DR MALCOLM ADAMS TRAILL By Application for Review dated 20 October 2005 and filed with the Victorian Civil and Administrative Tribunal (“VCAT”) on that date, Dr Malcolm Adams Traill seeks to review the determination of a Panel of the Medical Practitioners Board of Victoria made on 19 October 2005 that his registration as a medical practitioner be cancelled, effective from 5:00pm 26 October 2005, and he be disqualified from applying for registration for a period of three years from that date. On 28 October 2005, the VCAT ordered that the operation of the determination be stayed pending final determination of the Application for Review, upon Dr Traill undertaking to the Tribunal not to: A. treat any patient with any form of hyperthermia or 434 mghz microwave therapy; B. hold himself out as an oncologist; C. treat any patient with any form of chemotherapy. The Application for Review is to be fixed for hearing on a date not before 1 April 2006. The Reasons for Decision of the Panel of the Board follow this page. 2 MEDICAL PRACTITIONERS BOARD OF VICTORIA Re: Dr Malcolm Adams Traill [2006] MPBV 1 Reasons for Decision Before: Dr G D Kerr (Chair) Dr Q De Zylva Ms K Sanders Ms A Dea Appearances: Assisting the Panel: Mr C O’Neill of Counsel instructed by Minter Ellison, Lawyers For the Practitioner: In person Dates of Hearing: 26, 27 & 28 April 2005, 18 & 19 July 2005, 17 & 19 October 2005 Date of Decision: 19 October 2005 Findings: 1. Dr Traill engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or 3(1)(b) and/or 3(1)(c) and/or 3(1)(e) of the definition of "unprofessional conduct" in the Medical Practice Act 1994 (“the Act”) in that, during the period on or about 23 September 2000 to 27 November 2000, he failed to exercise the care and skill of a competent medical practitioner in his treatment of his patient, Ms SO, who was diagnosed in August 2000 with small cell carcinoma of the lung; 2. Dr Traill engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or 3(1)(b) and/or 3(1)(c) and/or 3(1)(e) of the definition of "unprofessional conduct" in the Act, in that between 22 January and 9 February 2001, he failed to exercise the care and skill of a competent medical practitioner in his treatment of his patient, Ms ST, who suffered from recurrent cutaneous metastatic breast cancer of the right breast; and 3. Dr Traill engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or 3(1)(b) and/or 3(1)(c) and/or 3(1)(e) of the definition of "unprofessional conduct" in the Act, in that during the period on or about October 3 and November 2001, he failed to exercise the care and skill of a competent medical practitioner in his treatment of his patient, Master TU, a five-year-old child with a malignant brain tumour, a widely disseminated anaplastic ependymoma; and 4. That unprofessional conduct was of a serious nature pursuant to section 45A(1)(a) of the Act. Determinations 1. The unanimous determination of the Panel is that Dr Traill is reprimanded for his conduct pursuant to section 45A(2)(c) of the Act. 2. Further the Panel (by majority, Dr De Zylva dissenting) has determined that Dr Traill’s registration is to be cancelled pursuant to section 45A(2)(h) of the Act and that cancellation is to come into effect at 5 pm on Wednesday, 26 October 2005. The majority also determined pursuant to section 45A(2)(i) of the Act that Dr Traill is disqualified from applying for registration under section 5 of the Act for a period of three years. 4 Reasons for Decision The Medical Practitioners Board of Victoria (“the Board”) determined under section 46 of the Medical Practice Act 1994 (“the Act”) that a Formal Hearing was to be held into the professional conduct of Dr Traill. A Panel was convened and the hearing was held on 26, 27 & 28 April 2005, 18 & 19 July 2005 and 17 & 19 October 2005. The allegations heard by the Panel were contained in an Amended Notice of Formal Hearing (“Notice”). The Panel was required to determine whether Dr Traill: “1. engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or 3(1)(b) and/or 3(1)(c) and/or 3(1)(d) and/or 3(1)(e) of the definition of "unprofessional conduct" in the Act, in that: (a) During the period on or about 23 September 2000 to 27 November 2000, [he] failed to exercise the care and skill of a competent medical practitioner in [his] treatment of [his] patient, Ms SO, who was diagnosed in August 2000 with small cell carcinoma of the lung. Particulars (i) On or about 23 September 2000, [he] recommended to [his] patient a treatment called full body hyperthermia treatment, which treatment was not beneficial or effective for a patient with potentially curable cancer; (ii) [He] failed to provide [his] patient with adequate information to obtain her informed consent to the treatment, including [his] failure to advise her that her withdrawal from the planned chemotherapy cycles could adversely effect her health and prognosis and that the most efficacious treatment for her cancer was cytoxic chemotherapy and thoracic radiation; (iii) [He] provided UHF 434 Mghz microwave therapy treatment for [his] patient, which treatment was not beneficial nor effective for a patient with potentially curable cancer; (iv) [He] charged the Health Insurance Commission for 15 professional services for item 13915, cytoxic chemotherapy, intravenous (less than one hour) but did not administer this treatment to [his] patient at all; (v) On or about 5 October 2000 until the end of October 2000, [he] prescribed lithium to the patient, an experimental treatment, administered under [his] knowledge and 5 supervision, that was unnecessary or not reasonably required in the treatment of [his] patient; (vi) [He] failed to monitor the level of lithium in the patient's blood; (vii) [He] charged [his] patient a sum of between $6,500 - $7,000 for [his] treatment of the patient which did not attract any Medicare rebate, which in the circumstances of the patient was excessive; (viii) [He] failed to adequately follow up [his] treatment of [his] patient; (ix) [He] claimed to the patient to be an oncologist, but [he] did not have any formal oncology qualification or recent oncologic training; (x) [He] failed to adequately monitor [his] patient during [his] treatment in so far as [he] monitored the effect of [his] treatment by testing the patient's uric acid levels, such methodology having no support in the small lung cell literature. Further, until requested by the patient, [he] did not request CT scans or undertake adequate x-ray investigation of [his] patient; and (xi) By pursuing an ineffective and time consuming treatment the patient was denied proper medical advice and a potential cure. (b) Between 22 January and 9 February 2001, [he] failed to exercise the care and skill of a competent medical practitioner in [his] treatment of [his] patient, Ms ST, who suffered from recurrent cutaneous metastatic breast cancer of the right breast: Particulars (i) [He] recommended treatment of her condition with microwave hyperthermia and local hyperthermia treatment; (ii) [He] failed to provide the patient with adequate information to obtain her informed consent to the treatment; (iii) Further, [he] provided her with 15 UHF 434 Mghz hyperthermia treatments and 15 local hyperthermia treatments, in circumstances where the treatment was an ineffective, unproven mode of treatment for the patient's condition; (iv) [He] failed to forward records of [his] treatment of the patient, when requested by her treating surgeon in Tasmania in a 6 timely manner. Dr Linacre requested information from [him] on 5 January 2001 and [he] replied to [Dr Linacre] on 29 March 2001; (v) [He] failed to investigate and diagnose lesions on the skin over [the] Ms ST's right breast at the time of providing the treatment to her; (vi) [He] failed to obtain a biopsy and histology of the lesions; (vii) [He] charged the patient the sum of $10,734.85 for treatment which in the circumstances, was excessive; and (viii) [He] billed the Health Insurance Commission for item 13915 for the patient on the following dates: 22 - 26 January 2001, 29 [January] - 2 February 2001 and 5 - 9 February 2001 for cytotoxic chemotherapy, administration, either by intravenous push or intravenous infusion but did not provide the patient with such chemotherapy treatment. (c) During the period on or about October and November 2001, [he] failed to exercise the care and skill of a competent medical practitioner in [his] treatment of [his] patient, TU, a five-year-old child with a malignant brain tumour, a widely disseminated anaplastic ependymoma. Particulars (i) [He] recommended treatment of TU's condition with UHF 434 Mghz treatment, a form of treatment that has not been demonstrated to be efficacious for such a condition; (ii) By providing this treatment [he] potentially interfered in the treating relationship between TU and his parents and Dr Peter Downie, TU’s treating oncologist; (iii) By providing this treatment [he] interfered in the clinical management of TU’s condition at the Royal Children's Hospital; and (iv) [He] provided treatment without informing, consulting or involving TU's treating oncologist.” The definitions of “unprofessional conduct” contained in section 3(1) 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 7 peers; or (c) professional misconduct; or (d) infamous conduct in a professional respect; or (e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person’s well-being;” Amendment of the Notice In his written submission Dr Traill stated that he had been denied natural justice because the Notice had been amended at the end of the five day hearing of evidence and oral submissions and after witnesses had provided testimony and been cross examined.