Tribunal reprimands medical researcher for professional misconduct

22 Feb 2017

The ACT Civil and Administrative Tribunal (the tribunal) has reprimanded a medical researcher, who was a registered medical practitioner, for professional misconduct and prohibited him for practising medical research for 12 months.

The Medical Board of Australia referred Mr Nicholas Melhuish to the tribunal on the grounds that his multiple breaches of the Privacy Act 1988 and the Health Records (Privacy and Access) Act 1997 (ACT) as well as breaches of Good medical practice: a code of conduct for doctors in Australia (the Code of Conduct), the National Health and Medical Research Council’s Australian Code for Responsible Conduct of Research 2007 (the NHMRC Code) and the ACT Health Research Practice Policy amounted to professional misconduct.

Mr Melhuish wrote to four former patients at the Canberra Hospital in 2013 and 2014 claiming that as a result of research undertaken at the Canberra Hospital, medical treatment details identifiable as belonging to them were available to persons and organisations outside the hospital. Mr Melhuish continued to write to patients making allegations that their medical treatment details were available outside the hospital and accessing patient records without authorisation despite his employer’s direction not to do so after the first letter.

Mr Melhuish did not deny the conduct but disputed that the Code of Conduct, the NHMRC Code or the ACT Health Research Practice Policy applied to him on the basis that he had been employed as a statistician and the conduct did not relate to his practice as an anaesthetist. He argued that there needed to be sufficient connection between the alleged conduct and the medical profession for the codes and policy to apply. He also disputed the application of the privacy legislations to his circumstances.

On 13 April 2016 the tribunal handed down its interim decision on liability. It determined that Mr Melhuish had engaged in professional misconduct as defined in section 5 of the National Law because of various breaches of the Code of Conduct, the NHMRC Code and the ACT Health Research Practice Policy. The tribunal found that these were the relevant standards to be applied to the alleged conduct because Mr Melhuish had been employed on the project as a medical researcher based on his medical training and experience, and that there was a sufficient connection to his practice of medicine.

The tribunal also found that by disclosing personal information and personal health information of patients, which he had accessed as an employee of ACT Health, Mr Melhuish had acted inconsistently with ACT Health’s obligation to comply with Information privacy principle 11 of the Privacy Act 1988 and had breached Health privacy principle 9 of the Health Records (Privacy and Access) Act 1997 (ACT).

The tribunal found the statements made to patients in the letters sent by Mr Melhuish were untrue due to the omission of a critical detail that it was he who was the cause of the dissemination of the information, which demonstrated a lack of clear honesty and integrity required under 11.2.2 of the Code of Conduct. The Tribunal also found he breached 11.1.1 of the Code of Conduct which requires medical practitioners to accord respect and protection to participants of medical research projects. 

Having established liability, the tribunal requested further submissions regarding the appropriate penalty and to consider the question of costs. A further hearing was held on 4 July 2016 and on 26 August 2016 the tribunal handed down its decision.

The tribunal reprimanded Mr Melhuish for his conduct and imposed conditions on his registration, prohibiting him from practising as a medical researcher for 12 months and requiring retraining in medical research ethics, privacy law and part 11 of the Code of Conduct (relating to medical research). He is also prohibited from non-clinical communication with past research subjects and their relatives and from engaging in non-clinical communications with medical research subjects and their relatives in future medical research once the research ban is served. The tribunal also ordered the practitioner to pay the Board’s costs.

The full decision is available on AustLii.