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Older male doctor speaking to two patients

Doctor found guilty of unprofessional conduct for overservicing and not gaining financial consent

Thursday, 15 February 2024

Key messages from the case

Gaining a patient’s informed financial consent for treatment is an important step in the consent process. Doctors should clearly communicate all fees and charges associated with any medical procedure or services provided. Where the patient does not have decision-making capacity, doctors must obtain consent from the relevant substitute decision-maker.

Doctors also have a professional and ethical obligation to ensure that all services are necessary and likely to benefit the patient. It is important that doctors maintain sufficiently detailed records to justify any Medicare item numbers billed and any care or treatment they provided. The following case highlights these points.

Details of the decision

Overservicing

Dr P was accused of charging a patient with impaired capacity for neurology services that were not clinically indicated.

The patient, KW, suffered from dementia and had a diagnosis of probable Lewy Body Disease. He was an inpatient at a private hospital, and had been charged fees by Dr P for 78 consultations over a period of 87 days including 14 days when Dr P was on leave. There were complicating issues, not related to Dr P’s care, that meant KW’s stay in hospital had been extended.

It was unclear whether all services Dr P charged for had in fact been provided. Dr P was unable to provide contemporaneous records. Hospital notes made by junior doctors did not indicate he had been present on every occasion for which he had billed the patient.

There was no criticism of the care Dr P had provided and there was no evidence KW had experienced harm from that care.  Dr P was entitled to bill KW as a private patient. The tribunal acknowledged that Dr P was working to ensure KW was placed in a suitable care facility and not inappropriately extending KW’s admission as a way of increasing his billing.

The tribunal noted that the lack of records did not help Dr P’s defence, but concluded that there was no proof Dr P had committed fraud in claiming for consultations that had not taken place.

However, based on expert evidence, the tribunal found that, given the patient’s condition was generally stable and that they were receiving comprehensive and regular medical care from the hospital staff, there was no clinical need for Dr P to have attended KW daily. It found, and Dr P ultimately conceded he had charged KW for services that were not clinically indicated and not reasonably required for KW’s wellbeing.

Capacity and financial consent

It was claimed that Dr P had charged excessive fees. However, the tribunal accepted that the fees a medical practitioner set for private patients were a matter for their own judgement, provided that each patient was capable of providing informed financial consent.

It was found that Dr P was required to obtain informed financial consent before charging the fees he did.

In this case, Dr P had assessed KW as lacking capacity. The patient could therefore not provide financial consent and in light of this Dr P was required to seek consent for the additional fees from the patient’s substitute decision maker. The tribunal found he had not done so. Failing to ensure his patient, or their substitute decision maker, was properly informed about his fees and charges constituted a breach of the Code of Conduct.

Medical records

In the absence of clinical notes to explain why the services were warranted, the tribunal found Dr P had failed to keep adequate records.

Outcome

Dr P’s conduct was ultimately found to amount to unprofessional conduct for inappropriately charging the patient, including billing Medicare; failing to obtain consent for expenses from the patient’s substitute decision maker; and for failing to adequately document the care he provided to KW.  He was reprimanded and fined $20,000.

Key lessons

Only provide services that are necessary and likely to benefit the patient. Overservicing may expose patients to inconvenience, expense or potential harm in addition to any fees charged for the service. Overservicing is also likely to breach your professional responsibilities to use healthcare resources wisely and may also amount to financial exploitation of a patient.

Other than in emergency situations, you must obtain informed consent to treatment and the costs of that treatment from the patient, or from their substitute decision maker if the patient lacks capacity to consent. You must also provide the patient and/or their substitute decision-maker with enough information about your fees and charges so that they can make an informed decision about whether to proceed with treatment.

Your medical records should be contemporaneous and include enough information to allow another medical practitioner to continue management of the patient’s case. Ensure you include enough details about each consultation to explain and justify the care you provided, the client’s condition and your clinical decision-making. You may delegate record-keeping to a colleague, as long as you follow any rules and protocols of the hospital, or medical service.  

References and further reading

Avant factsheet – Consent: the essentials

Avant factsheet – Substitute decision-makers

Avant factsheet – Medical records: the essentials

Avant factsheet – Medicare compliance

More information

For medico-legal advice, please contact us on nca@avant.org.au or call 1800 128 268, 24/7 in emergencies.

Disclaimers

The case discussed in this publication is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality. The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of its content. 

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