about the request for a home visit. To assist in this consideration the Panel has had regard to the evidence Dr Bowes gave about how home consultation appointments were made and to his recollections of this particular appointment. [22] Dr Bowes said that patients would call the clinic and the telephone would be answered by the receptionist. He said that if there were any difficulties and he was in surgery then the receptionist would ring him in the rooms and would explain that the patient wanted a home visit and then he would talk to the patient. He said that if it was “obviously a call” then the receptionist would check with him and then would enter the patient’s name in the home visit book held at reception and he would perhaps make his own note and put it in his pocket as a reminder. The Panel understands on these apparently straightforward occasions he would not speak with the patient.20 [23] Dr Bowes’ description of his working week indicates that on a Monday he would usually be at the clinic for morning surgery, he would then undertake calls to the various facilities or patient’s homes as required, he would return for the afternoon surgery and then complete any calls.21 [24] When giving evidence in chief about the arrangements for the visit in issue, Dr Bowes’ noted that he was having to try to recall what occurred 2 years and 3 months earlier. His evidence was that he was almost certain that he would not have known about the request for a visit until he attended the surgery on Tuesday 20 January 2004. He accepted that there was an arrangement for him to visit and that he did not in fact attend. He was asked what explanation he could offer as to why he did not attend and Dr Bowes responded as follows: “Well I – this is what I really do believe. I was seeing her fairly regularly, and I hadn’t seen her for almost three weeks, so I presume that it was a routine visit. I couldn’t get there on the Tuesday, and on the Tuesday I wrote [Mrs TR] for the Thursday, which would be the next time that I could go. But I – I most certainly didn’t speak to [Mr SR]. There was no communication between us. So I assume that that was what it was 20 Transcript p. 13-14, 39 21 Transcript p. 19 6 about. I’d seen her three weeks previously, so I presumed it was a routine visit. [Mr Wilson] Is the short answer, Dr Bowes, that you were just too busy on the day? – Yes For whatever reason? – Well I don’t like using the word ‘busy’, but I couldn’t get there, yes.”22 [25] Mr Clements did not question Dr Bowes about his evidence that he understood the appointment to be routine nor did he make any submission to the effect that Dr Bowes had been told that he was needed urgently. [26] Both Dr Bowes’ and Mrs TR’s diaries23 indicate that in fact Dr Bowes had attended Mrs TR at home the previous Tuesday, 13 January 2004. Mrs TR’s diary entry says that she asked for antibiotics for what she believed was bronchitis but that Dr Bowes had refused on the basis that she had a “bug”. It also states that Dr Bowes said he would see her the following week. [27] The evidence Dr Bowes gave about the time since the last visit was clearly incorrect. He gave no evidence about that earlier visit and, for obvious reasons, there are no notes of that consultation. [28] It was the Panel’s view that, given the lapse of time since the relevant events and, as Dr Bowes did not have his diary with him in the witness box, this error did not make Dr Bowes’ evidence about his understanding of the purpose of the visit unreliable. As indicated earlier the Panel considered that Dr Bowes showed himself willing to make concessions when giving evidence. As Dr Bowes was prepared to concede the conduct the subject of this allegation was unprofessional, the Panel considered that, had he been aware that the need for the visit was more urgent, he would have said so in evidence. [29] The Panel is satisfied that the particulars of the allegation are made out. The relevance of the evidence about Dr Bowes’ understanding of the purpose of the visit will be discussed below. Finding – allegation (a)(i) [30] The Board has on a number of occasions referred to the need for medical practitioners to maintain adequate notes of clinical consultations. Recently the Board published Medico-Legal Guidelines in which it refers to the obligation to maintain accurate and contemporaneous notes.24 In those Guidelines reference is made to the obligation contained in section 81 of the Health Insurance Act 1981 (Cth) and also to the content of Regulations 5 and 6 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth). Clearly, the primary purpose of those provisions concerns matters other than standards of 22 Transcript p. 17-19 23 Book of Evidence, Tab 30 24 Medico-Legal Guidelines March 2006, page 7 7 professional conduct. However, they do capture relevant aspects of proper medical record keeping. Regulation 5 states that: “. . . the standard to be met in order that a record of service rendered or initiated be adequate is that: (a) the record clearly identify the name of the patient; and (b) the record contain a separate entry for each attendance by the patient for a service and the date on which the service was rendered or initiated; and (c) each entry provide clinical information adequate to explain the type of service rendered or initiated; and (d) each entry be sufficiently comprehensible that another practitioner, relying on the record, can effectively undertake the patient's ongoing care.” [31] Regulation 6 has the effect that the standard to be met to ensure that a record of a service is “contemporaneous” is that a record must be completed at the time the service is rendered or initiated or as soon as practicable after that service was rendered or initiated. [32] There is no doubt that the keeping of accurate medical records is essential to the effective treatment of patients and to ensure their safety. Other Panels convened by the Board for the purpose of hearing allegations of unprofessional conduct have commented on the importance of adequate clinical notes.25 It is not necessary to recite the list of reasons why clinical notes are so important however, in the context of this case, the Panel notes the importance of records being made about the relevant patient’s condition(s) and prescribed treatment(s) so that other practitioners or other parties (such as the Board or the practitioner’s insurer) can readily determine that crucial information. For a patient such as Mrs TR who suffered from a multitude of complaints, comprehensive and contemporaneous notes were essential. The location of the consultations may impact on how notes are prepared but is not relevant to the requirement that they be produced and be adequate. [33] The Panel is satisfied that the failure to record any notes of 194 home consultations amounted to unprofessional conduct being conduct of a lesser standard that that which would be expected of a medical practitioner by his or her peers and the public. Given the importance of accurate clinical notes to the proper provision of medical services, the sheer number of consultations, which went unrecorded, and the fact that this practice was engaged in for 10 years, the Panel had no difficulty concluding that the unprofessional conduct was of a serious nature. Finding – allegation (a)(ii) [34] When considering whether the conduct was unprofessional, the Panel has proceeded on the basis that Dr Bowes understood that the request for the visit 25 For example Re: Dr Soo Hua Naik [2002] MPBV 20; Re: Dr John Chun-Tsang Lai [2003] MPBV 30; Re: Dr John Benjamin Greblo [2005] MPBV 5; and Re: Dr Robert Bruce Allen [2005] MPBV 7 8 was routine and that he did not attend because he was occupied with other patients. It also notes that Mrs TR was made aware on 20 January 2004 that Dr Bowes would not attend her home and that he would instead attend in 2 days. [35] Taking these circumstances into account, the question which the Panel confronts is whether it was unprofessional conduct for a medical practitioner to make an arrangement to attend a patient at home on a routine visit, to fail to do so because he was occupied with other patients and to fail to initiate contact about his inability to attend before a representative of the patient did so. [36] Mr Clements referred to the allegation in the following way: “So really now it’s a bare allegation that the Doctor agreed on 19 January that he would attend on the following day. He in fact did not attend on that day and he did not telephone the patient or make any other attempt to inform her that he wasn’t going to come. What in fact happened then is [Mr SR] made a call – there’s no need to go into details, but as a result of that call he found out the Doctor wasn’t going to come. But it took [Mr SR] to ring, there being no attempt by the Doctor to advise the patient he wasn’t going to come. Now, it is admitted by Dr Bowes that those facts are true, and he admits that that conduct constitutes unprofessional conduct not of a serious nature. And I don’t press any finding that it is of a serious nature . . . in respect of this second matter I’ll be simply stating to the Panel that if they do find that it’s unprofessional conduct and it’s not of a serious nature an appropriate determination would be that Dr Bowes be cautioned that if he makes an appointment to see a patient on a home visit and he’s unable to attend, he should make some effort to advise the patient accordingly.”26 [37] In his submissions Mr Clements said that “a member of the public, and a medical practitioner would expect that if a doctor has agreed with a patient to attend for a home visit on a certain day, and then is unable to so attend, the doctor would at least make some effort to inform the patient that he or she is not able to attend on that day. For the patient to be simply left waiting at home without any explanation from a doctor as to why he hasn’t attended is conduct which is of a lesser standard than what the public might expect of a medical practitioner.”27 [38] The concerns raised by this submission are entirely valid. However, here there is evidence that Mrs TR was not left waiting without explanation. While the Panel is not aware of the time Mr SR called the clinic, contact was made and an explanation was given that day. Further Mrs TR was aware that Dr Bowes would instead attend in 2 day’s time. [39] It is the Panel’s view that to determine that the facts of this case constitute conduct which is unprofessional would be setting the standard to be expected of medical practitioners unfairly high. It should be kept in mind that there is no suggestion that there was any negligence or carelessness in Dr Bowes’ failure to 26 Transcript p. 2-3 and p. 43 27 Transcript p. 43 9 attend or initiate telephone contact. While Dr Bowes did not like to use the phrase “too busy” to explain what occurred, it was not disputed by Mr Clements that was the reason why he did not visit Mrs TR. [40] The Panel is of the opinion that, ideally, where a medical practitioner has made arrangements to visit a patient at home or elsewhere, that medical practitioner should make every reasonable effort to attend the patient at the time and place arranged. The Panel accepts that the nature of a busy medical practice, with its occasional emergencies and other practical time constraints, can now and again make it difficult or impossible for the practitioner to attend as arranged. The Panel believes that the general public understand and accept this fact also. The Panel further believes that, where a practitioner has failed to attend as intended, for whatever reason, he/she should make a reasonable attempt to contact the patient and make other arrangements for the scheduled visit. Having said that, the Panel appreciates that at the same time practice constraints and other unforeseen circumstances may occasionally delay such contact being made. The Panel believes that, at least where non-urgent or routine visits are concerned, the general public would appreciate this fact also. [41] In this case, the Panel is satisfied that Dr Bowes was unable to conduct the arranged consultation as a result of the type of practical constraints described above. Although he failed to attend and failed to initiate contact with the patient subsequently, he had no indication that the visit was other than routine and, therefore, attendance and initiation of later contact with the patient was not an urgent requirement. Evidence and submissions relevant to Determination [42] In response to questions from Mr Clements and the Panel, Dr Bowes indicated that in some cases where the clinical file is not present he would rely on his patients’ recollections of their past medications. He also said that he could check the containers at home to determine current medications.28 [43] Dr Bowes gave evidence to the effect that he would not usually have a patients’ history with him at a home consultation. He explained that was in part because he may receive a call while at one of the facilities referred to earlier that a patient wanted him to visit and he would travel directly to the patient’s home rather than return to the clinic to collect the notes. He agreed that it would be preferable to have the history but made reference to the additional time, which would be added if he were to return to the clinic. He also made reference to the fact that, from his experience as a locum doctor, he could treat patients without access to such records.29 [44] Dr Bowes also described the changes he had made to his practice in relation to management of clinical files and notes. While some time was spent in the hearing examining those changes, it is sufficient for the purposes of these reasons to briefly describe Dr Bowes’ new system: 28Transcript p. 23 -27; 36-37 29 Transcript p. 23-28 10 • Where Dr Bowes is aware in advance that he is to make a home visit, he arranges for the patient’s clinical file to be available to take to the consultation. The file is kept in the back seat of his car. The name of the patient is entered into the clinic’s home visit book. Dr Bowes may also write the name of the patient onto a piece of paper which he places in his pocket as a reminder; • If Dr Bowes is called for a home visit while away from the clinic, he makes a note of the name of the patient in his diary and attends without the clinical file; • Dr Bowes makes notes about the home consultation on a sheet of paper the Panel understands is part of a notepad. He also makes a note of the name of the patient on a second piece of paper. He has the patient sign a medicare slip while at their home; • On return to the clinic, Dr Bowes hands the second sheet of paper which lists the names of the patients he has seen at home to the clinic receptionist so that the clinical files for those patients can be brought to him; • Later that day or as soon after as practicable, Dr Bowes uses his handwritten notes as a basis for the notes to be added to the clinical file. Dr Bowes said when completing the file notes he would expand on those he had made while making the home visit and he would then destroy that original note; and • The list of names given to the receptionist plus his own notes and diary serve as reminders to ensure that the relevant entries are transcribed into the clinical file.30 [45] The Panel understood that this evidence led to Mr Clements proposing that the Panel consider making a determination that Dr Bowes be required to always have with him the relevant patient’s clinical records when making a home visit, except in the case of an emergency. Mr Clements also submitted that Dr Bowes ought to be reprimanded and that the Panel should impose a form of education or counselling regarding clinical notes.31 [46] Mr Wilson relied upon the decision of Gillard J in Ha v Pharmacy Board of Victoria32 for the well accepted proposition that the purpose for imposing a penalty after a finding of unprofessional conduct is not to punish and that the purpose of the Panel’s Determination is to protect the public and to protect the reputation of the profession. He further made reference to Gillard J’s statement at paragraph 101 that “The ultimate issue for the decision-maker on penalty is the risk of repetition of the misconduct”.33 [47] In relation to the risk of repetition, Mr Wilson referred to Dr Bowes’ full and frank admissions made in his first written response to the Board about the complaint regarding the deficiencies in his notes. He said, referring to Dr Bowes, “He doesn’t duck the issue in any way at all. He’s never attempted to put any spin on the fact that the notes were deficient. He accepts that straight off.”34 30 Transcript p. 14-17; 32-35; 38-40 31 Transcript p. 46-48 32 [2002] VSC 322 at para 91 33 Transcript p. 49-50 34 Transcript p. 51 11 [48] Mr Wilson went on to comment on what he regarded as Dr Bowes’ clear insight into the problems he faced and said: “Now when a doctor comes to a tribunal such as this and he shows insight, he shows an understanding of what the problem is in his behaviour, and then he has made an attempt to address that by improvement in the system, in my submission that is a reflection of the unlikelihood of a repetition of this behaviour.”35 [49] While Mr Wilson conceded that Dr Bowes’ new system for dealing with making notes of home consultations was not “absolutely bullet proof”, he did urge the Panel to give weight to the fact that Dr Bowes had established a system and how that is indicative of the insight Dr Bowes holds. It was Mr Wilson’s submission that the risk of repetition of the conduct was negligible.36 [50] Mr Wilson also made submission regarding Mr Clement’s suggestion that either by way of the giving of an undertaking or the inclusion of a condition on Dr Bowes’ registration that Dr Bowes be required to have with him the relevant patient’s file at all home consultations, other than in emergencies. In essence he drew attention to the practical difficulties with compliance on occasions when Dr Bowes is notified of the need for a home consultation when he is some distance from the clinic. He also placed emphasis on the community service provided by Dr Bowes in being prepared to see his patients at home and warned that, because of the additional time which may be added if Dr Bowes was first required to retrieve the file, Dr Bowes may find himself unable to continue to offer that service.37 [51] Mr Wilson submitted that a reprimand was an appropriate determination and that these were not circumstances where any suspension was warranted.38 Reasons for Determination [52] The Panel agrees with the submissions made by Mr Wilson in relation to the likelihood of repetition and also with his concerns about Dr Bowes being required to have the clinical file at all home consultations, other than emergencies. The Panel agrees that the service offered by Dr Bowes is of value to his patients and also to the wider community and it is wary about imposing requirements, which would make that service too onerous to provide. [53] While the Panel has concerns about the new system for recording home consultations Dr Bowes has introduced, particularly because it seemed possible for the loose notes to be lost or mislaid, it does not consider it appropriate or necessary to direct Dr Bowes as to the minutiae of the best method to ensure that all future consultations are properly recorded. Instead the Panel considers it would assist Dr Bowes and provide reassurance to the Board and the public if a suitably qualified practitioner provides counselling to Dr Bowes about recording medical consultations, including those undertaken at a patient’s home. That 35 Transcript p. 51 36 Transcript p. 51-53 37 Transcript p. 53-54 38 Transcript p. 54 12 practitioner is also to undertake a review of a selection of Dr Bowes’ records for the purpose of determining whether notes are being made appropriately and to suggest improvements as appear necessary. A report is required from that practitioner to advise the Board about his or her findings. Dr Bowes is also to provide a written report about the counselling to the Board. [54] Given the very serious consequences, which could have arisen from the absence of any significant records of 10 years of medical consultations, the Panel considers that a reprimand is also appropriate. Determination [55] Pursuant to section 45A(2)(a) of the Act, Dr Bowes is to undergo counselling, to be provided by a suitably qualified medical practitioner approved by the Deputy CEO of the Board, who can advise Dr Bowes on best practice standards and practical techniques for recording in medical records and particularly those relating to home consultations. There are to be two counselling sessions, which are to include an audit of a sample of records from Dr Bowes’ practice, with appropriate consent to first be obtained from the patients. Reports to the Medical Practitioners Board will be required to be provided by the counsellor and Dr Bowes. The counselling sessions are to be completed within a period of three months from the date of this document and the costs of the sessions and the reports are to be met by Dr Bowes. [56] Pursuant to section 45A(2)(c) of the Act, Dr Bowes is reprimanded for his failure to make notes of his home consultations with Mrs TR. Mr W F Johnson Chair 7 July 2006 13
