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PROFESSIONAL STANDARDS COMMITTEE INQUIRY

CONSTITUTED UNDER PART 8 of

THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW)

To HOLD AN INQUIRY INTO

A COMPLAINT IN RELATION TO

Dr Michael Francis Beilby MED0001191584

Dates of Inquiry: 15, 16 March 2016 & 18 April 2016

Committee Members: Ms Geri Ettinger, Chair

Dr Jon Fogarty, General Practitioner

Dr Pamela Konecny, Specialist, Infectious Diseases & Sexual Health

Dr Paul Macneill, PhD, Lay Member

Health Care Complaints Commission:

Ms Hayley Bennett of counsel, instructed by Mr Fabian Flintoff, Legal Officer HCCC

Dr Michael Francis Beilby:

Mr Edson Pike of counsel, instructed by David Brown, Browns Legal and Consulting

Medical Council Officer: Ms Emma Whybrow

Date of decision: 2 May 2016

Decision

The Committee made findings of unsatisfactory professional conduct and determined to reprimand the practitioner and impose conditions on his practice as detailed below.

Publication of Decision The Chair made non-publication orders prohibiting the disclosure of the name, address or any other information identifying Patient A and her mother.

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SUMMARY Dr Michael Francis Beilby, MED0001191584, who is 58 years old, is a registered medical practitioner who graduated in medicine in Adelaide in 1983. He was awarded a Graduate Diploma in Public Health in 1999, became a Fellow of the Australian Medical Acupuncture College in 2007, and became a member of the Australasian College of Nutritional and Environmental Medicine. Dr Beilby told us that he has undertaken other studies which will be referred to below. Dr Beilby commenced practising at Your Health Manly in 2003 as an integrative medical practitioner specialising in bio-energetic medicine. On 6 November 2013 and 27 November 2013, Patient A, a twenty year old woman attended Dr Beilby’s practice with her mother. She had undergone neurosurgery for a Chiari Malformation on 8 May 2013 following a history of symptoms, including headaches, and had an Intercranial Pressure (ICP) monitor inserted on 31 July 2013. She had been under the care of a neurologist from August 2013. We noted that the ICP monitor had been removed before Patient A consulted Dr Beilby on 6 November 2013. On 6 November 2013, Dr Beilby diagnosed Patient A with a number of conditions, including severe infections, using his ‘LISTEN Computer’ and ‘Cybertrone’, also known as the ‘CyberScan device’. The Health Care Complaints Commission (HCCC), has alleged that Dr Beilby made diagnoses without adequate clinical examination of Patient A, including specifically, the testing of cranial nerves and/or a fundal examination of the eyes. The HCCC has made a number of other specific Particulars of Complaint, discussion of which follows in the paragraphs below. The HCCC has alleged in relation to Complaint One, that the Practitioner is guilty of unsatisfactory professional conduct in relation to Patient A pursuant to section 139B of the National Law. The HCCC further alleges that in relation to Complaint Two, Dr Beilby’s clinical records breach certain regulations, and that his conduct in relation to those constitutes unsatisfactory professional conduct of a medical practitioner pursuant to section 139B of the National Law. Dr Beilby has admitted certain of the Particulars of the Complaints as discussed below. He initially did not admit that any of those constituted unsatisfactory professional conduct. However following the hearing of evidence, he accepted that certain of the Particulars of Complaint constituted unsatisfactory professional conduct. We had regard to the evidence of the Practitioner in reaching our decision about the Complaints of the HCCC that Dr Beilby’s conduct in relation to Patient A has breached section 139B of the National Law, and certain regulations in relation to medical record keeping. We also took into account the evidence of Dr Ian Relf, who is a Fellow of the RACPG, and a Fellow of the Australian Medical Acupuncture College, and has 15 years of experience in medical acupuncture, treating a wide variety of pain and neurological conditions. We have also taken into account relevant parts of the documents, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ prepared by the then Medical Board of Australia, and the Medical Council of NSW ‘Complementary Health Care Policy’, and the National Law.

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We noted and rejected Mr Pike’s submission made on behalf of Dr Beilby: that we should not take into account the evidence of Professor John Watson, a Fellow of the Royal College of Physicians with specialist training in neurology, because he is not a peer of Dr Beilby. We are satisfied however, that Professor Watson’s opinion is expert opinion in the areas in which he has given it, and we have taken it into account as appropriate. We were very concerned that even by the end of the Inquiry, Dr Beilby showed little insight into any role which could be played in medical practice using the LISTEN Computer and CyberScan device. He did not provide any independent expert scientific opinion evidence to support his claims. Dr Beilby told us that he accepted the devices were experimental, although he did not include that on the information and consent sheets he provided to Patient A before her first consultation on 6 November 2013. The information sheet provided, (which is undated), states that the CyberTrone device is slowly moving through TGA registration. We noted from the records before us that a medical device for biofeedback system was approved by, and entered into the ARTG Register in 2012. The entry states that: The device is a biofeedback system, an electronic system providing visual and auditory signals corresponding to the patient’s physiological status. The system detects changes in physiological functions that are outside of normal awareness in the patient, amplifies these signals, and provides this as feedback to the patient with the intent of stimulating the immune system and promoting the healing process. Examples of this are pain reduction, muscle relaxation, stress reduction and reduction of allergic reactions. We are mindful that Dr Beilby, contrary to the Australian Register of Therapeutic Goods (ARTG) registration, has been using both devices for diagnostic and therapeutic purposes. Dr Beilby stated that the diagnoses which he made using the LISTEN Computer and CyberScan device were sometimes diagnoses that conventional medicine would consider he had insufficient evidence to reach. However, he continued to express confidence in making diagnoses of serious illnesses in reliance on both devices, both of which were held by Dr Relf and Professor Watson to lack scientific merit. We are mindful also that Dr Beilby’s research proposals, and his application to the Human Research Ethics Committee of the University of New South Wales, whilst not strictly part of the Complaint before us, were raised by him at the hearing. The Committee, and Professor MacNeill, in particular, who is a Professor of Ethics, and has published on research ethics review, considered that the proposals were less than satisfactory. The Reasons for our Decision follow. THE COMPLAINTS OF THE HCCC 1. The HCCC, having consulted with the Medical Council of New South Wales in

accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) (National Law), complained that Dr Beilby:

COMPLAINT ONE

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is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the Practitioner has:

I. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

II. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

PARTICULARS OF COMPLAINT ONE

1. On 6 November 2013, the practitioner failed to conduct an adequate clinical examination of Patient A including by specific testing of cranial nerves and/or a fundal examination of the eyes.

2. On 6 November 2013, the practitioner arrived at, and communicated to Patient A, the following diagnoses without adequate history, clinical evidence, testing, and/or investigation:

a) T−Helper 2 Dominance caused by uncontrolled Interleukin−10 release;

b) Toxoplasmosis in the vagus nerve and brain stem; c) Aspergillosis in the brain stem fourth ventricle; d) Fusariosis in the dural membranes; and/or e) General compromise of her immune system.

3. By his conduct in particular two, the practitioner acted contrary to bullet point

6(c) of the Mandatory Requirements of the Medical Council of NSW's "Complementary Health Care Policy".

4. On 6 November 2013 or 27 November 2013, the practitioner used a needle or similar device on Patient A's neck and/or stomach. The practitioner failed to communicate or adequately explain the nature of this treatment to Patient A and/or obtain her informed consent beforehand.

5. By his conduct in particular four, the practitioner acted contrary to:

a) clause 3.3.3 of the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia"; and/or

b) bullet point three of the Mandatory Requirements of the Medical Council of NSW's "Complementary Health Care Policy".

6. On 27 November 2013, the practitioner arrived at, and communicated to Patient A his diagnosis of tetanus infection without adequate history, clinical evidence, testing, and/or investigation.

7. By his conduct in particular six, the practitioner acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's "Complementary Health Care Policy".

8. On 27 November 2013, the practitioner failed to provide Patient A with

adequate care and treatment in that he did not: a) conduct an adequate clinical assessment of Patient A including of her

left sided symptoms and of her neurological symptoms; b) inform Patient A that she should see, nor did he specifically refer

Patient A back to, her neurologist to identify whether her left sided

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symptoms were a result of her pre−existing condition rather than a tetanus infection; and/or

c) adequately communicate to Patient A the nature of his diagnoses of tetanus bacterial infection affecting the right parietal lobe and/or a fungal infection in the brain stem.

9. By his conduct in particular eight (b) and (c) above, the practitioner acted

contrary to: a) clauses 2.1.4 and/or 3.3.4 of the Medical Board of Australia's "Good

Medical Practice: A Code of Conduct for Doctors in Australia"; and/or b) bullet point three of the Mandatory Requirements of the Medical

Council of NSW's "Complementary Health Care Policy".

10. On 27 November 2013, the practitioner inappropriately prescribed Voriconazole to Patient A in that he:

a) prescribed the medication for a diagnosis or diagnoses which he did not have strong clinical evidence for; and/or

b. failed to involve or obtain the opinion of an infectious diseases practitioner and/or Patient A's neurologist.

11. By his conduct in particular ten, the practitioner acted contrary to: a) clauses 2.1.4 and/or 2.2.9 of the Medical Board of Australia's "Good

Medical Practice: A Code of Conduct for Doctors in Australia"; and/or b) bullet point six (b) of the Mandatory Requirements of the Medical

Council of NSW's "Complementary Health Care Policy".

12. The practitioner did not communicate with Patient A's neurologist and/or general practitioner, following his consultations with her, about the following:

a) the diagnoses he arrived including those described in particulars two and six;

b) the testing that Patient A had undergone and the results; c) the treatment he had given Patient A including homeopathic drops

and the treatment described in particular four; d) the advice he gave to Patient A about her conditions and diagnoses; e) the prescription he wrote for Patient A (Voriconazole) and the reasons

for the prescription; and/or f) his involvement in Patient A's care generally.

COMPLAINT TWO

The HCCC complained that Dr Beilby is guilty of unsatisfactory professional conduct under section 139B of the National Law in that he has:

I. contravened Part 4 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010.

PARTICULARS OF COMPLAINT TWO

1. In the practitioner's record for his consultations with Patient A on 6 and/or 27 November 2013, he did not:

a) record the results of all physical examinations of Patient A; b) record any precautions or specific warnings he gave to Patient A

about the Voriconazole he prescribed on 27 November 2013; and/or

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c) record the nature of, or Patient A's consent to, his treatment involving a needle or similar device on Patient A's neck and/or stomach.

RELEVANT LAW

2. In matters such as the one before the Committee, the HCCC bears the onus of establishing that the Practitioner has been guilty of unsatisfactory professional conduct pursuant to section 139B of the National Law which provides relevantly: (1) Unsatisfactory professional conduct of a registered health practitioner

includes:

(a) Conduct significantly below reasonable standard Conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

(b) Contraventions of this Law or regulations

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention….”

3. The phrase significantly below is not defined in the National Law. However in the Second Reading speech when the National Law’s predecessor, the Medical Practice Act 1992 (which contained a similar definition of unsatisfactory professional conduct), was introduced to Parliament it was stated that:

The first main purpose of the bill is to refocus the Health Care Complaints Commission (HCCC) on investigating serious complaints about health service providers. To achieve this, Commissioner Walker recommended that unsatisfactory professional conduct be redefined so that only significant instances involving lack of skill, judgment, or care will result in an investigation or disciplinary action. …. the reference to 'significant' in that context may refer to a single act or omission that demonstrates a practitioner's lack of skill, judgment or care, or it may refer to a pattern of conduct. In any individual case, that will depend on the seriousness of the circumstances of the case.

4. We note also that as a general principle, the use of the term significant may in

law be taken to mean not trivial, of importance or substantial, (Re A Medical Practitioner and the Medical Practice Act 40010/07, 3 September 2007 (unreported)).

Improper or unethical conduct relating to the practice or purported practice of medicine

5. The HCCC alleged as part of Complaint One that Dr Beilby was guilty of unsatisfactory professional conduct under section 139B of the National Law in that he engaged in conduct that demonstrated the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine

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was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

6. The HCCC did not pursue the second limb of the allegation during the

Inquiry., However, when the Committee questioned Ms Bennett at the resumed hearing, she submitted the HCCC maintained the allegations in full. She had referred the Committee to relevant case law in the HCCC’s written submissions, and in reply to the Committee’s query, referred to the definition of unethical in the Macquarie Concise Dictionary. Unethical was there defined to mean: 1) contrary to moral precept; immoral; or 2) in contravention of some code of professional conduct.

7. We noted the HCCC alleged that Dr Beilby breached the Code of Conduct for

medical practitioners, and doctors delivering Complementary Health Care in relation to each Particular of Complaint One.

8. The Committee is mindful that the words improper and unethical are not

defined in relation 139B and must be determined from the context in which they appear.

STANDARD OF PROOF

9. The onus or burden of proof falls on the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. The Court stated:

Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

10. The standard by which Dr Beilby must be judged is that of a general practitioner who graduated in medicine in Adelaide in 1983, who has held a Graduate Diploma in Public Health since 1999, who became a Fellow of the Australian Medical Acupuncture College in 2003, and became a member of the Australasian College of Nutritional and Environmental Medicine. The standard is also one of a practitioner in complementary health who is governed not only by the Medical Board’s ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’, but by the Medical Council of NSW’s ‘Complementary Health Care Policy’.

ISSUES

11. The issues to be determined by this Committee are:

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a) Whether the Committee is comfortably satisfied that any or all of the particulars of the two Complaints are proven;

b) If so, whether the practitioner’s conduct overall amounts to

unsatisfactory professional conduct; and

c) If such a finding is made, the Committee must decide whether orders or directions made pursuant to Part 8 Division 3 Sub-division 3 of the National Law are appropriate.

BACKGROUND

12. As stated above, Dr Michael Francis Beilby, MED0001191584, who is 58

years old, is a registered medical practitioner who graduated in medicine in Adelaide in 1983. He was awarded a Graduate Diploma in Public Health in 1999, became a Fellow of the Australian Medical Acupuncture College in 2007, became a member of the Australasian College of Nutritional and Environmental Medicine in 1998, American College for the Advancement of Medicine, primary course in 1998 and Australian Association of Musculoskeletal Medicine in 1999. He did a Nutrition Medicine course in 2012. Dr Beilby stated that he has a Diploma of Homeopathic Prescribing which he completed in 2000. Dr Beilby stated that he has done other courses, including training in acupuncture, seminars on auriculotherapy, and bio-energetic medicine.

13. Dr Beilby commenced practising at Your Health Manly in 2003 as an integrative medical practitioner specialising in bio-energetic medicine.

14. Dr Beilby told us that approximately 10% of his practice is in relation to traditional medicine, and that apart from bio-resonance testing, he offers acupuncture, homeopathy, diet and nutritional counselling, intravenous therapies including assessment of heavy metal toxicity with DMPS challenge and treatment (with IV EDTA, DMPS and gluthathione), IV Vitamin C and other micronutrient therapies (magnesium B vitamins).

15. Dr Beilby stated that he undertook training courses in connection with the

LISTEN device in the late 1990s, and two days of basic training on the CyberScan device in 2008.

16. Dr Beilby described the LISTEN device as a computerized bio-resonance

device which is basically an ohmmeter and a signal generator which he had been using for some 20 years. He stated that the LISTEN device is provided with a database that includes test signals for over 100,000 items, including an extensive immune system database of parasites and micro-organisms, including toxin-forming yeast, fungi and bacteria. Dr Beilby stated that in his practice, the LISTEN device is now mostly used to verify the findings of the CyberScan device, however there are important functions that cannot be duplicated, in particular the real time changes that can be detected at molecular level as the practitioner works.

17. Dr Beilby described the CyberScan device as a modern bio-resonance device based on quantum mechanics. He told us that he has used it for some seven or eight years. He stated that in quantum theory there is very little difference at the sub-atomic level between matter and energy, and this is critical to the

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theories underpinning bio-resonance. He also described the way in which he uses both pieces of equipment in the interaction with patients.

18. Dr Beilby told us that approximately 2000 doctors, mainly in Germany, use

the CyberScan device to diagnose and treat patients where normal techniques and tests are not effective. He said there were not many in use in Australia, mainly because the medical profession here does not agree with its use as a diagnostic tool.

19. Dr Beilby told us more research was needed but that funding, particularly 20

years ago, was not easily available. Dr Beilby told us that in his communications with the Therapeutic Goods Authority, (TGA), they encouraged him to continue with his existing device rather than update, as the earlier device was more reliable.

20. We are mindful that Dr Beilby’s research proposals, and his application to the

Human Research Ethics Committee of the University of New South Wales, whilst not strictly part of the Complaint before us, were raised by him at the Inquiry. He had acknowledged in oral evidence that he had been aware for some time that his machines needed substantiation, and presented the proposed research as a means to establish the safety and efficacy of the CyberScan device (in particular), and in order to persuade others in the profession of the validity of his approach.

21. The Committee comments without including any consideration of the research proposal provided by Dr Beilby as part of the decision regarding the Complaints of the HCCC. For the sake of completeness only, we say that Professor MacNeill, who is an academic with expertise in research ethics, noted that the research proposal submitted to the University of NSW by Dr Beilby, relied on a questionnaire of patients’ perceptions of their health to be completed by patients prior to, and after their treatment by him. Professor MacNeill opined that the research, as designed, was not capable of determining either the safety or the efficacy of the CyberScan device.

22. We also noted that Dr Beilby provided a number of publications in the

documents before the Committee. Professor Watson opined that many of the articles included in Dr Beilby’s folder were not current, and dated some years back. Professor Watson referred to a National Health and Medical Research Council, (NHMRC), information paper dated March 2015, entitled ‘Evidence on the effectiveness of homeopathy for treating health conditions’. He stated that the NHMRC finding was that:

There was no reliable evidence from research in humans that homeopathy was effective for treating the range of health conditions considered: no good-quality, well-designed studies with enough participants for a meaningful result reported either that homeopathy caused greater health improvements than placebo, or caused health improvements equal to those of another treatment.

DISCUSSION OF THE COMPLAINTS, AND FINDINGS

COMPLAINT ONE Complaint One alleges that Dr Beilby is guilty of unsatisfactory professional conduct under section 139B of the National Law in that he has:

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(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

(ii) engaged in improper or unethical conduct relating to the practice or

purported practice of medicine.

23. A consideration of the Particulars of Complaint One follows. The Committee noted that Dr Beilby admitted Particulars 1, 2, 3, 6, 7 and 12, as discussed below. Particular 1. of Complaint One 1. On 6 November 2013, the practitioner failed to conduct an adequate clinical examination of Patient A including by specific testing of cranial nerves and/or a fundal examination of the eyes.

24. Dr Beilby admitted the facts alleged in Particular 1. of Complaint One. He stated that he did not consider the specific testing of cranial nerves and/or a fundal examination of the eyes was necessary because he understood from the history that Patient A had been comprehensively examined by both neurosurgeons and neurologists. Dr Beilby stated that he observed Patient A had a normal gait, vision and eye movements, and did not present with a sensory or motor problem suggestive of a specific neurological lesion.

25. The Committee had statements of Patient A and her mother before it. They

were not called to give evidence by either party. We noted however from the statement of Patient A that she gave a detailed account of how Dr Beilby used the LISTEN Computer and CyberScan device at the first consultation on 6 November 2013. We noted her evidence that she was aware of a bed in the consultation room, but could not recall lying on it, or whether Dr Beilby performed any physical examination, (other than using the devices).

26. Patient A’s mother stated in relation to the consultations on 6 November and

27 November 2013: I don’t remember Dr Beilby physically examining A.. at all during either consultation.

27. We are mindful of Dr Beilby’s evidence that he did not undertake specific

testing of cranial nerves and/or a fundal examination of Patient A’s eyes for the reasons noted above. We are satisfied with the evidence provided in the statements of Patient A and her mother with regard to Dr Beilby’s examination. We accept the statement of Patient A’s mother who did not recall Dr Beilby taking a history or examining Patient A on 6 November 2013, but rather that he concentrated on assessing and diagnosing her via the LISTEN Computer and the CyberScan device.

28. Dr Beilby told the Committee that Patient A had been sent a comprehensive

pack of information about the practice which included a questionnaire she had filled in, and brought to him at the time of the first consultation on 6 November 2013. He stated that she had also filled in the consent form which she returned to him.

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29. Dr Beilby sought to have us accept that he examined Patient A more in depth than his clinical notes record. Mr Pike submitted that a doctor could not record the results of absolutely everything, in particular the areas found to be normal.

30. Dr Relf who was retained by the HCCC, and provided an expert opinion, held

the view that given Patient A was a young woman who had recently undergone serious brain surgery, an examination of the cranial nerves and/or a fundal examination of the eyes was reasonably expected in the circumstances. As this was not carried out, Dr Relf considered that the incomplete nature of the neurological examination was below the standard expected of a medical practitioner of Dr Beilby’s training and experience. He considered that what had occurred was not significantly below the standard, because many aspects of the neurological examination were observed.

31. The Committee accepts Dr Relf’s opinion regarding the inadequacy of the

examination of Patient A on 6 November 2013. 32. We noted that Dr Beilby agreed in reply to questions in cross-examination

that some of his treatments were not covered by the consent form, but sought to excuse himself by telling the Committee that he had inherited the form when he took over the practice, and that it had been written by a lawyer. He said that certain items not covered in the forms were discussed with patients at the consultations. As noted below in connection with the assessment of Complaint Two, which is considered in detail below, the Committee was satisfied that Dr Beilby did not document many of the discussions he said he had with Patient A, and some of the observations he said he made. We have found that to constitute unsatisfactory professional conduct in regard to Complaint Two as discussed in the paragraphs below.

33. On the basis of the evidence before it, the Committee is comfortably satisfied

that on 6 November 2013, Dr Beilby failed to conduct an adequate clinical examination of Patient A including by specific testing of cranial nerves and/or a fundal examination of the eyes. We find Particular 1. of Complaint One proven.

Particulars 2. & 3. of Complaint One

2. On 6 November 2013, the practitioner arrived at, and communicated to Patient A, the following diagnoses without adequate history, clinical evidence, testing, and/or investigation:

a. T−Helper 2 Dominance caused by uncontrolled Interleukin−10 release; b. Toxoplasmosis in the vagus nerve and brain stem; c. Aspergillosis in the brain stem fourth ventricle; d. Fusariosis in the dural membranes; and/or e. General compromise of her immune system.

3. By his conduct in particular two, the practitioner acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's "Complementary Health Care Policy".

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34. We have noted Dr Beilby’s admissions in regard to Particulars 2. & 3. of

Complaint One, that whilst he maintains the belief that his approach was valid, he accepts that on the basis of the tests the Committee must apply, his conduct in this respect amounted to unsatisfactory professional conduct.

35. Professor Watson and Dr Relf gave evidence as to the scientific deficiencies

of the LISTEN Computer and CyberScan device. We have noted, and accept from their evidence that the above mentioned diagnoses in Particular 2., are of serious illness which is unable to be made on the basis of information obtained from the LISTEN Computer and/or CyberScan device.

36. The HCCC consequently submitted that the diagnoses were arrived at without

adequate history, clinical evidence, testing and/or investigation, and that the Particular should accordingly be found to be proven.

37. We accepted Dr Beilby’s concession, but were concerned that whilst he

diagnosed the dire conditions as noted above, he dispensed homeopathic drops as treatment for them to Patient A on 6 November 2013. We also accept Dr Relf’s opinion that the communication of such serious diseases to the 20 year old patient who had recently undergone brain surgery may have caused significant distress both to her and her mother. We are mindful that distress was not communicated to the Committee, but that that may well have been the case.

38. We are satisfied from the uncontested statements of Patient A and her

mother, that Dr Beilby made the diagnoses listed in Particular 2. without taking an adequate history from Patient A or examining her. We are satisfied that he used the LISTEN Computer and CyberScan device to diagnose the diverse conditions he did. We are satisfied Dr Beilby did not order any further tests or investigations.

39. We rely on Professor Watson and Dr Relf’s opinions as to the scientific

deficiencies of the devices. We accept their evidence that the above mentioned diagnoses in Particular 2., are of serious illness which is unable to be made on the basis of information obtained from the LISTEN Computer and/or CyberScan Device.

40. We have noted from the allegation by the HCCC that by his conduct in

relation to Particular 2., Dr Beilby acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’. That item refers to the assessment of patients by: reaching a diagnosis that reasonable medical practitioners would reach supported by the information available.

41. We are satisfied from the evidence of Professor Watson and Dr Relf that Dr Beilby acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’ in that the diagnoses he made would not have been made by a reasonable medical practitioner supported by the information available. We find on the basis of that evidence that Dr Beilby acted contrary to the requirements of the above mentioned ‘Complementary Health Care Policy’.

42. We are satisfied that Particulars 2. and 3. of Complaint One are proven.

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43. We note that whilst Dr Beilby maintains the belief that his approach was valid, he accepts that on the basis of the tests the Committee must apply, his conduct in this respect amounted to unsatisfactory professional conduct, and we so find.

Particulars 4. & 5. of Complaint One 4. On 6 November 2013 or 27 November 2013, the practitioner used a needle or similar device on Patient A's neck and/or stomach. The practitioner failed to communicate or adequately explain the nature of this treatment to Patient A and/or obtain her informed consent beforehand.

5. By his conduct in particular four, the practitioner acted contrary to:

a) clause 3.3.3 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’; and/or

b) bullet point three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

44. Dr Beilby told us that he explained the purpose of the injections of Xylocaine

which he administered to Patient A, and understood that she comprehended what he explained to her. He said that he had been giving that type of injection for the past 20 years, but agreed he had not made a record in Patient A’s clinical notes of having discussed the injections with her, or indeed that he had administered them. We noted further that there was no mention of the injections in any of the handouts provided to Patient A.

45. Patient A stated that at the second consultation (on 27 November 2013), Dr

Beilby gave a needle in the back of my neck. She continued: I think he also gave me a needle in my stomach, but I’m not 100% sure. It happened fairly quickly, towards the end of the consultation. He said words to the effect: ‘I just need to give you a needle’. I’m not sure if it was an acupuncture needle, or an injection that he gave me. I remember he put a dressing on my neck afterwards … I don’t know what was in the needles, and I have no idea what they were for. …. At the same time as he was giving me these needles, he got Mum to hold two flat square shaped metal things of about hand span size up against my stomach and the front of my neck under my chin for a couple of minutes, and said words to the effect: ‘Hopefully these will kill the bug’. I think the metal things were attached to wires of some sort. I don’t remember them emitting any heat or sound.

46. Patient A’s mother stated in relation to the injections: He also gave her an injection in her stomach at one stage, and one in her neck. I can’t remember if this was at the first or second consultation. … I don’t recall him explaining what these injections were for. I think he just said words to the effect: ‘I’m going to give you an injection’. He just asked A … to

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lift up her shirt and gave her the injection in the stomach. I’m not sure whether he even told her that he was going to give the injection in her neck.

47. Dr Relf commented that the use of local anaesthetic injections or needle acupuncture in the treatment of headaches is well understood, and that there is high-level scientific evidence for its use. He opined that Dr Beilby’s actions in injecting local anaesthetic was reasonable conduct in a consenting situation. We have discussed the concerns we had about consent in the paragraphs which follow.

48. The HCCC alleges that by his conduct in Particular 4., Dr Beilby acted contrary to clause 3.3.3 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’; and/or bullet point three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

49. We have noted that clause 3.3.3 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ states as follows:

3.3. Effective Communication An important part of the doctor-patient relationship is effective communication. This involves:

3.3.1. …. 3.3.2 ….. 3.3.3 Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity of question or refuse intervention and treatment. 3.3.4 – 3.3.9 …..

50. We have noted that bullet point three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’ states that: Practitioners providing complementary health care must ensure that they provide patients with sufficient information to allow them to make informed choices at all stages of their assessment, investigation and treatment;

51. We have noted the submissions of both the HCCC and Dr Beilby in relation to

the injections he administered to Patient A. We accept from the evidence of Dr Relf that the injections may have been appropriate in the circumstances.

52. However, we accept the evidence of Patient A and her mother in regard to the lack of explanation Dr Beilby gave to Patient A about the Xylocaine injections he administered. We note further that neither Dr Beilby’s consent form nor his clinical records reflect any explanation or notation in regard to anaesthetic injections. Further, there is no record in his clinical notes as to those injections.

53. In coming to a decision regarding Particulars 4. and 5. of Complaint One, we

have considered the communications and explanations required by the Codes of Conduct governing Dr Beilby’s behaviour in relation to patients.

54. We are satisfied to the requisite standard that Dr Beilby breached clause

3.3.3 of the Medical Board of Australia's ‘Good Medical Practice: A Code of

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Conduct for Doctors in Australia’ in that the evidence of Patient A and her mother satisfies us he did not inform Patient A of the nature of, and need for the anaesthetic injections, nor gave her adequate opportunity to question or refuse that treatment.

55. We are also satisfied to the requisite standard that Dr Beilby, as a

complementary health practitioner, bound by the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’, acted contrary to the requirements specific to bullet point three, in that he did not ensure that he provided Patient A with sufficient information to allow her to make an informed choice regarding the administration of anaesthetic injections into her neck and stomach.

56. We accordingly find Particulars 4. and 5. of Complaint One proven.

Particulars 6. & 7. of Complaint One 6. On 27 November 2013, the practitioner arrived at, and communicated to Patient A his diagnosis of tetanus infection without adequate history, clinical evidence, testing, and/or investigation. 7. By his conduct in particular six, the practitioner acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

57. Before considering Particular 6., we note for the sake of completeness that in considering Particular 2. above, we were satisfied that on 6 November 2013, at the first consultation, Dr Beilby diagnosed a number of very serious illnesses, and communicated these to Patient A without adequate history, clinical evidence, testing and/or investigation. We note that Dr Beilby used the LISTEN Computer and CyberScan device in order to diagnose those conditions. We were satisfied from the evidence that Particular 2 (as discussed in the paragraphs above) is proven. We note further that Dr Beilby purported to treat those serious illnesses with homeopathic drops.

58. At the Patient’s second consultation on 27 November 2013, Dr Beilby

diagnosed tetanus infection, again using the LISTEN Computer and CyberScan device, and informed Patient A of that diagnosis. The HCCC has alleged that he made the diagnosis without adequate history, clinical evidence, testing and/or investigation.

59. The HCCC has also alleged that Dr Beilby, by his conduct, acted contrary to

the mandatory requirements noted above, and specifically that he acted contrary to bullet point 6(c) of the Medical Council of NSW's ‘Complementary Health Care Policy’.

60. The Medical Council of NSW's ‘Complementary Health Care Policy’ is a mandatory requirement for complementary health practitioners in addition to their adherence to ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’. Bullet point 6(c), relevant to Particular 6., states that complementary health practitioners must, in assessing patients, reaching a diagnosis that reasonable medical practitioners would reach supported by the information available.

61. In his evidence to us, Dr Beilby justified his use of the LISTEN Computer and

CyberScan device in making his diagnosis, stating that there could be mould

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here, or bacteria there, causing headaches, and a fault in the immune system.

62. In his statement dated 16 December 2015, Dr Beilby wrote as follows: It is correct that I made the diagnosis of tetanus, and I consider it would be impossible to diagnose the presence of such an infection using standard medical approaches to history, examination and routine pathology. I can accordingly well understand why those not familiar with the devices I use would consider that I had insufficient basis to reach the diagnosis. However, I maintain the diagnosis was made with valid reasoning, on the basis of my training and experience in numerous CAM modalities.

63. We noted that Patient A corroborated Dr Beilby’s communication to her of the tetanus in her right parietal lobe, and a fungal infection of the brain stem. She stated that at the end of each consultation, he gave her a piece of paper listing his findings.

64. Patient A’s mother stated that Dr Beilby did not speak much to A … about her

medical history. She stated that she was a little surprised by this. 65. Dr Relf stated that there was no clinical evidence of tetanus infection. He

stated that: Diagnosing this condition without clinical evidence or reason may have caused significant distress and is significantly below the standard expected of a medical practitioner… although not to the extent of strongly critical.

66. Dr Relf also stated that:

Tetanus infection of the brain is theoretically possible. Doesn’t occur in practice, because the circumstances of brain tissue hypoxia to allow such an infection - i.e. the patient would at least be moribund and near death for these circumstances to occur. Tetanus toxin does not affect the brain – the toxin affects the peripheral muscles and gives fatal tetanic contraction of the respiratory muscles.

67. Dr Relf also stated in connection with current medical usage of electrical signals from the body that: … electro-magnetic signals derived from the body are used in various branches of medicine including the analysis of brain waves (EEG) and electrocardiograms for instance. It is quite clear that the use of EEG wave analysis has limitations and pitfalls that are very well understood scientifically ….

… Similarly the use of EEG electrical brain wave recording – was used to diagnose a brain infection it would not be considered valid in any hospital in the world. This is because it is the wrong technique being used for the wrong problem. This is the disconnect in the misuse of the medical terms in this case. It doesn’t mean there weren’t necessarily changes on the Cyberscan (sic) device, but ascribing body immune functions and infections to these electrical changes is where the scientific theory breaks down and is a complete misuse of terminology.

68. Professor Watson observed that Dr Beilby made a specific diagnosis of a very serious infection without imaging, lumbar puncture or other valid testing.

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Professor Watson opined that on 27 November 2013, Dr Beilby did not have the knowledge, information and/or equipment, and his methodology was not sufficient to permit the making of the diagnosis of tetanus in a specific brain region. Professor Watson indicated that, in that situation, he would have consulted an infectious diseases specialist to assist if he suspected tetanus.

69. Mr Pike, in making submissions on behalf of Dr Beilby, stated that: whilst Dr

Beilby believes that his approach was valid, he concedes, given the test to be applied by the Committee, that his conduct in this respect amounted to unsatisfactory professional conduct.

70. The Committee has noted Dr Beilby’s concessions regarding Particulars 6

and 7. We are satisfied on the basis of Dr Relf’s evidence that Dr Beilby arrived at, and communicated to Patient A his diagnosis of tetanus infection without adequate history (statement of Patient A and her mother), and the clinical evidence, testing, and/or investigation. We rely on Professor Watson’s observations that Dr Beilby made a specific diagnosis of a very serious condition without imaging, lumbar puncture or other valid testing.

71. We were further satisfied that Dr Beilby, by his conduct in regard to the

tetanus diagnosis and communication of that to Patient A, acted contrary to bullet point 6(c) of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

72. Particulars 6. and 7. are proven. We rely on Dr Relf’s opinion that diagnosing

tetanus without clinical evidence or reason is significantly below the standard expected of a medical practitioner. We are satisfied that Dr Beilby’s conduct constitutes unsatisfactory professional conduct.

Particulars 8. & 9. of Complaint One

8. On 27 November 2013, the practitioner failed to provide Patient A with adequate care and treatment in that he did not:

a) conduct an adequate clinical assessment of Patient A including of her left sided symptoms and of her neurological symptoms; b) inform Patient A that she should see, nor did he specifically refer Patient A back to, her neurologist to identify whether her left sided symptoms were a result of her pre−existing condition rather than a tetanus infection; and/or c) adequately communicate to Patient A the nature of his diagnoses of tetanus bacterial infection affecting the right parietal lobe and/or a fungal infection in the brain stem.

9. By his conduct in particular eight (b) and (c) above, the practitioner acted contrary to:

a) clauses 2.1.4 and/or 3.3.4 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’; and/or b) bullet point three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

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73. It is not in dispute that Patient A returned with her mother to consult Dr Beilby on 27 November 2013, and that Dr Beilby recorded she reported left sided symptoms.

74. In his oral evidence, Dr Beilby told us that Patient A reported at the

consultation of 27 November 2013 that her right sided symptoms had resolved, and that her symptoms were concentrated on the left side. He added that in women, left sided complaints are more pronounced.

75. We noted from Patient A’s statement that when she returned for the second

consultation on 27 November 2013, she had taken all the drops as instructed by Dr Beilby on 6 November 2013. She stated: At the second consultation he said that they had helped my immune system, but I didn’t actually notice any difference in any of my symptoms.

76. Dr Beilby’s record of the consultation of 27 November 2013 does not record

anything in regard to the improvement of right sided symptoms. It only notes L sided symptoms.

77. We are not persuaded by Dr Beilby’s evidence, that her (Patient A’s) right

sided symptoms had resolved by her second consultation on 27 November 2013. Neither do we accept Mr Pike’s submissions made on his behalf, that the right sided symptoms had diminished, leaving the left sided symptoms as the only ongoing complaint.

78. We preferred Patient A’s evidence as provided in her statement that: At the

second consultation he said that they (the drops), had helped my immune system, but I didn’t actually notice any difference in any of my symptoms.

79. We are satisfied from his evidence that Dr Beilby did not explore the left sided symptoms in detail, although he referred to 86 symptoms. However we are satisfied that he was unable to specify exactly what he meant by the observation of left sided symptoms he had made in his clinical notes. Dr Beilby admitted he did not perform a neurological examination as he believed the symptoms reported were part of the resolution of Patient A’s illness, not a new problem, and that she had recently undergone comprehensive neurological review. He did not however request the results of any testing by her general practitioner or neurologist, and none were provided to him.

80. When questioned about his inability to be more specific about what left sided symptoms meant on 27 November 2013, it was clear Dr Beilby had not explored further what that implied. He replied that he had not been worried by the report of left sided symptoms, and that what Patient A was experiencing was normal progression of the healing following her surgery.

81. When questioned further regarding concerns he might have had regarding

Patient A on 27 November 2013, Dr Beilby stated that he thought Patient A was better, and had low grade infections which were an annoyance. He added that once he had resolved her immune system problems, everything else would resolve. We noted that, notwithstanding, Dr Beilby prescribed a very powerful drug, Voriconazole which is discussed below in connection with Particulars 10. and 11. of Complaint One.

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82. Dr Relf noted Dr Beilby’s opinion that Patient A displayed evidence of immune characteristics of AIDS. Dr Relf stated that from the material provided, there was no evidence of Patient A having AIDS either previously diagnosed, or any evidence of such on a blood test. He stated: … And therefore extrapolating this to having a significant immune deficiency is once again scientifically invalid and a significant disconnect. … Ascribing a series of common post brain operation symptoms to an immune deficiency may be an attractive theory, but there is no significant evidence for this in the case presented.

83. Dr Relf opined that on 27 November 2013, Dr Beilby should reasonably have conducted a further medical examination of the central nervous system to observe for any progression of objective neurological signs. He opined that not having done so was below (but not significantly below), the standard reasonably expected of a medical practitioner of Dr Beilby’s standing.

84. Professor Watson opined that on 27 November 2013, Dr Beilby did not have

the knowledge, information and/or equipment, and his methodology was not sufficient to permit the making of the diagnosis of tetanus in a specific brain region. Professor Watson opined that:

Patient A did not at any stage, have such an infection, expressing this with my general expertise as a neurologist and personal expertise in looking after a number of cases of tetanus.

85. Dr Beilby told us that he relied on the fact Patient A would be seeing her

neurologist in a few weeks time. He said that it was on this basis that he did not refer Patient A back to her neurologist.

86. We are mindful that Patient A and her mother both corroborated that Dr

Beilby’s evidence that he had encouraged her to continue consulting her general practitioner and her neurologist. However given the serious nature of the diagnosis Dr Beilby made on 27 November 2013, we did not accept his explanation of why he himself did not contact Patient A’s neurologist, which he said was because general practitioners are very busy people, and that he understood Patient A would be seeing her neurologist soon after the 27 November 2013 consultation. The Committee is satisfied from the expert evidence before it that he should have made contact with Patient A’s treating neurologist to discuss the condition he diagnosed, and the way forward.

87. Dr Beilby denied that he had failed to adequately communicate with Patient A

regarding the diagnosis he made on 27 November 2013. He stated that he discussed his findings with Patient A, and provided her with a report which is in the documents before the Committee. We noted that said report is a one page proforma which is sparsely populated, and does not explain the nature of the diagnosis or its effects. We do not find from the evidence that Dr Beilby informed Patient A adequately regarding the diagnosis he made on 27 November 2013.

88. We noted in connection with Particulars 8. and 9. that Clauses 2.1.4 and 3.3.4

of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ state as follows: Clause 2.1.4 deals with providing good patient care which includes: Referring a patient to another practitioner when this in the patient’s best interests.

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Clause 3.3.34 concerns effective communication which includes: Discussing with patients their condition and the available management options, including their potential benefit and harm. Bullet point three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’ concerns practitioners providing complementary health care who must ensure that they: provide patients with sufficient information to allow them to make informed choices at all stages of their assessment, investigation and treatment.

89. In the paragraphs above, we have discussed the events surrounding the consultation Patient A had with Dr Beilby on 27 November 2013, and the diagnosis of tetanus that he made. We are satisfied from the evidence above that he breached Clauses 2.1.4 and 3.3.4 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ in that, in Patient A’s best interests, he should have referred her to an infectious disease practitioner and/or her neurologist and general practitioner.

90. We are also satisfied that Dr Beilby failed to discuss Patient A’s condition and available management options in full, including their potential benefit and harm. We found the proforma he gave her on that day far from satisfying Clause 3.3.34 of the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’.

91. We have also considered whether Dr Beilby acted contrary to Bullet point

three of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’. We are satisfied from the evidence as discussed above, that on 27 November 2013, he did not have test results or reports from Patient A’s treating doctors, and did not provide her with sufficient information to allow her to make informed choices at all stages of her assessment, investigation and treatment.

92. Ultimately we found all the elements of Particular 8. proven, and are satisfied that Dr Beilby acted contrary to the requirements which the HCCC set out in Particular 9. of Complaint One. Particulars 10. & 11.

10. On 27 November 2013, the practitioner inappropriately prescribed Voriconazole to Patient A in that he:

a) prescribed the medication for a diagnosis or diagnoses which he

did not have strong clinical evidence for; and/or

b) failed to involve or obtain the opinion of an infectious diseases practitioner and/or Patient A's neurologist.

11. By his conduct in particular ten, the practitioner acted contrary to:

a. clauses 2.1.4 and/or 2.2.9 of the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia"; and/or

b. bullet point six (b) of the Mandatory Requirements of the Medical

Council of NSW's "Complementary Health Care Policy".

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93. The HCCC has alleged that Dr Beilby inappropriately prescribed Voriconazole

for Patient A on 27 November 2013, in that he prescribed the medication for a diagnosis for which he did not have strong clinical evidence. The HCCC also alleged that Dr Beilby failed to involve or obtain the opinion of an infectious diseases practitioner, and/or Patient A's neurologist. The HCCC accordingly submitted that Dr Beilby acted contrary to particular clauses of the codes of conduct for doctors, including those for complementary health care professionals.

94. Dr Beilby agreed that he had diagnosed Patient A with tetanus on 27 November 2013, using the LISTEN and CyberScan devices, and decided that Voriconazole was the appropriate medication for her. He told us that it was the only effective medication for fungal infections. In his written statement, Dr Beilby said that he had prescribed the Voriconazole for the treatment of Patient A’s fusarium and aspergillus infections. He stated that the LISTEN device had detected strong persistence of the toxic fungal infections.

95. Dr Beilby told us that he had no undue cause for concern in the use of the

medication, and being typically overworked as one is in general practice, did not have time to inform Patient A’s doctors, although he said that he encouraged her to keep in touch with her treating doctors. He indicated he would want to contact a patient’s treating doctors in future. Professor Watson opined that in the circumstances of the diagnoses Dr Beilby purported to make on 27 November 2013, he himself would have, and Dr Beilby should have, consulted an infectious diseases specialist.

96. In his written statement, Dr Beilby stated that: to approach an infectious

diseases specialist would likely have been unhelpful as the opportunity to directly test for the organisms had been missed …. It is most likely that the specialist would have found no evidence with routine pathology.

97. Dr Beilby said that he ordered a liver function test in connection with

prescribing Voriconazole, because he checked MIMS on his telephone, and considered that investigation was appropriate. He added that the MIMS did not recommend blood tests. We noted that he made no further inquiries about the drug.

98. Dr Beilby also said at first that he had prescribed Voriconazole many times. We noted however that further on in his evidence in reply to questioning by Dr Konecny of the Committee, who is an Infectious Diseases Specialist, he said that he had used the drug on half a dozen patients in the past, and not used it for a long time now, and was figuring out another way to treat such an infection. We noted Professor Watson’s evidence that Voriconazole is a powerful drug, and that he does not prescribe it.

99. In his oral evidence Dr Beilby also played down the severity of any tetanus

infection, stating that it may have been a low grade opportunistic infection, and that once he had improved the status of the immune system, the mould resolved too.

100. The prescription of a powerful drug on 27 November 2013 for what Dr Beilby

discerned was a serious infection should not be given lightly according to Dr Relf. He opined that the way the prescription of the Voriconazole was handled was significantly below the standard expected of the practitioner. He said he was strongly critical.

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101. The HCCC alleged that by his conduct in Particular 10, the practitioner acted

contrary to Clauses 2.1.4 and/or 2.2.9 of the Medical Board of Australia's ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’; and/or bullet point 6(b) of the Mandatory Requirements of the Medical Council of NSW's ‘Complementary Health Care Policy’.

102. Clauses 2.1.4 of the Medical Board of Australia's ‘Good Medical Practice: A

Code of Conduct for Doctors in Australia’ deals with providing good patient care which includes: Referring a patient to another practitioner when this in the patient’s best interests.

103. Clause 2.2.9 of the Medical Board of Australia's ‘Good Medical Practice: A

Code of Conduct for Doctors in Australia’ states that good medical practice involves consulting and taking advice from colleagues when appropriate.

104. Bullet point 6(b) of the Mandatory Requirements of the Medical Council of

NSW's ‘Complementary Health Care Policy’ requires complementary health care practitioners to assess patients by reaching a diagnosis that reasonable medical practitioners would reach supported by the information available.

105. Dr Beilby denied acting contrary to the above reproduced clauses of the

codes of conduct. He stated in relation to Clause 2.2.9 that he did not consult a microbiologist because Voriconazole is a drug from the widely used conazole family of anti-fungals that has been on the market for over twenty years.

106. Dr Beilby also denied he had acted contrary to bullet point 6(b), and that he

had in fact acted in the patient’s best interests. He stated that in his view she was suffering from an undiagnosed immune deficiency state that resembled HIV-AIDS, and as a result was at risk of the reactivation of Toxoplasmosis in the central nervous system, and colonization by pathogenic fungi known in HIV-AIDS to particularly affect brain tissue.

107. In his second statement, Dr Beilby referred to a number of studies on which he sought to rely. Professor Watson noted they were relatively old. In addition, Professor Watson stated that: none would be classified as a high level of evidence. Nor is there any citation of meta-analyses or evidence-based reviews. Professor Watson cited, by way of contrast, a study by the NHMRC, dated March 2015, ‘Evidence on the effectiveness of homeopathy for treating health conditions’. That study held, he said, that there was no reliable evidence that homeopathy was effective for treating a range of health conditions.

108. In submissions made on behalf of Dr Beilby, Mr Pike accepted that the facts

as alleged in Particular 10. a) and b), were admitted, but did not accept that they constituted unsatisfactory professional conduct.

109. The Committee was very concerned by the seemingly cavalier attitude of Dr

Beilby towards Patient A on 27 November 2013 in diagnosing severe illness without entering into any traditional investigations. The Committee prefers Dr Relf’s opinions about immune disease and AIDS (as noted above), over the opinions of Dr Beilby.

110. The Committee was also very concerned that Dr Beilby prescribed a very

powerful and expensive drug, Voriconazole, for Patient A, without, according

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to the expert evidence before us, making further investigations about whether it was appropriate. Neither did he consult with Patient A’s doctors, nor consult an infectious diseases specialist for advice. On the basis of the evidence before us, Dr Beilby did not warn Patient A about the risks in taking Voriconazole, neither document any such discussion in his clinical notes.

111. We are satisfied, as Dr Relf has opined, that the standard Dr Beilby exhibited

in relation to the diagnosis and proposed treatment of Patient A on 27 November 2013 was significantly below that of a medical practitioner of his background and training. We are satisfied that but for the vigilance of the pharmacist where Patient A’s family attended to purchase the drug, and her return to her neurologist, she may have embarked on an undesirable course of treatment. The fact she was not harmed does not impact on the task before us in considering whether Dr Beilby has been guilty of unsatisfactory professional conduct.

112. On the basis of the evidence of the expert witnesses, we are satisfied that the

allegations in Particulars of Complaint 10. and 11. are proven. We are satisfied on the basis of Dr Relf’s opinion that the standard Dr Beilby exhibited in relation to the diagnosis and proposed treatment of Patient A on 27 November 2013 was significantly below that of a medical practitioner of his background and training.

113. We are satisfied that Dr Beilby’s conduct in relation to Particular’s 10. and 11.

constitute unsatisfactory professional conduct.

Particular 12. of Complaint One 12. The practitioner did not communicate with Patient A's neurologist and/or general practitioner, following his consultations with her, about the following:

a) the diagnoses he arrived including those described in particulars two and six; b) the testing that Patient A had undergone and the results; c) the treatment he had given Patient A including homeopathic drops and the treatment described in particular four; d) the advice he gave to Patient A about her conditions and diagnoses; e) the prescription he wrote for Patient A (Voriconazole) and the reasons for the prescription; and/or f) his involvement in Patient A's care generally.

114. It has been discussed in the paragraphs above, and is undisputed, that Dr

Beilby did not communicate with Patient A’s neurologist and/or general practitioner in regard to sub-paragraphs a) – f) inclusive, of Particular 12.

115. Dr Beilby told us that notwithstanding general practitioners like he himself,

having a busy practice, and in spite of having relied on what he knew were tests and monitoring carried out by Patient A’s neurologist, in future he would communicate with a patient’s treating doctor in a case like this.

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116. We are satisfied that the facts of Particular 12. are proven. The HCCC has accordingly proven this Particular to the Committee’s satisfaction.

SUBMISSIONS REGARDING IMPROPER OR UNETHICAL

117. The HCCC submitted that the Committee should have some regard to the meaning of improper or unethical as set out in dictionaries, and as considered in case law. Ms Bennett submitted that the Committee would understand the words in the context of the practice of medicine, and thus in the context, firstly, of the objectives and guiding principles of the National Law, but also as more specifically set out in the relevant Codes of Conduct. We have not reproduced Ms Bennett’s submissions in full.

118. We noted that the Macquarie Concise Dictionary defines improper to mean:

1. Not proper; not strictly belonging, applicable or right; an improper use for a thing. 2. Not in accordance with propriety of behaviour, manners, etc: improper conduct. 3. Unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. Abnormal or irregular.

119. We noted that the New Shorter Oxford English Dictionary includes in its

definition of improper the meaning unbecoming, unseemly, indecorous. 120. Ms Bennett submitted that in Parker v Comptroller-General of Customs,

(2009) 83 ALJR 494, French CJ said (at 501 [29]): ... The relevant ordinary meanings of improper include not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong …

121. Ms Bennett cited a number of other cases: In Textile House v Carmody (1976) 9 ALR 58 at 60, Barwick CJ said the word improper was not of itself a term of art, and must be read in the whole of the context in which it appears in the Trade Marks Act 1955. His Honour concluded that in that context it meant objectionable.

122. Ms Bennett submitted that the term improperly is wide. In R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 at [20], Howie J said: ...the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding.

123. Black’s Law Dictionary defines improper as: 1. Incorrect, unsuitable or irregular; 2. fraudulent or otherwise wrongful and unethical as not in conformity with

moral norms or standards of professional conduct.

124. The Macquarie Concise Dictionary defines unethical to mean: 1. Contrary to moral precept; immoral. 2. In contravention of some code of professional conduct.

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125. Mr Pike submitted that improper behavior implied that of a charlatan which was not the case of Dr Beilby who believes in the good work he has carried out over many years. He emphasized that in this case there had been no patient complaint, and no harm done to anyone. He also emphasized that Dr Beilby had encouraged Patient A, (as corroborated by her), to report her consultations with him to her treating doctors.

THE COMMITTEE’S FINDINGS IN RELATION TO COMPLAINT ONE

126. The Committee is mindful that, as noted above, Dr Beilby admitted Particulars of Complaint 1., 2., 3., 6., 7. and 12. of Complaint One.

127. We are mindful also that Dr Beilby in admitting certain of the Particulars of Complaint One, has also admitted Particulars 2. & 3., and 6. & 7. constituted unsatisfactory professional conduct.

128. The Committee is comfortably satisfied to the requisite standard from the evidence, submissions, and admissions, as discussed in the paragraphs above, that all the Particulars of Complaint One, 1. – 12. inclusive are proven.

129. The Committee must then consider whether the conduct overall, amounts to

unsatisfactory professional conduct. The Committee can look at all the conduct found proven either separately or cumulatively when making a determination as to whether the conduct overall amounts to unsatisfactory professional conduct.

130. In doing so, we take into account the standard by which Dr Beilby must be judged, which is that of a general practitioner, with additional qualifications in public health and acupuncture, who graduated in medicine in 1983, and who has been practising in complementary health at least since 2003. He is of course bound by the Codes of Conduct for medical practitioners and complementary health practitioners, being The Medical Council of NSW's ‘Complementary Health Care Policy’ and ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’.

131. We also take into account the setting of the Complaint which has brought Dr Beilby to the attention of the NSW Medical Council. In brief, Dr Beilby first saw the Patient concerned on 6 November 2013. She was a 20 year old woman who had six months previously undergone neurosurgery for a Chiari Malformation, and had subsequently had an ICP monitor transiently inserted for investigation of central nervous system symptoms. That ICP had been removed by the time she first consulted Dr Beilby, and she was under the care of a neurologist and general practitioner. Dr Beilby admitted he did not communicate in any way with those practitioners. We accept that he told Patient A to keep them informed of what he had recommended for her.

132. Dr Beilby diagnosed Patient A with very serious illnesses on each occasion when he saw her, that is on 6 November and 27 November 2013, using the LISTEN Computer and CyberScan, both devices which do not have a sound scientific basis according to our expert witnesses, Professor Watson and Dr Relf.

133. Dr Beilby admitted in regard to Particular 3. of Complaint One that the diagnoses he made would not have been made by a reasonable medical practitioner supported by the information available. He admitted that

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accordingly given the tests to be applied by the Committee, his conduct in this respect amounted to unsatisfactory professional conduct.

134. He also made admissions in regard to Particulars 6. & 7. of Complaint One, stating that: It is correct that I made the diagnosis of tetanus, and I consider it would be impossible to diagnose the presence of such an infection using standard medical approaches to history, examination and routine pathology. I can accordingly well understand why those not familiar with the devices I use would consider that I had insufficient basis to reach the diagnosis. However, I maintain the diagnosis was made with valid reasoning, on the basis of my training and experience in numerous CAM modalities.

135. In making submissions on behalf of Dr Beilby, Mr Pike stated that: whilst Dr Beilby believes that his approach was valid, he concedes, given the test to be applied by the Committee, that his conduct in this respect amounted to unsatisfactory professional conduct.

136. Whilst the Committee found all the Particulars of Complaint One proven, it did

not make specific findings of unsatisfactory professional conduct in relation to each one. We did make findings of unsatisfactory professional conduct in relation to Particulars 2. & 3. and Particulars 6.& 7. and Particulars 8. & 9. and Particulars 10. & 11. However our task in making our findings is not simply to make mathematical calculations and add up results.

137. We have considered the totality of the proven Particulars of Complaint One, and we are satisfied that Dr Beilby’s conduct as to the diagnoses and treatment of Patient A demonstrates that he is guilty of unsatisfactory professional conduct under section 139B of the National Law. We so find on the basis of the expert evidence referred to above in relation to each Particular of Complaint. We are satisfied that Dr Beilby engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

138. The Committee was also satisfied that Dr Beilby acted contrary to standards and Codes of Conduct for medical practitioners, and those practising complementary medicine, in each of the Particulars of Complaint 2. – 12. inclusive. The Committee was satisfied that Dr Beilby’s conduct in relation to his treatment of Patient A, was accordingly improper and/or unethical (HCCC v Litchfield (1977) 41 NSWLR 630).

COMPLAINT TWO

139. In Complaint Two, the HCCC complained that Dr Beilby is guilty of unsatisfactory professional conduct under section 139B of the National Law in that he has contravened Part 4 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010, in that in his record for his consultations with Patient A on 6 and/or 27 November 2013, Dr Beilby did not:

a) record the results of all physical examinations of Patient A;

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b) record any precautions or specific warnings he gave to Patient A about the Voriconazole he prescribed on 27 November 2013; and/or c) record the nature of, or Patient A's consent to, his treatment involving a needle or similar device on Patient A's neck and/or stomach.

140. Dr Beilby’s evidence in regard to a) above, is that he conducted a number of

physical examinations of Patient A as appropriate. He conceded that he did not record all the results, although he acknowledged that it was the practice of some doctors to do so, and acknowledged it was good practice to record all results of examinations.

141. We noted that Patient A, and her mother provided evidence in their statements that Dr Beilby did not spend time examining Patient A, or discussing her history, but that he concentrated on using the LISTEN Computer and CyberScan device to assess Patient A, and diagnose her conditions.

142. We are concerned that Dr Beilby did not examine Patient A as he has implied

in his admission in relation to a) above. In that regard we rely on the statements of Patient A and her mother in relation to the paucity of examinations conducted by Dr Beilby.

143. In regard to b), Dr Beilby admitted that he did not record any precautions or specific warnings about the prescription of Voriconazole he gave to Patient A on 27 November 2013, because he did not think that necessary. He admitted that he did not know what tests other than the liver function test he ordered were necessary in connection with the prescription of Voriconazole, and told us the MIMS information on drugs was at hand on his telephone, and that he could consult it anytime.

144. In regard to c) above, Dr Beilby acknowledged that he should have recorded his use of the anaesthetic he injected, being 1% Xylocaine. Dr Beilby informed us that he had now added that to the pro-forma used in his record keeping. We noted further that Dr Beilby did not record any consent given by Patient A for the injections. Her evidence regarding the injections and lack of explanation by Dr Beilby regarding the injections is discussed above in relation to Particulars 4. & 5. of Complaint One, which are proven to the reasonable satisfaction of the Committee.

145. We have noted that Dr Relf considered Dr Beilby’s records to be adequate.

146. The Committee is also mindful of Dr Beilby’s admissions in regard to each sub-paragraph of Complaint Two, namely that he did not record certain things (refer sub-paragraphs a), b), and c)). He did not accept that this constituted unsatisfactory professional conduct.

147. We have indicated in our findings in relation to Particular 2. of Complaint One that Dr Beilby arrived at his diagnoses of serious illnesses without adequate history and clinical evidence, and did not document his findings in his records. We are also satisfied in relation to Particular 6. that Dr Beilby arrived at his diagnosis of tetanus infection without adequate history, clinical evidence, testing and/or investigation, and did not document the above in his records.

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148. We are mindful that in Part 4, of the Health Practitioner Regulation (New South Wales) Regulation 2010 deals with matters relating to practitioner records, and states relevantly that: (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation.

149. We are satisfied that Dr Beilby made a record for each of the consultations with Patient A on 6 and 27 November 2013.

150. However in considering Dr Beilby’s records regarding Patient A, and the requirements of Schedule 2, (see Appendix), we are satisfied that the records are defective in a number of ways. We put that in the context of a 20 year old woman who had recently undergone a very serious neurosurgical operation, and had ongoing central nervous system problems.

151. We noted from the detail of Schedule 2 that Dr Beilby’s clinical records did not, for example, include notes as to information or advice given to Patient A in relation to the homeopathic drops he gave her, and did not include advice regarding any risks of taking Voriconazole. Neither did Dr Beilby document his injections of the Xylocaine he administered to Patient A.

152. We are satisfied to conclude that the level of detail in Dr Beilby’s records was unsatisfactory, particularly in consideration that a record must include sufficient information concerning the patient’s case to allow another medical practitioner to continue management of the patient’s case.

153. We find Complaint Two proven. We are satisfied from the evidence that Dr

Beilby’s lack of documentation in regard to Patient A is a significant departure from the requirements of Part 4, of the Health Practitioner Regulation (New South Wales) Regulation 2010 which deals with matters relating to practitioner records, and constitutes unsatisfactory professional conduct under section 139B of the National Law.

DOCUMENTS

154. The Committee had before it a folder of documents lodged by the HCCC, and a folder of documents lodged by Dr Beilby which it took into evidence.

DETERMINATION AND ORDERS

155. The Committee, having heard the evidence and submissions, and taking into account the legislation, was satisfied that all the Particulars of Complaint One and Complaint Two have been proven.

156. The Committee is satisfied the HCCC has established that in relation to Complaint One, Dr Beilby is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the Practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Further, the Committee is satisfied, as noted in

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the paragraphs above, that because he breached codes of conduct of medical practitioners and complementary medicine practitioners, Dr Beilby engaged in improper and/or unethical conduct relating to the practice or purported practice of medicine.

157. We are satisfied that in relation to Complaint Two, and Dr Beilby’s records, the HCCC has established to our satisfaction that Dr Beilby is guilty of unsatisfactory professional conduct under section 139B of the National Law in that he has contravened Part 4 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010.

158. We are mindful that the primary role of the Inquiry is protective, but that it also has a role in maintaining public confidence in the profession, and maintaining the reputation of the profession. Orders of the Committee may operate to have a general deterrent effect for other members of the profession.

159. The Committee takes into account the fact that it is well established that the jurisdiction exercised by the Professional Standards Committee is protective, not punitive. The reach of the concept of protection of the public has most recently been set out by the NSW Court of Appeal in HCCC v Do [2014] NSWCA 307, where the court made clear that a broad understanding of protection was appropriate.

CONDITIONS

160. The Committee accordingly imposes the following Conditions in regard to Dr Beilby’s practice of medicine.

1. To practise under category C supervision in accordance with the Medical

Council of NSW’s Compliance Policy – Supervision (as varied from time to time), and as subsequently determined by the appropriate review body.

a. The supervisor must not practise at the same location, practice or

premises as the practitioner, and should be a registered medical practitioner who practises in complementary medicine.

b. To authorise the Medical Council of NSW to provide the approved

supervisor(s) with: i. a copy of the report of the proceedings that imposed this condition;

and ii. a copy of the practitioner’s current conditions on his registration.

c. At each supervision meeting the practitioner is to review and discuss his

practice with the approved supervisor with particular focus on: understanding and adoption in his practice of the Medical Council

of NSW Complementary Health Care Policy and the Medical Board of Australia, Good Medical Practice, A Code

of Conduct for Doctors in Australia.

2. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from 2 May 2016, and

subsequently as required by the Council;

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b. The auditor(s) is to assess his compliance with good medical record keeping standards; legislative requirements and his compliance with his conditions;

c. To authorise the auditor(s) to provide the Council with a report on their findings, and report with particular reference to the practitioner’s prescribing within the framework of therapeutic guidelines.

d. To meet all costs associated with the audit(s) and any subsequent reports.

3. To complete within 6 months of 2 May 2016 the MCM5606 – ‘Issues in

general practice prescribing course’ organised by Monash University. a. Within 2 months of 2 May 2016 he must provide evidence to the Medical

Council of NSW of his enrolment in the abovementioned course. b. Within 1 month of completing the abovementioned course, he is to

provide documentary evidence to the Council that he has satisfactorily completed the course.

c. To bear responsibility for any costs incurred in meeting this condition. d. In the event that the MCM5606 – ‘Issues in general practice prescribing

course’ is unavailable, he must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from 2 May 2016.

4. To provide all patients at the time of each consultation with a copy of the

Medical Council of NSW Policy on Complementary Health Care. The practitioner is to include:

a. An acknowledgment confirming the patient has received a copy of the

Council policy, to be signed and dated by each patient and placed in the patient’s medical record.

b. To complete and forward to the Council, a Patient Log (in a Council-approved format) listing all patients who have been provided with a copy of the Council’s Policy by him during the previous calendar month. The Patient Log must include:

i. The date and time of each consultation; ii. The name of each patient; and the iii. Contemporaneous signature of each patient.

The practitioner is to forward the log to the Council within seven days of the end of each calendar month

5. Not to use the CyberScan and/or LISTEN devices in his practice of medicine.

6. To authorise and consent to any exchange of information between the

Medical Council of NSW and Medicare for the purpose of monitoring compliance with these conditions.

ORDERS

1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to

apply whilst the practitioner’s principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.

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APPEAL AND REVIEW RIGHTS

1. Dr Beilby has the right to appeal the Decision of the Committee to the NSW

Civil and Administrative Tribunal.

2. An appeal must be lodged with the Tribunal within 28 days of receipt of these written reasons.

3. Dr Beilby also has the right to seek a review by the Medical Council of NSW of the Committee’s Order to impose conditions.

4. Should Dr Beilby’s principal place of practice be anywhere other than in NSW at the time of seeking a review of the conditions, Dr Beilby may make an application for review to the National Board.

DISTRIBUTION OF THE REASONS FOR DECISION

1. A copy of the Reasons for Decision in this matter is to be provided to Dr Beilby, the HCCC, the National Board, Dr Omar Ahmad, and Patient A.

2. The non-publication order made on 15 February 2016 in respect of Patient A and any family members as noted above continues.

_________________________ Geri Ettinger Chairperson _2 May 2016___

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APPENDIX

Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 informs regarding what must be included in a medical practitioner’s records, and states relevantly:

(2) A record must contain sufficient information to identify the patient to whom it

relates. (3) A record must include the following:

(a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient’s diagnosis or treatment (for example, information concerning the patient’s medical history, the results of any physical examination of the patient, information obtained concerning the patient’s mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient.

(4) The record must include notes as to information or advice given to the patient

in relation to any medical treatment proposed by the medical practitioner who is treating the patient.

(5) A record must include the following particulars of any medical treatment

(including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient:

(a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment.

(6) Any written consent given by a patient to medical treatment (including any

medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient.

2 General requirements as to content

(1) In general, the level of detail contained in a record must be appropriate to the

patient’s case and to the medical practice concerned.

(2) A record must include sufficient information concerning the patient’s case to allow another medical practitioner to continue management of the patient’s case.

(3) All entries in the record must be accurate statements of fact or statements of

clinical judgment.