In a recent Tribunal decision, the Medical Board’s decision to take immediate action against a practitioner by suspending his registration was upheld because the Tribunal considered the practitioner’s dishonest and unethical conduct in falsifying medical records meant suspension was necessary to protect public health or safety.

The practitioner had applied to the Tribunal to set aside the Medical Board’s decision. The practitioner was facing four open notifications relating to his professional performance or conduct – two concerning boundary violations and two related to alleged inadequacies in his clinical practice. However, the Tribunal’s focus was not so much upon the practitioner’s conduct (or alleged conduct) that gave rise to the notifications as upon actions taken by him in dealing with the notifications.

In respect of three of the notifications, the practitioner had deleted the relevant clinical note and created a replacement note in the knowledge the patients had made complaints or that AHPRA were investigating. Subsequently, the practitioner did not, at the time of sending the notes (or at any other relevant time) advise AHPRA that he had only recently created the notes and he had deleted his original notes. Rather, the practitioner had untruthfully suggested to the Board that his notes were contemporaneous and should be preferred to the patients’ accounts.

The Board later discovered the deleted original notes of the consultations.

The Tribunal was satisfied that in the circumstances of the case immediate action in the nature of suspending the practitioner’s registration was the appropriate and necessary course. It found that the practitioner’s conduct in altering the records and then knowingly misleading AHPRA and the Board by putting forward the altered notes as contemporaneous records reflected very poorly on his personal honesty and integrity and upon his professional ethics. The Tribunal viewed intentionally lying to AHPRA and the Board as an extremely serious matter. It noted that the practitioner had shown himself willing to place his own self-interest above the public interest in ensuring that the patients’ concerns regarding his clinical performance was subject of proper investigation (and any necessary disciplinary action). Further, he was prepared not only to knowingly mislead AHPRA and the Board but also to do so in a way that involved complete disregard for the importance of maintaining true medical records for his patients.

For those reasons the Tribunal considered that the practitioner’s conduct in his dealings with AHPRA and the Board provided a sufficient basis for a reasonable belief that he posed a serious risk to persons within the meaning of s156 of the National Law.

The decision serves as a reminder that medical notes have to be considered not only as medical documents but also as legal documents. Passing off rewritten records as contemporaneous is a serious matter. Any retrospective change has to be clearly marked, dated and signed, and a reason for the change should be documented. Altering existing medical records, deleting and replacing records puts a doctor in a whole lot more trouble with a regulatory body for dishonesty and unethical conduct.

To read the decision in Liyanage v Medical Board of Australia [2016] NTCAT 587, click here.