|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 28 September 2018
|
THE NAME OF THE MEDICAL PRACTITIONER AND
ALL PATIENTS MENTIONED IN THIS JUDGMENT, TOGETHER WITH
IDENTIFYING DETAILS, ARE SUBJECT TO
FINAL SUPPRESSION ORDERS.
A LIMITED EXCEPTION IS NOTED IN [38].
|
|
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
|
|
CIV 2018-485-81
[2018] NZHC 2158 |
|
BETWEEN
|
A
Appellant
|
|
AND
|
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
|
|
Hearing:
|
On Papers
|
|
Counsel:
|
M F McClelland QC and K M Wills for Appellant H J P Wilson and A James for
Respondent
|
|
Judgment:
|
22 August 2018
|
JUDGMENT OF SIMON FRANCE J
[1] On 3 July, I allowed in part an appeal by Dr A against findings of the Health Practitioners Disciplinary Tribunal (the Tribunal).1 Some findings against Dr A were quashed, others confirmed. The decision left three matters to be resolved:
(a) whether the amended factual finding on charge 7 supported a conclusion that sanction was merited;
1 A v Professional Conduct Committee [2018] NZHC 1623.
A v A PROFESSIONAL CONDUCT COMMITTEE [2018] NZHC 2158 [22 August 2018]
(b) what changes were needed to the penalty imposed by the Tribunal; and
(c) whether there should be suppression of Dr A’s name.
[2] The parties wished these issues to be addressed by the Court rather than being referred back to the Tribunal.
Charge 7
[3] Dr A was charged with ordering excessive quantities of diazepam (Valium) and, cumulatively, so ordering for the purposes of diverting or misusing such medicine. The quantities ordered by Dr A over the period significantly exceeded normal expectations. Dr A explained the use by advising that he carried out skin treatments in a surgery on his own and he had developed a practice of preparing a diazepam preparation to use in an emergency should one arise. He had done this since an incident many years earlier where he found the more normal solutions used to be ineffective. At the end of each week he disposed of it.
[4] The Tribunal rejected his evidence and found both aspects of the charge established.2 On appeal, I held that the prosecution failed to prove the second component of improper purpose. I accepted, however, the Tribunal’s conclusion that Dr A’s practice was unsound, and represented a waste of the diazepam. On that limited basis, I concluded the charge of excessive ordering made out.
[5] The Professional Conduct Committee (the Committee) submits the charge, as now established, constitutes malpractice and is likely to bring discredit to the profession. It is further submitted it merits sanction. The matters focused on are that:
(a) diazepam is a Class C controlled drug and thereby subject to greater levels of control because of the risks it poses. It is submitted Dr A breached the regulations concerning the drug in the manner it was stored, prescribed, recorded, and used (in the sense of left lying around
in the emergency syringe for the week). I observe none of these matters were the subject of particulars in the charge laid;
(b) Dr A did not require the drug he ordered and this was in breach of the New Zealand Pharmaceutical schedule concerning when the drug could be ordered. This seems to be an argument that because the medical practice was unsound, the drugs were not “required”, therefore the ordering was in breach;
(c) the unnecessary practice amounted to wastage. It is submitted the Tribunal has previously taken “a dim view” of wastage and a case is referred to.
[6] I do not accept that uncharged alleged breaches of regulations can inform the assessment of whether the established conduct merits sanction. The cases on which the Committee relies to establish breach are all examples of the alleged breach of regulations being specifically charged as a particular.3 That is not the case here. Dr A gave his explanation from an early stage. It was open to the Committee to lay charges, as an alternative to the Committee’s assessment, that focused on the use of the drug as identified by Dr A. It chose not to and instead proceeded solely on the basis that Dr A was lying. Having failed to establish that, it cannot now seek to rely on these alleged deficits that could have been charged from the outset.
[7] The Committee next sought to argue that the concept of “excessive” includes matters such as leaving the drug lying around for the week, unsafely, prior to disposal. The proposition only needs to be stated to expose it as not tenable.
[8] I also consider the proposition that the drugs were ordered outside authorised purposes is flawed. Dr A ordered them for emergency use, one of the permitted purposes. He ordered them for what he believed was a legitimate medical practice. That it might not be a sound medical practice does not alter the basis on which the drugs were ordered.
[9] Finally, I reject the wastage argument. The sole case on which the Committee relies is so different as to be barely relevant. In Professional Conduct Committee v Cullen, the practitioner ordered over 46,000 tablets of pseudoephedrine, a well-known key ingredient in the manufacture of illegal methamphetamine.4 The drug was obtained by false prescriptions issued in the names of persons and patients unaware of the prescribing. There was no medical reason for the ordering and the Tribunal concluded that the ordering was linked to the manufacture of methamphetamine. Dr Cullen had said he had given some to patients and thrown the rest away. He accepted it was an “extraordinary wasteful” approach.5
[10] It was in this context that the Tribunal observed that the explanation given by Dr Cullen, if accepted (which it was not), would have merited sanction. It is clear from the judgment that this was, however, due not only to the wastage but primarily to the use by Dr Cullen of his patients’ identities to obtain the drug. The case does not assist here. The lack of any other comparable cases where wastage is alleged as a basis for sanction indicates that the proposition being advanced by the Committee is not sustainable.
[11] I find that the conduct established under charge 7, limited to the charge faced by Dr A, does not amount to malpractice or conduct likely to bring the profession into disrepute. Nor does it merit sanction.
Penalty
[12] At the original hearing on the basis of all charges being established the Tribunal had:6
(a) suspended Dr A from practice as a medical practitioner for six months;
(b) censured Dr A;
5 Cullen HPDT, above n 4, at [99.5].
(d) imposed various conditions on his practice once resumed; and
(e) ordered Dr A to pay $122,000 (40 per cent) towards costs.
[13] On the initial appeal Dr A had challenged the suspension, the nature of and length of some of the conditions, and the size of the costs order. The issues were not considered at the time however, it being agreed that it would be preferable to await determination of the appeal as regards the charges.
[14] The penalty picture is now somewhat different. Most importantly charge 7 has gone. As he stood before the Tribunal, Dr A had been found guilty of ordering excessive quantities of a class C drug for the purposes of misusing or diverting the drug for improper purposes. In my view, at least a period of suspension was inevitable for that offence. Six months was far from the top of the range. The other change from the position then existing before the Tribunal is that the Tribunal had found a series of particulars and charges proven, but individually as not meriting sanction. However, it had also concluded that cumulatively these matters merited a sanction. My earlier ruling reverses the finding on some particulars, and quashes the finding on the cumulative charge.7
[15] The penalty which now falls to be considered is in relation to:
(a) a finding that Dr A inappropriately prescribed pethidine to a patient for two years. The prescribing involved large quantities of a drug designed for short term use. The prescribing was risky; it was inappropriate because given those risks Dr A’s supervision of the patient was inadequate in several respects, including developing and maintaining a plan for alternative treatment; and
(b) a finding that Dr A treated his wife on numerous occasions (22) and other family members (on a lesser number of occasions) in
7 A, above n 1.
circumstances contrary to Medical Council of New Zealand rules and to good practice. The treatment of his wife merited a standalone finding of malpractice; the treatment of other family members a cumulative finding. The particular concern was the medical issue being faced by these patients, and the nature of the drugs prescribed. The latter were not incorrect treatments, but it was inappropriate for a family member to be prescribing them. The conclusions of the Tribunal on these charges was not disturbed.
[16] The Committee seeks a period of suspension. It is noted that the primary purpose of sanctions for misconduct is promoting the protection of the public’s health and safety.8 This is achieved by promulgating high standards and holding practitioners to them. The sanction may have a punitive effect but that is not its primary purpose.
[17] The Committee submits that the remaining charges together exhibit features that require the imposition of a suspension. It is contended that Dr A displays a lack of insight into his failings. Concerning the pethidine patient, Dr A continued to prescribe pethidine despite numerous expressions of concern by other health professionals. These concerns did not even lead Dr A to follow basic good practice such as proper consultations, standard prescribing and correct note taking. Further, he also did take the extra steps required given the risks being created. It is likewise submitted that while Dr A has now committed to not treating his family, he has not displayed any insight into the reasons underlying the rule against treating family. He again seemingly does not see the risks inherent in these situations. This lack of insight poses a safety risk that merits the sanction of suspension in order to bring home the message.
[18] It was also submitted that breaching the rules concerning treating those near to you is serious offending meriting general deterrence. This proposition led to a query from the Court about the apparent absence of cases involving such misconduct. I have now been provided with a number of decisions.
8 Roberts v Professional Conduct Committee [2012] NZHC 3354 at [44].
[19] In Professional Conduct Committee v Craig, over a period of 15 months the practitioner prescribed Zopiclone and Triazolam for herself and those near to her.9 Many of the self-prescriptions were falsely in the name of a patient. Dr Craig also misled colleagues about her conduct. The practitioner was suffering from significant medical issues and was under stress during the relevant period. Suspension was not sought by the Professional Conduct Committee.
[20] In Professional Conduct Committee v Hodgson, the practitioner wrote prescriptions in others’ names for drugs of dependence for himself.10 He also prescribed such drugs for a family member without appropriate monitoring or assessment. However, it transpired the drugs were for him. There were also charges of inappropriately prescribing pseudoephedrine and of dishonestly using a document (x 5). Concerning the latter Dr Hodgson was convicted of criminal charges. The case is not particularly relevant to the present situation as there was no genuine prescribing to a family member. For the record, I note there was a suspension of three months, but that term is misleading in that there had been a long period of interim suspension prior.
[21] In Professional Conduct Committee v Dr M, the charge involved the practitioner prescribing to her husband over a period of six years.11 The charges involved Class C controlled drugs, psychotropic medication and drugs of dependency. There was inadequate monitoring, oversight and record keeping. The prescribing endangered her husband’s health and he was on one occasion admitted to the Emergency Department. Suspension was not sought by the Professional Conduct Committee.
[22] In Professional Conduct Committee v Augustine, the practitioner wrote prescriptions for himself and his wife for codeine phosphate tablets by forging the signature of another medical practitioner.12 This happened on 20 occasions. On two further occasions Dr Augustine in his own name wrote prescriptions for his wife. The doctor whose name was forged had himself for a period been prevented from writing
9 Professional Conduct Committee v Craig HPDT 844/Med16/348P, 5 September 2016.
10 Professional Conduct Committee v Hodgson HPDT 740/Med5/315P, 21 October 2015.
11 Professional Conduct Committee v Dr M HPDT 941/Med17/382P, 21 December 2017.
12 Professional Conduct Committee v Augustine HPDT 968/Med17/411P, 12 July 2018.
prescriptions until the true situation emerged. Deregistration was sought and imposed, with understandable emphasis being placed on the forgery.
[23] Returning to the present case, there was evidence from Dr Timothy Cookson who is a consultant to the Medical Protection Society, and Mr David Dunbar who is the Registrar of the Medical Council. The focus of this evidence was on the number of complaints received concerning prescribing to family members and what happened with those complaints. It appears the process is for the complaint to be referred to a Complaints Triage Team. That team decides whether to deal with the matter itself or refer it to the Medical Council.
[24] The information provided about the complaints is not particularly clear but suggests:
(a) between August 2012 and October 2016, the Medical Council received nine references from a Complaints Triage Team. On each occasion, the Medical Council referred the matter to a Professional Complaints Committee. It is not known what actions those Committees took. It is also not known what percentage of all such complaints received by a Complaints Triage Committee the nine referrals represent;
(b) between 1 March 2016 and 1 March 2017, the Complaints Triage Team received 17 such complaints. Of these three are unresolved, four were referred to the Council, on one no action was taken and on the other nine the Complaints Triage Team resolved it by writing an educational letter to the practitioner.
[25] For this collection of cases and information I conclude that treatment of a family member may lead to further action such as a disciplinary hearing but that seems not to be the norm. Of those that proceed to a hearing, suspension seems the exception. None of this supports the position of the Committee in this hearing.
[26] As to whether the particular case is a bad example, concerning Dr A’s three family members other than his wife, the Tribunal considered that on an individual basis
none of the three involved conduct meriting a sanction. The treatment of Dr A’s wife was more serious as it occurred on numerous occasions and on some occasions involved drugs of dependency. However, there is no suggestion the prescriptions if written by an individual GP were concerning, other than on one occasion when the quantity prescribed was more than normal. No harm was caused. The case seems to be of less seriousness than Dr M where suspension was not even sought.
[27] I do not consider the second charge involving the pethidine patient elevates the case on a totality basis to one requiring suspension. Again, there is no evidence of harm. Indeed, the only evidence, uncontested, is that of Dr A who says his treatment has been very successful. Dr A no longer prescribes the patient this drug and he record indicates the patient no longer receives the drug. Censure and corrective conditions are appropriate for this.
[28] There is some merit in the concern over Dr A’s attitude but it should not be overstated. He recognises the need for conditions and has complied with them. He has committed to not treating his family and suggested a condition of reporting any such activity with 48 hours should something arise that necessitates it. He has completed a course on keeping records. Dr A will be aware that with this now being the second occasion on which adverse findings have been made, there is a need to ensure he meets standards.
[29] A final feature to note is that Dr A’s continued practice will be subject to two sets of conditions. Due to his own drug dependency issues, he has for some time been subject to controls on what he can prescribe. He, and the practices at which he works, are subject to monitoring. Now an additional set of conditions will be imposed. In combination, they represent significant steps in both protecting the public and reinforcing to Dr A the improvements he must make. These restrictions are constant reminders of that.
[30] For these reasons, I am satisfied suspension is not required. The conditions sought by the Committee (as modified at the hearing) will be imposed. The Tribunal had initially imposed a term for the conditions of three years which is the maximum. Dr A seeks a term of 18 months. I consider that a term towards the upper end is
appropriate but see no need for three years. I bear in mind that the first set of conditions have no end date. The term will be two years.
Costs
[31] Dr A has been found guilty on some charges but has also successfully defended a number of others including the most serious charge. Throughout the proceedings he conducted himself as a practitioner should. He provided a full response early on and has been consistent in his explanation. He appropriately admitted facts.
[32] I consider that given the extent of not proven findings, but also recognising several instances of misconduct had been proved, a contribution of 25 per cent of the Tribunal and prosecution costs is appropriate.
[33] I did not hear from the parties concerning costs on the appeal. Memoranda may be filed if necessary. I indicate Dr A has been largely successful on the appeal and a small adjustment to scale costs in his favour might be an appropriate resolution.
Name suppression
[34] I comment first on the liability judgment which was released with Dr A’s name suppressed. Considerable effort was made to anonymise other facts but the relationship to his family, the reasons for the treatment and their medication is all disclosed. None of this matters if Dr A’s name is suppressed. If not, however, the judgment will need rewriting. Of itself that is not an issue, but the judgment was not suppressed. In hindsight, it should have been. It has been commented on in digests and is available on databases.
[35] I consider the privacy of Dr A’s family’s medical history is of high value. I accept it is not always determinative, but it is important. Removing the description of the familial relationship (e.g. son) to one which just describes them as persons caught by the prohibition on such prescribing will not be an effective protection.
[36] In determining an application for name suppression, the relevant considerations are the private interests of a person (health interests of a practitioner,
matters affecting a family and privacy) against the public interest (public protection, maintenance of professional standards, transparency and accountability of the disciplinary process).13
[37] Three reasons cause me to continue name suppression:
(a) to correct the issue, the rewriting would need to remove most of the detail about the medical issues and the treatment in relation to family members. That is unhelpful in terms of the jurisprudence concerning providing treatment to family members. In this case, for example, the nature of the medical issues, and the medication prescribed, are what were said to make the case serious enough to merit sanction, and also to require suspension as a response;
(b) the reality is that the original version has been in the public domain for some time. That cannot be undone; and
(c) I do not consider Dr A’s situation is such that great concern arises if his name is not revealed. The treatment of family members is easily stopped and does not of itself pose issues for other patients. The charge concerning a non-familial patient involved only one patient. Dr A’s practice of medicine will be subject to significant scrutiny and controls for a substantial period. I do not consider it a situation which demands that existing and potential patients know of the events.
[38] The application for final name suppression is granted. This does not extend to the Medical Council Register which provides the name of the doctor and a list of conditions under which he practices.
Conclusions and orders
[39] Charge 7 is dismissed.
[40] The penalty is censure, a fine of $8,000, costs of 25 per cent of the investigation (down from 40 per cent), and the following conditions. These conditions are those imposed by the Tribunal but modified to reflect the various decisions on the appeal:
(a) For a period of two years from the date of this Judgment:
(i) Dr A is prohibited from prescribing class B drugs within the meaning of the Misuse of Drugs Act 1975;
(ii) Dr A is prohibited from prescribing medicines or providing medical care to any member of his family, staff member or person with whom he works, including professional colleagues;
(iii) that Dr A notify the Medical Council of New Zealand (MCNZ) within 48 hours of any incident occurring where, due to an emergency situation (meaning an incident that requires immediate attention in order to prevent a serious injury or death from occurring), he has been required to treat a family member or colleague. He is to provide a full explanation as to why he was required to provide care;
(iv) that Dr A undergo an audit of his clinical practice every six months as to the quality of his medical records, general prescribing and general well-being and work-life balance by a vocationally registered general practitioner appointed by the MCNZ with the costs incurred to be met by him;
(v) that Dr A has ongoing professional supervision by a supervisor approved or appointed by the MCNZ, with the supervisor reporting to the MCNZ every three months or at such other frequency as is determined by the MCNZ with the costs incurred to be met by him;
(vi) that Dr A take such on-going training in prescribing practices as directed by the MCNZ with the costs incurred to be met by him; and
(vii) that Dr A advise future employers of the Tribunal’s and this court’s decisions and of its orders.
[41] Final suppression of Dr A’s name, subject to the caveat in [38], is ordered.
Simon France J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/2158.html