Coote v Medical Board of South Australia

COOTE v MEDICAL BOARD OF SOUTH AUSTRALIA
[1999] SASC 394

Full Court: Millhouse, Duggan and Lander JJ

MILLHOUSE J. How the appellant could ever have hoped to escape a finding of guilty of unprofessional conduct in view of the admitted enormous number of prescriptions of pethidine and their frequency, I do not know. Once the Tribunal had made its findings the chances of successful appeal were remote. The appellant's course of conduct was quite disgraceful.
For the reasons about to be given by our brother Duggan I suggest the appeal be dismissed.
DUGGAN J. The appellant, a medical practitioner, was found guilty of unprofessional conduct by the Medical Practitioners Professional Conduct Tribunal. The tribunal suspended the appellant’s registration as a medical practitioner for a period of five months. The appellant now appeals against both the finding of unprofessional conduct and the suspension imposed.
The complaint made against the appellant by the Medical Board of South Australia alleged that the unprofessional conduct had occurred while he was treating a number of patients in the course of his work as a locum tenens in an entity known as the “Doctors Locum Service” (DLS) during the period from August 1991 to January 1993.
DLS was established as a trust by the appellant and two other doctors in 1984. The trustee is Medloc Pty Ltd of which the appellant is a director. At the time the charge of unprofessional conduct was laid five doctors, including the appellant, were directors of Medloc Pty Ltd and their families were beneficiaries of the trust.
The complaint by the Medical Board was based on the treatment by the appellant and other members of DLS of seven patients who suffered injuries for which they sought workers compensation. The general practitioners treating these patients had enlisted the services of DLS to care for the needs of their patients out of surgery hours. Each of the patients had a history of debilitating pain. The tribunal found that certain administrations of the drug pethidine by the appellant to these patients were inappropriate and excessive in the context of similar administrations by other doctors working for DLS. The complaint also alleged that the appellant was one of those who failed to put in place and maintain proper and effective procedures for ensuring that communications from general practitioners were appropriately assessed and passed on to DLS doctors.
The grounds of appeal are as follows:
“1..... The Tribunal erred in finding that certain administrations of pethidine by the applicant were ‘inappropriate and excessive’.
2The Tribunal erred in finding that there was a deficiency in Doctors Locum Service procedures for transmitting communications from general practitioners to Locum doctors.
3...... The Tribunal erred in finding that Dr Coote’s performance of his duties as a director of Medloc Pty Ltd rendered him liable to a finding by the Tribunal of unprofessional conduct.
4The order of suspension for 5 months is excessive.”
Before considering the arguments on the grounds of appeal it is appropriate to refer to the manner in which DLS was conducted. The doctors who were directors of Medloc Pty Ltd worked in DLS together with a large number of doctors who were engaged as independent contractors. The practice grew to the stage where approximately 60 doctors were retained on a full-time or casual basis. The doctors were paid a percentage of each consultation fee and the balance was retained by DLS as commission.
Eventually DLS employed a salaried medical practitioner, Dr Schloeffel, who worked at the administrative headquarters with an enrolled nurse and the administrative staff. The business was administered from premises in Morphett Street, Adelaide. When they came on duty DLS doctors would notify the administrative staff that they were ready to take calls and the staff would then commence allocating to them home visits to patients. The doctors were advised to attend patients by means of a pager. They carried emergency drugs in their bags.
The tribunal summarised the nature of the clinical and other records of patients which were kept by DLS:
“The primary record was a clinical note which the locum doctor filled out at the time of the visit. The note was in triplicate, with copies for the patient, DLS and the GP. The GP’s copy was sent with others in batches about once a week. Ninety per cent or so of DLS patients received one visit only, and therefore were the subject of one clinical note only. For patients who received multiple visits, other clinical records were kept by DLS clerical staff, namely:-
1...... A series of books, of which R217 is an example, containing patient identification numbers and instructions from GPs.
2.A series of books, of which R226 is an example, containing (amongst other entries) communications from DLS doctors regarding narcotic administrations for follow up with GPs by day staff.
3...... Handwritten patient diaries containing or at least including the outcome of communications between DLS staff and GPs.
4.Patient files in manilla folders stored in a filing cabinet. The folders contained the above-mentioned diaries as well as reports and correspondence from GPs and other patient records.
5...... Electronic entries in a computer programme containing details of messages which locum doctors received on a pager upon being called to attend to a patient. Work on the programme began in 1988, but it did not come into full operation until about March 1992.”
The tribunal heard evidence concerning the nature of the drug pethidine. According to that evidence, pethidine is an opioid or narcotic substance. It is short acting and can induce psychological and/or physical dependence. According to evidence called on behalf of the Medical Board, pethidine has a role in the treatment of short term acute pain, but is inappropriate for the management of non-malignant chronic pain. The reasons given for this were the unlikelihood of continuing nociception, the risk of disease reinforcement and the risk of dependence. Nociception was explained as being the type of pain which derives from a mechanical injury such as that which occurs in surgery. Nociceptic pain is usually opioid sensitive, hence the employment of an opioid drug such as pethidine to relieve it. According to the material before the tribunal, pethidine usage for medical purposes peaked between 1990 and 1992 and has steadily declined since that time in the face of a corresponding increase in the use of slow release morphine.
Dr Cherry, the director of the Flinders Medical Centre Pain Management Unit, was called to give evidence by the Medical Board. The tribunal relied on his evidence and that of Dr Williamson, senior medical officer with the Drug and Alcohol Services Council, to conclude that the use of pethidine on an ongoing basis was inappropriate for chronic pain relief. Dr Cherry said there was a danger in using short acting opioids such as pethidine for patients who exhibit chronic pain behaviour because of the desire for the euphoria associated with the taking of the drug.
Prior to giving evidence, Dr Cherry was provided with the details of the treatment provided by DLS doctors to some of the seven patients referred to in the complaint. He expressed considerable concern about the extent of drug administration by DLS doctors in relation to these patients. In examination -in-chief the focus of the questions was on the treatment of one of the patients, Ms Copley. However, the general approach which he took to her treatment is of relevance to the assessment of the administration of drugs by DLS doctors to the other patients.
Dr Cherry said that one or two administrations of pethidine to Ms Copley by the DLS doctors might be regarded as reasonable. However he said a third administration within as many days would have to be questioned severely. He said the further administration of the drug would be excessive and unreasonable and, if it took place, it would be appropriate to question why the patient was not seeing her general practitioner and receiving medication for pain during daylight hours. Dr Cherry said there should have been some system in place whereby locum doctors who were to attend a patient in these circumstances could be properly informed of the drug taking history of the patient. Further administration of pethidine should not have taken place after the second occasion without reference to the patient’s general practitioner. According to the view of Dr Cherry, the administration of pethidine in these circumstances was not competent medical practice. He said that his present views did not differ from those he would have held in 1991. He said that if the general practitioners of the patients whose histories he reviewed had known of the continued use of morphine, then they also may have been at fault. The same applied to the Health Commission if it received similar information.
Ms Copley received 169 administrations of pethidine from DLS doctors between 14 October 1991 and 5 November 1992. Six of these were administered by the appellant from his doctor’s bag. His first administration was on 25 January 1992. DLS doctors had administered pethidine on 14 occasions in the seven days prior to this administration. When the appellant carried out his second administration on 1 February 1992, he was the third DLS doctor to administer the drug to Ms Copley on that day. It is true that on 5 September 1991 Ms Copley’s general practitioner wrote to DLS advising that if the patient contacted the locum service she would be in severe pain “enough to warrant narcotic analgesia”. However, the general practitioner wrote to DLS on 18 January 1992 in the following terms:
“It has recently come to my attention that this lady has been administered large quantities of pethidine IMI on an (sic) all too frequent occasions.
Could you please advise your doctors that I do not feel narcotic analgesia is always an appropriate method of treatment for back pain in Mrs Copley’s case, and that I would prefer other treatment modalities to be considered. She is currently undergoing a rehabilitation programme and as such, I would anticipate her analgesic requirements to decrease in the near future. Could you please inform me at your earliest convenience if she is requiring regular frequent narcotic analgesia (ie >3-4 per week), so that her management can be reconsidered.”
The appellant administered pethidine to Ms Copley on two occasions after the letter was sent, namely, on 25 January 1992 and 1 February 1992. He claimed that these administrations were authorised by the extract from the letter which I have quoted above.
In the course of her submissions Ms Vanstone QC, for the appellant, observed that Dr Cherry’s comments on the inappropriateness of the administrations of the drug to Ms Copley are generally the same as his views on the administrations to the other six patients. The details of drug administrations to all seven patients are set out in the table below. The table also records administrations of the drugs PMZ and diazepam. PMZ is primarily an antihistamine with sedative properties and diazepam is a tranquilliser. Neither is addictive.

Ms Copley Prior to Dr Coote’s first visit on 16/11/91				Between 16/11/91 and 3/11/92
DLS visits 24		DLS administrations Peth x 18 PMZ x 3	Dr Coote’s administrations Peth x 8 PMZ x 8 Diaz x 1			Other DLS administrations Peth x 171 PMZ x 264 Diaz x 76

Mr Gibbons Prior to Dr Coote’s first visit on 16/11/91				Between 16/11/91 and 3/11/92
DLS visits 24		DLS administrations Peth x 18 PMZ x 3	Dr Coote’s administrations Peth x 8 PMZ x 8 Diaz x 1			Other DLS administrations Peth x 171 PMZ x 264 Diaz x 76

Mr Greer Prior to Dr Coote’s first visit on 3/10/91				Between 3/10/91 and 8/3/92
DLS visits 27		DLS administrations Peth x 23	Dr Coote’s administrations Peth x 5			Other DLS administrations Peth x 122 PMZ x 97 Diaz x 29

Ms Ort Prior to Dr Coote’s first visit on 20/1/91			Between 20/1/91 and 17/12/92
DLS visits 4	DLS administrations Peth x 4	Dr Coote’s administrations Peth x 35 PMZ x 3 Diaz x 3		Other DLS administrations Peth x 437 PMZ x 156 Diaz x 118
Mr Schulze Prior to Dr Coote’s first visit on 1/4/91			Between 1/4/91 and 13/10/91
DLS visits nil	DLS administrations nil	Dr Coote’s administrations Peth x 11 PMZ x 2		Other DLS administrations Peth x 85 PMZ x 35 Diaz x 1

Mr Smith Prior to Dr Coote’s first visit on 25/7/91				Between 25/7/91 and 26/12/92
DLS visits 1		DLS administrations Peth x 1	Dr Coote’s administrations Peth x 26 PMZ x 6			Other DLS administrations Peth x 345 PMZ x 94 Diaz x 2

Mr Tebbutt Prior to Dr Coote’s first visit on 17/5/91				Between 17/5/91 and 14/3/92
DLS visits 5		DLS administrations Peth x 4 Morph x 1	Dr Coote’s administrations Peth x 6 Morph x 6 PMZ x 2			Other DLS administrations Peth x 93 Morph x 111 PMZ x 38 Diaz x 2

The tribunal found that the administrations of pethidine by the appellant to each of the seven patients were inappropriate and excessive. The tribunal also found that, in relation to each patient, the appellant should have made personal contact with the patient’s general practitioner and that he failed with others to put in place and maintain procedures for ensuring that communications from general practitioners were referred by clerical staff to a medical practitioner member of DLS.
Ms Vanstone conceded that, in the absence of any particular instructions from a general practitioner, it was open to the tribunal to find on the evidence before it that the administration of pethidine in these circumstances was inappropriate. However she argued that, in a number of instances, there was general practitioner authorisation and, once these cases were removed from consideration, the conduct which was left did not justify the tribunal in holding that the inappropriate administrations and the conduct alleged against the appellant amounted to unprofessional conduct. Ms Vanstone said that the tribunal failed to recognise the difference between the two types of cases. It becomes necessary, therefore, to consider the administrations to the various patients in more detail and to comment on the arguments raised by Ms Vanstone with respect to them. I have already discussed the evidence in relation to Ms Copley.

Tebbutt

It was acknowledged by Ms Vanstone that there were some inappropriate administrations of pethidine by the appellant to Mr Tebbutt. The first recorded visit by a doctor from DLS was in April 1991. After Mr Tebbutt had received frequent administrations of pethidine from DLS doctors, his general practitioner, Dr Searcy, wrote to DLS on 7 August 1991 in the following terms:
“Dear Doctors Bartlett, Sinclair, Coote, Shearman, Gallagher, and colleagues
Dr. Barbara Clapp and myself wish to advise in writing that we have not authorised the use of narcotics for this gentleman’s condition in the past nor plan to authorise their use in the future.
Should you and your colleagues wish to continue prescribing narcotics it should be purely based on your assessment at the time and we suggest that you maintain your records clearly for medico/legal consideration.
If Mr Tebbutt is in a position to invite a medical practitioner to supervise his narcotic requirements we may be able to come to some different arrangement.
I leave the matter in your capable hands.”
It is appropriate for reasons which will become evident later to note that Dr Searcy’s letter was condensed by DLS staff to the following entry in the patient’s diary:
“Letter from Dr Searcy explaining that his surgery is not prepared to provide Steven with narcs.”
The appellant administered pethidine or morphine to this patient on seven further occasions.   The drugs were provided from the doctor’s bag used by the appellant. The tribunal set out the dates of these administrations together with the number of pethidine and morphine administrations by other DLS doctors during the seven days preceding each administration.   The dates together with the previous instances in parenthesis are:
“11 August 1991        (7)
3 October 1991      (7)
10 October 1991       (5)
13 October 1991       (4)
20 October 1991       (6)
7 November 1991      (6)
14 March 1992          (3).”

I disagree with Ms Vanstone’s contention that the tribunal mistook the effect of Dr Searcy’s letter when holding that the letter expressed strong disapproval of the DLS administrations. The letter begins by denying that Dr Searcy and his partner authorised the use of narcotics in the past and it is of significance that it states that the doctor’s comments are being put “in writing”. Although not suggesting that administration of narcotics would never be appropriate for this patient, the letter adds a word of caution as to the circumstances which would justify such a course and the desirability of recording such administrations clearly. The politeness of the letter should not detract from the clear message which it carried. The entry in the patient’s diary is also an apt example to illustrate the tribunal’s concern that considerable care was needed to ensure that summaries of instructions from general practitioners which were put in the patient’s diary reflected those instructions accurately. This ambiguous summary failed to reflect the import of the instructions given in the letter.

Greer

In the case of Mr Greer the appellant was involved in five administrations of pethidine in October 1991. The drugs were obtained from the doctor’s bag. They were provided at a time when other doctors from DLS were administering the same drug to the patient and on three of the occasions another doctor from DLS administered pethidine to the patient on the same day. On the fourth occasion doctors from DLS had administered pethidine on three occasions on each of the preceding two days.
On 18 December 1991 the patient’s general practitioner wrote to DLS as follows:
“We have spoken to your receptionist’s (sic) on several occasions regarding the administering of Pethidine to a Mr B Greer of 29 Wakefield Ave, Morphett Vale.
Dr John Hurley request (sic) that this drug not be given to Mr Greer. This gentleman has only on occasions (sic) to visit our practice once a month. Yet the Doctors Locum Service seems to frequent his home every second day, sometimes even twice a day.
We, again, ask that Mr B Greer not be given Pethidine. Any queries please do not hesitate to contact Dr J.P. Hurley.”
The appellant did not administer pethidine to the patient after this, but other doctors from DLS continued to administer the drug to the patient.

Gibbons

In the case of Mr Gibbons, there were five administrations of pethidine by the appellant without authorisation from the patient’s general practitioner. They were given at a time when other members of DLS were administering pethidine to the same patient. For example the first two administrations in which the appellant was involved occurred on 16 and 17 November 1991. The patient had received three administrations of pethidine from DLS doctors on 14 November and two on 15 November. Three administrations of the drug by DLS doctors took place on 18 November 1991.

Ort

DLS provided 437 administrations of pethidine to Ms Ort between 20 January 1991 and 17 December 1992. The appellant carried out 35 administrations, a number of them being on days when there were two administrations of the drug by DLS doctors. The patient’s general practitioner also administered pethidine to this patient from time to time.
It was argued that the administrations were approved by the general practitioner in a note addressed to DLS which stated:
“If parenteral analgesia is occasionally required, I suggest a dose of 100 mgm Pethidine is required, perhaps with Stemetil 12.5 mgm, to provide adequate effect.”

I agree with the view of the tribunal that this note cannot be used to justify injections of pethidine to the extent administered by DLS doctors.
Ms Vanstone also relied on a Health Commission authority which authorised pethidine to be administered to this patient. Ms Vanstone criticised the tribunal’s comment that the authority was subject to a pain clinic report. I acknowledge that there is some ambiguity in so describing it. The condition required a report from the Flinders Medical Centre Pain Management Unit after the first three months of administration of the drug. The authority was dated 4 June 1991. However nothing turns on this aspect of the matter.
I agree with the view of the tribunal that the appellant should have contacted this patient’s general practitioner to ascertain whether a management plan had been provided for her. Dr Cherry’s evidence underlined the importance of adopting this course.

Schulze

Although the tribunal found that the appellant’s administrations of pethidine to Mr Schulz were inappropriate and excessive, I cannot accept the argument that it failed to appreciate that this patient’s general practitioner authorised the administrations. The tribunal expressly referred to this fact and treated the case on the basis that there had been such approval.

Smith

The general practitioner who was treating this patient at the relevant time was called by the appellant at the trial. His evidence was vague in a number of respects, but he agreed that he could have sent a letter to DLS which authorised administrations of pethidine. The letter was not produced, but the tribunal was prepared to proceed on the assumption that it was sent.
Mr Smith was given administrations of pethidine on an almost daily basis by doctors from DLS over a period of some months. Furthermore there was a total of 345 administrations from 25 July 1991 to 26 June 1992. The general practitioner thought that he would have written the letter of authorisation in 1991. In cross-examination he said:
“Again, I can only guess, but the thing that I would likely have written down would be his need for, or my acceptance of his need for, a nightly Pethidine injection. I can only guess what would have been in it, because I just don’t recall the contents of it.”
The general practitioner said that he was aware of the possibility of dependence and he was asked whether he spoke to any colleagues about the matter. He replied:
“I suppose this could be one difficulty I have. Being a sole practitioner, it is noted that we are somewhat isolated from that type of input, and I think that may be a contributing factor here, that if anybody in discussion had suggested it, it might have helped me at the time, but I accept that that is a component of the difficulty that I had. It wasn’t part of the training, and unless one has discourse socially that might stimulate an alternative way of thinking - it didn’t occur to me as a spontaneous thing.”
The general practitioner also arranged for a Health Commission authority to cover the level of administrations being provided to this patient. It is relevant to note that the general practitioner received two letters from specialists who were treating Mr Smith which contained comments on the patient’s level of drug taking. On 6 August 1991 Mr Girgis, a surgeon, wrote to the general practitioner:
“His post-operative recovery was good except that he felt some pain down the left thigh. He tends to ask for narcotic injections for pain but it is controlled by oral analgesia and I asked him not to request narcotic injections. If it reaches that stage I would prefer re-admitting him to assess the reasons for his pain as I feel there may be a tendency to relying on these injections.”
Mr Hillier, another surgeon who examined Mr Smith, also wrote to the general practitioner on 17 December 1991 in the following terms:
“Mr Smith post-operatively is in fact doing well. However, he is demanding Pethidine injections each evening, calling out your locums, and he does not appreciate in any way that this is in fact an ingrained habit related to all the longterm (sic) treatment that he has had.
In fact, with the spinal fusion developing well, and all internal fixation irritation of the nerve root being extracted, he really should be able to manage a lot better and I feel that it is going to be essential to withdraw the narcotic medication totally from him.”
In my view the tribunal was justified in finding that the administrations of pethidine to this patient were inappropriate and excessive and that it was necessary for a locum doctor involved in these regular administrations to discuss the patient’s management with the general practitioner on an ongoing basis. The general practitioner might well have been at fault in not responding to the concerns expressed by the specialists and in failing to take the matter up himself with DLS by discussing a management plan. The authorisation by the general practitioner in this instance is a factor which is of some relevance to the appellant’s conduct. However I do not think that the tribunal erred in its assessment of the appellant’s conduct in relation to this patient.
Ms Vanstone argued that the tribunal wrongly found that the administration of pethidine to Mr Smith by other DLS doctors exceeded the terms of the general practitioner’s instructions. However I think the tribunal’s comment (para 98) should be read as simply expressing the view that there was a high level of administrations to the patient. It does not infer that the general practitioner’s instructions were exceeded.
By way of summary, therefore, the tribunal accepted the expert evidence led by the Medical Board to the effect that in the case of each of the seven patients, the administration of pethidine was inappropriate and excessive when considered against the background of administrations to each of these patients by other DLS doctors. In each case the level of administration was far in excess of that considered as being appropriate medical practice by the witnesses whose evidence was accepted by the tribunal. The tribunal also stressed that if the appellant did not know of the extent of other administrations by DLS doctors, he should have known. In my view each of these conclusions was justified by the evidence. No valid reason has been advanced for this Court to interfere with the findings of the specialists tribunal in these respects.
I acknowledge that it is a matter of some relevance to the ultimate conclusions of the tribunal that general practitioners in some cases appear to have authorised administrations of pethidine. However it does not follow that the administrations in those cases were appropriate and within proper bounds. In my view it was appropriate for the tribunal to reach the conclusion that administrations which were carried out without the knowledge of the patient’s general practitioners gave rise to even greater concerns.
After making these findings the tribunal was then required to consider the other aspects of the appellant’s conduct which, according to the case presented by the Medical Board, were elements of the unprofessional conduct which was alleged.
The finding by the tribunal that there was a deficiency in DLS procedures for transmitting communications from general practitioners to DLS doctors was challenged by the appellant. The tribunal’s findings are in the following passage of its reasons:
“DLS procedures were deficient to the extent that communications from GPs, whether by letter or telephone, were often received and interpreted by DLS clerical staff without reference to Dr Schloeffel or any other DLS doctor. Then the communication was condensed to an entry in the patient’s diary or in the DLS computer, ultimately to be transmitted if the need arose to a DLS doctor by message on a pager. The risk which is inherent in these procedures is that a communication from a GP might be misunderstood or misinterpreted or ignored.
Two examples at least of a misunderstanding or misinterpretation surfaced during the course of the hearing. We refer to the diary entry for Ort against the date 7 June 1991 (part of C56) and the diary entry for Tebbutt against the date 7 August 1991 (part of C74).
Although the staff member who dealt with most communications from GPs was an enrolled nurse, and we make no criticism of her, we consider that all communications of a medical nature in relation to these patients should have been referred by clerical staff for assessment and appropriate action by a medical practitioner member of DLS.”
In my view the evidence supports these findings. The visits to the seven patients were not isolated emergency visits. Some of the patients were being seen almost every night by DLS doctors and often patients were visited more than once on the same day or night by different DLS doctors. Pethidine, a drug of dependence, was being administered to the patients on a regular basis along with other drugs. The general practitioners had the ongoing care of the patients. It was essential that their instructions be communicated accurately to the DLS doctors.
There is always a risk that summaries of documents can be ambiguous and misleading. But the problem is all the more acute if lay persons are providing summaries of medical instructions. It was open to the tribunal to find that an enrolled nurse should not have been entrusted with the responsibility of conveying the relevant information to the doctors in summary form.
Ms Vanstone criticised the use by the tribunal of two examples of inadequate summaries. I have already indicated that I agree with the tribunal’s view that Dr Searcy’s letter was not appropriately summarised for passing on to the DLS doctors. The other example given by the tribunal is the summary of the letter from the Health Commission which is in the patient diary entry of 7 June 1991 for Ms Ort. It states:
“Letter from HC stating that only Dr Chittleborough is to supply narcs to Carol: therefore own supply only.”
The letter was far more comprehensive than the summary given in the patient diary. I agree with the tribunal’s view that the attempted summary was an example of the difficulties associated with communicating information under this system.
Criticism was also made of the tribunal’s finding that the appellant should be held responsible for these deficiencies and procedures. The tribunal had this to say on the matter:
“As one of five doctors responsible for the overall direction and management of DLS, Dr Coote shared with his four colleagues a responsibility for putting in place and maintaining procedures for ensuring that communications from GPs were appropriately assessed and passed on to DLS doctors.
It is true that Dr Coote with his colleagues was a director of Medloc Pty Ltd. But, for the purposes of the complaint against him, and irrespective of his statutory and other responsibilities as a director, his responsibility for DLS procedures was carried and shared by him at all relevant times as a medical practitioner.”
It was argued on behalf of the appellant that these findings overlooked the fact that neither DLS nor Medloc Pty Ltd was a medical practice company under s 37 of the Medical Practitioners Act 1983 and that neither was practising medicine. It was also pointed out that the locum doctors were practising medicine in their own right as independent contractors.
In my view these arguments overlook the reality of the situation. The appellant was one of a small group of doctors who set up the locum service. The directors of the company, including the appellant, decided the way in which the service was to operate and they appointed the administrative staff. The appellant said in evidence that from time to time, although not on a regular basis, he was involved in the induction of staff.
It is apparent, therefore, that the appellant worked as a medical practitioner in accordance with a system which he helped to create and maintain. He was part of an organisation which encouraged other doctors to come and work under the same system. If there were inadequacies in the system then the appellant must share the responsibility for those inadequacies to the extent that they are relevant to professional misconduct. It is no answer to say, as the appellant’s counsel argued, that the appellant met his responsibilities by employing suitably qualified staff in sufficient numbers and resourcing them adequately.
The next question is whether the tribunal was justified in finding that the proved facts disclosed unprofessional conduct on the appellant’s part. Section 5 of the Medical Practitioners Act 1983 provides that “unprofessional conduct” includes:
“(a).. improper or unethical conduct in relation to the practice of medicine; and
(b)incompetence or negligence in relation to the practice of medicine; and
(c).... a contravention of or failure to comply with -
(i) a provision of this Act; or
(ii)... a condition imposed by or under this Act in relation to the registration of a medical practitioner under this Act.”
Under previous legislation, conduct which could lead to cancellation or suspension of registration was described as “infamous conduct in any professional respect” and, after an amendment to the legislation in 1971, “serious misconduct in any professional respect”. The present legislation goes further in giving examples of unprofessional conduct, but the test of unprofessional conduct which has been used under previous legislation is of some assistance particularly where, as here, the focus of the tribunal was on whether the conduct was “improper in relation to the practice of medicine”.
In Versteegh v The Nurses Board of South Australia (1992) 60 SASR 128 Mullighan J held that the test applied in Re R (A Practitioner) [1927] SASR 58 was relevant also to a consideration of an allegation of unprofessional conduct under the Nurses Act, 1984. That Act sets out categories of unprofessional conduct in terms which are almost identical to s 5 of the Medical Practitioners Act. In Re R this Court said (60):
“In our view ‘unprofessional conduct’ is not necessarily limited to conduct which is ‘disgraceful or dishonourable’, in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed and approved by members of the profession of good repute and competency.”
This test was applied in Re Ward [1953] SASR 308.
At least until the passing of the present legislation relating to medical practice in New South Wales, a similar test was used in that State. It was held that unprofessional conduct comprised departures from accepted rules, standards or practices of such a nature as would reasonably incur the strong reprobation of doctors of good repute and competence. (Quidwai v Brown [1984] 1 NSWLR 100 at 105; Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 35).
These tests are by no means exhaustive but they are appropriate as guides in the present case.
Tested against these considerations, I am of the view that the tribunal was correct in finding that the appellant engaged in improper conduct in relation to the practice of medicine. The administrations of pethidine by doctors from DLS were far in excess of that considered appropriate by the expert witnesses relied upon by the tribunal. The drug was of a type which could lead to dependence, a serious consequence for patients. There was a clear duty on the part of the doctors who were prescribing the drug to particular patients on an ongoing basis to consider whether it was in the best interests of those patients to provide the administrations. Such consideration could not take place without ascertaining the extent to which other doctors were administering the drug or other drugs to a particular patient. Nor, according to the evidence, should such administrations have taken place without appropriate consultation with the general practitioners who were responsible in the first place for devising patient management plans.
It is true that in some, but not all instances, general practitioners appear to have authorised or condoned the administrations. However it must follow from the evidence relied upon by the tribunal that such authorisation or condonation was quite inappropriate. It is also noteworthy that in those cases the general practitioners and DLS doctors did not engage in any appropriate discussion about the wisdom of an ongoing regime of pethidine administration.
Some comment should also be made on the role of the Health Commission in this matter. Mr Anderson, an officer of the Commission, was called to give evidence. He is a pharmacist and one of his duties was to supervise the issuing of authorities under s 33 of the Controlled Substances Act, 1984 which authorised medical practitioners to prescribe or supply drugs of dependence to named patients. The authorities permitted prescription or supply subject to certain conditions. They were required if there was to be a continuous supply for a period exceeding two months. Authorities were issued in respect of all patients in this matter except Mr Greer.
The following table indicates when the authorities were first issued:

Patient	First Issue
Copley	13/2/92
Gibbons	11/12/91
Ort	4/6/91
Smith	2/12/92
Schulze	7/8/93
Tebbutt	12/5/92

It was not suggested that there was a Health Commission authority to administer pethidine which covered all administrations by DLS doctors to the patients referred to in the above schedule. However, many of the administrations took place at a time when the particular patients were covered by the authorities and, in addition, returns of pethidine administrations were sent by DLS to the Health Commission.
Dr Anderson said that he had only one clerical assistant and he was responsible for monitoring returns for the whole of the State. He said that his major concern was the problem of drug dependent persons who went from one doctor to another to obtain drugs of dependence. In retrospect, it would appear that there was insufficient monitoring of the administrations to patients such as those concerned in this case. Dr Cherry criticised the lack of monitoring by the Health Commission. But, in any event, the lack of appropriate monitoring cannot excuse unacceptable and excessive administrations of a drug of dependence.
It is apparent from the evidence led by the Medical Board that these drug administrations constituted a substantial departure from acceptable standards at the time when the administrations took place. Apart from the evidence of Doctors Cherry and Williamson it is relevant to have regard to the views of Dr Joseph a general practitioner called by the Medical Board. He is the immediate past president of the Royal Australian College of General Practitioners. Dr Joseph was highly critical of the extent of the administrations of pethidine by DLS doctors to these patients. He said his views reflected those of the medical profession in the early 1990s. He said that proper communication between doctors within DLS was essential if drugs of dependence were being administered by more than one doctor in DLS to the same patient.
In my view the finding of unprofessional conduct made against the appellant must be upheld.
There remains the question of penalty. The serious nature of the appellant’s conduct was summarised by the tribunal and I have referred to some of these features already. The tribunal observed that each of the patients was dependent, or at risk of becoming dependent, on pethidine. The failure to take account of this consideration and address it in an adequate and professional manner was a serious departure from what is to be expected of a medical practitioner.
In my view the suspension of the appellant from practice for a period of five months was appropriate, particularly bearing in mind the need to bring to the attention of other practitioners the importance of observing recognised standards which have as their aim the welfare of patients. It cannot be regarded as excessive.

I would dismiss the appeal.
LANDER J. I agree for the reasons given by Duggan J that the appeal should be dismissed.

[1999] SASC 394

23 September 1999