Dr. John Chun-Tsang Lai
Reprimanded for Unprofessional Conduct

Stephen Barrett, M.D.


In 2003, the Medical Practitioners Board of Victoria reprimanded Dr. John Lai for serious unprofessional conduct and ordered him to undergo a year of counseling in addition to further education in medical record-keeping, the value of evidence-based medicine, and appropriate antibiotic prescribing. The board acted in response to allegations that he had inappropriately treated 20 patients with various combinations of chelation therapy, acupuncture, and other nonstandard approaches. The board concluded:


MEDICAL PRACTITIONERS BOARD OF VICTORIA

Re: Dr John Chun-Tsang Lai [2003] MPBV 30

Reasons for Decision

Before: Dr G D Kerr (Chair) Mr P Hardham Dr H Haikal-Mukhtar Ms L Shatin

Counsel Assisting the Panel: Mr D Martin instructed by the Victorian Government Solicitor.

Counsel for the Practitioner: Mr R Niall instructed by John W Ball & Sons, Solicitors.

Dates of Hearing: 23 and 24 June 2003

Date of Decision: 29 October 2003

The Finding of the Panel is that:

Pursuant to section 45(A)(1)(a) of the Medical Practice Act 1994 ("the Act"), Dr John Chun- Tsang Lai has engaged in unprofessional conduct which is of a serious nature, namely unprofessional conduct within the meaning of section 3(1)(a) and (b) of the Act.

The Determination of the Panel is that:

In relation to this further education program, Dr Lai is to have the details of the education program approved by the Deputy CEO of the Medical Practitioners Board of Victoria. He is also required to provide evidence to the Board that he has complied with this program of further education on or before 1 July 2004.

[1] The Panel convened to undertake a formal hearing into the conduct of Dr John Chun- Tsang Lai and in particular to determine whether he had engaged in "unprofessional conduct" within the meaning of s. 3(1), paragraphs (a), (b), (c), (d) and/or (e) of the Medical Practice Act 1994 ("the Act") which was alleged in the Notice of Formal Hearing dated 29 May, 2003.

[2] The Notice of Hearing was 75 pages in length and contained allegations involving Dr Lai's treatment of 20 patients and variously involved the following specific allegations with respect to one or more of the patients.

  1. That he failed to keep adequate records of his consultation and treatment of his patients;
  2. That he failed to take proper care in treating the patients;
  3. That he prescribed certain forms of treatment for the patients when there was insufficient indication to do so, namely the administration of antibiotics, DHEA treatment, melatonin treatment, budadose treatment, vitamin C treatment, chelation treatment (also known as EDTA), oxygen treatment, and Valium treatment, the details of which will be described hereunder.

 [3] It should be noted that none of the patients referred to above gave evidence before the Panel, nor did they make written statements. The only evidence presented to the Panel by Counsel Assisting was the evidence of Dr M L Mashford in relation to the standard and quality of the treatment administered by Dr Lai. The matter was initially brought to the attention of the Medical Practitioners Board of Victoria (“the Board”) by members of the Professional Services Review Committee (“PSRC”) who, in effect, acted as the complainant and although no members of that Committee gave evidence to the Panel, part of the transcript of the Hearing by that Committee in relation to the actions of Dr Lai, was admitted in evidence by the Panel. In this respect it is important to note that in its letter to the Board, the Acting Director of the PSR stated that "Dr Lai's conduct has caused, is causing or is likely to cause, a significant threat to the life and health of his patients".

[4] Dr Lai, via his Counsel, did not dispute that he administered the various treatments referred to above to the patients, but he denied that the treatment administered was inappropriate or inadequate, or that his actions, or inactions, constituted unprofessional conduct. The records were admitted in evidence in relation to each patient, and whilst the doctor conceded they were minimalistic in nature, he did not formally concede that any inadequacies in the records constituted unprofessional conduct.

[5] At the commencement of the hearing, Counsel Assisting outlined the allegations in broad terms. Namely, that Dr Lai's practice of prescribing antibiotics, anabolic steroids, benzodiazepines and chelation therapy and other treatments referred to above, in the circumstances, amounted to unprofessional conduct. The allegations in the Notice of Formal Hearing centred around the failure to make proper records concerning the treatment of patients, failing to take an adequate history, failing to examine the patients, failing to make a diagnosis, failing to plan treatment and failing to make an assessment of the progress of the patients in response to the treatment.

[6] With respect to the forms of treatment referred to above, namely specifically chelation therapy, DHEA treatment, melatonin prescription, the complaint is that Dr Lai provided that treatment in circumstances where the clinical notes did not record an indication for such treatment, nor did they record a medical condition which would warrant such treatment, and finally any assessment of the patient as to the progress or response to that treatment was not recorded.

[7] The substance of the allegations in relation to antibiotic prescription was that it was not warranted in the circumstances in that it was prescribed substantially for viral illnesses, for treatment for Chronic Fatigue Syndrome (referred to as CFS), and followed by further dosages on occasions of different antibiotics, all of which were prescribed within a very short period of time of the initial treatment.

[8] There was a further complaint that the doctor in his acupuncture treatment did so in circumstances where the need for that treatment was not prudent. In any event there was no adequate medical record for the need for that treatment. The evidence placed before the Panel in support of the complaints consisted of Dr Lai's clinical records, his written response to the allegations made by the PSRC, extracts from a hearing of the PSRC, the conduct of Dr Lai, and written and oral evidence presented by a consultant physician, Dr Mashford.

[9] There were in all 20 patients who consulted Dr Lai during the period June 1996 to June 1999 who are the subject of these allegations. The first patient was a Mr CA who consulted Dr Lai on 62 occasions between 1996 and December 1998. The complaints involving this patient related to the excessive provision of acupuncture (23 times), prescribing chelation therapy (19), administering DHEA (3), melatonin (1) and budadose (1). In relation to the administration of antibiotics it is alleged that he administered and prescribed crystalline penicillin, and ampicillin on 11 February 1998 after having noted the patient was "feeling tired, weak and dizzy",1 and he continued to administer those antibiotics daily over the next three days.

1Transcript 23/06/03 p 5

[10] It was further alleged that in relation to this patient on 18 February 1998, having noted the patient was "feeling tired all the time and worrying", he administered the same two antibiotics on that date and daily for the next two days. He further administered the same antibiotics over a period of three days on 9 September 1998 after having noted the patient complained of "flu, diarrhoea, and no appetite." He administered those antibiotics that day, and for the next 2 days. It is further alleged that on 14 September 1998 this patient was provided with the same two antibiotics that day and the next after stating that he had been admitted to hospital over the preceding weekend for dehydration. It was further alleged that he administered the same two antibiotics on 16 October 1998 and 19, 20 and 23 October 1998 after the patient complained of "weakness, aching all over, falling asleep easily".2 It was also alleged that on 21 September 1998 the same prescriptions of antibiotic treatment were made in the same circumstances where it was recorded that the patient was "feeling quite good, just occasionally no energy".3

2Ibid p 5
3Ibid p 5

[11] The second patient referred to was one Ms CB and the same allegations were made against the doctor for failing to keep proper records, and failing to provide adequate care by taking a history, recording the examination, a provisional diagnosis, and planning a treatment program, on 25 occasions between March 1998 and February 1999. The same allegations were made in respect of DHEA and melatonin on 10 August 1998, budadose on 13 occasions between 11 May 1998 and 12 February 1999 also that there were no adequate treatment records made in respect of prescription of vitamin C injections which were administered on four occasions between March and November 1998.

[12] The final allegations in relation to this patient were that on 10 March 1998 having noted the patient was "complaining that some doctor was not listening to her, wondering if other patients who recovered ever came back",4 he administered two antibiotics that day, and then daily over the next three days.

4Ibid p 6

[13] The third patient was Ms CC and the allegations which related to this patient were that on 12 occasions between July and September 1998, no rationale was recorded for the treatment that was administered, details of the treatment, or monitoring any response to the treatment, that he did not adequately examine the patient, take a history, make a diagnosis or plan a course of treatment. It was further alleged that the doctor prescribed vitamin C tablets on 12 occasions in July and August 1998 in circumstances where no note was made of any adequate clinical finding, diagnosis or indication for such treatment.

[14] The fourth patient referred to was Mr CD and similar allegations were made in relation to this patient, namely inadequate records and failing to provide proper treatment on 25 occasions between June 1997 and November 1998. The allegations relate to Budadose treatment on one occasion, vitamin C on 11 occasions between June 1997 and August 1998 and inappropriate antibiotic treatment on 3 February 1998. On this occasion the doctor noted the patient "had been going to the gym, working and feeling good, feeling a lot better, does not get run down. Watches tennis, went to gym, not lifting and doing a lot better"5 and then the word "dermatitis". He then noted the patient was "feeling better, is back to his old self"6 and then administered penicillin and ampicillin on that day and daily for the next 3 days. This was followed by the administration of the same two antibiotics on 10 March and the two following days.

5Ibid p 7
6Ibid p 7

[15] The fifth patient was Mr CE and the same allegations were made in respect to records kept for this patient, and the treatment in respect of 30 consultations which took place between October 1998 and February 1999. During this time there were eight consultations in which chelation therapy treatment was administered in October 1998 and one in which acupuncture was it is alleged inappropriately administered. The allegations in relation to the prescription of antibiotics were that he administered crystalline penicillin and ampicillin on 6 October 1998, having noted that the patient had "felt a lot better two hours after yesterday's chelation" and then on 9 October 1998 having noted that "skin a lot better but still no energy as normal".7 Dr Lai then administered the same two antibiotics on that date and ten other days in October, ten days in November and eight days in December.

7Ibid p 8

[16] The sixth patient, Ms CF consulted the doctor on 67 occasions between January 1998 and March 1999 and the records revealed once again a failure to record a proper history, to take adequate steps to treat the patient in a similar manner to that described above. This patient was given acupuncture on 41 occasions between January and July 1998 and on most of those occasions the records revealed the words "acupuncture" as the only record kept in relation to the consultation, without any rationale of the treatment having been provided.

[17] On 16 April 1998 this patient was administered oxygen treatment and the rationale for that treatment was not recorded. This patient was also given antibiotic treatment and drugs such as crystalline penicillin and ampicillin were administered without any adequate rationale being recorded.

[18] The seventh patient was Ms CG and with respect of this patient it was alleged that on 18 occasions between July 1997 and November 1998 the doctor's records did not reveal any rationale for treatment, details thereof or monitoring of the patient's response to treatment. Insofar as the antibiotic treatment was concerned, it is alleged that crystalline penicillin and ampicillin were administered on 4 July 1997, it having been noted by Dr Lai that the patient was "feeling a lot better"8 and the same two antibiotics were administered on 7, 9, 10 and 12 July, 1997, 30 October 1997, 6 April 1998 and 23 and 24 June 1998, and 3, 4 and 5 August, 1998, and 29 September 1998.

8Ibid p 9

[19] The eighth patient was Ms CH and with that patient, allegations were made in respect to 26 consultations between October 1997 and November 1998 and the same allegations are made with respect to records. On 14 occasions between September 1997 and November 1998 vitamin C injections were given in circumstances where there were no records to support this form of treatment, and no assessment was made as to progress or response to treatment, nor was any attempt made to reduce the dosage or to cease the treatment.

[20] Insofar as the prescription of antibiotics was concerned with this patient, it is alleged that in December 1997 in the period October to December 1998 antibiotics were prescribed without sufficient indication. In October 1998 it was noted that the patient was "not feeling any better" and antibiotics were administered on that day and the day following, on 3 November 1998 another notation was made "CFS" (Chronic Fatigue Syndrome) – two antibiotics were administered that day and then daily on 9, 16, 18 and 19 October and 9, 11, 13, 16, 18 and 19 November.

[21] The ninth patient was Mr CJ and the same allegations were made in respect to the records and similar allegations were made in respect to acupuncture, chelation therapy treatment (fifteen occasions between April and June 1998), and one in relation to inappropriate administration of antibiotics.

[22] The tenth patient was Mr CK where similar allegations were made in relation to the records, acupuncture treatment, chelation treatment, vitamin C and antibiotic treatment. The antibiotics were prescribed as a result of a consultation when Dr Lai's records contained a note that the patient was "feeling better generally".

[23] The eleventh patient was Mr CL where the allegations related to inadequate records and inappropriate chelation treatment, oxygen treatment and antibiotic prescription. The history obtained when antibiotics were prescribed was that the patient was "tired and could not sleep, complained of indigestion, diarrhoea and difficulty breathing".9

9Ibid p 9

[24] The twelfth patient listed was Ms CM where, in relation to five consultations between September 1996 and April 1998 it is alleged that there were no adequate records in history taking, no examinations, no diagnosis or treatment plan.

[25] The thirteenth patient listed was Mr CN and the same allegations were made in respect to inadequate records, the prescription of Valium without recorded clinical findings and there was no diagnosis to support this prescription or note or record to assess the prognosis or response to treatment, nor any attempt to reduce or cease that medication.

[26] The fourteenth patient was Ms CO who consulted Dr Lai on three occasions between December 1998 and February 1999 in respect of which it is alleged that Dr Lai did not take an adequate history or adequately examine her or make a diagnosis or the treatment plan.

[27] The fifteenth patient, Ms CP saw Dr Lai between October 1997 and October 1998 and during this time he prescribed crystalline penicillin and ampicillin and on five separate occasions after noting that she was "suffering from the flu" he administered two antibiotics, as well as on the day following the consultation in which he administered antibiotics after noting the patient suffered from a "hoarse voice".

[28] The remaining five patients, namely Ms CQ, Ms CR, Mr CS, Mr CT and Mr CU are all in the same category in that it is alleged that between January 1998 and July 1999 Dr Lai prescribed antibiotics when there was insufficient indication to do so.

[29] Upon notification of the complaints, Dr Lai wrote a letter to the Board, dated 16 February 2001 and included in that letter was the following statement. "Clinically I have found at least the combination of benzyl penicillin and ampicillin appears to be very beneficial in relieving symptoms of some viral infections such as influenza and other viruses." He also provided the following justification for prescribing antibiotics to patients suffering from what he described as CFS. "Whilst some medical colleagues may not agree with my treatment for CFS, however it does work in most cases. So far it has not done any of my patients any harm". In respect of the DHEA treatment he said he heard about that form of treatment in 1997 from patients who had seen information about it on TV. He said that he rang the Customs Office for information about this drug and was told it was not allowed in Australia, but he was later told of a pharmacist in Bondi who was prepared to dispense DHEA on prescription. He said he gave this treatment to the patients Mr CA, and Mr CK and he said it had no effect on either of them, in either a positive or negative nature.

[30] In relation to the dangers associated with the prescription of benzodiazepines, Dr Lai stated in his letter that, "although I do not always write it down in my records, I do inform patients that benzodiazepines are addictive". He also gave an example of his refusal to supply benzodiazepines to a particular patient whom he considered to be a drug addict, and that he had put notices on the surgery wall that he would deny this type of medication to "drug addicts".

[31] In relation to the chelation therapy he defended his position by stating that it was used by very many hospitals throughout the world to treat lead poisoning and Digoxin poisoning. He said that vitamin C and budadose injections may not be used by many doctors but he stated that he would not categorise these treatments as alternative medicines. He said that in his opinion the treatments appeared to be helpful as adjuncts to antibiotics in treating CFS.

[32] The Panel received, in evidence, a transcript of an interview/hearing between members of the PSRC and Dr Lai, dated 30 May 3003 which was relevant to the issues raised in the matters for determination in this hearing. At page 30 of the transcript, which was admitted in evidence, Dr Lai was asked by one of the interviewing doctors "would you like to describe for us what is your routine treatment for flu?" to which the answer was "oral Amoxil or other antibiotics". "What criteria do you use to decide [to provide] intravenous treatment?" to which he answered "after one or two days they come back for review. If they get worse then I use intravenous".

[33] At page 39 of the transcript it was recorded that Dr Lai was asked "as you told me last time, you normally take blood pressure each time for hypertensive patients. Any particular reason why there is no record, four months in a row despite the fact that you saw her fortnightly?" Dr Lai’s answer to this question was not entirely responsive, but it did represent an acknowledgement that his record keeping was less than appropriate.

 [34] Dr Lai was also asked by one of the doctors (page 47 of the transcript) "what is the scientific evidence to treat CFS with intravenous antibiotics?" to which his answer was "a lot of medical discoveries, I can't compare with a lot of the giants in medicine, but a country doctor like me through observation and clinic experience, has found that [they] help chronic fatigue" which was taken to mean that he was saying that his clinical experience justified this form of treatment to assist chronic fatigue sufferers. In answer to a related question on this subject Dr Lai said "well, I was just saying I seem to be the only one using this method to treat chronic fatigue and I get results where other doctors can only tell patients there is no treatment."

[35] At page 78 of the transcript there was an exchange between the questioning doctor and Dr Lai in which the interviewing doctor stated, "in general I cannot agree with your statement that giving people antibiotics without indication can do no harm, it's absolutely not true…. I do want to point out to you the dangers" to which Dr Lai answered "you are right, you are right in that. I would say all medical treatments carry some sort of side effects".

Evidence of Dr M L Mashford

[36] In order to determine the professional standards that it is alleged Dr Lai failed to maintain, the Panel was provided with a written report from Dr Mashford, as well as hearing oral evidence from him in the witness box. Dr Mashford is a consultant physician specialising in clinical pharmacology. In relation to the provision of notes and records, he stated in his report that "an irreducible minimum content must include sufficient information to identify what treatment has been recommended or given and why it was chosen". He also stated that where treatment is of an unconventional nature, more detail may be required in note-taking. With regard to the various treatment modalities employed by Dr Lai, he stated as follows:

1. Chelation therapy is a general term to indicate the use of compounds that combine with metal ions to produce less toxic complexes that remain soluble and are excreted. He said certain chemicals are used to deplete excessive iron stores and to treat lead poisoning, and in certain forms it can be used in the treatment of atherosclerosis. He stated that although chelation therapy cannot be accepted as mainstream medical treatment "there is a standard procedure that if followed would indicate that the practitioner was adhering to an identifiable body of opinion". (p.2 of the Report dated 25 November 2002). He said that he would have expected Dr Lai, if using this procedure, would have recorded exactly what substances were used in the process of the treatment, and how they were administered because in some circumstances injection of certain drugs is not advisable.

2. DHEA treatment (Dehydroepiandrosterone). This was described by the doctor as a "weak androgen product produced in relatively large amounts by the adrenal cortex. It occupies a strategic place in steroidogenesis as it is a pre-cursor to both androgens and oestrogens". He said it could have effects on the brain and that whilst knowledge of the physiology and pharmacology of DHEA is developing there is not as yet sufficient information "to provide a theoretical basis for clinical use of DHEA" (p. 2 of his report). Dr Mashford also stated "the use of DHEA can thus not be said to have an established place in treatment except in authenticated adrenal insufficiency."

3. Melatonin. He described this as a hormone secreted by the pineal gland. He said it has been used to treat immune function, tumour growth, sleep disorders, sexual maturation and ageing. He stated "there is considerable experiential activity seeking therapeutic application as an hypnotic and in mood disorders but there is no current justification for its casual use without careful monitoring of responses. This is compounded by the lack of adequately defined preparations."

4. Oxygen therapy is indicated when there is impaired oxygen delivery to the tissues. This may result from disturbance of peripheral blood flow or impairment of oxygen transfer into or out of the blood. He said that it is expensive and unlikely to be of benefit except in these circumstances. He then stated "it would seem reasonable that the rationale for administering oxygen should be clearly defined and it would be highly desirable if this should appear in the clinical notes." He said that he had difficulty with the photocopy of Dr Lai's notes but could not find a justification recorded therein for the use of oxygen therapy (see p. 3 of his report).

5. Antibiotics. Dr Mashford stated that, "Dr Lai's use of antibiotics and the written justification of his practice in this runs entirely contrary to the accepted norms. The use of antibiotics exposes the patient to risk due to adverse drug reactions and is associated with the development and maintenance of resistant micro-organisms in that patient and in the environment". He also stated that, "Dr Lai seems to systematically use them (antibiotics) in a manner that must be considered inappropriate" (p. 4 of his report).

 [37] When giving evidence Dr Mashford stated that his speciality is as a clinical pharmacologist which included training in the human use of drugs. He stated the importance of maintaining clinical records and he confirmed the contents of his written report that the notes should contain a record of the doctor's findings, an opinion, details of treatment and that these things should be recorded "to guide the doctor in subsequent assessment of the progress of the patient and to remind them of the rationale of what they have done". He stated that in terms of categorising Dr Lai's notes, that they were "of the lower end of the type of notes which one finds and I would say they were not really acceptable".10

10Transcript p. 23

[38] Dr Mashford said that in the case of unconventional treatment there was even more reason for keeping adequate notes and that they should "all justify the use of treatment that would be readily accepted as mainstream treatment".11 In relation to the specific treatments used by Dr Lai, he said that insofar as the chelation therapy was concerned it is a well-recognised treatment for metal poisoning. He said there have been many instances where the use of this form of treatment has been effective but that it is a "pretty safe procedure but there have been cases of toxicity if you give too much or you give it too fast".12 Dr Mashford said that in these circumstances it can cause hypocalcaemia i.e. a fall in blood calcium levels and kidney damage. He said that if this treatment is used it should be done in a standardised way but because of the paucity of Dr Lai's notes it was impossible to say whether he had administered the treatment in an acceptable manner, and in any event the notes did not reveal why he was providing this treatment, and they were also silent as to the preparations of chelation therapy that were used.

11Transcript pp 23-24
12Transcript p. 25

[39] With respect to DHEA Dr Mashford stated that the records simply did not provide enough information to establish whether its use was justified in the circumstances, and with regard to melatonin he said there was no current justification for its casual use without careful monitoring of responses and that the records did not justify the use Dr Lai had made of it, in the treatment of his patients.

[40] In relation to the issue of antibiotics, Dr Mashford explained how the indiscriminate use of this treatment could affect both the patient and the overall environment because it can lead to "more organisms developing resistance through evolutionary adaptation. So if there are antibiotics in the environment, organisms develop means of circumventing their effect."13 In these circumstances, he said, the medical practitioner ought to have a good reason for prescribing this course of treatment.

13Transcript p. 31

[41] In relation to the prescription of antibiotics for viral infections, Dr Mashford stated that "antibiotics in general have no effect on viruses" and that whilst he understands Dr Lai’s "claims that they have an anti-viral effect, this is certainly at variance with not only the prominent opinion but virtually all opinion".14

14Transcript p.32

[42] During the course of cross-examination he stated that melatonin was used for the treatment of jetlag and sleep disorders however he counselled against the use of drugs such as this for the treatment at least of sleep disorders because it was questionable. He said it was used on a short-term basis and should be done "with a sensibly-monitored situation".15 In answer to questions from the Panel Dr Mashford said the main purpose of a doctor's notes is to record their thoughts, what they have done and to permit them to justify their course of action in the future. He also stated that the risks of chelation therapy are largely those of reducing the level of calcium ions in the blood to a level which can cause problems and that there have been cases recorded of kidney damage associated with the use of the drug. He also said that a high dose and prolonged use of vitamin C can be associated with renal stones and that using "vitamins as placebos is a fairly poor approach to the patient".16 Dr Mashford also stated that the repeated use of antibiotics may make it more difficult to treat a patient if they were to develop a subsequent infection.

15Transcript p.36
16Transcript p.46

Evidence of Dr John Chun-Tsang Lai

[43] Dr Lai then gave evidence that he was a general practitioner, practising at Eaglehawk and that he graduated from Sydney University in 1970. He said after completing his general training at a hospital in Liverpool Sydney, he worked for the Hydro Electricity Commission in Tasmania for 3½ years in isolated circumstances and he was the only general practitioner in 80 miles. He said that after that he worked for 6½ years by himself as a general practitioner at Heathcote in Victoria.

[44] He described the quality of his notes as insufficient for a third party to scrutinise, but he said that they were adequate for his purposes. He was asked about the treatment he administered to patients, the subject of the proceedings. He stated that in relation to chelation therapy that he has had good results in treating patients with chest pain and has also had success in treating patients with gangrene. He also referred to one patient who "has got both legs black and blue and they were going to cut them off, but after four chelations it turns pink and he couldn't walk on those legs before, but after four chelations he could walk without any crutches."17

17Transcript p.60

[45] Dr Lai was asked about the patient Mr CA whom he had treated with chelation therapy in December 1997 and he said that after doing so the patient's chest pain had gone and he felt more energetic. He said that he commenced chelation treatment with the patient, Mr CE, when the patient was very ill and he considered he was suffering from metal poisoning, and that after the treatment he was noted to be much improved and he was able to resume working. He also said that the same treatment was successful for the patient Mr CJ.

[46] He said he used DHEA to treat patients who complained that their nerves were deteriorating and also when they had no energy. He stated that the TGA did not allow DHEA to come into Australia but he was able to secure it via a pharmacist in Bondi Junction who he believed had a licence to import it. He said he tried it with the patient Mr CA but it did not help so he ceased using it. He said he also prescribed it for the patient Ms CB who was overweight, asthmatic, a diabetic and suffered from high blood pressure, as well as CFS. He said that before attempting this treatment he tried this patient with vitamin C and chelation. He said he also prescribed DHEA and melatonin together and that the purpose of DHEA was to improve energy levels and the melatonin was to counteract the side effects from the DHEA. He said he assessed the progress of the patients' treatment by monitoring them, by seeing them once or twice per week and asking whether they were feeling any better.

[47] Dr Lai said he prescribed melatonin to assist his patients with sleeping. He said he would warn the patients that their medication was potentially addictive. He said that budadose was a vitamin B compound and it was injected intramuscularly and he prescribed it for people who complained they were tired. He said it was not necessary to do any blood tests before prescribing it. He said that in prescribing it he had hoped it would "give them a bit of general well feeling, more energetic and improve their general lifestyle" and "improve their outlook in life".18 Dr Lai said he also used it to help people suffering from "chronic fatigue". He said the treatment was successful with the patient Mr CD.

18Transcript p.75

[48] He was asked about oxygen therapy and when asked for what condition it was used, he said it was "supposed to be able to get rid of things that are afraid of oxygen" and that it would be helpful for "cancer cells".19 Dr Lai said he treated patients’ warts with oxygen therapy. He said the treatment was not of benefit to the patients "except for cosmetic purposes". He said he prescribed Valium to the patient Ms CM who had been a drug addict and the Valium was to assist with her addiction. He said he had some success in treating patients in this manner. He said he used vitamin C to treat patients with CFS and it assisted their energy levels, particularly the patient Ms CH.

19Transcript pp. 76-77

[49] Dr Lai was asked about the use of antibiotics and he said he would prescribe antibiotics to patients with viral infections to prevent bacterial infections and he therefore was using this as a preventative measure. He said that he used drugs such as crystalline penicillin and ampicillin intravenously and that it "can cut short a person's suffering, so well, he's got a very bad flu".20 He also said he used the treatment for people with CFS and that by way of summary that he used it for "bacterial infection as an adjunct to the treatment of viral infection and CFS".

20Transcript p.89

[50] In terms of acupuncture treatment he said he gave it for a wide variety of symptoms including headaches, loneliness and depression and musculoskeletal pain.

[51] When Dr Lai was cross-examined by Counsel Assisting he was asked if there was any scientific study or objective testing which supported the use of chelation therapy in patients suffering from CFS and he said, "I'm the only one swimming in this muddy water" in the world.21 When he mentioned this form of treatment at a country doctor's meeting, the other doctors "shook their heads in disbelief". He said notwithstanding this reaction he believed the treatment was appropriate.

21Transcript p.97

[52] He said that in relation to DHEA treatment that so far it had been of no benefit to patients. He said that he had obtained articles of interest on its value. He said that in relation to the treatment of CFS with antibiotics that he was "on his own",22 but that he believed the treatment was justified "from my own observation and clinical experience." He also said that the manner in which he prescribed antibiotics was contrary to his medical training. In general terms he did not dispute the allegations with regard to the treatment he had administered to his patients, as set out in the Notice of Formal Hearing and in Mr Martin's initial outline to the Panel.

22Transcript p.102

Submissions

[53] Mr Niall in his final submission stated that, simply because Dr Lai's treatment of patients was outside the mainstream, did not mean that it should be categorised as unprofessional conduct. He said that Dr Lai had treated his patients "in a conscientious way but what he sought to do was develop a mode of practice to deal with chronic illness in respect of which conventional medicine has not offered relief, and in respect of which the evidence discloses that his patients had enjoyed some benefit from his treatment." He also made the point that this inquiry was not "a complaint driven exercise by unhappy patients". He also said that the paucity of Dr Lai's notes were only significant in that they were not sufficient to inform a third party and that Dr Lai did not ever employ a locum doctor. Mr Niall said he disagreed with Dr Mashford's statement that the notes in the context of non-conventional treatment should be sufficient to justify the use of that treatment.

[54] Mr Niall said that the use of antibiotics to deal with CFS constituted an attempt to deal effectively with a "multi-faceted illness" and the theory behind the treatment involved "dealing with infection and partially prophylactically in relation to patients whose defences are down",23 and that it is sufficient to answer a charge of unprofessional conduct that his clinical experiences of the treatment provides relief to some patients to a significant degree which was attested to by several of Dr Lai's patients who gave evidence on his behalf. He made a similar comment in relation to a number of other forms of treatment administered by Dr Lai.

23Transcript p.206

[55] Mr Martin, in his final submission, said that the underlying test in terms of the definition of unprofessional conduct as contained in section 3(1) of the Act, was whether the standard of medical care was of a lesser standard than that which might be expected of a medical practitioner by his or her peers. In this regard he drew a comparison between the chelation therapy that Dr Mashford agreed was appropriate in certain circumstances, notwithstanding that it was outside the mainstream of medical treatment, and the use of antibiotics for the treatment of CFS which Dr Lai said was a practice which only he adopted, not only in this country, but on Dr Lai's admission, in the world. He said that on this submission alone, the Panel would be justified in finding that Dr Lai had engaged in unprofessional conduct, as defined in paragraphs (a), (b) and (c) of section 3(1) of the Act. In terms of Dr Lai's note- keeping he said it would be open to find that they are so bad that they could be categorised as "appalling" because in a large number of occasions there was no record of the presenting complaint, findings on examination, any plan of treatment or response to treatment. He said he would speculate that 95% of the doctor/patient records would fall into that category which he said should be a matter of "considerable concern" to the Panel.

[56] He criticised Dr Lai's use of DHEA treatment not because of its therapeutic value, but because in effect the doctor prescribed it on the basis that it might be a good idea to give it a try, because one of his patients had seen a TV program dealing with its use. He criticised the other modalities of treatment on the basis there was no indication available as to why they were used and whether they were helpful or not, apart from Dr Lai's evidence on the subject.

[57] Mr Martin also said it was not crucial to establish that harm had actually been done to the patients, as the crucial test was whether there was a real risk to the public that harm might be done and that this situation was not altered by the fact that four patients had given evidence about the beneficial effects of Dr Lai's treatment on their various medical disorders.

Summary of the evidence

[58] The Panel notes that the complaints against Dr Lai were initiated by the PSRC on the basis that "Dr Lai's conduct has caused a significant threat to the life or health of various patients". This was an unusual hearing because the Panel did not hear from any of the patients referred to in the Notice of Hearing. The Panel did not receive any evidence of actual harm done to the patients, in fact the only evidence came from four patients who were very praiseworthy and positive with regard to the treatment they received from Dr Lai. It was also clearly established by the evidence of Dr Mashford that one of the treatment modalities employed by Dr Lai, whilst outside what might be described as mainstream, in certain circumstances was justifiable and in others potentially helpful, eg. the treatment of lead poisoning with chelation therapy. However, it was not established that this was the case in the matters before the Panel.

[59] It seems that in terms of the effects that the treatment on the whole had on the patients, some of it was helpful, some of it of no use, and at worst “it was potentially harmful to the patient and the wider community.” It also involved the expenditure of time and money by patients. However the Panel agrees with Mr Martin's submission that it is not necessary to demonstrate actual harm or damage has been done to a patient before a finding of unprofessional conduct can be made against the doctor, only that there is significant risk that harm might be done.

[60] The Panel found Dr Lai to be an honest witness in the evidence he gave and in his response to the allegations made in the notice. Whilst he seemed to display extraordinary recall in some circumstances of the treatment administered to some of his patients, given the minimalistic nature of his note-taking, the Panel nevertheless believes he tried to the best of his ability to be accurate in the evidence he gave. The Panel notes that he did not challenge the Notice of Formal Hearing in terms of the factual allegations contained therein, but simply whether these allegations amount to unprofessional conduct.

[61] In the Panel's opinion one of the most serious shortcomings in Dr Lai's treatment of the patients, the subject of the Notice, was his note taking which the Panel agrees in many respects was "appalling" and fell well below the standard that might reasonably be expected of a medical practitioner by the public and his peers, particularly because he was engaged for the most part in treatment which was outside the mainstream of medical treatment and therefore, as stated by Dr Mashford, required substantial justification.

[62] In the Panel's opinion the keeping of proper medical records is an essential part of providing appropriate medical treatment to members of the public, particularly in the context of their general practitioner who might see 50 or 60 patients a day. It is important that the doctor can refresh his memory if and when the patient returns for further treatment, so he can keep an accurate record of such essential matters as a patient's blood pressure, or diagnostic testing, and so that other parties such as a locum, can have a proper basis for assessing and treating the patients. The Panel is also sympathetic to the opinion of Dr Mashford that in times where medical practitioners are required to be more accountable, and more under the scrutiny of third parties, it is also an important resource upon which a doctor can call to justify his behaviour to disaffected persons, or to regulatory authorities.

[63] In the Panel's opinion Dr Lai's notes were virtually useless for any of these functions, and certainly provided no justification for many of the unusual or unorthodox treatments he offered his patients. In the Panel's opinion, by not keeping adequate records, Dr Lai put his patients at risk in terms of their medical welfare and it followed that the lack of any proper record-keeping meant that Dr Lai was unable to suitably explain the purpose of the treatment and the patient's progress in many instances to the Panel. The second major shortcoming of Dr Lai's medical conduct in terms of his patients, was his resort to his anecdotal experience in terms of basic tenets of medical practice such as the methods he used in prescribing and administering antibiotics. Once again, there was no evidence of actual harm done to patients presented to the Panel, but as explained by Dr Mashford, potentially harmful effects of prescribing antibiotics to patients with viral illnesses and/or CFS was, in the Panel’s opinion also significant, not to mention the harm this form of medical behaviour may cause to the wider community in the manner described by Dr Mashford whose evidence the Panel accepts.

[64] The Panel wishes to make it clear in these reasons that it does not set out to make a judgement on the use of alternative medicines in the treatment of the patients, but it does hold the view that the more unorthodox the treatment, the more the doctor must be able to justify that treatment by what is recorded in medical records, and on the basis of his research and inquiry into the safety and efficacy of that treatment. If Dr Lai is the only doctor in the world who uses antibiotics to treat CFS sufferers, and other members of the medical profession "shake their heads in disbelief" by the use of that form of treatment, in the Panel's opinion a reasonable and responsible doctor ought to be able to explain why that treatment is used, and to provide sound scientific evidence as a basis for relying on such treatment, particularly when treating vulnerable patients who suffer from chronic conditions such as CFS and where no curative treatment is available. In the Panel's opinion the manner in which Dr Lai has used antibiotics in the treatment of his patients, and the manner in which he has prescribed antibiotics, has not been adequately explained nor supported by any evidence or the opinion of any reputable body of medical practitioners. In the Panel's opinion those patients have been put at risk in terms of their general health and their ability to withstand or respond to future treatment for illness where the use of antibiotics may be clearly justified, such as the treatment of many types of bacterial infection.

[65] The Panel is of the opinion that Dr Lai is an isolated practitioner who, for the major part of his professional life, has practised as a solo general practitioner, and for many years in isolated or small rural townships. The Panel is also of the opinion that he has presented to his peers as a doctor who is not hamstrung by the orthodoxy of medical practice. Dr Lai said that during the short periods of time each year when he is absent from his practice, the practice closes down and he thus never employs a locum. In fact the only professional contact which he appears to have with other practitioners is at medical conferences or local meetings of medical practitioners which he said he does attend fairly regularly. In these circumstances he appears to have developed a confidence in his ability to practise medicine based, to a large degree, on anecdotal experience and that he has an inclination, which in the Panel's opinion is potentially unsound, to totally deviate from traditionally accepted and scientifically based forms of practice, eg. his use of antibiotics for treatment of CSF and procedures such as DHEA. The Panel is also concerned that he should be so confident in his own judgement, that he is prepared to use a drug for treatment of patients which is not available in Victoria and only obtainable from a pharmacist in Bondi.

Findings

[66] For these reasons the Panel finds that Dr Lai has engaged in unprofessional conduct within the meaning of paragraphs (a) and (b) of the definition of that term contained in section 3(1) of the Act namely that the standard of the treatments prescribed is of a lesser standard than that might reasonably be expected of a medical practitioner by members of the community and his peers. It is not satisfied that Dr Lai’s behaviour falls within the other paragraphs of the definition of unprofessional conduct referred to in the Notice of Formal Hearing.

[67] The Panel has considered whether it should categorise Dr Lai’s conduct as unprofessional conduct of a serious nature or not of a serious nature. “Unprofessional conduct of a serious nature”, a finding open to the Panel under section 45A(1)(a) of the Act, is not specifically defined. Some guidance, however, is to be found in superior court authorities. For instance, Kellam J. the President of the Victorian Civil and Administrative Tribunal in Parr v Nurses Board of Victoria24 stated: “In my view the question of whether or not a nurse had engaged in unprofessional conduct of a serious nature must depend on the facts of each case.” He further stated:

 “Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.”

24Unreported, VCAT, 2 December 1998.

[68] In addition, Lord Mackay of Clashfern for the House of Lords in Gee v General Medical Council25 observed that persistence in unprofessional conduct is a factor to be taken into account in determining whether professional conduct should be designated as “serious”:

“Professional misconduct on a single occasion such as a failure to make a proper record of treatment for charging purposes might not amount to serious professional misconduct and yet if such failure were persisted in this might make the failures amount to serious professional misconduct: see, for example, Felix v General Dental Council [1960] AC 704, 721.”

25[1987] 1 WLR 564 at 569-570.

 [69] The Panel finds that Dr Lai was oblivious to the potential harm to his patients and to the community at large that could result from indiscriminate wide use of antibiotics where there is no bacterial infection to be treated. The Panel finds that Dr Lai’s poor keeping of medical records and his unjustified and indiscriminate use of antibiotics constituted a substantial departure from the standards which might be expected of a registered medical practitioner.

[70] The Panel also finds that there was an intended persistence in the unprofessional conduct in that Dr Lai had total disregard for, and continues to be defiant of, all accepted, well established and scientifically tested medical practices. Such entrenched attitudes and persistent conduct have a real and potential likelihood of putting his patients and the public at risk. If the Panel was confident that Dr Lai was likely to radically change his behaviour in respect to his manner of record-keeping or on the basis in which he prescribes antibiotics and all the more unorthodox methods of treatment employed, the risk he offers to the community would not be as great. However, in view of Dr Lai's long-standing practices in these areas of concern, and his continued defiance of well established and tested medical opinion in these issues, and because a serious risk has been demonstrated to the community both in the past (through his poor record-keeping and the potential of creating widespread antibiotic resistance in his patients and in the community) and for the future, the Panel finds his conduct to be unprofessional conduct of a serious nature,

[71] The Panel therefore finds pursuant to section 45A(1)(a) of the Medical Practice Act 1994 that Dr Lai has engaged in unprofessional conduct of a serious nature.

Determinations

[72] The Panel, after hearing submissions from Counsel Assisting and Counsel for Dr Lai, makes the following determinations pursuant to section 45A(2) of the Act:

(2) medical record keeping;
(3) the value of evidence-based medicine in medical practice: and
(4) appropriate antibiotic prescribing.

In relation to this further education program, Dr Lai is to have the details of this education program approved by the Deputy CEO of the Medical Practitioners Board of Victoria. He is also required to provide evidence to the Board that he has complied with this program of further education on or before 1 July 2004.

Dr G D Kerr
Chairman

This page was posted on October 4, 2008.

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