Queensland GP reprimanded after failing to disclose a conflict of interest

18 Jun 2019

A specialist general practitioner from Queensland has been reprimanded and conditions have been imposed on her registration after she failed to disclose a conflict of interest.

The Queensland Civil and Administrative Tribunal (the tribunal) found Dr Valerie Cole had behaved in a way that constituted unprofessional conduct after she involved a patient in a business from which the GP benefited.

The patient had attended Dr Cole in September 2010 for persistent fatigue. During that consultation, Dr Cole recommended USANA products as well as other products, including intravenous vitamin treatment. USANA is a US based manufacturer of health supplements that distributes its products through a network marketing scheme. Associate members of the scheme can purchase products at special prices and earn commissions. Dr Cole was a member of the USANA network marketing scheme and had earnings from her association of $73,431 and $71,457 in the 2010 and 2011 financial years respectively.

The Australian Health Practitioner Regulation Agency received a notification that Dr Cole had facilitated the patient to become an USANA associate. She invited the patient and her patient’s husband to her home to meet with her and her husband to discuss the scheme. In addition, Dr Cole attended other meetings with the patient in 2011 about the scheme, including presenting at a function organised by the patient and the practice's receptionist.

The patient raised concerns about working with Dr Cole to promote USANA products, advising that she wished to maintain the doctor/patient relationship. Dr Cole, the patient and the practice receptionist met to discuss the patient’s concerns and agreed the patient would continue to work with the practice receptionist in respect of USANA products, but this ceased in October 2011. At around the same time, the patient resigned from the scheme and expressed to USANA that she had been 'unethically induced' into joining. Dr Cole's treating relationship with the patient ceased on 31 March 2011.

Dr Cole had previously been cautioned in 2008 by a Professional Standards Panel (the panel) of the Medical Practitioners Board of Victoria about a failure to advise a patient of her financial interest in similar circumstances. At the time, Dr Cole was advised to not allow her passion for USANA products result in inadvertent pressure being placed on patients to purchase expensive products from an organisation with which she has a financial relationship. The panel recommended that she undergo counselling with her medical indemnity insurer around recommending treatments in which she had a financial interest.

Dr Cole admitted breaching the Board's Good Medical Practice Code of Conduct for Doctors in Australia and the Australian Medical Association’s Code of Ethics, however, did not admit that she failed to adhere to the previous caution given by the panel.

The tribunal found there was a clear conflict of interest and Dr Cole's conduct was unethical. However, it considered that while the patient was vulnerable and there was a power imbalance, the exploitation was ‘at the less serious end of the cases.’ It also considered that there was no evidence of any effect on the medical care received by the patient.

The tribunal did not consider the previous action taken by the panel to be an aggravating factor in respect of determining the seriousness of Dr Cole's conduct, but it did consider it a relevant factor in determining sanction.

In deciding the appropriate sanction, the tribunal referred to the following factors:

• Dr Cole had previously been dealt with by a panel for not fully disclosing her conflict of interest in recommending USANA products 
• Even though Dr Cole had received counselling, she was before the tribunal for conduct involving a failure to fully disclose her conflict of interest which suggested that she still failed to understand appropriate boundaries, and 
• Dr Cole took the step of cancelling her USANA membership, as well as directing those working at her practice to cancel their memberships, which was evidence of insight.

The tribunal reprimanded Dr Cole for behaving in a way that constituted unprofessional conduct, placed conditions on Dr Cole’s registration to remain disengaged from the scheme for a period of 12 months and ordered her to pay the Board's costs.

The decision is published on the Austlii website.