Covid 19 Does Not Excuse Poor Patient Assessment Or Record Keeping

A doctor was found guilty of unsatisfactory professional conduct and misconduct for his treatment of patients, self-prescription practices and inadequate record-keeping regarding his provision of vaccination exemption certificates during the Covid 19 pandemic.

In issue

• Complaints were raised regarding Dr Andrew Foong’s conduct between July and October 2021 including his provision of Covid 19 Vaccine Contraindication Certificates, prescription of Ivermectin to patients, adequacy of his clinical notes, his self-prescribing and self-treating.

The background

The Health Care Complaints Commission (the Commission) sough disciplinary findings and consequential orders in relation to Dr Andrew Foong’s (the practitioner) practice of medicine and alleged that he is guilty of unsatisfactory professional conduct and professional misconduct pursuant to s 139B(1)(a) and s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law). The allegations related to Dr Foong’s conduct between July and October 2021, where he provided permanent or temporary Covid 19 Vaccine Contraindication Certificates, prescribed Ivermectin to patients. The Commission also alleged that Dr Foong’s clinical notes were inadequate and that he engaged in self-prescription and self-treatment against the Code of Conduct for medical practitioners.

The practitioner urged the Tribunal to take into consideration the unprecedented nature of the pandemic which created a stressful practicing environment for the practitioner. During the Covid 19 pandemic, Covid 19 vaccinations were made mandatory for health workers under the Public Health (Covid 19 Vaccination of Health Care Workers) Order 2021 pursuant to the Public Health Act 2021 (NSW). Exemptions were granted to health care workers with a medical contraindication to the vaccination and who accordingly had obtained a Covid 19 Vaccine Medical Contraindication certificate.

The Complaints were made at the time when the practitioner was working from home and conducting telehealth consultations. Where new patients sought an appointment to obtain a vaccine exemption certificate, he required them to provide a health summary from their previous general practitioner.

The decision at trial

Complaint 1 contended that the practitioner had engaged in unsatisfactory professional conduct in that the conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a) National Law). Specifically, it was alleged that the practitioner failed to perform an adequate assessment of the relevant patient history prior to issuing a permanent Covid 19 vaccination exemption and further, that he issued the certificate in circumstances where it was not appropriate to issue one as the relevant criteria was not met. The practitioner issued exemption certificates and noted the relevant medical contraindication as 'confidential medical conditions' in a majority of cases. In his defence, the practitioner submitted that he believed the guidelines for issuing such a certificate were not 'set in stone' but rather were open to his clinical interpretation and granted him the discretion to provide an exemption where he assessed it was reasonable in the circumstances.

The Tribunal found that for a number of his patients, there were records of the patients’ concerns and reasons for attending but no record of any assessment of the patients’ history nor diagnosis of the patients’ presenting condition. The patients he saw during this time presented with a variety of conditions ranging from anxiety to autoimmune diseases. Where the practitioner diagnosed or assessed the patient, it was not supported with documented clinical reasoning.

The Tribunal noted that the practitioner stated 'I wrote certificates at that time, outside the advice given by ATAGI (Australian Technical Advisory Group on Immunisation), which was quite clear, and therefore, I would often put them as confidential conditions, but not always.' Regarding a patient with hypertension which he believed put them at risk of side effects from the vaccination, he said, 'if I’d written down hypertension, they were clearly outside the guidelines of ATAGI, and would've been – may well have been rejected by the workplace.'

The Tribunal was 'comfortably satisfied' that the Commission had established that the practitioner was well aware of the strict criteria for exemption provided by the ATAGI guidelines and knowingly and inappropriately issued exemption certificates to patients outside those guidelines. Further, the Tribunal found that the practitioner failed to make an objective assessment of the patient’s history to determine whether the patients’ diagnosis allowed for an exemption and that this conduct fell significantly short of the expected conduct.

Complaint 2 focused on the practitioner’s notes of his consultations with patients who sought exemption certificates, which the HCCC submitted were inadequate. The practitioner submitted that he had felt 'pressured' by his practice to see a large number of patients which prevented him from making comprehensive patient notes. However, the Tribunal observed that the practitioner had the discretion to see fewer patients each day and that he was also able to make notes of the patients’ reasons for not wishing to having a vaccination which contradicted his statement that he did not have time to make a diagnosis and record the basis on which the exemption certificate was being given. Further, for a number of his patients, he prescribed Ivermectin amongst other medications in support of a drug trial but failed to record a discussion with the patients about the fact that it was a trial. The Tribunal found that the practitioner’s patient notes were inadequate and amounted to unsatisfactory professional conduct.

Complaint 3 related to the HCCC’s submission that the practitioner inappropriately self-prescribed drugs, referred himself to specialist practitioners and to further medical investigations including pathology, ultrasounds and Covid 19 PCR tests, all of which breached the Medical Board of Australia's Code of Conduct (2020). The Tribunal rejected the practitioner’s submission that he was under an 'emergency situation' during the Covid 19 pandemic and could not visit his own practice for a prescription. Rather, the Tribunal considered that the practitioner was not limited to his own practice and could have approached any other medical practitioner. Further, the practitioner submitted that the drugs he had self-prescribed were 'trivial' and as such, his conduct did not fall significantly below the expected standard. The Tribunal rejected this argument, pointing out that it was not the contents of his self-prescription but the act of self-prescribing which was the rationale behind the Code of Conduct.

Complaint 4 alleged professional misconduct on the basis that the practitioner provided exemption certificates to patients on the basis that he knew they would not be accepted as medical contraindications. The Tribunal determined that this conduct was of sufficient seriousness to amount to professional misconduct.

Ultimately, the Tribunal found Dr Foong guilty of unsatisfactory professional conduct and professional misconduct.

The proceedings were adjourned for consideration of protective orders.

Implications for you

The Tribunal frequently makes findings of unsatisfactory professional conduct where a medical practitioner has failed to keep adequate patient records. Guideline 10.5 of the Code outlines the characteristics of good record-keeping which includes keeping accurate, up to date and legible records that record relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral and other management in a form that can be understood by other health practitioners.

Further, guideline 11.1 of the Code states that doctors are to seek independent, objective advice when requiring medical care, and should be aware of the risks of self-diagnosis and self-treatment. The 2020 guidelines also now explicitly prohibit the act of self-prescribing.

It is absolutely critical for medical practitioners to be aware of any updates to the Code of Conduct provided by AHPRA to ensure that standards are always being met. This case also highlights, once again, the importance of keeping adequate clinical records and keeping up to date in relation to the requisite standards in this regard.

Health Care Complaints Commission v Foong [2026] NSWCATOD 29

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