A Melbourne gastroenterologist has failed in a bid to overturn conditions imposed by the Medical Board of Australia, including an order that he undergo breath tests for alcohol before and after every period of endoscopy practice.

The Victorian Civil and Administrative Tribunal denied the application by Dr Edward Robert Eaves to rescind the conditions, subject to a six-month review.  It also rejected his request for a “pseudonym” to protect his identity.

The tribunal heard that Dr Eaves was investigated by the Board after an anonymous caller expressed concern in 2019 that he could cause serious harm to patients.

The notification alleged the doctor had addictions to alcohol and Valium, had come to work smelling of alcohol but not been permitted to work on those occasions, and said that his “health issues” flared up every three months or so.

“The caller stated that the practitioner’s health is affecting his practice as he often comes to work in a bad state and then tells staff that he cannot do the work that day. Patients need to be constantly rescheduled or another practitioner has to fill in for him. He has also left patients who have been prepared for the procedure stating that he cannot do the work. His performance is placing added strain on the nursing staff and some [anaesthetists] have refused to work with him,” the notification stated.

According to the 2019 notification, the physician was working three days a week at the time performing colonoscopies and gastroscopies at a Melbourne clinic, his primary workplace, at which he is a director.  It also said he had been the subject of previous notifications to the Board.

In various responses, Dr Eaves said the notifications were vexatious and malicious and denied having an alcohol use disorder.

The tribunal acknowledged the need for caution where notifications were made anonymously and a practitioner asserted malice.

In its judgment, it noted a lack of proof that Dr Eaves had ever practiced while intoxicated or caused harm to patients and said there was no evidence of an addiction to Valium.

Specifically, it cited evidence from addiction specialist Dr Matthew Frei, who saw Dr Eaves after an earlier anonymous notification in 2017 related to his alcohol use and again after the 2019 notification.

Dr Frei said that Dr Eaves had evidently not worked while impaired, or behaved unprofessionally, or put patients at risk, and no procedures had been ceased because of concerns about Dr Eaves’ capacity. Audits had shown that the quality of his work matched appropriate standards and benchmarks.

“Dr Frei said that Dr Eaves may be considered to have an alcohol use disorder of a relapsing and remitting nature. The diagnosis was based on the history and biochemical findings,” the tribunal said.

“While alcohol use may be a factor in Dr Eaves’ reliability and efficiency as a private practitioner (along with physical ailments and episodes of low mood), Dr Frei said this was not an alcohol-related impairment that detrimentally affected Dr Eaves’ ability to practise his profession. At this stage there were inadequate grounds, in Dr Frei’s view, to require formal workplace breath testing,” it said.

But Dr Frei’s reference to “capacity” essentially referred to the capacity to perform procedures, while the objective of the National Law was to protect the public, the tribunal said in last week’s ruling.

“We reasonably believe that Dr Eaves has or may have a disorder (alcohol use disorder) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession – that is, to perform endoscopies. In short, we reasonably believe that Dr Eaves has or may have an impairment for the purpose of section 178 of the National Law.”

Judgement

Legal counsel for the Board also highlighted Dr Frei’s remarks to the effect that alcohol typically impairs frontal lobe functioning and therefore affects judgement and rational decision-making which may lead to impulsivity, lack of insight and poor decision-making.

The Board emphasised that Dr Eaves’ practice involved surgery, where the risks of impaired functioning were acute.

It also cited Dr Eaves’ reported history of erratic work attendance, which  Dr Frei had suggested may be related to health problems that include psychological and physical sequelae of alcohol use and his “poor” insight into his alcohol use.

“We consider that Dr Eaves’ statements to us at the hearing – to the effect that he is a “social drinker” and that he has never had alcohol use disorder – demonstrate a concerning lack of insight,” the tribunal said in the judgment.

“According to experts, the prognosis is uncertain.”

VCAT confirmed the conditions on Dr Eaves’ registration should remain, to be reviewed after six months. They require breath tests within 30 minutes of each practice session and undertakings to attend a treating GP and mental health practitioner.

Regarding Dr Eaves’ request for anonymity, the Board did not “consent to nor oppose” the application, the tribunal said.

Dr Eaves’ solicitor argued that the proceeding concerned health information, a recognised category of confidential and sensitive information, and said other health practitioners may be deterred from seeking a review of Medical Board decisions unless a pseudonym order was made.

The tribunal found there were insufficient grounds to grant anonymity.

“Dr Eaves has not been deterred from applying for review. He did not seek the pseudonym order until months after he applied for review, and after the hearing had taken place,” it said.

“There is a lack of evidence or sufficient credible information that Dr Eaves’ safety or life would be at risk without the order being made. If Dr Eaves’ concern is really embarrassment, distress or invasion of privacy, that is insufficient to warrant the making of the order.”