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High Court of New Zealand Decisions |
Last Updated: 19 November 2018
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INTERIM NAME SUPPRESSION APPLIES TO THE APPELLANT. AN
APPLICATION FOR FINAL NAME SUPPRESSION HAS YET TO BE RESOLVED. THE NAMES OF
DR
A’S PATIENTS
AND FAMILY HAVE BEEN SUPPRESSED.
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CIV 2018-485-81
[2018] NZHC 1623 |
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BETWEEN
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A
Appellant
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AND
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A PROFESSIONAL CONDUCT COMMITTEE
Respondent
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Hearing:
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28-30 May 2018
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Counsel:
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M F McClelland QC and K Wills for Appellant H Wilson and A James for
Respondent
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Judgment:
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3 July 2018
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JUDGMENT OF SIMON FRANCE J
[1] Dr A is a doctor conducting a rural practice in the North Island. He also assists at a skin clinic. The Health Practitioners Disciplinary Tribunal (the Tribunal) found him guilty of professional misconduct in relation to numerous charges. He appeals the findings and the penalty.1 In general terms, and ignoring the specifics, the charges are:
A v A PROFESSIONAL CONDUCT COMMITTEE [2018] NZHC 1623 [3 July 2018]
(a) prescribing excess amounts of the controlled drug pethidine to a specific patient;
(b) improperly treating and prescribing drugs for family, colleagues and other persons; and
(c) ordering excessive amounts of the drug diazepam (Valium) for the purpose of diverting or misusing the medication.
[2] The findings were a mixture. The charges regarding pethidine and diazepam were found to be established, and meriting sanction. Likewise, for a charge of prescribing drugs to his wife. Other than the occasional particular, all other allegations were held to have been established but not individually meriting sanction. However, there was a conclusion that cumulatively these allegations also merited sanction.
[3] There was an extensive agreed summary of facts in which almost all the prescribing, treatments and the ordering of medicines was accepted. The debate was around the propriety of these actions.
Approach to the appeal
[4] Counsel were apparently agreed on the correct approach, but there were nevertheless differences at least in emphasis. The situation is however clear. Section 109(2) of the Health Practitioners Competence Assurance Act 2003 (the Act) states that it is an appeal by way of rehearing. This means that the appellate court is to form its own view, although an appellant must still show the decision under appeal is wrong.2
[5] The decision under appeal follows the hearing of evidence at which the Tribunal had the opportunity to observe the witnesses. Here also the Tribunal is an expert body and deference is appropriate in terms of its judgments on matters such as the appropriateness of actions and treatments, and the seriousness of any breach. The
Court obviously is not expert in such matters, although this should not be overstated both because there will be evidence on the point and the legislation, by virtue of making this a general appeal, confers that appellate task on the Court.
General comments
[6] The appeal is advanced on the basis that the Tribunal has made a number of fundamental errors such that the decision cannot be allowed to stand. It is then submitted that given the paucity of the evidence that was presented, and the relatively low-level nature of some of the allegations, the Court should not refer the matter back. Separately, it is submitted that the evidence on Charge 7 (which is the diazepam charge) was insufficient and that charge should be dismissed.
[7] The alleged fundamental errors concern the burden of proof, the supplementing of the evidence with the Tribunal’s own knowledge, the lack of any reasons on crucial aspects of the charges such as whether the conduct amounts to negligence or malpractice, the inadequacy of the approach taken by the Professional Conduct Committee’s (PCC) expert witness, and the allegedly incorrect decision to hold that a series of actions which were found individually not to merit sanction were cumulatively worthy of sanction.
[8] In this section I address the challenges concerning the burden of proof, the use by the Tribunal of its “own independent expertise” and the adequacy of the reasons. The other topics will be addressed through a consideration of the charges.
Burden and Standard of Proof
[9] The Tribunal has made errors concerning the burden of proof. They are overt in some charges but more generally impact on the Tribunal’s assessment of Dr A’s evidence.
[10] At [14] of its judgment, in its overview of the general principles, the Tribunal observed:3
3 Findings decision, above n 1 (emphasis added).
14. The onus of proving the Charges lies on the PCC. The standard is the balance of probabilities. The more serious the allegation, the higher the level of proof required. That is not, however, the complete answer. Where a practitioner raises facts or principles purportedly justifying his actions where those actions in themselves appear to be a breach of standards, there is a measure of requirement for the practitioner to establish that justification. It is not enough for the practitioner to allege matters of justification and then say it is for the prosecutor to disprove these; if that is relied on, it must be established and the same standard applies, the balance of probabilities.
[11] Mr McClelland QC first queries where the Tribunal refers to “the higher the level of proof”. This has elsewhere been held to be an error since the standard remains unchanged – balance of probabilities.4 The error is not particularly troubling, as it is just a mis-statement of the principle that as the seriousness of an allegation rises, so does the cogency of the evidence required to meet the static standard of balance of probabilities.
[12] The balance of the paragraph is of greater concern. The position is clear, as the Tribunal notes at various points, that the onus remains with the prosecution. This paragraph does not reflect that but rather places an onus on Dr A to prove his explanation. Nor is this a slip of the pen as under Charge 7, the diazepam charge and arguably the most serious of the charges, the Tribunal concluded:5
The Tribunal finds that [A] has not discharged the onus on him of justifying the quantities of diazepam that he ordered.
[13] That is an error. More generally, there is confusion throughout the decision about so-called tactical or evidential onuses on the one hand, and this question of where the burden of proof lies on the other. I consider in this context the idea of an evidential onus adds little since it is well established that a health professional has a professional responsibility to co-operate. This will almost inevitably be given effect to by the professional providing an explanation and giving evidence. Any evidential onus is thereby met. The task of the Tribunal is then to weigh all the evidence available in determining if the charge is made out.
5 Findings decision, above n 1, at [255].
[14] The confusion I see in [14] comes through in various ways. The direct error on Charge 7 has been noted. But on Charge 1, the pethidine charge, there is a repeated criticism of Dr A for not calling the patient to corroborate Dr A’s evidence that the treatment was successful. It can of course be legitimate to note the absence of evidence or corroboration, but as will be discussed, the concern here is that the actual onus is being shifted. Of the fifteen passages criticised by Mr McClelland under this topic,6 nine are comments by the Tribunal on the absence of evidence from the practitioner, even though he did himself testify. That focus by the Tribunal on the lack of defence evidence reinforces a concern about the extent to which the Tribunal’s error on the burden of proof has permeated the whole judgment.
[15] There are passages where the Tribunal correctly identified its task:
241. The submissions for [A] rightly referred to the onus lying on the PCC and to the fact that this Charge is a serious one. This means that there is a higher onus on the PCC because of the severity of the Charge. In considering any evidence to support [A’s] explanation for ordering these quantities, the Tribunal must weigh up those explanations in the context of the severity of the Charge that has been brought against [A].
Yet, that paragraph is preceded by:7
The onus is not on him to prove or disprove the Charge against him, that is on the PCC. When the facts proven by the PCC appear to support the Charge, however, and [A] puts up explanations for the factual position, the onus shifts to a degree. The Tribunal must carefully consider [A’s] explanations to see whether they are sufficiently convincing to explain what is otherwise an unacceptable situation of oversupply of diazepam.
[16] The idea of the onus shifting “to a degree” is unhelpful. If it is a reference to an evidential onus, Dr A has discharged that by testifying. All an evidential onus amounts to is a requirement to put an explanation or defence in issue. If it is a reference to the burden, it is an error.
6 At [14], [23]–[25], [44], [66], [70]–[71], [84], [86], [240]–[241], [246], [253] and [255].
7 At [240] (emphasis added).
The expertise of the Tribunal
[17] It is well established that a specialist tribunal may, and indeed is expected to, assess the evidence using its professional knowledge and experience.8 Mr Wilson provided various examples of where courts have recognised the role of the Tribunal’s expertise:9
(a) assessing and evaluating the seriousness of the conduct the subject of the complaint;
(b) formulating standards of appropriate conduct for practitioners; and
(c) making value judgments or conclusions about whether particular conduct brings discredit to the profession.
[18] Mr McClelland, as one would expect, accepts these but submits the Tribunal has gone further and supplemented the evidence with its own knowledge. This is submitted to be wrong, and to be a breach of natural justice. The purpose of a hearing is to allow the parties, and particularly the defendant, to test the evidence on which the decision is based. The respondent for its part accepts the proposition that the Tribunal cannot supplement the evidence with its own knowledge but disputes that has happened. The following passage from Medical Law in New Zealand captures the position:10
All members are entitled to bring their knowledge and experience of life to bear in judging the evidence. Health professional members are entitled to take into account their professional experience and knowledge in assessing the evidence, including the expert evidence, adduced during the hearing. They are not, however, entitled to supplement that evidence with extrinsic evidence drawn from their own knowledge.
8 Imbeau v Dental Council of New Zealand HC Rotorua AP40/98, 4 February 1999 at 16.
9 These are sufficiently indisputable to not require citation of authority.
10 Joanna Manning “Professional Discipline of Health Practitioners” in PDG Skegg and Ron Paterson (eds) Medical Law in New Zealand (Brookers, Wellington, 2006) 613 at [23.3] (footnote omitted).
[19] It is a fine line at times between bringing personal expertise and knowledge to bear on the assessment of evidence on the one hand, and making one’s personal knowledge the actual evidence on the other. I consider there is sufficient risk here of the Tribunal having crossed that fine line to at least identify it as a point to bear in mind when evaluating the case.
[20] The Tribunal began with a statement about the role of its expertise. It is a statement capable of being read as illustrating both sides of this dispute:11
21. The Tribunal takes note of the Statements relied on by the PCC but accepts that these are not determinative of the issues; and that primarily the Tribunal must reach its decision on the basis of any relevant and reliable expert evidence and the Tribunal’s own assessment based on the expertise which it has and for which individual members have been appointed to the Tribunal.
[21] The potential concern is that the Tribunal’s own knowledge is being seen as an item available in addition to the relevant and reliable expert knowledge. If so, that does raise the difficulties that counsel cannot know what the extra knowledge is, nor test it. On the other hand, the passage could be read as merely saying the Tribunal’s expertise is relevant to the assessment of the reliable and relevant evidence that has been presented to the Tribunal. That is orthodox.
[22] The uncertainty about the Tribunal’s approach arises again under Charge 1 where it said:12
... Dr Hancock [the expert witness] said that the quantity of pethidine prescribed, averaging more than 2 tablets per day, was in her opinion “excessive and unsafe”. The Tribunal makes its own assessment from its own members’ expertise that this is so.
[23] This illustrates the fine line, since in assessing the probative value of Dr Hancock’s evidence the Tribunal is able to have regard to their own experience. Although the repeated emphasis by the Tribunal on its own expertise is a concern, I consider this passage can be read as reflecting the orthodox permissible approach of assessing the value of evidence through the lens of the Tribunal’s own expertise.
11 Findings decision, above n 1 (emphasis added).
12 Findings decision, above n 1, at [63].
[24] The same, however, cannot be said of this:13
The Tribunal has no hesitation in finding both on the evidence and on its own independent experience that pethidine in the quantities [prescribed] ... had the potential to compromise [P’s] health and safety.
[25] There are other examples. At one point, the Tribunal talks of having regard to the expert’s evidence, to the Medsafe Data sheet, and to the Tribunal’s own professional experience;14 and later it says, under Charge 7, that its conclusion is reached “both on the evidence and on the independent experience of the professional members”.15
[26] It is difficult to avoid the conclusion the Tribunal has not limited itself to deciding the case based on the evidence presented by the parties. It is a fundamental requirement of natural justice that this be done. It has been necessary to dwell on the matter in order to emphasise the point. How significant an error it is in terms of the actual decision is less clear. If, on each occasion when the Tribunal crosses the line, there is in fact evidence on the point that is consistent with the Tribunal’s experience, then logically the Tribunal’s assessment would be the same if it had approached the evidence correctly.
Failure to give reasons
[27] As is often the case, this broad allegation has a specific focus. Obviously, the Tribunal did issue a reasoned judgment. The complaint is that on many important aspects there are no conclusions or reasons. If that is correct, then the task of the appellate court is not assisted by an understanding of why the Tribunal concluded as it did. This in turn means less deference on these matters is appropriate. Further, the more important observation is that it is important for the parties and the integrity of the decision for reasons to be given on key aspects. It is also important given the Tribunal’s task of setting standards.
13 At [98] (emphasis added).
14 At [94].
15 At [239] (emphasis added).
[28] In order to understand the first aspect of the appellant’s complaint, it is necessary to set out s 100(1) of the Act:
100 Grounds on which health practitioner may be disciplined
(1) The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
(c) the practitioner has been convicted of an offence that reflects adversely on his or her fitness to practise; or
(d) the practitioner has practised his or her profession while not holding a current practising certificate; or
(e) the practitioner has performed a health service that forms part of a scope of practice of the profession in respect of which he or she is or was registered without being permitted to perform that service by his or her scope of practice; or
(f) the practitioner has failed to observe any conditions included in the practitioner's scope of practice; or
(g) the practitioner has breached an order of the Tribunal under section 101.
[29] The present charges were all laid as breaches of either paras (a) and (b) or both. Those provisions provide that a practitioner is guilty of professional misconduct if their conduct:
(a) amounts to negligence; or
(b) amounts to malpractice; or
(c) brings or is likely to bring discredit on the profession.
[30] The authorities establish that professional misconduct requires a two-stage approach.16 First, it must be determined if the conduct amounts to one of the three options just identified. In determining whether it is negligence, or malpractice, it is necessary to bear in mind that it is not every error that constitutes negligence or malpractice. The departure from standards must be “sufficiently serious” to merit finding the case established.17 The third option, discredit on the profession, is defined as conduct which reasonable members of the public, informed and with full knowledge of all the factual circumstances, could reasonably conclude lowers the reputation and standing of the profession.
[31] If the conduct is held to amount to one or more of these three options, the second stage requires an assessment of whether the failures are of sufficient severity to warrant a disciplinary sanction for the purposes of protecting the public or maintaining professional standards.
[32] The appellant first notes that the Tribunal did not in its general remarks set out the standards or tests for negligence and malpractice. However, of itself this is no moment. The Tribunal can be expected to know what the relevant standards are. It did set out the test for bringing discredit.18
[33] The second complaint is that on many occasions the Tribunal did not identify which of the three options it found established under the first-stage analysis. This is correct for some charges:
(a) on Charge 1 the conduct was held to constitute all three. This conclusion relates both to the charge in general, and to all but one of the particulars;
(b) Charge 2 involved three particulars. The Tribunal concluded it was made out on the facts but not meriting sanction. It was not identified which of the three options is made out;
16 McKenzie v Medical Disciplinary Practitioners Tribunal [2004] NZAR 47 (HC) at [55]–[71];
Martin v Director of Proceedings [2010] NZAR 333 (HC) at [9]–[33]; and Cole above n 2, at [37].
17 Sufficiently serious is the term used by Manning, above n 5, at [23.6.5].
18 Findings decision, above n 1, at [12].
(c) Charges 3 and 4 were dealt with together. Charge 3 concerned colleagues at the skin clinic. Charge 4 related to the rural practice. The Tribunal’s conclusion on these matters was that “there has been a breach of standards but not sufficient to warrant disciplinary sanction and therefore not misconduct”.19 The implication is that the Tribunal thereby concluded step one is met. This is reinforced at the end when these charges formed part of a cumulate misconduct finding. However, which of negligence, malpractice or discredit was found is not said;
(d) Charge 5 related to prescribing to family members. These are Dr A’s wife, son, daughter and mother-in-law. Concerning his wife, the finding was that the conduct satisfied all three options. The conclusion concerning the other family members mirrored that on Charges 3 and 4
– not of sufficient severity to warrant sanction. However, here the events concerning the other three family members though not of sufficient concern individually, were considered to merit sanction cumulatively. Again, there was no identification of which of the three options was found established;
(e) Charge 6 related to further inappropriate prescribing to two persons. Concerning both persons the charge “was made out” but did not merit sanction. Again, however, these conclusions were factored into the cumulative sanction decision. As with the previous charges, there was no identification of which of the three options was made out;
(f) Charge 7 was a charge of excessive ordering of diazepam, with a further allegation that the excessive ordering was for the purpose of diverting the drug elsewhere, or of misuse. The charge was found proved and held to constitute all three options.
19 At [158].
[34] To summarise therefore, Charges 1 and 7 were held to be established as all of negligence, malpractice and bringing discredit. So was one particular of Charge 5 – the allegation concerning Dr A’s wife. In all other cases, the charge and particulars were held not to merit sanction, but were joined cumulatively to amount to a finding of professional misconduct. For Charge 5, the actions towards the remaining three family members taken together merited sanction. For Charges 2, 3, 4 and 6 the combined activity merited a sanction. Other than for 1, 7 and that part of 5 that concerns Dr A’s wife, there was no identification of which of negligence, malpractice or discredit the conduct amounted to. For 1, 7 and that part of 5 that concerns Dr A’s wife, there was equally no individual analysis – just a statement that the conduct amounted to all three options.
[35] On behalf of the Professional Conduct Committee, Mr Wilson submits it is important not to overstate the reasons obligation on the Tribunal, which is not a court.20 Further, there is no requirement to identify which of the options it has found established. In A v The Dentists Disciplinary Tribunal, a similar criticism about the lack of differentiation (under a different scheme) was made. Neazor J observed:21
A disciplinary tribunal provides adequate material in its decision for the practitioner, and for the Court on appeal, if it sets out its findings on the facts and its determination whether on those facts the practitioner’s conduct fell below the proper professional standard in respect of the matters referred to in s 54(1)(b) and (c) [of the Dental Act 1988] and whether a sanction should be applied. It is not incumbent on the Tribunal in every case to expand its decision to explain why it believes a sanction should be applied; it is for the Tribunal to decide in each case if it is necessary to embark on such an exercise.
Of interest there, Neazor J observed, and with respect I agree, that less is to be expected where the conclusion is that no sanction is merited. On its face that was the case here and had matters remained at that, the challenge would seem to lack strength. However, the reality is that in the end every charge and particular was held to merit sanction, most by the cumulative effect route.
21 A v The Dentists Disciplinary Tribunal HC Napier AP12/95, 11 February 1997 at 14.
[36] I accept that generally negligence will also be malpractice which seems the broader concept.22 It has been noted these two terms are often used interchangeably. The concern, I consider, is not so much in differentiating between these, but in not articulating what feature of the conduct makes it sufficiently serious to merit the label of malpractice. In some cases, it will be self-evident, but in many not so. For example, some of the particulars included poor note keeping of certain events, or prescribing on the wrong form where the correct form was later provided. These are not self-evidently of sufficient seriousness to constitute conduct satisfying one of the three options under the first stage. Accordingly, at least brief analysis of why in the particular case the conduct constituted malpractice, if that is the conclusion, should be provided. It is important to keep in mind the standard setting role of the Tribunal. This is not achieved without some identification of the key features that led the Tribunal to consider there was a breach of sufficient seriousness.
[37] Concerning the cumulative effect aspect, no reasons were given. It is merely said that those where the case was made out but individually did not merit a sanction, cumulatively they do so. It may be that this is just a product of the numbers – for Charges 2, 3, 4 and 6, there are obviously four charges but also within those numerous particulars. Probably it is the case that the Tribunal thought that so many instances constitute a situation needing a response. But if so, then the prior step of how the case is made out becomes more important since the practitioner is in fact being held to account for the breach.
[38] In terms of the appeal I am of the view that to varying degrees these three challenges are valid. The most important is that the Tribunal has made significant errors in relation to the burden of proof. I also consider it has failed sufficiently to explain its conclusions in relation to why on several charges the “case is made out” and related to this, its reasoning on the cumulative charge. I also consider it clear the Tribunal has misunderstood the correct use of its own experience, but I am less sure this has had any actual impact.
[39] Against that background, I turn to the charges and the issues arising.
22 See the discussion in Manning, n 5, at [23.6.5].
Charge 1 – overprescribing pethidine to patient P1
[40] The charge reads:
Particulars
in providing medical care, prescribing medicines, and/or recording consultation notes in the manner set out in paragraph 1(a) above, [A’s] conduct was contrary to accepted standards of practice, and/or had the potential to compromise the health and safety of [P1], and/or was in breach of the Medical Council’s statements on ‘Good Medical Practice’ (including
paragraphs 2, 5, 6, 7, 9 and 10), and/or ‘Good Prescribing Practice’, and/or ‘Prescribing Drugs of Abuse’, and/or ‘The maintenance and retention of patient records’, and/or ‘Providing care to yourself and those close to you’.
[41] The general circumstances were that P1 was a long time patient of Dr A (now for almost 30 years). In 1994 P1 suffered an incapacitating back injury. He was confined to bed and a few years later his marriage collapsed. P1 seemingly became depressed, and reclusive, spending much time in bed.
[42] Dr A treated P1 for his various issues, but little assisted him with the back pain. In 2011, Dr A saw P1 at a social function and noted the pain he was in. He decided a new approach was needed to get P1 more mobile. An exercise regime was implemented but it became clear over time it would not succeed unless P1 had stronger pain relief. In January 2012 Dr A trialled P1 on pethidine.
[43] As it happened, and what led to the charges, was that the “trial” lasted almost three years over which time P1 was prescribed over 2,000 pethidine tablets. It is common ground that generally pethidine is seen as a drug for short term use because of its addictive qualities. Of this quantum Dr A commented:
...
[44] There were perhaps three key aspects to the charge against A. First, the quantity of the drug and the period of time over which it was prescribed. Second, the manner of prescribing, where there were several concerns. The default prescription is 30 days, with 10 days first made available, followed by two repeats. Instead of following this, Dr A prescribed lesser amounts, e.g. nine pills with repeats, and did so on numerous occasions. This made it difficult for the pharmacist to monitor. This was worsened by the number of occasions on which Dr A allowed P1 to collect his repeat early. Dr A also prescribed in unorthodox ways – often by telephone with P1 then arriving almost immediately following the call. The third key aspect was the lack of consideration apparently given to alternative treatment, an allegation based (fairly) on the record emerging from the notes. However, Dr A said he had considered options and there was a plan; his note keeping was poor.
[45] There were two main PCC witnesses – the pharmacist whose pharmacy processed these prescriptions and an expert. Concerning the pharmacist, it was apparent she was concerned throughout this period and said so. This included raising matters several times with A, and twice contacting the relevant person at Medicines Control. The pharmacist said she was often told by Dr A that there was a plan to wean P1 off the drug but more prescriptions came.
[46] I will return to the expert shortly, but it is first convenient to refer to the other evidence. Dr A himself gave a full explanation. His general theme was that he knew P1, he had tried other drugs and treatments, and had tried referrals but nothing was working. Pethidine worked and improved P1’s quality of life. Dr A was aware of the risks of addiction and monitored them, but saw no signs of addiction. He was aware of another patient of his where MedSafe had approved long term use of Pethidine.
[47] Another aspect of Dr A’s evidence focused on assessments he believed had been made by the authorities about the propriety of his treatment of P1. In order to understand this, some background is required. In the early 2000’s Dr A had disclosed to the authorities a pethidine addiction. This resulted in limits being imposed on his practice, and his ability to prescribe. It also involved on-going monitoring. Dr A described the monitoring in his evidence, but a further description is found in a report made by the Health Committee of the Medical Council of New Zealand to the PCC.
[48] The Health Committee detailed the testing of A, and explained its approach to various test results over the years where pethidine was detected in Dr A’s system. The report noted that from 2010 reports had been sought from Medicines Control in relation to Dr A’s prescribing of restricted drugs to his patients. These Medicines Control reports picked upon the on-going prescribing of pethidine to one patient (P1), leading the Health Committee to refer this to Dr Moriarty, the Medical Officer of Health, Medicines Control.
[49] The evidence shows Dr Moriarty then wrote to Dr A requesting an explanation. Dr A provided this the next day, supplemented by two updates over the following month. There was no follow up from Dr Moriarty. The appellant submitted this was relevant evidence about the appropriateness of his actions. Had Dr Moriarty been concerned, one would expect a follow up. I note counsel for the PCC cross-examined Dr A about the accuracy, or perhaps the fullness of the responses he provided to Dr Moriarty. It was suggested he had not given her the full picture.
[50] This various material was produced by Dr A in support of his proposition that his treatment of P1 was well intentioned, not negligent, and successful. He submitted there was considerable external scrutiny that had not at the time raised issues.
[51] The PCC called expert evidence from Dr Sue Hancock, an experienced rural GP who also has several teaching roles. Dr Hancock had taught in the general practice education programme, and examined for the Royal New Zealand College of General Practitioners. Dr Hancock has also held a number of positions within the Royal New Zealand College including being on the Guidelines Committee and Chairing the
Board of Studies. Dr Hancock had not previously provided expert evidence at a hearing such as this, although had given expert evidence in a criminal prosecution.
[52] Dr Hancock reviewed Dr A’s treatment of P1 by reference primarily to the clinical notes. Dr Hancock noted pethidine was recommended for short use and that was her clinical experience of its use. Other deficits involved were:
(a) the failure to examine, at least on most occasions of prescribing;
(b) the failure as evidenced by the notes to consider alternatives;
(c) the absence of a management plan;
(d) the lack of any evidence P1 was advised of the risks;
(e) the continuation of pethidine when P1 failed to keep specialist appointments;
(f) the continuation of prescribing after Dr Moriarty inquired into use;
(g) the haphazard way prescribing occurred; and
(h) the absence of regular three-monthly consultations and the predominance of phone or text contact.
[53] At the Tribunal, Mr McClelland was critical of Dr Hancock’s evidence, and he renews those challenges here. The primary complaint is that Dr Hancock had no regard to matters favourable to A, an approach said to be inconsistent with the role of an expert. The matters identified were the Health Committee/Dr Moriarty events, the personal history of P1 including his long period of immobility, and generally P1’s history prior to 2012 when the pethidine commenced.
[54] There were further criticisms, as one usually gets in these situations, but they are not of themselves of great moment. These two primary criticisms are correct. Dr Hancock did not look to any extent at P1’s previous history, did not discuss the
significance or otherwise of the Health Committee monitoring, and did not consider whether the treatment of P1 was successful.
[55] Dr Hancock’s approach reflects the PCC’s approach to the charge. For example, Dr Hancock accepted she had only been provided with some of P1’s pre-2012 medical notes, because they were not seen as relevant. In many ways, the prosecution and defence were ships passing in the night. Dr A wanted to focus on the appropriateness of the treatment of P1 given P1’s history; the PCC wanted to focus on the appropriateness of prescribing this way regardless of the particular patient’s circumstances. This approach is reflected in the PCC submissions on appeal. In written submissions, the PCC states:23
- 6.16 [A] argues before this Court, as he did before the Tribunal, that he believed he was acting with good intentions and that no harm was caused to the people he treated and/or they had positive outcomes as a result of his treatment.
6.17 There is no clear evidence to support these contentions. For example, there was no independent evidence from another medical practitioner to substantiate the medical outcomes for [P1].
6.18 Second, and importantly, this is simply not relevant to the question of whether or not [A’s] conduct amounts to professional misconduct. [A] has continuously sought to justify his conduct by saying that no harm was caused or positive outcomes were achieved. This is especially true for [P1], where [A] frequently refers to the alleged positive outcome and vast improvement. However, the focus of an objective inquiry into professional misconduct is (and must) be focused on the conduct itself, rather than the outcomes. The purpose of the Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions. In order to achieve this purpose, and maintain professional standards, the Tribunal (and consequently this Court) must focus on the conduct itself and conduct an objective assessment.
[56] The Tribunal’s decision accepts this focus. The Tribunal concluded that:24
The expert evidence from Dr Hancock supports the Tribunal’s independent view that the quantities over the period were excessive and inappropriate.
23 Emphasis added.
24 Findings decision, above n 1, at [83].
[57] The Tribunal specifically noted the fact that others (such as the pharmacist and a practice nurse) were raising concerns throughout this period, and registered concern over the failure of Dr A to insist on P1 obtaining specialist assistance.
[58] There is, in my view, much in the evidence that suggests overall Dr A’s approach to prescribing P1 was not good practice. It is clear that this quantity of pethidine is exceptional, and so one would expect other actions being contemporaneously taken that reflect that P1 is being given an unusually high amount of an addictive drug. As Dr Hancock observes, one would expect a much greater level of face to face interaction, examinations, and a determined effort at trying other approaches. Instead, what one gets it the opposite; telephone prescriptions based on phone calls or texts from P1, constantly allowing repeats to be collected early, an unduly benevolent approach to P1’s reluctance to visit specialists, and it seems a poor effort at keeping proper records of such interactions as did occur, and plans as did exist. Dr A submits the rural context, and P1’s immobility, were relevant to the prescribing pattern and lack of face to face. However, it is in my view a submission that suggests the unusual and risky nature of the course being followed was perhaps not fully appreciated. The priority must be safety.
[59] I am accordingly of the view that there was ample material available to conclude Dr A’s overall treatment of P1 fell below the standards. However, there are aspects of the charge and the Tribunal decision that are of concern.
[60] The concept of “excessive” is problematic when separated, as PCC did, from the particular patient. If it is an allegation that 2,000 pills over almost three years will always necessarily be excessive, then the evidence to support that was not presented. Dr Hancock, an experienced GP, is not the correct witness to verify that sort of claim about the permitted and possible, as opposed to usual, uses of pethidine. If the allegation is that it was excessive for P1, which is how the charge is worded, I struggle with the idea that P1’s own medical history and notes do not need analysis and consideration.
[61] The lack of clarity in the approach results in inconsistencies in the Tribunal decision. As noted, in rejecting Dr A’s evidence, the Tribunal expressly criticise on several occasions the failure of Dr A to call P1. Yet, if the success of the treatment and what P1 thought about it is irrelevant, how would P1 giving evidence make a difference? And if P1 had relevant evidence to give, would not the prosecutor have some role in bringing that about, by whatever method seemed appropriate? I consider the Tribunal’s evaluation of Dr A’s evidence on this charge is accordingly flawed. It wrongly places an onus on Dr A to call P1, while at the same time reasoning that the impact of the treatment on P1 is irrelevant.
[62] I also have some concern over the Tribunal’s use of Dr A’s past history of dependency. Dr A’s past was not part of PCC’s case, yet the Tribunal of its own motion questioned the expert as to whether there could be a link between the quantities being prescribed to P1 and Dr A’s potential personal use of pethidine. It was noted earlier that the monitoring of Dr A had revealed a few isolated occasions of traces of pethidine in Dr A’s system. The medical authorities accepted Dr A’s explanation as to how those occasions happened, yet the Tribunal seemed to be exploring a link that was not being alleged.
[63] Mr McClelland submits that as a result of this his client has been left with an unease that the Tribunal has based its decision in part on this reasoning. There is nothing in the decision to support that except to one small extent. As regards the particular in Charge 1 that alleges inappropriate prescribing, the Tribunal held that Dr A should have been particularly aware of the need for professional diligence because of his own opioid dependence. It is an available point but one that is more relevant to penalty than liability. Notwithstanding the Tribunal is not a court and has a more inquisitorial function, I consider it unfortunate the Tribunal itself raised and explored the possibility Dr A was prescribing the pethidine not for P1 but for himself.
[64] Another criticism raised by Mr McClelland which I accept has merit is the Tribunal’s dismissal of the relevance of Dr Moriarty’s inquiry. The Tribunal concluded there was no direct monitoring of Dr A’s prescribing of pethidine to P. However, the evidence shows there was general monitoring of his prescribing, and
that this monitoring highlighted the particular prescribing to P1. That in turn caused the Health Committee to refer to the matter to Dr Moriarty who made inquiries of A.
[65] I am unclear why the Tribunal says therefore there was no monitoring. It is also unclear why the events with Dr Moriarty should be dismissed as irrelevant. It was open to the Tribunal to accept PCC’s submission that Dr Moriarty was misled and therefore no weight should be placed on her inaction, but that was not the Tribunal’s approach. It certainly cannot be suggested in the absence of direct evidence from Dr Moriarty that this sequence of events was in any sense determinative of the issue of whether prescribing this much pethidine is per se excessive, but nor can it be dismissed as irrelevant. It is a factor going to appropriateness of the prescribing, and is a factor to be weighed in the mix on culpability when assessing penalty.
[66] My conclusions on this charge are:
(a) I accept from the evidence there was risk in prescribing this drug in the quantities that Dr A did. He seems to accept that risk existed (see [43]);
(b) there is ample evidence to support a conclusion that Dr A’s conduct fell below the acceptable standard. By this I mean that if Dr A was going to prescribe such quantities of this drug, then care was needed as regards monitoring, record keeping, prescribing, and having a plan to wean P1 off the drug. I consider the charge of inappropriate prescribing, understood from this focus, is made out;
(c) I do not accept excessive is made out. If it is a proposition that this amount of this drug over this time is of itself always excessive, no evidence was led to that effect. If it is a proposition that it was excessive for P1, there needed to be detailed consideration of P1’s medical history and his condition throughout the period. This was not done;
(d) the Tribunal made several errors in its handling of Dr A’s evidence. However, Dr A’s evidence does not provide any real answer to the facts underlying inappropriate. The focus on the alleged difficulty in seeing P1 because of the rural setting is not compelling in the face of the unusual nature of the treatment being provided, and the corresponding need for above average care and supervision. The evidence suggests instead there was below average and sub-optimal care and supervision;
(e) the evidence of monitoring and inquiry by the Health Standards Committee, and Dr Moriarty, though wrongly put to one side, does not undermine the conclusion of poor practice. It does not particularly focus on the concerns identified above.
[67] I uphold the charge of inappropriate treatment, but reject the charge of excessive prescribing as not made out. The charge of inappropriate treatment underlies particulars iv, v, vi and vii, all of which are made out. The conduct in my view was negligent, evidencing too loose an approach to patient safety and good practices, given the risky nature of the treatment being given. The conduct, although concerning a single patient, is a sufficient deviation from proper standards as to merit sanction.
Charge 2 – controlled drugs – form of prescription
[68] Charge 2 alleged:
Particulars
in prescribing medicines in the manner set out in paragraph 2(a) above, [A’s] conduct was in breach of regulation 29 of the Misuse of Drugs Regulations 1977 and/or the Medical Council’s statement on ‘Good Prescribing Practice’ (including paragraph 2).
[69] The Tribunal found that all three particulars were established but that the breaches did not merit sanction. In finding particulars one and two established, the Tribunal erred.
[70] It is a requirement that controlled drugs be prescribed on a different form from other drugs. It is to be signed by the practitioner.25 The regulations allow for emergency situations where they can be prescribed by telephone.26 However, the practitioner must then confirm the prescription by supplying the correct form within two days.27
[71] Particulars one and two involve telephone prescriptions initiated by Dr A. Dr A rang the pharmacy and then supplied the controlled drug forms as required. However, instead of the required two days, Dr A did not provide them for five days. In relation to the telephoned prescription, two forms were generated – the pharmacy produced one which is labelled on its face a telephone prescription form, and Dr A faxed in written confirmation of his request. This faxed prescription was not on a controlled drug form, partly because Dr A as part of his monitoring did not have free access to the form. As far as I can ascertain, however, the charge relates to the form generated by the pharmacist. That is the only form called a telephone prescription form, the term used in the charge.
25 Misuse of Drugs Regulations 1977, reg 29.
26 Regulation 34.
27 Regulation 34(4).
[72] The Agreed Summary of Facts accepted that Dr A wrote these forms, but at the hearing the defence resiled from that. It was submitted it was the chemist who wrote the form. The Tribunal disagreed saying that “the allegation is sufficiently broad” to cover the situation.28 I am unclear what that means but it is wrong. Plainly the pharmacy wrote the telephone prescription form, and it is something over which Dr A had no control. Dr A’s error was in the delay in sending in the correct control drug form. That could have been the charge. It was not. It is not possible on any view of the charge and language to say Dr A “wrote” the pharmacy’s internal telephone prescription form. These particulars were not established.
[73] The third particular is established and was agreed. The wrong form was used. It is here that the complaint about absence of reasons has some bite. It would be helpful to understand the process by which the Tribunal concluded negligence or malpractice was established by this oversight. Presumably the conclusion was negligence (in using the wrong form) but it was a single incident where there is no challenge to the appropriateness of the underlying prescription. It is not obvious that this was sufficiently serious to constitute a finding of negligence, and no explanation is given. It is then to be recalled that this charge joins with 3, 4 and 6 to create a cumulative finding of professional misconduct.
[74] In my view two particulars were not made out, and the third particular was not sufficiently serious to constitute negligence or malpractice. It should have been put to one side.
Charges 3 and 4
[75] Charges 3 and 4 alleged that Dr A treated colleagues and prescribed medications to them contrary to appropriate standards. It is not necessary to set the charges out in full. The allegation was that Dr A provided treatment and prescribed medicines contrary to the guidelines and without keeping proper notes of these events.
28 Findings decision, above n 1, at [133].
[76] The relevant Medical Council of New Zealand statement is titled “Providing care to yourself and those close to you”.29 There has been a change within its advice over recent iterations. In 2007 the exhortation was that treatment of family members and colleagues should be avoided. In June 2013, it became “must not treat”, and now as of 2016 apparently it has reverted to more like the former. However, consistent has been the identification of some things that should not happen – prescribing drugs of dependence and prescribing psychotropic medicine.
[77] Charge 3 concerned colleagues at the skin clinic. The charges focused not on discounted skin clinic treatments that were done, but on the prescribing of other medications such as one would expect the person’s GP to prescribe – including duromine, amitriptyline and diazepam. The Tribunal concluded the case was established but sanction was not merited. I see no basis to disagree. The situation was not straight-forward. The changing nature of the guidelines suggests it is somewhat of a flexible area. However, Dr A’s position is often not helped, as it was not here, but his failure to properly document his actions. The Tribunal takes some care to detail the importance of this and it is a legitimate concern.
[78] Charge 4 was dealt with at the same time as being another example of the same conduct but it seems to me qualitatively different. It relates to two occasions of prescribing medicine to a fellow experienced doctor working at the practice who was shortly to travel. The doctor explained she was working long hours and there had not been the opportunity to visit her own GP, a problem exacerbated by the GP’s waiting list. The prescription was for 30 lorazepam tablets, and 60 pseudoephedrine hydrochloride tablets for an upper respiratory tract infection.
[79] In the absence of any reasons being given, I do not accept that these two discrete occasions could amount to negligence or malpractice. Dr Hancock does not comment on it in her evidence-in-chief, and in cross-examination accepted Dr A had acted reasonably. Of course, it was open to the Tribunal to take a different view of the evidence but, if departing from the assessment of the expert who is otherwise largely relied upon, reasons are required. It probably belabours the point, but it is also to be
noted Charge 4 is another of the charges that is added to the cumulative effect. This again highlights the need for analysis and reasoning as regards that conclusion.
Charge 5
[80] This concerns treatment of the family. I do not understand there to be any specific criticism of the conclusions here, particularly in relation to Dr A’s wife. The charge spanned four years and although his wife had her own doctor, it seems clear Dr A was also active in her treatment. Included in the prescribing were drugs of the type the guidelines specifically injunct. I see no basis on which to differ from the Tribunal’s assessment of the matter.
[81] The same is true of the other family members. The treatment in relation to his son was a one-off situation where the son was living away from home and depressed. There were three prescriptions over a six-week period before the son saw a doctor local to the area he was living. Dr A was concerned about his son’s safety, and so prescribed anti-depressants. This plainly breached the rules. Of this the Tribunal concluded:30
185. Having regard, however, to the fact that there were only three medicines at the time and that these were in a relatively short time period, and having heard evidence from [the son] himself about the matter, the Tribunal concludes that in the particular circumstances of this case, although the Charge would otherwise be found as made out, it is not of sufficient severity to warrant disciplinary sanction of itself.
[82] The treatment of his daughter was more sustained and the charges related to eight prescriptions over a three year period including contraception. The other prescriptions were for controlled drugs for weight loss and insomnia. The description of the drugs prescribed, and the reasons why the daughter was prescribed these drugs, is enough to show that the treatment was inappropriate and outside the guidelines. There are risks with the drugs, and a need for frankness between patient and doctor. On the doctor’s part, there is a need for objectivity. All these aspects are jeopardised in situations where the doctor is treating the child. The Tribunal, as with the other cases, concluded individual sanction was not merited. I do not conclude otherwise but am unsure why that was and what features differentiated the daughter from Dr A’s
30 Findings decision, above n 1.
wife. The number of instances concerning the daughter, and the nature of the issuers, seemed to me to support sanction.
[83] The third family member was Dr A’s mother-in-law. The drugs were anti-depressants and benzodiazepines. It is clear Dr A was placed under familial pressure, not helped by the unwillingness of his mother-in-law to see other doctors. The charges covered eight prescriptions over three years. The Tribunal concluded that having taken all the factors into account and given the quantity prescribed over the period, the conduct did not merit sanction.
[84] There is then a specific cumulative finding of professional conduct covering the son, daughter, and mother-in-law. I presume the Tribunal’s reasoning was that treating three family members, each individually in breach, requires sanction because of the repeated disregard of the guidelines. Of these three it can be inferred that the daughter was seen as the most serious. I am less clear on the son given it was a one-off event not itself thought to be worthy of sanction. It would not automatically follow that it should nevertheless contribute to a cumulative effect judgment. However, I am not concerned by the Tribunal’s cumulative effect conclusion given the number of family members involved, and the repetition. The finding is upheld.
Charge 6
[85] This charge was a mixture. Two particulars involve writing a script in the name of someone other than the person for whom the drug was intended. Both were found proven but not worthy of sanction. The circumstances of each were quite different.
[86] In one case, the patient was a long-term patient of Dr A and was of some prominence in the community. For reasons that need not be recorded the patient did not want the nature of her prescription disclosed to the pharmacist, for fear of it getting out. Accordingly, Dr A wrote the script out in his wife’s name. She was aware of this happening and is a friend of the patient. The second occurrence involved a drug which seemingly can only be ordered in a box containing five. A patient needed one. Apparently at the suggestion of the pharmacist, the prescription for five was put in the name of an employee. The idea, which was given effect to, was that the actual patient would receive one, and the other four would be held by the medical practice.
[87] The Tribunal held the latter to be a serious departure constituting perhaps negligence (malpractice would seem more apt for this deliberate conduct) but not meriting sanction. With the patient whose identity was to be concealed, it was noted that Dr A’s wife, in whose name the prescription was written, knew of the ruse and consented. The Tribunal noted there were no harmful side effects, it was not a drug of abuse, and it was a relatively rare incident. The conduct did not amount to misconduct warranting disciplinary sanction.
[88] I accept the Tribunal’s assessment of these two matters. However, I do consider care is needed here. The creation of false documentation is always a significant act, requiring planning and an awareness of the falsity. It is designed to mislead. It is frequently dishonest. There will always be an alternative. A call here for example to the head pharmacist asking him or her to deal with the prescription personally and in discreet circumstances would surely have achieved the aim. False documents not only are inherently deceptive, they create risks for patients and the system. Resort to them should generally be condemned, allowing always for the exception.
[89] The third particular in charge 6 concerned prescribing a combination of drugs to the same patient for whose benefit the false script was written. Their dispute was as to whether the two drugs prescribed to the patient at the same time were contraindicated. The Tribunal did not resolve the matter but instead found another aspect of the charge established – namely that one of the drugs should not be prescribed to a patient with depression. The Tribunal again concluded the matter did not merit sanction.
[90] On appeal Mr McClelland points to other evidence suggesting that the risk to a patient with depression does not exist. I consider this is an area where deference to the Tribunal is appropriate. The source of the evidence which the Tribunal preferred is sound, and I am not satisfied the Tribunal was wrong to prefer it.
[91] The inference one must draw from the Tribunal’s conclusion is that it found this incident as sufficiently serious to constitute negligence, although it did not individually merit sanction. The finding of negligence is somewhat surprising given
the tenor of the Tribunal’s discussion which is that the error, if it be one, is not beyond dispute. I doubt it was of sufficient seriousness to include in the cumulative effect finding. It is the only example (other than Charge 1) of incorrect prescribing by Dr A in the sense that the medication prescribed was not appropriate.
Charge 7 – ordering of Diazepam
[92] Charge 7 reads:31
Particulars
in providing medical care and/or ordering medicines in the manner set out in paragraph 7(a) above, [A’s] conduct was contrary to accepted standards of practice, and/or was in breach of the Medical Council’s statements on ‘Good prescribing practice’, and/or ‘Good Medical Practice’ (including paragraphs 4 and 9) and/or ‘Prescribing drugs of abuse’.
The Committee, pursuant to section 81(2) and 91 of the Act, charges that the conduct of [A] particularised in paragraphs one to seven above, either separately or cumulatively amounts to professional misconduct pursuant to section 100(1)(a) and/or 100(1)(b) of the Act.
[93] Over this period Dr A placed 32 orders for diazepam. This involved 144 ampoules of 10mg/2ml diazepam. The orders were placed on what is known as a Practitioner Supply Order (PSO) form, which as its name suggests is a method by which a doctor or medical practice obtains supplies.
31 The last paragraph of Charge 7 contains the cumulative effect charge previously referred to.
[94] A PSO may be used for diazepam only where it is required:
(a) to ensure medical supplies are available for emergency use;
(b) for teaching and demonstrative purposes; and
(c) for provision to groups where individual prescription is not practical.
[95] As the Tribunal observed, a PSO may be used by doctors in rural practices to establish supplies, provided the quantity ordered and stored is reasonable.32
[96] The charge alleges that the ordering was excessive and/or for the purposes of diverting or misusing such medication. It is common ground that the second aspect of this allegation constitutes a very serious charge. It is an allegation that this ordering was being carried out not for a bona fide medical purpose, but for misuse of the drug.
[97] An unusual aspect is that PCC did not suggest it knew what the illicit purposes were. It just alleged there must be some given the quantity ordered. Given the nature of the charge, it falls very much within those allegations concerning which particularly cogent evidence is required in order to satisfy the burden.
[98] The PCC approach was to establish that no obvious reasons existed for this quantity. Evidence was led that quantities such as this, or realistically anything like them, would not be needed in the ordinary course of business at either the rural practice or the skin clinic. There was therefore no clinical justification for the amount of the drug. There were other unusual features pointed to:
(a) Dr A ordering the drug himself on PSO’s rather than through the skin clinic’s usual ordering methods;
(b) Dr A storing the drug at his home; and
(c) the unlikely nature of Dr A’s explanation.
32 Findings decision, above n 1, at [221].
[99] Dr A explained various uses, such as his regular attendance at horse jumping events and the usefulness of it when riders hurt themselves in a fall. However, the only use which would account for the amount ordered was a practice he said he developed when carrying out work at a satellite skin clinic where he worked on his own. Dr A said he had many years ago experienced an emergency situation. In dealing with it, he found the traditional responses ineffective – these were giving the diazepam through a IV line, or using a rectal device.
[100] As a consequence, Dr A developed the habit of drawing up a syringe of the drug to have available for that week’s work in case of emergency. If it was not needed, at the end of the week he disposed of it. Dr A provided this explanation to the PCC when first asked about the quantity, and repeated it in his evidence. Dr A referred to a particular procedure, ultrasound foam sclerotherapy, where he had experienced emergency situations and where convulsions were a risk as being the prime reason for his precautions. He accepted his could be seen as over the top precautions.
[101] The PCC challenged various aspects:
(a) whether convulsions were a recognised side effect of foam sclerotherapy. Dr Hanock said they were not, but this was based only on a Medsafe Datasheet. She herself had no experience or expertise in the area;
(b) the unusual nature of Dr A’s procedure, the suggestion being it was unique to him;
(c) the unsafe nature from a hygiene viewpoint of storing the diazepam in a drawn up syringe for a week.
[102] The Tribunal found the quantity excessive. The Tribunal:
(a) found there was insufficient evidence to establish convulsions are a risk associated with foam sclerotherapy, of if they do occur, that they require the drawing up of diazepam;
(b) held Dr A’s explanation would require a correlation in the consistency of ordering adrenalin but there was significant inconsistency. This told against the explanation;
(c) the procedure would require the setting up of an IV line before the procedure. This had not been witnessed;
(d) if such risk existed as Dr A feared, Dr A should not have been doing the procedure alone;
(e) there are sterility and safety risks in keeping drawn up diazepam at the clinic for up to seven days; and
(f) there was no controlled drug register produced for his storage at home.
[103] The Tribunal concluded it did not accept on the balance of probabilities Dr A used the drug as he said. There was no corroboration and it would have been an unnecessary practice. It concluded on this:33
255. The Tribunal finds that [A] has not discharged the onus on him of justifying the quantities of diazepam that he ordered. Put conversely, the Tribunal finds that the PCC has established to the sufficient standard that [A] did order quantities of diazepam in circumstances where he did not reasonably require these and they were therefore excessive to requirements.
[104] As for the second particular of improper purpose, the Tribunal concluded that all reasonable explanations being eliminated, the ordering must have been for an improper purpose.
[105] Mr McClelland challenged the sufficiency of the evidence concerning whether the quantities were excessive for ordinary rural practice/skin clinic needs, but I do not accept it is a concern. Dr Hancock said it was excessive, and gave evidence that her practice would use only one to two doses of diazepam a year. The evidence from both the medical practice and the skin clinic was that each had very little use for it at all. The Tribunal could then assess this evidence using its own experience. The reality is
33 Findings decision, above n 1.
that it is only Dr A’s explanation of his unusual use of it as a standby in emergencies that could account for the high ordering. I will return to this aspect of the charge but first need to assess the improper use allegation.
[106] I am satisfied this conclusion cannot stand. First, the Tribunal’s conclusion is affected by incorrectly putting an onus on Dr A. Related to the onus point, there is no specific recognition at this point in the Tribunal’s reasoning of the need for particularly cogent evidence given the seriousness of the allegation of diversion or misuse.
[107] Second, the point about needing to order equal adrenalin is an example of the Tribunal providing evidence. It was not the subject of direct evidence. Further, the orders placed by Dr A on several occasions included orders for adrenalin. There was no evidence as to whether this was a sufficient quantity of that drug to meet the point being made about the lack of correlation between ordering diazepam and adrenalin.
[108] Third, the PCC’s task to establish improper purpose was a formidable one. It led no evidence of how the drug could be misused, or of any black market for it. Throughout the period Dr A was himself consistently drug tested with no suggestion arising of diazepam in his system. In assessing both the charge and his evidence, weight had to be given to the fact that no-one could really suggest what the misuse might be.
[109] Fourth, while the unnecessary and unusual nature of Dr A’s procedure can be a factor going to whether it actually happened, those features do not mean it was not his practice. Dr A may just have been following a quirky practice.
[110] There was in fact some corroboration of Dr A’s evidence. One of the skin clinic nurses said she would see Dr A dispose of drugs on his return but did not know what they were. Further, there was a statement by a pharmacist in evidence confirming that around the time this ordering started, Dr A asked him for advice about drawing up medicines in a syringe for emergency use. The pharmacist advised Dr A that sterility was an issue, they would need to be capped properly and an expiry of one week should be applied to them. This evidence is directly corroborative of Dr A’s explanation, yet was not referred to by the Tribunal.
[111] I am satisfied this aspect of the charge should have been dismissed. I put the Tribunal’s conclusion to one side because it is based on a rejection of Dr A’s evidence in circumstances where the burden of proof has been misapplied. I accept there were points made by the prosecution that legitimately invited consideration of whether Dr A was lying. However, in the absence of any plausible suggestion as to what else the doctor may have been doing with the drug, and given the need for particularly cogent evidence, I do not consider such a finding could be made. A key plank of the prosecution case was that Dr A’s story meant he was mishandling the drug by not keeping a proper register. Given the evidence generally about Dr A’s poor record keeping, it is not an aspect meriting weight. Likewise, it may be that he should not have been doing the treatments when unassisted, but that does not seem relevant to whether Dr A’s evidence should be believed.
[112] On Charge 7, I conclude the improper purpose allegation fails. However, I accept the evidence and the Tribunal’s assessment that the use of the drug as explained by Dr A was not sound. In this limited sense I accept the ordering was excessive.
The cumulative effect charge
[113] I have reached the view that the decision under appeal does not adequately establish a basis for the cumulative effect finding on Charges 2, 3, 4 and 6. I would have made this assessment had the conclusions of the Tribunal remained the same. However, given the adjusted assessments I have made, the cumulative effect charge falls away:
(a) Charge 2 involved three allegations concerning prescription forms. I have concluded two were not made out and the other appears to me to lack sufficient seriousness. Charge 2 should be put to one side;
(b) Charge 3 involved four allegations of treating colleagues where there was both a breach of guidelines and poor record keeping, but which of themselves did not merit sanction;
(c) Charge 4 involved one charge of treating an experienced colleague. This was a one-off example of prescribing travel related medication. In the absence of reasons, I do not consider this was sufficiently serious to amount to malpractice and so it also is not available to be added to the cumulative mix;
(d) Charge 6 involved two charges of prescribing under an incorrect name, a practice always to be rejected, but arising here in circumstances where there was no underlying impropriety. The third particular was a case of an incorrect prescription. This is the only instance within these charges of incorrectly prescribing a medicine. That it was a breach seemed a finely balanced conclusion, and the breach was not assessed as meriting sanction.
[114] In the absence of reasons from the Tribunal I form my own view that collectively, just as they did not individually, the allegations that are established do not merit sanction.
Overview
[115] The end result are findings that the following charges are proved:
(a) Charge 1, inappropriate prescribing. The focus here is on the lack of care and endeavour, and professional rigour, shown by Dr A in his treatment of P1. The concern is that Dr A was prescribing P1 with a large and risky quantity of an addictive controlled drug. His supervision of the patient, given this, was significantly deficient in many aspects;
(b) Charge 5, being improper treatment of his wife (individually proved as a charge) and other members of his family (collectively proved as meriting sanction). The Tribunal assessment is unchanged;
(c) Charge 7 being the ordering of large quantities of a controlled drug to facilitate an individual method of doubtful legitimacy. Submissions will be required on whether it merits sanction.
All other charges and particulars are quashed.
[116] Counsel should now have the opportunity to consider the best way forward. The matters requiring determination are a final decision on Charge 7, penalty and final name suppression. One body should deal with all these be it this Court or the Tribunal. Counsel are requested to confer. If there is no agreement, memoranda should be filed, with counsel to agree a reasonably prompt timeframe for doing so. For the avoidance of doubt I indicate I am prepared to determine all matters, but am open to consider submissions that the matter should be referred back.
[117] Interim name suppression applies to Dr A pending resolution of an application for final name suppression. The names of patients and family members have previously been suppressed by the Tribunal.
Simon France J
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