Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

 
Charge:  

Dr Marks was charged with professional misconduct pursuant to ssl02 and 109 of the Medical Practitioners Act 1995 (the Act) by the Director of Proceedings regarding his management of his patient (deceased) between 11 August 1999 and 16 October 1999. The particulars were as follows:

1. On or about 11 August 1999, or any time thereafter, he failed to:

1.1   Undertake or document an adequate clinical assessment of his patient; and/or
1.2   Undertake or document an adequate risk assessment; and/or
1.3   Develop or document an adequate treatment plan;

And/or

2. On or about 10 September 1999, or any time thereafter, he failed to:

2.1   Undertake or document a thorough and systematic review of his patient’s mental status; and/or
2.2   Adequately formulate or document a diagnosis;

And/or

3. On or about 17 September 1999, or any time thereafter, he failed to undertake an adequate review and/or adjustment of his patient’s medication plan in light of his presentation;

And/or

4. On or about 8 October 1999 he failed to adequately communicate with his patient, and/or his patient’s partner, and or his patient’s parents regarding the advantages and/or disadvantages of admission to hospital.

Background: 

The patient was born in 1968. While he was at university and subsequently from 1987 through to January 1990 the patient’s illness began to manifest itself.

In February 1990 he suffered his first psychotic episode. He was diagnosed as having schizophreniform psychosis.

In April 1990 the patient attempted to hang himself. This was the first of a number of suicide attempts which the patient would make. There was some uncertainty about the patient’s diagnosis as he presented with both schizophrenic and affective disorders but while an inpatient he was diagnosed with schizophrenia with a differential diagnosis of bipolar disorder –depressed phase.

The patient made a further suicide in attempt in March 1991. In early July he was admitted for a third time, due to increasingly bizarre behaviour. The diagnosis of the patient’s illness was changed from schizophrenia to schizoaffective disorder.

For approximately two years the patient’s condition stabilised. He continued to live at home with his parents, working part time and was regularly seen as an outpatient.

On 31 May 1993 the patient was admitted to hospital. The sudden onset of psychotic symptoms followed the discontinuation of carbamazepine and a reduction in his dose of haloperidol earlier in 1993.

The patient made a further attempt at suicide on 16 June 1993 and was admitted to hospital. He was started on imipramine and continued on haloperidol. On 30 June 1993 he left the hospital without permission. That day the patient made two further serious attempts at suicide. He was re-admitted to hospital as a compulsory patient. The patient was continued on haloperidol by injections as a maintenance therapy for psychotic illness and daily carbamazepine in order to stabilise his moods.

On 22 October 1993 the patient was transferred to the community psychiatrist. Despite a family tragedy in 1996 the patient remained stable from the end of 1993 until July 1998. He was maintained on haloperidol and carbamazepine. During this period he was a happy and creative young man.

In 1998 a number of changes took place in the patient’s life. These included entering into a new relationship with a woman and suffering a break-in to his home during which he was the victim of a violent attack.

The patient also experienced a series of changes in relation to the health professionals involved in his care, including being changed to a new psychiatrist, Dr Marks.

By July 1998 Dr Marks had been assigned to take over the role of the patient’s treating psychiatrist. On 15 March 1999 the patient had his first consultation with Dr Marks. There were further consultations with Dr Marks on 9 April, 30 April, 28 May, 11 August, 10 September, 17 September, and 8 October 1999. The patient became increasingly unwell.

On 15 October 1999 the patient attempted suicide and died the following day as a result of his injuries.

Finding:

The Tribunal found that the charge laid in all its particulars was established and that Dr Marks was guilty of professional misconduct.

Particular 1.1

All members of the Tribunal were of the view that Dr Marks failed not only to document an adequate clinical assessment of the patient but also failed to undertake an adequate clinical assessment of the patient at the consultation of 11 August 1999 or at the subsequent consultations.

Particular 1.2

The Tribunal agreed that a risk assessment is a fundamental requirement and a basic skill of a consultant psychiatrist, which it is critical to undertake. It agreed any failure in this respect, particularly where the patient has made suicidal threats, must be considered a very significant departure from the expected standard of care.

The Tribunal found that Dr Marks neither undertook nor documented an adequate risk assessment.

Particular 1.3

The Tribunal found on the evidence that Dr Marks neither developed nor documented an adequate treatment plan either on or about 11 August 1999 or at any time thereafter.

Particular 2.1

Dr Mark’s claimed that the patient’s condition would have been obvious to any other clinician perusing the records. The prosecutor submitted Dr Mark’s position seemed to be that the patient’s mental state could have been “worked out” by looking at the various entries in the notes and patching together an assessment of the patient based on the scant notes that were recorded. The Tribunal agreed with this submission and found that at no stage did Dr Marks undertake or document a thorough and systematic review of the patient’s mental state.

Particular 2.2

Dr Marks claimed that he had made a diagnosis of cycloid psychosis. However, there was no record in the notes when or how he came to that conclusion and there was no record of such a diagnosis or of a diagnosis of psychotic depression. The Tribunal accepted the evidence of the two expert witnesses who agreed that there was no evidence to suggest that Dr Marks ever appreciated the significance of the emerging psychosis despite the fact that Dr Marks claimed that he said the patient was suffering a psychotic depression.

The Tribunal found that at no time did Dr Marks adequately formulate or document a diagnosis.

Particular 3

The Tribunal accepted by the consultation on 17 September 1999 the patient’s depression was worsening and that he presented at the consultation with no improvement in his mental state.

At this consultation Dr Marks changed the patient’s medication regime by reducing the haloperidol and starting treatment with amitryptiline. The Tribunal found Dr Marks did not give any instruction regarding the titration of the amitryptiline, which he should have done. The Tribunal considered that Dr Marks did not appear to have recognised that the reduction in haloperidol which had occurred since Dr Marks took over the patient had led to a process of gradual deterioration into psychosis by the patient.

The Tribunal was satisfied that on or about 17 September 1999, or any time thereafter, Dr Marks failed to undertake an adequate review and/or adjustment of the patient’s medication in light of his presentation.

Particular 4

The Tribunal found the patient’s parents were certainly not left with the impression that Dr Marks considered the patient should be in hospital or that he was a high suicide risk or that he might kill himself if he kept taking the haloperidol.

The Tribunal found not only that Dr Marks failed to adequately communicate with the patient, his partner and his parents regarding the advantages and /or disadvantages of admission to hospital but that he did not communicate to them about hospital at all.

The Tribunal considered it was beyond question that had Dr Marks raised the issue of hospital admission and made it clear to the patient’s parents that the patient was a high suicide risk the patient’s parents would have done all they could to persuade the patient to enter hospital. The Tribunal found that Dr Marks was aware of the close relationship between the patient and his parents.

Tribunal finding on matters which were not part of the charge

Dr Marks blamed his employer for imposing conditions on him which did not allow him to treat his patient in the way he thought appropriate. He was directed to put into practise any advice which his supervisor gave him. In the Tribunal’s view, however, there was nothing to prevent Dr Mark’s from bringing his alleged concern that the patient was at high risk of suicide to the attention of his employer or his supervisor, or indeed to any responsible person (including the patient’s parents). He did not do so.

Dr Marks considered that but for the administration of haloperidol the patient may have survived. His supervisor directed that the patient should remain on haloperidol. The Tribunal accepted the evidence of the two expert witnesses that the standard treatment for a psychotic depression (which the facts established the patient had) was a dual treatment by the use of an anti-psychotic, such as haloperidol, in conjunction with an appropriate anti-depressant. Dr Marks did not present any persuasive or credible evidence to the contrary.

Professional Misconduct or Conduct Unbecoming

The Tribunal considered whether or not the charge, which was laid as professional misconduct, should be altered to conduct unbecoming. The Tribunal reached the view that the charge of professional misconduct was properly laid and the charge should not be altered.

Penalty:

The Tribunal ordered Dr Marks:

• Be censured; and
• Fined $5000; and
• For a period not exceeding three years practise medicine subject to the following conditions:

• That he be supervised and work in accordance with a supervision plan approved by the Medical Council of New Zealand.
• That he be responsible for the costs associated with the supervision.

• Pay 30% of the costs and expenses of the investigation by the Health and Disability Commissioner and prosecution of the charge by the Director of Proceedings and 50% of the costs and expenses of the hearing by the Tribunal.

The Tribunal recommended that the Medical Council consider a further competence review of Dr Marks. If the Medical Council do undertake a further competence review the Tribunal was of the view that it should be in regard to the competency and safety of Dr Marks’ practice focusing on mental health assessment, management and documentation, and including;

• Management of patients with chronic psychosis;
• Clear communication of the rationale for his diagnostic and management decisions to the team with whom he works;
• Clear documentation of the rationale recording both negative and positive findings;
• Ascertaining and following the guidelines of his employer on clinical risk assessment and management.

The Tribunal also considered that should the Medical Council undertake a further review regarding Dr Marks it would be appropriate that any audit of Dr Marks’ files be selected at random and not ones which Dr Marks selected.

The Tribunal further ordered that a notice of the hearing be published in the New Zealand Medical Journal.

Appeal:

Dr Marks appealed the substantive and penalty Decisions to the District Court.  The appeal was partially successful.

When considering the particulars of the charge the District Court found as follows:

• Particular 1.1 - the appeal succeeded as to failure to undertake, but failed as to failure to document.
• Particular 1.3 - the appeal succeeded.
• Particular 2.1 - the appeal succeeded as to failure to undertake, but failed as to failure to document.
• All other Particulars and sub-Particulars - the appeal failed.

The Court upheld the finding of professional misconduct.  The Court upheld all the penalty orders except the order for supervision which was cancelled.  (Marks v Director of Proceedings (District Court, Wellington, CIV-2005-001181, 25 September 2007, Broadmore DCJ)).